[Cite as Medina v. Osiecki, 2011-Ohio-1534.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

CITY OF MEDINA                                      C. A. No.      09CA0064-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DAVID M. OSIECKI                                    MEDINA MUNICIPAL COURT
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE Nos. 08 CRB 00218
                                                               08 TRD 01583

                                 DECISION AND JOURNAL ENTRY

Dated: March 31, 2011



        CARR, Judge.

        {¶1}    The appellant, David Osiecki, appeals the judgment of the Medina Municipal

Court. This Court affirms.

                                               I.

        {¶2}    On February 17, 2008, David Osiecki was driving a motor vehicle on Branch

Road in Medina, Ohio, when he was pulled over by law enforcement. The Medina police

subsequently issued Osiecki two traffic tickets. The first ticket charged Osiecki with driving on

a closed road in violation of Medina City Ordinance (“M.C.O.”) 331.26, as well as not properly

using his turn signal in violation of M.C.O. 331.14. Both offenses are minor misdemeanors. The

second ticket charged Osiecki with improperly handling firearms in a motor vehicle in violation

of M.C.O. 549.04(a), a misdemeanor of the fourth degree. On March 3, 2008, the charge of

improperly handling firearms in a motor vehicle was amended to a violation of M.C.O.

549.04(b)(2). On March 10, 2008, Osiecki was summoned to appear in court on April 15, 2008,
                                                 2


on Case Nos. 08CRB00218 and 08TRD01583. While both case numbers appear on certain

filings made by the parties as well as journal entries issued by the trial court, the cases were

never formally consolidated.

       {¶3}    On July 8, 2008, Osiecki filed a motion to dismiss the charge of improperly

handling firearms in a motor vehicle in Case No. 08CRB00218 for lack of subject matter

jurisdiction. Osiecki argued that R.C. 9.68 preempts all local municipal firearm ordinances. The

State responded to the motion to dismiss in Case No. 08CRB00218 on July 29, 2008. The State

argued that M.C.O. 549.04(b)(2) was “identical in its statutory language, name of the criminal

offense, and penalty to the relevant State criminal statute[,]” R.C. 2923.16. In the alternative, the

State moved to amend the charge, pursuant to Crim.R. 7(D), from a violation of M.C.O.

549.04(b)(2) to a violation of R.C. 2923.16(C). Osiecki filed a reply on August 12, 2008. The

State subsequently filed a response to Osiecki’s reply on August 27, 2008, and Osiecki replied to

the response on September 5, 2008.

       {¶4}    Prior to the issuance of an order ruling on Osiecki’s motion to dismiss for lack of

subject matter jurisdiction, the State filed a motion to dismiss on November 14, 2008. In its

motion, the State moved to dismiss the improperly handling firearms in a motor vehicle charge in

Case No. 08CRB00218 on the basis that there had been “a change in R.C. 2923.16 which

inure[d] to the defendant’s benefit.” The statutory change took effect on September 9, 2008.

The State indicated that it intended to proceed with the traffic citations in Case No.

08TRD01583. On December 2, 2008, the trial court issued a journal entry dismissing the

improperly handling firearms charge in Case No. 08CRB00128 and assessed costs to the State.

The remaining charges in Case No. 08TRD01583 were scheduled for trial on December 19,

2008. The trial was subsequently continued until January 16, 2009.
                                                  3


       {¶5}    On January 16, 2009, Osiecki entered into a plea agreement where he pleaded no

contest to not properly using his turn signal in violation of M.C.O. 331.14. The charge of driving

on a closed road in violation of M.C.O. 331.26 was dismissed. Osiecki was found guilty by a

magistrate of not properly using his turn signal. Neither party disputes that this finding was

made without an explanation of circumstances. The record contains a copy of the file jacket

which indicates that Osiecki was ordered to pay a fine of $50.00. When Osiecki paid the fine on

January 16, 2009, the clerk of courts attempted to collect a total of $704.00. The record contains

a notice dated January 16, 2009, which indicates that Osiecki had paid $50.00 and owed a

balance of $654.00. This notice was signed by a deputy clerk of courts. On January 20, 2009,

Osiecki filed an affidavit with the trial court in which he averred that no court costs were

imposed in his case and that he had paid $50.00 to satisfy the fine imposed by the trial court.

