State of Ohio, Plaintiff-Appellee, v. Linda L. Fraley, Defendant-Appellee, [Christopher Hicks, Appellant].
No. CA2019-09-072 (M.C. No. 2019 PC 00003)
IN THE COURT OF APPEALS OF OHIO TWELFTH APPELLATE DISTRICT CLERMONT COUNTY
7/20/2020
2020-Ohio-3763
KLATT, J.
(ACCELERATED CALENDAR)
D E C I S I O N
Rendered on 7/20/2020
On brief: Brafford & Rivello, and Suellen M. Brafford, for appellant Christopher Hicks. Argued: Christopher Hicks, pro se.
On brief: Strauss Troy Co., LPA, and Christopher R. McDowell and Jeffrey A. Levine, for appellee Linda L. Fraley. Argued: Christopher R. McDowell.
On brief: Dave Yost, Attorney General, and Brad L. Tammaro, for appellee State of Ohio. Argued: Brad L. Tammaro.
APPEAL from the Clermont County Municipal Court
{¶ 1} Appellant, Christopher Hicks, appeals judgments of the Clermont County Municipal Court that (1) refused to issue an arrest warrant or summons in response to an affidavit Hicks filed pursuant to
{¶ 2} On July 22, 2019, Hicks filed with the clerk of courts for the Clermont County Municipal Court an affidavit pursuant to
{¶ 3} The clerk forwarded Hicks’ affidavit to the trial court, but all the judges of the court recused themselves from the matter, requiring the Supreme Court of Ohio to appoint a visiting judge to review the affidavit. The Clermont County prosecutor also recused himself, and the Ohio attorney general acted in his stead.
{¶ 4} The visiting judge scheduled a probable cause hearing regarding Hicks’ affidavit for August 13, 2019. Prior to the hearing, Fraley moved for sanctions against Hicks pursuant to
{¶ 5} Fraley stressed in her motion that Hicks’ second affidavit merely reiterated a claim made in the first affidavit, and it relied entirely on evidence that the attorney general had already reviewed and found insufficient to establish probable cause that Fraley had committed a criminal offense. Fraley contended that sanctions were warranted to stop Hicks from using the judicial system for his own political gain and prevent him from bullying, harassing, and maliciously attacking Fraley. Thus, Fraley asked the trial court to award her reasonable attorney fees and expenses.
{¶ 6} In response, Hicks contended that the interview the BCI special agent had conducted of Bushman revealed that Fraley had violated
{¶ 7} At the August 13, 2019 probable cause hearing, the trial court heard from Hicks, an assistant attorney general, and counsel for Fraley. Relying heavily on the audio recordings of BCI‘s interviews with Bushman and Tilbury, Hicks argued that probable cause existed for the trial court to commence with criminal proceedings against Fraley. After reviewing Hicks’ allegations, the assistant attorney general stated that the evidence did not establish probable cause that Fraley had violated the law. Fraley‘s attorney concurred with the assistant attorney general, and he asked the trial court to award Fraley sanctions. At the conclusion of the hearing, the trial court stated that Hicks’ “motion [was] overruled,” and it would grant sanctions. (Tr. at 33.) The trial court then directed Fraley‘s attorney to file an affidavit with the court itemizing his fees.
{¶ 8} After the hearing, the trial court issued an entry finding “[n]o pro[b]able cause for arrest and prosecution of Linda Fraley. Court orders sanctions against Mr. Hicks, amount to be determined.” (Aug. 13, 2019 Entry.) Fraley then filed supplemental information regarding the sanctions, which included an itemized invoice that totaled $7,818. On August 29, 2019, the trial court issued an order that granted Fraley‘s motion for sanctions and required Hicks to pay Fraley $7,818.
{¶ 9} Hicks now appeals the trial court judgments, and he assigns the following errors:
[1.] THE TRIAL COURT ERRED BY NOT FINDING PROBABLE CAUSE IN THE PRIVATE CITIZEN AFFIDAVIT FILED BY APPELLANT HICKS.
[2.] THE TRIAL COURT ERRED BY ORDERING CIVIL SANCTIONS AGAINST APPELLANT HICKS IN A CRIMINAL MATTER.
[3.] THE TRIAL COURT ERRED BY NOT HOLDING A SEPARATE HEARING BEFORE THE IMPOSITION OF SANCTIONS AGAINST APPELLANT HICKS.
