[Cite as State v. Matthews, 2021-Ohio-3556.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLANT, CASE NO. 9-21-12
v.
JOHN R. MATTHEWS, II, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion Municipal Court
Trial Court No. CRB 193051
Judgment Affirmed
Date of Decision: October 4, 2021
APPEARANCES:
Terry L. Hord for Appellant
Ryan C. Spitzer for Appellee
Case No. 9-21-12
SHAW, J.
{¶1} The State of Ohio brings this appeal from the March 10, 2021, judgment
of the Marion Municipal Court dismissing the complaint against defendant-
appellee, John R. Matthews (“Matthews”). On appeal, the State argues that the
dismissal of the complaint must be presumed to be without prejudice, which would
render the matter, according to the State, not a final appealable order. However, the
State argues that in the event we determine there is a final appealable order, the trial
court erred by failing to sua sponte allow the State to amend the complaint.
Background
{¶2} On November 5, 2019, Matthews was charged with violating R.C.
3505.08. This statutory subsection, which deals primarily with proper ballots and
sample ballots, reads, in relevant part: “The sample ballots shall not be distributed
by a political party or a candidate, nor shall a political party or candidate cause their
title or name to be imprinted on sample ballots.”
{¶3} The complaint against Matthews simply alleged that on or about
October 27, 2019, in the City of Marion, Matthews “did distribute a sample ballot
in violation of ORC §3505.08.” Pursuant to R.C. 3599.40, a violation of R.C.
3505.08 is a first degree misdemeanor. Matthews pled not guilty to the charge.
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{¶4} A visiting judge was assigned to preside over the case. In addition,
several months after the case was filed, a Special Prosecutor was appointed to
handle the matter.
{¶5} On August 21, 2020, Matthews filed a lengthy motion to dismiss the
complaint. In support of his motion, Matthews argued that the complaint failed to
allege he was a political party or a candidate, rendering the complaint facially
deficient. Furthermore, Matthews argued that even if the allegation had been made,
he was not a political party or a candidate for office.
{¶6} In addition, Matthews argued that R.C. 3505.08 conflicted with a more
specific statute regulating sample ballots—R.C. 3517.20. Due to the conflicting
statutes, he argued that the more specific statute controlled the matter, and that under
R.C. 3517.20(B)/(I) the complaint should have first gone to the Ohio Elections
Commission.
{¶7} Finally, Matthews argued that R.C. 3505.08 was unconstitutional as it
violated his freedom of speech. He contended that the distribution of sample ballots
constituted protected political speech. He also argued that the charges violated his
equal protection rights because R.C. 3505.08 restricted only candidates and political
parties from distributing sample ballots, not any other individuals or entities such as
special interest groups.
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Case No. 9-21-12
{¶8} On September 9, 2020, a hearing was held on pending motions
including the motion to dismiss.1
{¶9} On March 10, 2021, the trial court filed an entry granting Matthews’s
motion to dismiss. Notwithstanding the various statutory and constitutional issues
that had been raised, the trial court determined the charge against Matthews should
be dismissed because it failed to allege that he was a political party or a candidate.
The trial court determined that the complaint was thus defective for omitting an
essential element.2 The State now appeals from the dismissal, limiting its appeal to
the following assignments of error for our review.
Assignment of Error No. 1
The trial court’s order must be determined to be without
prejudice which renders the order not a final appealable order.
Assignment of Error No. 2
Should this appellate court find there is a final appealable order,
the trial court committed reversible error when it failed to allow
the state to amend the complaint.
First Assignment of Error
{¶10} In the first assignment of error, the State argues that there is no final
appealable order in this matter because the trial court’s dismissal of the charge must
be determined to be without prejudice.
1
The motion hearing was held for Matthews and another defendant, Landon, who had been charged with a
violation of R.C. 3505.08 as well.
2
The trial court also noted that it could find “no case history of the enforcement of this sentence in [R.C.
3505.08(A)].”
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Case No. 9-21-12
{¶11} The Supreme Court of Ohio has determined that, “Pursuant to R.C.
2945.67(A), the state may appeal the dismissal of an indictment whether the
dismissal is with or without prejudice.” (Emphasis added.) State v. Craig, 116 Ohio
St.3d 135, 2007-Ohio-5752, at syllabus. Although Craig specifically addressed
indictments, the Supreme Court of Ohio was analyzing the State’s right to appeal
under R.C. 2945.67(A) in reaching its conclusion. Revised Code 2945.67(A)
permits a prosecuting attorney to appeal as of right any decision by a trial court
“which decision grants a motion to dismiss all or any part of an indictment,
complaint, or information[.]” (Emphasis added.) Thus the holding in Craig would
control here, and the matter constitutes a final appealable order. Therefore, the
State’s first assignment of error is overruled.
Second Assignment of Error
{¶12} In the State’s second assignment of error, the State contends that if we
determine a final appealable order was issued in this matter, the trial court erred by
failing to sua sponte permit the state to amend the complaint.
Standard of Review
{¶13} Generally, the decision to dismiss a complaint is within the sound
discretion of the trial court and it will not be overturned absent an abuse of
discretion. State v. Landers, 4th Dist. Meigs No. 09CA8, 2010-Ohio-3709, ¶ 4,
citing State v. LaTorres, 11th Dist. Ashtabula Nos. 2000-A-0060, 2000-A-0062,
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Case No. 9-21-12
2001 WL 901045; In re J.Y., 8th Dist. Cuyahoga No. 106761, 2018-Ohio-2405, ¶
12. An abuse of discretion is a decision that is arbitrary, unreasonable, or
unconscionable. See, e.g., Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶14} At the outset, we emphasize that the State never requested an
opportunity to amend the complaint even though Matthews specifically challenged
the adequacy of the complaint in his motion to dismiss. Courts have implied that a
trial court does not abuse its discretion by dismissing a complaint where the State
demonstrates no prejudice by dismissal. See Landers, supra, at ¶ 8. Given the
record before us, we cannot find that the trial court abused its discretion in declining
to sua sponte allow an amendment to the complaint. Therefore, the State’s second
assignment of error is overruled.
Conclusion
{¶15} For the foregoing reasons the State’s assignments of error are
overruled and the judgment of the Marion County Municipal Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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