In re Criminal Charges Against Groves

[Cite as In re Criminal Charges Against Groves, 2018-Ohio-1406.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

IN RE: CRIMINAL CHARGES : Case No. 17CA9
AGAINST KEVIN T. GROVES :
AND C. DAVID WARREN, : DECISION AND JUDGMENT
PURSUANT TO ORC 2935.09 AND : ENTRY
2935.10 : Released: 04/05/18

APPEARANCES:

Melanie A. Ogle, Rockbridge, Ohio, Pro Se Appellant.

Michael DeWine, Ohio Attorney General, and Christopher L. Kinsler, Assistant
Ohio Attorney General, Columbus, Ohio, for Appellee.

McFarland, J.

{¶1} Melanie A. Ogle appeals the trial court’s June 19, 2017 Entry

Dismissing Case and June 27, 2017 Entry which overruled her Motion for

Appointment of Uninterested Special Prosecutor. Appellant asserts eight

assignments of error which variously challenge the trial judge’s failure to recuse

himself in this case and which also challenge the judge’s failure to issue a warrant

for the arrest of Kevin T. Groves. Having reviewed the record, we find no merit to

Appellant’s assignments of error. Accordingly, we overrule the assignments of

error and affirm the judgment of the trial court.
Hocking App. No. 17CA9 2

FACTS

{¶2} In 2011, Appellant was convicted of the assault of a peace officer by a

jury of her peers in the Hocking County Court of Common Pleas. Her conviction

was affirmed.1 On May 11, 2012, Appellant entered an Alford plea to a charge of

criminal damaging, a second-degree misdemeanor. This conviction was also

affirmed by this court in the previously-referenced appellate case. Despite

conviction by a jury trial and her own plea, in the years since, Appellant has

vehemently asserted her innocence. She has filed numerous actions and appeals in

which she reiterates her actual innocence and asserts allegations that the law

enforcement officials and local government officials in Hocking County have

conspired against her to bring about wrongful convictions.

{¶3} In October 2015, Appellant filed an affidavit pursuant to Revised Code

2935.09. The affidavit specifically alleged that Kevin Groves, a former Hocking

County sheriff's deputy, and C. David Warren, a Hocking County special

prosecutor, had engaged in criminal conduct and that the State was required to file

felony charges against them. In an October 27, 2015 entry, the trial court held that:

(1) the claims against the deputy were barred by res judicata; and (2) the claims

against the prosecutor were barred by sovereign immunity. The trial court denied

Appellant a probable cause hearing and dismissed the matter.

1
See State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19, 2013-Ohio-
3420.
Hocking App. No. 17CA9 3

{¶4} Appellant filed a second affidavit in October 2015, requesting the trial

judge recuse himself. On October 30, 2015, the trial court filed a second entry,

setting forth in more detail the basis for the court's October 27, 2015 decision. In

In re Groves, 2016-Ohio-4793, 68 N.E.3d 122, (4th Dist.) at ¶10, this court held

that the trial court should have referred the matter to the prosecuting attorney for

further investigation. On June 27, 2016, we reversed the judgment of the trial

court and remanded for proceedings consistent with the opinion.

{¶5} On July 11, 2016, the trial court referred the matter to the Hocking

County Prosecutor “for investigation prior to the issuance of any warrant for Kevin

T. Groves and C. David Warren.” On July 28, 2016, Appellee, the State of Ohio,

filed a motion to appoint a Special Prosecutor. On July 29, 2016, the trial court

granted the motion. In August 2016, a Special Prosecutor from the Ohio Attorney

General’s Office filed a motion to unseal a compact disc containing audio

recordings that were attached to Appellant’s Affidavit filed in October 2015. The

motion set forth that the Special Prosecutor needed to review the recordings in

order to determine whether the requested charges against Groves and Warren were

appropriate. The trial court subsequently granted the Special Prosecutor’s motion

to unseal.

{¶6} On June 19, 2017, the Special Prosecutor filed a motion to dismiss

Appellant’s Affidavit, having reviewed the file and the relevant evidence and
Hocking App. No. 17CA9 4

finding no grounds to proceed with the criminal charges alleged in the Affidavit.