{¶ 11}
(A) Upon the filing of an affidavit * * * provided by section
2935.09 of the Revised Code , if it charges the commission of a felony, such judge * * *, 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.(B) If the offense charged is a misdemeanor or violation of a municipal ordinance, such judge * * * may:
(1) Issue a warrant for the arrest of such person * * *;
(2) Issue summons, * * * commanding the person against whom the affidavit * * * was filed to appear forthwith, or at a fixed time in the future, before such court * * *.
{¶ 12}
{¶ 13} If an
{¶ 14} Under
{¶ 15} A trial court may only issue an arrest warrant or summons under
2d Dist. Montgomery No. 19687, 2003-Ohio-3779, ¶ 16 (“A defendant has a constitutional right to a finding of probable cause before a warrant or summons is issued for him to answer.“). Probable cause is generally defined as a reasonable ground for suspicion supported by facts and circumstances sufficiently strong to warrant a prudent person to believe that an accused person has committed an offense. State v. Moore, 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, ¶ 38.
{¶ 16} An appellate court reviews a trial court‘s decision not to issue an arrest warrant based on an accusation asserted in an
{¶ 17} In the case at bar, Hicks’ affidavit asserted that Fraley violated
{¶ 18} In 2002, Fraley hired Bushman as a deputy auditor when she became a deputy registrar for the Bureau of Motor Vehicles. As a deputy auditor, Bushman managed a deputy registrar license agency for the Bureau of Motor Vehicles. In
{¶ 19} In their BCI interviews, both Bushman and Tilbury stated that Tilbury—not Fraley—completed the 2005 and 2006 performance evaluations. Tilbury emphasized that Fraley had no input into Bushman‘s performance evaluations. While Fraley signed Bushman‘s performance evaluations, she signed the evaluations of all employees of the auditor‘s office.
{¶ 20} In his interview, Bushman told the BCI special agent that “a couple of times” after Tilbury had completed his performance evaluation, Fraley had “sat with” him to discuss the evaluation and wrote down “little notes.” (Hicks’ Ex. 6.) That apparently happened with the 2005 evaluation. Bushman identified the written comments at the bottom of the last page of the 2005 evaluation as a list, in Fraley‘s handwriting, of the work matters they had discussed. The list includes such items as “ATM machine,” which according to Bushman referred to the ATM machine he had wanted to install at the agency, “clean up around [building],” “new hires,” “plan [an employee‘s] retirement,” and “storage issues.” (Hicks’ Ex. 4.)
{¶ 21} Given this evidence, we cannot find the trial court abused its discretion in finding no probable cause to issue an arrest warrant or summons for a violation of
{¶ 22} By Hicks’ second assignment of error, he argues that the trial court erred in awarding sanctions against him. We agree.
{¶ 23} The trial court did not specify the grounds on which it awarded sanctions to Fraley. Fraley moved for sanctions under both
{¶ 24} In the end, however, the basis for the trial court‘s award of sanctions is immaterial to our analysis. As Hicks argues, both
{¶ 25} An affidavit filed pursuant to
{¶ 26} Here, with his
{¶ 27} The state argues that the trial court found Hicks in contempt of court and properly sanctioned him on that basis. Fraley did not move to hold Hicks in contempt of court nor did the trial court find Hicks in contempt of court.3 We thus reject the state‘s argument as an after-the-fact justification for the trial court‘s award of sanctions.
{¶ 28} In sum, neither
{¶ 29} By Hicks’ third assignment of error, he argues that the trial court erred in not holding a separate hearing before imposing sanctions against him. Our conclusion that the trial court erred in awarding those sanctions in the first place renders the third assignment of error moot. Therefore, we do not address it.
{¶ 30} For the foregoing reasons, we overrule the first assignment of error, and we sustain the second assignment of error, which renders the third assignment of error moot. We affirm the judgment of the Clermont County Municipal Court finding no probable cause to arrest Fraley, but we reverse the judgment awarding Fraley sanctions.
Judgment affirmed; judgment reversed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.
KLATT, J., of the Tenth Appellate District, sitting by assignment of the Chief
SADLER, P.J., of the Tenth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
LUPER SCHUSTER, J., of the Tenth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.