State of Ohio, ex rel. Michael Whittaker v. Lucas County Prosecutor‘s Office
Court of Appeals No. L-19-1287
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: August 10, 2020
2020-Ohio-4093
SINGER, J.
Michael Whittaker, pro se. Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Assistant Prosecuting Attorney, for respondent.
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SINGER, J.
{¶ 1} This matter is before the court upon the filing of a motion for summary judgment by relator, Michael Whittaker, and a memorandum in opposition filed by respondent, Lucas County Prosecutor‘s Office, who also seeks summary judgment.
{¶ 3} In the complaint for a writ of mandamus, relator asserts he filed a “criminal complaint” pursuant to
{¶ 4} In response, relator filed this mandamus action for a writ to compel the Lucas County prosecutor to consider his
{¶ 6} Pursuant to
[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 of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate.
This statute must be read in pari materia with
{¶ 8} Neither statute mandates the prosecutor prosecute an offense alleged in the affidavit. State ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶ 20, citing State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d 174, 175, 699 N.E.2d 60 (1998); State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 6. A prosecutor has wide discretion in prosecuting a particular offense, which is reviewable only for an abuse of discretion. Bunting at ¶ 18.
{¶ 9} Because the decision to prosecute is a discretionary determination, it is generally not subject to judicial review. Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). However, a court will compel a prosecuting attorney “to prosecute a complaint * * * when the failure to prosecute constitutes an abuse of discretion.” State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180 (1996). To establish an abuse of discretion, the relator must demonstrate that the prosecuting attorney‘s decision was “unreasonable, arbitrary or unconscionable.” Id.
{¶ 10} In his motion for summary judgment, relator asserts that the Lucas County Prosecutor‘s Office abused its discretion by refusing to prosecute these individuals for felonious assault. Furthermore, relator asserts felonious assault and child endangering are not allied offenses, the negotiated plea did not involve a plea to a lesser offense of felonious assault and did not bar further prosecution, and the Double Jeopardy Clause is not applicable.
{¶ 11} Respondent argues it did not have any evidence to establish that these individuals caused the injuries to the child. In support, respondent has supplied us with the transcript of the plea hearings wherein the state presented the evidence it would have admitted to support convictions for child endangering. Respondent further contends that after it presented the evidence to the grand jury, it issued an indictment for felony child endangering. Because
{¶ 12} In its memorandum in opposition, respondent argues relator is not entitled to summary judgment because he did not submit any evidence in support of his claims. We agree.
{¶ 14} While relator submitted an affidavit of his knowledge of the facts relating to this case, a copy of a partial findings of fact by the juvenile court in the juvenile case alleging the child is abused, neglected, and dependent; a 2019 case review assessment of the child‘s status by the Ohio Department of Job and Family Services; a letter from relator‘s attorney notifying relator that his child had been adjudicated abused in the care of Lykans and Collins, neglected due to delay in seeking medical care, and dependent because both parents are incarcerated and unable to care for her. His attorney further notified relator that his child‘s injuries were determined to from “non-accidental trauma” and that some injuries were found to be consistent with “shaken baby syndrome“; and certified copies of the child‘s doctor‘s medical records as of December, 2018; his child‘s medical bill relating to her injuries; and an e-mail to relator regarding his child‘s current status.
{¶ 15} However, relater did not submit any evidence that the child‘s injuries were caused by these individuals or that there was new evidence unknown to the prosecution at
{¶ 16} Furthermore, respondent argues that although it did not file a motion for summary judgment, it is nonetheless entitled to summary judgment as a nonmoving party because there is no genuine issue of material fact and it is entitled to judgment as a matter of law. We agree.
{¶ 17} When a party moves for summary judgment and the nonmovant has had an opportunity to respond, a court, after consideration of the relevant evidence, may enter judgment against the moving party even though the nonmovant did not file a motion for summary judgment. State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 9, citing State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 8, citing Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 17. However, the nonmoving party cannot rest on the allegations of pleading and must set forth specific facts to support its claims. Mootispaw, 76 Ohio St.3d 383, 667 N.E.2d 1197, at 385.
{¶ 18} In this action, relator did not assert that he had additional evidence beyond what the prosecution had at the time and presented to the grand jury. Respondent has asserted that it presented this evidence to the grand jury and it decided to issue only an indictment for felony child endangering. Respondent has further shown that it had no evidence these individuals were the persons who caused the child‘s injuries. Therefore, we find relator cannot establish he has a clear legal right to the requested relief or that the
{¶ 19} To the Clerk: Manner of Service.
{¶ 20} Serve upon all parties in a manner prescribed by
Writ denied.
Arlene Singer, J.
JUDGE
Christine E. Mayle, J.
Gene A. Zmuda, P.J.
JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.