That same day, the trial court filed an Entry Dismissing Case.

{¶7} On June 23, 2017, Appellant filed a Motion for Appointment of

Uninterested Special Prosecutor, pointing out that the Ohio Attorney General’s

Office also represented ODRC director Gary Mohr. Appellant’s motion explained

that Director Mohr opposed a petition she had filed for habeas relief, pending in

United States District Court, Southern District of Ohio. Given that both the

Special Prosecutor and the attorney representing Mohr were both employees of the

Ohio Attorney General’s Office, Appellant argued that the Special Prosecutor

appointed to review the criminal charges could not have been disinterested. On

June 27, 2017, the trial court overruled Appellant’s motion. This timely appeal of

both the Entry Dismissing Case and the Entry which overruled her motion

followed.

ASSIGNMENTS OF ERROR

“I. JUDGE JOHN T. WALLACE FAILED TO RECUSE HIMSELF
FOR A PREJUDICIAL CONFLICT OF INTEREST IN A CASE
INVOLVING MELANIE A. OGLE SINCE HE PERSONALLY
INITIATED AN INVESTIGATION WITH THE HOCKING
COUNTY SHERIFF AGAINST MELANIE A. OGLE FALSELY
ACCUSING HER OF ENGAGING IN THE UNAUTHORIED
PRACTICE OF LAW, AND ADDITIONALLY, JUDGE JOHN T.
WALLACE PERSONALLY FILED A COMPLAINT WITH THE
OHIO DISCIPLINARY COUNSEL AGAINST MELANIE A. OGLE
FALSELY ACCUSING HER OF ENGAGING IN THE
UNAUTHORIZED PRACTICE OF LAW.
Hocking App. No. 17CA9 5

II. THE TRIAL COURT ERRED IN FAILING TO ISSUE A
WARRANT FOR ARREST OF KEVIN T. GROVES UPON THE
FILING OF MELANIE A. OGLE’S AFFIDAVIT AS PROVIDED
BY ORC (Sic.) 2935.09, CHARGING THE COMMISSION OF
FELONY ACTS WITH ATTACHED EVIDENCE OF THE SAME,
AND WHICH PROVIDED SUFFICIENT FACTS AND EVIDENCE
TO ESTABLISH GOOD FAITH AND MERIT.

III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR APPOINTMENT OF AN UNINTERESTED
SPECIAL PROSECUTOR, AND FAILING TO APPOINT A
DISINTERESTED SPECIAL PROSECUTOR, IF IT HAD REASON
TO BELIEVE THAT MELANIE A. OGLE’S AFFIDAVIT WAS
NOT FILED IN GOOD FAITH, OR THE CLAIM IS NOT
MERITORIOUS.

IV. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
AFFIDAVIT UPON MOTION OF A NON-DISINTERESTED
SPECIAL PROSECUTOR.

V. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
AFFIDAVIT WITHOUT ANY RECORD OF ANY ACTUAL
INVESTIGATION OF THE FACTS PRESENTED IN HER
AFFIDAVIT AND THE AUTHENTICITY OF MELANIE A.
OGLE’S EVIDENCE.

VI. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
AFFIDAVIT WITHOUT ANY REVIEW OF EVIDENCE AND
TESTIMONY PRESENTED DURING A GRAND JURY SESSION
REFERENCED IN APPELLANT’S AFFIDAVIT.

VII. THE TRIAL COURT ERRED IN DISMISSING
APPELLANT’S AFFIDAVIT PARTICULARLY AS IT
PERTAINED TO KEVIN T. GROVES, ON JUNE 19, 2017,
APPROXIMATELY 11 DAYS AFTER ASSISTANT ATTORNEY
GENERAL CHRISTOPHER L. KINSLER ON BEHALF OF THE
STATE, ENTERED INTO A PLEA BARGAIN WITH KEVIN TO
GROVES IN CASE NO. 13CR0249, REPRESENTED BY
TIMOTHY P. GLEESON, WHO WAS THE SAME SPECIAL
PROSECUTOR SELECTED BY FORMER HOCKING COUNTY
Hocking App. No. 17CA9 6

PROSECUTING ATTORNEY FETHEROLF TO RE-PROSECUTE
MELANIE A. OGLE IN CASE NO. 09CRP0125, WHEREIN
KEVIN T. GROVES WAS CALLED AS A WITNESS FOR THE
STATE AGAINST MELANIE A. OGLE.

