STATE OF OHIO EX REL., A.N., Relator, v. CUYAHOGA COUNTY PROSECUTING DEPARTMENT, ET AL., Respondents.
No. 109848
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 7, 2020
[Cite as State ex rel. A.N. v Cuyahoga Cty. Pros. Dept., 2020-Ohio-5628.]
PATRICIA ANN BLACKMON, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: WRIT DENIED; Writ of Mandamus; Motion Nos. 540567 and 540691; Order No. 542483
A.N., pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent Cuyahoga County Prosecutor’s Office.
Michael R. Gareau, Jr., Director of Law, and Bryan P. O’Malley, Assistant Director of Law, for respondent City of North Olmsted.
{¶ 1} A.N., the relator, has filed a complaint for a writ of mandamus. A.N. seeks an order from this court that requires the respondents, the Cuyahoga County Prosecutor’s Office (“Prosecutor”) and the city of Nоrth Olmsted (“City”), to file criminal charges, consisting of felonious assault (
I. Facts
{¶ 2} The following facts are gleaned from the complaint for a writ of mandamus, the Prosecutor’s motion for summary judgment, the City’s motion to dismiss, and the briefs in opposition to the motion for summary judgment and motion to dismiss. In 2019, A.N. filed two charging affidavits in Cuyahoga C.P. Nos. SD-19-077947 and SD-19-077951, pursuant to
{¶ 3} The second affidavit, filed in SD-19-077951, alleged that from 1997 to 2010, A.N.’s parents subjected him to unwarranted discipline and the loss of
{¶ 4} On May 30, 2019, the Prosecutor forwarded a letter to the trial court indicating that “[t]his is to advise you that after review of the materials provided by the Court and other materials we obtained, we decline prosecution in both matters.” On June 25, 2019, the trial court issued orders in SD-19-077947 and SD-19-077951 that stated
[f]ollowing the completion of the court-ordered investigation pursuant to
R.C. 2935.10 , the court was advised by the prosecutor’s office via a correspondence that the prоsecutor’s office is declining to prosecute this matter. Said correspondence is attached to this entry for the record. As a result, the court declines to issue a warrant regarding this matter and hereby removes this case from the active docket.
{¶ 5} On July 12, 2019, A.N. filed a timely appeal from the judgment rendered by the trial court in SD-19-077947. See 8th Dist. Cuyahoga No. 108787. On July 16, 2019, A.N. filed a timely notice of appeal from the judgment rendered in SD-19-077951. See 8th Dist. Cuyahoga No. 108801. On July 17, 2019, the appeals filed in 8th Dist. Cuyahoga Nos. 108787 and 108801 were consolidated for briefing, hearing, and disposition. On January 23, 2020, this court dismissed A.N.’s
{¶ 6} On July 23, 2020, A.N. filed this complaint for a writ of mandamus. On August 14, 2020, the Prosecutor filed a motion for summary judgment. On August 20, 2020, the City filed a motion to dismiss. On August 24, 2020, A.N. filed a brief in opposition to the Prosecutor’s motion for summary judgment. On August 31, 2020, A.N. filed a brief in opposition to the City’s motion to dismiss.
II. Mandamus Requirements and Analysis
{¶ 7} In order for this court to issue a writ of mandamus, A.N. must demonstrate that: (1) he possesses a clear legal right to have his parents charged with the criminal offenses of felonious assault, aggravated assault, or endangering children; (2) the Prosecutor possesses the clear legal duty to charge A.N.’s parents with the criminal offenses of felonious assault, aggravated assault, or endangering children; and (3) A.N. possesses or possessed no plain and adequate remedy in the ordinary course of the law. State ex rel. Kerns vs. Simmers, 153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430; State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 451 N.E.2d 225 (1983). Moreоver, mandamus is an extraordinary remedy that is to be exercised with caution and granted only when the right is clear. Mandamus will not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶ 8} Initially, we find that A.N. is not entitled to a writ of mandamus based upon the apрlication of the doctrine of res judicata. The doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as res judicata or estоppel by judgment, and issue preclusion, also known as collateral estoppel. Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action. Where a claim could have been litigated in the previous suit, claim preclusion also bars subsequent actions on that matter. Issue preclusion, on the other hand, serves to prevent relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action between the same parties or their privies. Issue preclusion applies even if the causes of action differ. Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 692 N.E.2d 140 (1998); Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).
{¶ 9} The issue of charging A.N.’s parents with criminal offenses, pursuant to
{¶ 10} In addition, the statute of limitations applicable to the offenses of felonious assault, aggravated assault, and endangering children have already run and criminal charges may not be brought against the рarents of A.N., based upon the facts raised by A.N.
{¶ 11} Finally, we find no abuse of discretion on the part of the Prosecutor or the City in deciding to forego prosecution of A.N.’s parents. The decision to seek an indictment is within the sound discretion of the prosecutor. State ex rel. Steele v. McClelland, 154 Ohio St.3d 574, 2018-Ohio-4011, 116 N.E.3d 1267; State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064. A prosecuting attorney can be compelled to prosecute аn individual only when the failure to prosecute constitutes an abuse of discretion. State ex rel. Evans v. Tieman, 157 Ohio St.3d 99, 2019-Ohio-2411, 131 N.E.3d 930; Mootipaw v. Eckstein, 76 Ohio St.3d 383, 667 N.E.2d 1197 (1996).
