[Cite as State ex rel. Bunting v. Styer, 2015-Ohio-3662.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL : JUDGES:
PAUL EDWARD BUNTING : Hon. William B. Hoffman, P.J.
: Hon. Patricia A. Delaney, J.
Relator : Hon. Craig R. Baldwin, J.
:
-vs- :
:
TUSCARAWAS COUNTY : Case No. 2014 AP 12 0054
PROSECUTOR RYAN STYER :
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT: September 8, 2015
APPEARANCES:
For Relator For Respondent
PAUL EDWARD BUNTING, Pro Se ROBERT R. STEPHENSON II
PID No. A395279 Assistant Prosecuting Attorney
In care of Belmont Correctional Institution Tuscarawas County, Ohio
68518 Bannock Road, S.R. 331 125 East High Ave.
PO Box 540 New Philadelphia, OH 44663
St. Clairsville, OH 43950-0540
Tuscarawas County, Case No. 2014 AP 12 0054 2
Baldwin, J.
{¶1} Relator, Paul Edward Bunting, has filed a Petition for Writ of Mandamus
requesting this Court issue a writ ordering Respondent, the Tuscarawas County
Prosecutor, to present the results of his investigation to the municipal court.
{¶2} Respondent has filed a motion to dismiss for failure to state a claim upon
which relief may be granted. Relator in turn has moved the Court to strike the motion as
untimely which the Court grants. Nonetheless, we have authority to sua sponte
consider dismissal of the complaint for failure to state a claim upon which relief may be
granted.
{¶3} “Sua sponte dismissal of a complaint for failure to state a claim upon
which relief can be granted is appropriate if the complaint is frivolous or the claimant
obviously cannot prevail on the facts alleged in the complaint. State ex rel. Bruggeman
v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287.” State ex rel.
Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667.
FACTS
{¶4} In August 2000, Relator began serving an 18 year prison sentence.
According to Relator, he gave his mother a power of attorney to take care of his affairs
while Relator was in prison. Pursuant to the power of attorney, Relator’s mother moved
Relator’s van and motorcycle to be stored at a farm of a family friend.
{¶5} After Relator’s mother died in 2008, Relator claims the family friend
keeping the motorcycle stopped corresponding with Relator. Relator then contacted the
Sheriff’s office to pursue charges of theft against the family friend as well as against
Relator’s daughter. Relator initially accused both the farm owner and Relator’s
Tuscarawas County, Case No. 2014 AP 12 0054 3
daughter of forging the titles to Relator’s van and motorcycle. He alleged the two forged
the titles and sold the vehicles. Eventually, Relator filed an affidavit pursuant to R.C.
2935.09 alleging a crime had been committed.
{¶6} On July 30, 2013, Respondent notified Relator that a referral had been
made by the New Philadelphia Municipal Court pursuant to R.C. 2935.10. Further,
Respondent indicated he would make a decision as to whether charges would be filed
after reviewing the report from the Tuscarawas County Sheriff’s Office. On August 21,
2013, the Sheriff’s report was issued.
{¶7} Attached to Relator’s complaint is a copy of the Investigation Narrative
conducted by the Tuscarawas County Sheriff’s Office. The investigation revealed the
van was located at the Sheriff’s impound lot. Relator had been notified of the need to
make arrangements for the van from the farm, but when that did not occur, the van was
towed to the impound lot. Apparently because the van had been located, Relator’s
instant complaint deals only with the alleged theft of the motorcycle.
{¶8} The two suspects told the same story relative to the motorcycle. They
indicated the motorcycle frame and parts were stored in a barn which had been
destroyed by a fire. The sheriff’s deputy confirmed there was a barn fire through CAD
records.
{¶9} Upon completion of his investigation, the deputy sheriff concluded, “I have
not found any evidence of a theft or forgery offense against either suspect…”
{¶10} Respondent refused to pursue charges against the alleged suspects.