VIII. THE TRIAL COURT ERRED IN DISMISSING
APPELLANT’S AFFIDAVIT WITHOUT ANY SPECIFICITY
GIVEN IN REGARD TO A CONCLUSORY ASSERTION IN A
MOITON TO DIMISS BY THE STATE, THAT IT ‘CAN FIND NO
GROUNDS TO PROCEED WITH THE CHARGES ALLEGED IN
THE AFFIDAVIT’ UPON WHICH THE TRIAL COURT BASED
ITS DISMISSAL.”

LEGAL ANALYSIS

{¶8} The State’s motion to dismiss Appellant’s Affidavit does not specify

the Civil Rule under which dismissal was sought. Under this factual and procedural

background, we construe the motion as a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief can be granted. See State ex rel. Rice v.

Wolever, 2nd Dist. Greene No. 15CA0031, 2016-Ohio-320, ¶ 4. “A motion to

dismiss for failure to state a claim upon which relief can be granted is procedural

and tests the sufficiency of the complaint.” State ex rel. Brown v. Nusbaum, 2017-

Ohio-797, ¶ 6, quoting State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65

Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A court may not grant a motion to

dismiss for failure to state a claim upon which relief may be granted unless it

appears “beyond doubt from the complaint that the plaintiff can prove no set of

facts entitling him to recovery.” O'Brien v. Univ. Community Tenants Union, Inc.,

42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus; see also Taylor v. London, 88
Hocking App. No. 17CA9 7

Ohio St.3d 137, 139, 723 N.E.2d 1089 (2000). Furthermore, when considering a

Civ.R. 12(B)(6) motion the trial court must review only the complaint, accepting

all factual allegations as true and making every reasonable inference in favor of the

nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532

N.E.2d 753 (1988); Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 617, 662

N.E.2d 1098 (10th Dist.1995); see also JNS Ents., Inc. v. Sturgell, 4th Dist. Ross

No. 05CA2814, 2005–Ohio–3200, ¶ 8. The court, however, need not presume the

truth of legal conclusions that are unsupported by factual allegations. McGlone v.

Grimshaw, 86 Ohio App.3d 279, 285, 620 N.E.2d 935 (4th Dist.1993), citing

Mitchell at 193, 532 N.E.2d 753.

LEGAL ANALYSIS

{¶9} For ease of analysis, we consider Appellant’s second, fourth, fifth,

sixth, seventh, and eighth assignments of error jointly. In the first assignment of

error, Appellant generally challenges the trial court’s action in failing to issue a

warrant for Groves. In the other assignments of error, she asserts various reasons

in support of her argument that the trial court erred by dismissing her Affidavit.

{¶10} Appellant’s Affidavit was brought pursuant to R.C. 2935.09 and R.C.

2935.10. R.C. 2935.09(D) provides: “A private citizen having knowledge of the

facts who seeks to cause an arrest or prosecution under this section may file an

affidavit charging the offense committed with a reviewing official for the purpose
Hocking App. No. 17CA9 8

of review to determine if a complaint should be filed by the prosecuting attorney *

* *.” A “reviewing official” is a judge, the prosecuting attorney, or a magistrate.

R.C. 2935.09(A). R.C. 2935.09 “ ‘must be read in pari materia with R.C. 2935.10,

which prescribes the subsequent procedure to be followed.’ ” State ex rel. Brown v.

Jeffries, 4th Dist. Ross No. 11CA3275, 2012-Ohio-1522, ¶¶ 5-7, quoting State ex

rel. Boylen v. Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 6 (per

curiam).

{¶11} Under R.C. 2935.10(A), if the affidavit charges the commission of a

felony, the judge, clerk, or magistrate, “must issue a warrant for the arrest of the

person charged in the affidavit unless the judge, clerk, or magistrate ‘has reason to

believe that it was not filed in good faith, or the claim is not meritorious.’