{¶ 12} The term “abuse of discretion” connotes more than an error of law or judgment; it implies that a decision or judgment is unreasonable, arbitrary or unconscionable. Chester Twp. v. Geauga Co. Budget Comm., 48 Ohio St.2d 372, 358 N.E.2d 610 (1976); Conner v. Conner, 170 Ohio St. 85, 162 N.E.2d 852 (1959); Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855 (1940). Herein, we find no abuse of discretion on the part of the Prosecutor to decline to prosecute A.N.’s parents, based upon the affidavit, exhibit G, attachеd to the motion for summary judgment. The affidavit specifically provides that:
For the foregoing reasons, even assuming that A.N.’s claim that H.N. committed felonious assault in violation of
R.C. 2903.11 , aggravated assault in violation ofR.C. 2903.12 , and endangering children in violation ofR.C. 2919.22 against A.N. on April 1, 2001 is true, the Prosecutоr’s Office is barred from prosecuting H.N. by the statute of limitations under bothR.C. 2901.13(A)(1)(a) andR.C. 2901.13(J) .
In his petition for writ of mandamus filed in case number CA-20-109848 A.N. also claims that A.N.’s father and mother committed felonious assault in violation of
R.C. 2903.11 , aggravated assault in violation ofR.C. 2903.12 , and/or endangering children in violation ofR.C. 2919.22 when they allegedly committed the following acts: (a) screamed at A.N.’s sister; (b) caused A.N.’s sister to witness A.N.’s mother and father fighting and arguing; (c) threatened to call police on A.N.’s sister; (d) used the wrong comb on A.N.’s sister’s hair causing her pain; (e) confused A.N.’s sister about her sleeping in her own bed; (f) caused A.N.’s sister to live in a bad environment; (g) failed to have A.N.’s sister’s crooked teeth fixed; (h) called A.N. mentally ill in front of A.N.’s sister; (i) took unspecified “things” out of A.N.’s room; (j) “hid” A.N.’s sister from A.N.; and (k) did not permit A.N. to speak with A.N.’s sister.After reviewing and examining the above claims and evidence submitted by A.N., including all pleadings and all print and video exhibits in A.N. v. Cuyahoga County Prosecuting Department, et al., Eighth District Court of Appeals case number CA-20-109848, the Prosecutor’s Office has concluded that there is insufficient evidence that A.N.’s mother or father committed felonious assault in violation of
R.C. 2903.11 , aggravated assault in violation ofR.C. 2903.11 , aggravated assault in violation ofR.C. 2903.12 , or endangering children in violation ofR.C. 2919.22 .For the foregoing reasons, the Prosecutor’s Office declines, for a seсond time, to prosecute either H.N. or V.N. for any of the above claims raised by A.N.
{¶ 13} Based upon the affidavit filed by the Prosecutor and all other material filed within this action for mandamus, we find no abuse of discretion on the part of the Prosecutor in declining to prosecute the parent’s of A.N. It must be also noted that this court, in [A.N.] v. Affidavit of Criminal Complaint, supra, held that:
We apply the abuse of discretion standard to review a judge’s decision not to issue a warrant following an accusation by affidavit filed pursuant to
R.C. 2935.09 and2935.10 . Hillman v. O’Shaughnessy, 10th Dist. Franklin No. 16AP-571, 2017-Ohio-489, ¶ 7; Johnson, 2017-Ohio-8209, at ¶ 10. An abuse of discretion is more than merely an error of judgment; it connotes a decision that is unreasonable, arbitrary, or unconsciоnable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983). Applying the foregoing with regard to [A.N.’s] arguments that the trial court erred in accepting Prosecutor O’Malley’s conclusions and refusing to proceed with the issuance of warrants, we find no abusе of discretion. In light of the serious nature of the allegations, the court, which is not an investigative body, acted reasonably in reliance upon the prosecutor’s investigations. State v. Hanson, 2d Dist. Montgomery No. 28057, 2019-Ohio-3688, ¶ 25 (“[R]easonable authoritiеs conduct a thorough investigation.”).
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In any event, the prosecutor’s decision not to prosecute is discretionary and “not generally subject to judiciary review.” State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 1996-Ohio-228, 661 N.E.2d 180 (1996); Leavell v. Wilson, 6th Dist. Erie No. E-17-012, 2017-Ohio-1275, ¶ 14. To the contrary, a “proseсutor’s decision not to file a complaint is not a final, appealable order of the trial court, and the trial court cannot be compelled to enter such a final order.” Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, 95 N.E.3d 365, at ¶ 16, citing Leavell, 6th Dist. Erie No. E-17-012, 2017-Ohio-1275, at ¶ 14 and Master at ¶ 27.
A.N. v. Affidavit of Criminal Complaint, supra, ¶ 15.
{¶ 14} A.N. has fаiled to demonstrate that the Prosecutor has abused its discretion by failing to prosecute a complaint against his parents. State ex rel. Master v. Cleveland, supra; Ohio Assn. of Pub. School Emp. Chapter 643, AFSCME/AFL-CIO v. Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159, 572 N.E.2d 80 (1991).
{¶ 15} Accordingly, we decline to issue a writ of mandamus on behalf of A.N. and grant the Prosecutor’s motion for summary judgment. In addition, we grant the City’s motion to dismiss for failure to state a claim upon which relief can be granted.
{¶ 16} Writ denied.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR