STATE OF OHIO, Appellant, - vs - DONALD L. McKEEVER, Appellee.
CASE NO. CA2018-12-025
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
12/2/2019
[Cite as State v. McKeever, 2019-Ohio-4913.]
CRIMINAL APPEAL FROM CLINTON COUNTY MUNICIPAL COURT Case No. CRB 1801963
Donald L. McKeever, 250 S. Nelson Ave., Lot 80, Wilmington, Ohio 45177, pro se
S. POWELL, J.
{¶ 1} Appellant, the state of Ohio, appeals the decision of the Clinton County Municipal Court sua sponte amending a complaint charging appellee, Donald L. McKeever, with first-degree misdemeanor domestic violence to a lesser charge of minor misdemeanor disorderly conduct. For the reasons outlined below, we reverse the trial court‘s decision and remand this matter for further proceedings.
{¶ 2} On December 12, 2018, a complaint was filed charging McKeever with one
{¶ 3} Two days later, McKeever appeared before the trial court at his arraignment. During this hearing, for which the record indicates only the victim‘s advocate was present, the trial court advised McKeever that a complaint had been filed charging him with first-degree misdemeanor domestic violence. Upon advising McKeever of the charge levied against him, the trial court then engaged McKeever in the following exchange:
THE COURT: So, does anything good ever happen to you when you‘ve been drinking, Don?
MR. MCKEEVER: Seems like it doesn‘t, sometimes I get along and sometimes I get out of hand when I drink too much (inaudible) it‘s time for me to try to quit it all, I‘m 60 years old and everything, it‘s time for me to quit.
THE COURT: You remember that time, gosh, 15, 20 years ago when you passed out right here in front of the City Building and hit your head on the curb?
MR. MCKEEVER: Yeah.
THE COURT: I mean, we‘ve [been] doing this a long time.
MR. MCKEEVER: Yeah, I know.
{¶ 4} Following this exchange, the trial court sua sponte amended the charge from first-degree misdemeanor domestic violence to a lesser charge of minor misdemeanor disorderly conduct. The trial court explained its decision to amend the charge down to a minor misdemeanor because McKeever had merely struck his adult son in the face rather
All right. What we got here is really not the same thing as beating up your little kid, really not the same thing. What we‘ve got is engaging in fighting, threatening harm to persons or property and violent or turbulent behavior. What we‘ve got is engaging in conduct while you‘re voluntarily intoxicated that presents a risk of harm to another person. Therefore, I‘m ordering this charge amended to disorderly conduct.
{¶ 5} Upon sua sponte amending the charge from domestic violence to disorderly conduct, the trial court asked McKeever how he wished to plead. To this, McKeever stated that he wanted to plead guilty. Finding the plea knowingly, intelligently, and voluntarily entered, the trial court accepted McKeever‘s guilty plea. After accepting McKeever‘s guilty plea, the trial court then proceeded immediately to sentencing and ordered McKeever to pay a $50 fine and court costs. The trial court then told McKeever “[d]on‘t hit your boy in the face anymore, it just causes trouble for you.” McKeever responded and stated, “Yes, sir.”
{¶ 6} The state now appeals, raising the following single assignment of error for review.
{¶ 7} THE TRIAL COURT ERRED BY AMENDING THE CHARGE FROM DOMESTIC VIOLENCE TO DISORDERLY CONDUCT.
{¶ 8} In its single assignment of error, the state argues that the trial court erred by sua sponte amending the charge from first-degree misdemeanor domestic violence to a lesser charge of minor misdemeanor disorderly conduct. We agree.
{¶ 9} Although a procedural oddity, this exact factual scenario occurred in Akron v. Shuman, 9th Dist. Summit No. 18851, 1998 Ohio App. LEXIS 2472 (May 27, 1998). In Shuman, just like in the case at bar, a complaint was issued charging appellant with one count of domestic violence. The trial court, however, sua sponte amended the complaint
[T]he trial court acted outside its discretion when it amended the charge against [appellant] from domestic violence to disorderly conduct. In doing so, the trial court deprived [the state] of its day in court. The action of the trial court in sua sponte amending the charge constituted a violation of
Crim.R. 7(D) .
(Internal citations and emphasis deleted) Id.
{¶ 10} Pursuant to
{¶ 11} Here, the trial court‘s decision to sua sponte amend the charge from domestic violence to disorderly conduct changed both the name and identity of the offense. As noted above, the complaint charged McKeever with domestic violence, a first-degree misdemeanor. The amendment, however, charged McKeever with disorderly conduct, a minor misdemeanor. Therefore, just like in Shuman, the trial court‘s decision to sua sponte
{¶ 12} Judgement reversed and remanded for further proceedings.
HENDRICKSON, P.J., and M. POWELL, J., concur.