‘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.’ ”Brown, supra, at ¶ 8, quoting Boylan, supra, at ¶ 6. Under R.C.

2935.10(B) if the affidavit charges the commission of a misdemeanor the judge,

clerk, or magistrate may: “(1) Issue a warrant for the arrest of such person * * * ”

or “(2) Issue summons * * * commanding the person against whom the affidavit or

complaint was filed to appear forthwith, or at a fixed time in the future, before such

court or magistrate.”
Hocking App. No. 17CA9 9

{¶12} In the State’s very brief Motion to Dismiss, the State asserted “The

State has made a review of the case file and relevant evidence and can find no

grounds to proceed with the charges alleged in the affidavit.” We observe, and

Appellant has pointed out, that the trial court dismissed Appellant’s Affidavit the

same day the State filed its motion. Appellant was not given an opportunity to

respond.

{¶13} A trial court has the discretion to sua sponte dismiss a claim or action

pursuant to Civ.R. 41(A)(2), which provides: “Except as provided in division

(A)(1) of this rule, a claim shall not be dismissed at the plaintiff's instance except

upon order of the court and upon such terms and conditions as the court deems

proper.” The opposing party to an action is entitled to be heard on the motion.

Failure to afford that opportunity can be reversible error. Logsdon v. Nichols, 72

Ohio St. 3d 124, 127, 1995-Ohio-225, 647 N.E. 2d 1361, citing State ex rel. Hunt

v. Thompson, 63 Ohio St.3d 182, 586 N.E.2d 107 (1992). However, “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.” Blue v. Ryan, 8th Dist.

Cuyahoga Nos. 106166, 106180, 106181, and 106182, ¶ 4, quoting State ex rel.

Kreps v. Christiansen, 88 Ohio St.3d 313, 316, 725 N.E.2d 663 (2000), citing State

ex rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230, 231, 718 N.E.2d 1285 (1999).
Hocking App. No. 17CA9 10

{¶14} In our recent decision in Nusbaum, supra, at ¶ 10, we noted:

“R.C. 2935.10 ‘affords the reviewing official only two options: 1)
issue a warrant or 2) refer the matter to the prosecutor for
investigation if there is a belief that the affidavit lacks a meritorious
claim.’ State ex rel. Brown v. Jeffries, 4th Dist. Ross No. 11CA3275,
2012–Ohio–1522, ¶ 9. After a trial court refers the matter to the
prosecutor, there are no additional requirements in R.C. 2935.10 that
impose further duties upon the trial court. (Emphasis added.)”

{¶15} In this case, upon remand, the trial court did all that was required by

R.C. 2935.10. By judgment entry of July 11, 2016, the matter was referred to the

Hocking County Prosecutor for investigation. As of July 11, 2016, there were no

further duties upon the trial court.

{¶16} Given that the Special Prosecutor subsequently found no grounds

upon which to proceed with criminal charges, it is obvious that Appellant cannot

prevail upon the facts alleged in her Affidavit. The trial court did not err in

dismissing Appellant’s Affidavit for failure to state a claim. Furthermore, no

prejudice occurred to Appellant by the court’s failure to provide her with notice in

order to respond to the State’s motion to dismiss.2

{¶17} For the foregoing reasons, we find no merit to Appellant’s second,

fourth, fifth, sixth, seventh, and eighth assignments of error. As such, those errors

are hereby overruled.

2
See Harper v. Neal, 4th Dist. Hocking No 15CA25, 2016-Ohio-7179, ¶ 21. “See Civ.R. 61 (explaining that court
‘must disregard any error or defect in the proceeding” that does not affect a party's substantial rights’).”
Hocking App. No. 17CA9 11

{¶18} In Appellant’s first assignment of error, she asserts the trial judge

should have recused himself for the case. “ ‘It is well settled that a criminal trial

before a biased judge is fundamentally unfair and denies a defendant due process

of law.’ ” State v. Gregory, 4th Dist. Gallia No. 16CA3, 2016-Ohio-7940, ¶ 12,

quoting State v. Jackson, 141 Ohio St.3d 171, 2014–Ohio–3707, 23 N.E.3d 1023, ¶

78, quoting State v. LaMar, 95 Ohio St.3d 181, 2002–Ohio–2128, 767 N.E.2d 166,

¶ 34. R.C. 2701.03 establishes procedures for filing an affidavit of disqualification

against a common pleas judge.