Tuscarawas County, Case No. 2014 AP 12 0054 4
LAW AND ANALYSIS
{¶11} Revised Code 2935.09 allows a citizen to file an affidavit if the citizen has
knowledge of facts indicating a crime has been committed. Thereafter, a court may
make a referral pursuant to R.C. 2935.10 to the prosecutor’s office for investigation if
the affidavit alleges a felony has been committed.
{¶12} The Supreme Court has explained, “R.C. 2935.09 does not mandate
prosecution of all offenses charged by affidavit. Although R.C. 2935.09 provides that a
“private citizen having knowledge of the facts” shall file with a judge, clerk of court, or
magistrate an affidavit charging an offense committed in order to cause the arrest or
prosecution of a person charged, it must be read in pari materia with R.C. 2935.10,
which prescribes the subsequent procedure to be followed. State ex rel. Strothers v.
Turner (1997), 79 Ohio St.3d 272, 273, 680 N.E.2d 1238, 1239. R.C. 2935.10 does not
place any duty upon city prosecutors to prosecute misdemeanors charged by affidavit
filed under R.C. 2935.09.” State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d
174, 175, 1998-Ohio-128, 699 N.E.2d 60, 61 (1998)
{¶13} “A prosecuting attorney will not be compelled to prosecute a complaint
except when the failure to prosecute constitutes an abuse of discretion. State ex rel.
Squire v. Taft (1994), 69 Ohio St.3d 365, 368, 632 N.E.2d 883, 885; State ex rel. Murr v.
Meyer (1987), 34 Ohio St.3d 46, 47, 516 N.E.2d 234, 235. Therefore, the decision
whether to prosecute is discretionary, and not generally subject to judicial review. Ohio
Assn. of Pub. School Emp., Chapter 643, AFSCME, AFL–CIO v. Dayton City School
Dist. Bd. of Edn. (1991), 59 Ohio St.3d 159, 160, 572 N.E.2d 80, 82.” State ex rel.
Master v. Cleveland, 75 Ohio St.3d 23, 27, 1996-Ohio-228, 661 N.E.2d 180, 184 (1996).
Tuscarawas County, Case No. 2014 AP 12 0054 5
{¶14} R.C. 2935.10 provides in relevant part, “(A) Upon the filing of an affidavit
or complaint as provided by section 2935.09 of the Revised Code, if it charges the
commission of a felony, such judge, clerk, or magistrate, unless he has reason to
believe that it was not filed in good faith, or the claim is not meritorious, shall forthwith
issue a warrant for the arrest of the person charged in the affidavit, and directed to a
peace officer; otherwise he shall forthwith refer the matter to the prosecuting attorney or
other attorney charged by law with prosecution for investigation prior to the issuance of
warrant.”
{¶15} In this case, the municipal court made the required referral to the
prosecuting attorney who, through the sheriff’s office, conducted an investigation. As
the result of the investigation, Respondent decided no criminal charges were warranted.
{¶16} While the exact relief sought by Relator is difficult to comprehend by
reading the complaint, it appears Relator wants this Court to order Respondent to
present his findings to the municipal court. Relator cites no authority for the proposition
that Respondent be required to present his findings to the referring court for
examination.
{¶17} A prosecutor is merely required to conduct an investigation and will only
be required to pursue a complaint where the failure to do so amounts to an abuse of
discretion. See R.C. 2935.10(A) and State ex rel. Squire v. Taft (1994), 69 Ohio St.3d
365, 368, 632 N.E.2d 883, 885; State ex rel. Murr v. Meyer (1987), 34 Ohio St.3d 46,
47, 516 N.E.2d 234, 235.
Tuscarawas County, Case No. 2014 AP 12 0054 6
{¶18} Relator has not presented any evidence beyond mere speculation that
Respondent abused his discretion by failing to pursue criminal charges. The result of
Respondent’s investigation failed to support the filing of a criminal complaint because
no evidence of theft or forgery was discovered. For these reasons, we find the cause
should be dismissed for failure to state a claim upon which relief may be granted.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.