[Cite as In re Charging Affidavit of Demis, 2013-Ohio-5520.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                           JUDGES:
IN RE:                                                     Hon. Sheila G. Farmer, P. J.
                                                           Hon. John W. Wise, J.
                                                           Hon. Craig R. Baldwin, J.

         CHARGING AFFIDAVIT                                Case No. 2013 CA 00098


         OF LOUIS DEMIS                                    OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Canton Municipal
                                                       Court, Case No. 2013 CRF 110


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                December 16, 2013


APPEARANCES:

For Appellant Demis                                    For Appellee City

CRAIG T. CONLEY                                        CRAIG J. MORGAN
604 Huntington Plaza                                   ASSISTANT PROSECUTOR
220 Market Avenue South                                217 South High Street, Suite 203
Canton, Ohio 44702                                     Akron, Ohio 44308
Stark County, Case No. 2013 CA 00098                                                   2

Wise, J.

        {¶1}   Affiant Louis Demis appeals the decision of the Canton Municipal Court

finding no probable cause to bring criminal charges in this matter.

                       STATEMENT OF THE FACTS AND CASE

        {¶2}   In December, 2012, Judge Forchione presided over State v. Studer, Stark

County Common Pleas Case No: 2012 CR 1790. In that case, Judge Forchione ordered

the Defendant (Scott Studer) to pay a fine of $5,000.00 to be forwarded to "the victims

of the Newtown, Connecticut tragedy."

        {¶3}   On February 1, 2013, a civil complaint was filed in the Stark County Court

of Common Pleas, alleging that the $5,000.00 fine was the property of the Stark County

Treasury and could not be forwarded to the fund representing the victims in Newtown,

Connecticut.

        {¶4}   On February 4, 2013, Judge Forchione requested the return of the

$5,000.00.

        {¶5}   On February 6, 2013, pursuant to Judge Forchione's request, the fund

returned the money to the Stark County Clerk of Courts.

        {¶1}   On February 28, 2013, Louis Demis filed a complaint and affidavit with the

Canton Municipal Court requesting criminal charges for a violation of R.C. §2921.41,

Theft in Office, a felony of the fourth degree. Demis' complaint arose from allegations

that the named Defendant, Francis Forchione, a Judge for the Stark County Court of

Common Pleas, unlawfully exerted control over property belonging to Stark County.

Ohio.
Stark County, Case No. 2013 CA 00098                                                      3


       {¶2}   Pursuant to R.C. §2935.10(A), Demis’ complaint and affidavit was

scheduled for a probable cause hearing. To avoid any potential conflicts, a visiting

Judge, Judge Michael J. McNulty, retired from the Barberton Municipal Court, was

appointed to conduct the probable cause hearing. Craig Morgan, Deputy Chief of the

City of Akron Prosecutor’s Office and Counsel for Appellee, was appointed special

prosecutor and referred the affidavit for investigation.

       {¶3}   The probable cause hearing was held on April 23, 2013. Demis failed to

appear at the hearing. As a result, neither he nor Attorney Craig Conley, Counsel for

Appellant, were capable of offering any testimony to support a finding of probable

cause. Although no witnesses were called, Counsel for Appellant offered two certified

copies of journal entries into evidence as exhibits. The trial court heard arguments of

counsel.

       {¶4}   Based upon the information presented at the hearing and the prosecutor's

recommendation that there was insufficient evidence to support a criminal offense, the

trial court filed a judgment entry on April 23, 2013, declining to find probable cause. The

trial court found that the affidavit was not filed in good faith and that the claims made in

Demis' felony allegation were not meritorious.

       {¶5}   Appellant Louis Demis now appeals, assigning the following error for

review:

                                ASSIGNMENT OF ERROR

       {¶1}   “THE TRIAL COURT ERRED IN FINDING NO PROBABLE CAUSE TO

SUPPORT CRIMINAL CHARGES AGAINST FRANCIS FORCHIONE.”
Stark County, Case No. 2013 CA 00098                                                       4


                                             I.

       {¶2}   In his sole Assignment of Error, Affiant Louis Demis argues that the trial

court erred in finding no probable cause in this matter. We disagree.