{¶19} R.C. 2701.03, Part (A) provides:

“If a judge of the court of common pleas allegedly is interested in a
proceeding pending before the court, allegedly is related to or has a
bias or prejudice for or against a party to a proceeding pending before
the court or a party's counsel, or allegedly otherwise is disqualified to
preside in a proceeding pending before the court, any party to the
proceeding or the party's counsel may file an affidavit of
disqualification with the clerk of the supreme court in accordance
with division (B) of this section.” (Emphasis added.) See State v.
Dean, 146 Ohio St. 3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 222.

{¶20} Further, Ohio Constitution, Article IV, Section 5(C) provides: “The

chief justice of the supreme court or any judge of that court designated by him

shall pass upon the disqualification of any judge of the courts of appeals or courts

of common pleas or division thereof.” This provision vests exclusive authority in

the chief justice or her designee to pass on disqualification matters. Dean, supra, at

¶ 223. See Beer v. Griffith, 54 Ohio St.2d 440, 441–442, 377 N.E.2d 775 (1978).
Hocking App. No. 17CA9 12

Appellate courts, including the Supreme Court of Ohio, have on occasion routinely

addressed the merits of these judicial-bias claims on direct appeal notwithstanding

the provision of R.C. 2701.03.

{¶21} However, in contrast to situations that arise during trial, the Supreme

Court has also emphatically held that a defendant who could have raised a judicial

bias claim in a timely affidavit of disqualification under R.C. 2701.03 to the Chief

Justice, but failed to do so, is “ ‘ “foreclosed from bringing such a complaint,” ’ ”

on appeal. See Dean, supra, at ¶ 223, quoting State v. Osie, 140 Ohio St.3d 131,

2014–Ohio–2966, 16 N.E.3d 588, ¶ 65, quoting State v. Moore, 93 Ohio St.3d 649,

650, 758 N.E.2d 1130 (2001). Appellant failed to bring her bias claim, in this

particular action, in an affidavit for disqualification under R.C. 2701.03.

Therefore, she is “foreclosed from bringing it” on appeal. Having found no merit

to Appellant’s first assignment of error, it is hereby overruled.

{¶22} In Appellant’s third assignment of error, she asserts the trial court

erred in denying her motion for appointment of an uninterested special prosecutor.

It is well settled that a trial court loses jurisdiction over a case after issuing the

final judgment that resolves all claims before it. Palmer v. Bowers, 9th Dist. Lorain

No. 15CA010836, 2017-Ohio0-355, ¶ 11. See, e.g., Fiore v. Larger, 2nd Dist.

Montgomery Nos. 05–CV–6054, 07–CV–8371, 2009–Ohio–5408, ¶ 36. Thus,

after a case has ended, a trial court may not continue to act, absent specific
Hocking App. No. 17CA9 13

authority as prescribed by the Ohio Rules of Civil Procedure. See Allstate Ins. Co.

v. Witta, 9th Dist. Summit No. 25738, 2011–Ohio–6068, ¶ 8. If a trial court does

act outside of the specific post-judgment motions set forth in the civil rules, its

ruling will be considered void. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378,

380 (1981); Kitson v. Gordon Food Serv., 9th Dist. Summit No. 15CA0078–M,

2016–Ohio–7079, ¶ 7.

{¶23} However, this assignment of error is rendered moot in light of our

finding that after the trial court referred her case to the prosecutor, the trial court

discharged its duties and, thus, the trial court did not err in dismissing the

complaint. As such, we will not consider it.

{¶24} For the foregoing reasons, we find no merit to Appellant’s eight

assignments of error. As such, they are hereby overruled and the judgment of the

trial court is affirmed.

JUDGMENT AFFIRMED.
Hocking App. No. 17CA9 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: ____________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of
filing with the clerk.