       {¶3}   R.C. §2935.09 governs accusation by affidavit to cause arrest or

prosecution. Subsection (D) states the following:

       {¶4}   “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. A private citizen may file

an affidavit charging the offense committed with the clerk of a court of record before or

after the normal business hours of the reviewing officials if the clerk's office is open at

those times. A clerk who receives an affidavit before or after the normal business hours

of the reviewing officials shall forward it to a reviewing official when the reviewing

official's normal business hours resume.”

       {¶5}   R.C. §2935.10 governs procedures upon filing of affidavit or complaint.

Subsection (A) states the following:

       {¶6}   “Upon the filing of an affidavit or complaint as provided by section

2935.09 of the Revised Code, if it charges the commission of a felony, such judge,

clerk, or magistrate, 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
Stark County, Case No. 2013 CA 00098                                                      5


refer the matter to the prosecuting attorney or other attorney charged by law with

prosecution for investigation prior to the issuance of warrant.”

       {¶7}   In State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 839 N.E.2d 934,

2006-Ohio-7, ¶ 6-7, the Supreme Court of Ohio explained the required procedures as

follows:

       {¶8}    “Boylen's claim lacks merit. As we have consistently held, ‘R.C. 2935.09

does not mandate prosecution of all offenses charged by affidavit.’ * * * ‘While R.C.

2935.09 provides that a “private citizen having knowledge of the facts” shall file with a

judge, clerk of court, or magistrate an affidavit charging an offense committed in order to

cause the arrest or prosecution of the person charged, it must be read in pari materia

with R.C. 2935.10 which prescribes the subsequent procedure to be followed.’ * * *

       {¶9}    “Under R.C. 2935.10(A), if the affidavit filed under R.C. 2935.09 charges

a felony, the judge, clerk, or magistrate with whom the affidavit is filed must issue a

warrant for the arrest of the person charged in the affidavit unless the judge, clerk, or

magistrate ‘has reason to believe that it was not filed in good faith, or the claim is not

meritorious.’ ‘[O]therwise, 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.’ R.C. 2935.10(A). Boylen's affidavits charge various felonies, so R.C.

2935.10(A) requires the clerk to follow the specified procedure.”

       {¶10} Pursuant to State v. Boylen, supra, and R.C. §2935.10(A), the trial court

referred Appellant's affidavit to the prosecutor's office for an investigation.

       {¶11} A trial court is to review a prosecutor's decision on the issue of whether

the claims in the affidavit lacked merit and the affidavit was not filed in good faith under
Stark County, Case No. 2013 CA 00098                                                     6

an abuse of discretion standard. State ex rel. Evans v. Columbus Dept. of Law (1998),

83 Ohio St.3d 174, 175, 699 N.E.2d 60.

       {¶12} “In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140. This

Court likewise will review the trial court's decision under the same standard. In re

Slayman, Licking App. No. 08CA70, 2008-Ohio-6713.

       {¶13} A probable cause hearing was held before the trial court on April 23, 2013.

Affiant Louis Demis failed to appear at the probable cause hearing. As a result, no

evidence was offered in support of the affidavit. The prosecutor presented argument

that insufficient evidence existed to support criminal charges.

       {¶14} Appellant did not file a transcript of the probable cause hearing with his

appeal of the trial court decision. Absent a transcript, this Court will presume regularity

of the proceedings in the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197, 400 N.E.2d 384.

       {¶15} Upon review, we find the trial court did not abuse its discretion in this

matter.
Stark County, Case No. 2013 CA 00098                                            7


      {¶16} As such, we overrule Appellant's sole Assignment of Error.

      {¶17} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.



                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN

JWW/d 1203
Stark County, Case No. 2013 CA 00098                                          8


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT




IN RE:                                     :
                                           :
         CHARGING AFFIDAVIT                :         JUDGMENT ENTRY
                                           :
                                           :
         OF LOUIS DEMIS                    :         Case No. 2013 CA 00098



         For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

         Costs assessed to Appellant.




                                           ___________________________________
                                           HON. JOHN W. WISE


                                           ___________________________________
                                           HON. SHEILA G. FARMER


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