Subsequently, the trial court issued a journal entry on February 3, 2009, which indicated that

Osiecki had been “adjudicated guilty” of a “minor misdemeanor charge” and that he must pay a

$50.00 fine before February 27, 2009. The trial court indicated that “all jury related costs, a total

of Three Hundred Sixty Dollars ($360.00), are suspended.” The trial court directed the clerk of

courts to “issue an amended statement for fine and costs.” The journal entry further stated that,

“[p]ursuant to the existing entry of this court, all payments shall first be applied to costs and then

to the fine.” Subsequently, the clerk of courts sent Osiecki a notice, dated February 4, 2009, that

he still owed a balance of $294.00 on a “total fine and costs” of $344.00. This document was

signed by a deputy clerk of courts.

       {¶6}    On February 27, 2009, Osiecki filed a notice of appeal from the February 3, 2009

judgment entry. Osiecki listed both Case No. 08CRB00218 and Case No. 08TRD01583 on his

notice of appeal. On April 2, 2009, this Court issued a magistrate’s order asking the parties to
                                                  4


address three issues relating to this Court’s jurisdiction. First, the order from which Osiecki

appealed stated that Osiecki entered a plea “on the minor misdemeanor charge” but did not

identify the specific charge for which Osiecki was convicted and sentenced. This Court also

expressed concern with the January 16, 2009 docket entry listed as “Fine & Costs Due” and

asked the parties to clarify whether the trial court had previously issued an order addressing

sentencing. Finally, this Court noted that while Osiecki listed two case numbers on his notice of

appeal, the order attached to his notice of appeal was filed in Case. No. 08TRD01583. Thus, it

was unclear to this Court why the second case was involved and whether the two cases had been

consolidated.

       {¶7}     Osiecki filed a response on April 24, 2009, in which he attempted to address the

specific issues raised in the magistrate’s order. Osiecki specifically noted that “[t]here were no

orders that Osiecki is aware of that consolidated these two cases. Nor is there one reflected in

either docket sheet.” Osiecki argued that while the February 3, 2009 journal entry did not reflect

the specific charges, the order which it amended did. The order to which Osiecki refers is the

“sentencing order of the magistrate” which consisted of the case file jacket which had been

signed by the magistrate. With respect to the docket entry listed as “Fine & Costs Due,” Osiecki

stated that he had not been able to find in the record any documents that ordered him to pay court

costs as of January 16, 2009. Osiecki surmised that it “appear[ed] to be a notation on the docket

sheet made by the Clerk of Courts without any supporting documentation.” With respect to the

order from which Osiecki appealed only containing one case number, Osiecki noted, “Why the

Order was filed in only the 08TRD01583 docket sheet is not clear, but presumably it was filed

there because it was only for the traffic charges.”
                                                  5


       {¶8}    On May 21, 2009, this Court issued a journal entry dismissing Osiecki’s appeal

for lack of a final, appealable order. This Court noted that while Osiecki attempted to explain

the aforementioned issues, “he concede[d] that the order appealed fails to contain the charge

addressed.” This Court also acknowledged Osiecki’s observation in his response that that the

“record is very confusing as to how the Medina Municipal Court documented in its record the

charges against Osiecki.” This Court concluded that such ambiguity precludes our jurisdiction,

as the trial court must determine the matter before it such that the parties are sufficiently apprised

of their rights and obligations. Finally, this Court noted that Osiecki relied on an entry signed by

a magistrate to document that the charge of improperly handling of a firearm in a motor vehicle

had been dismissed. Based on the aforementioned issues, this Court concluded that it was

without jurisdiction to hear the appeal.

       {¶9}    While the appeal relating to the traffic charges was pending, Osiecki filed a

motion for attorney fees with the trial court on March 2, 2009. Osiecki listed both Case No.

08CRB00218 and Case No. 08TRD01583 on his motion. In his motion, Osiecki argued that he

was entitled to attorney fees under R.C. 9.68(B) because he had successfully defended the charge

of improperly handling firearms in a motor vehicle. On March 5, 2009, the trial court issued a

journal entry indicating that the State had until March 16, 2009, to respond to the motion for

attorney fees. On March 17, 2009, the State filed a motion for leave to respond to Osiecki’s

motion for attorney fees, as well a formal response to the motion. On March 18, 2009, the trial

court granted the motion for leave and noted that it would consider the response filed on March

17, 2009. The trial court held a hearing on the motion for attorney fees on July 6, 2009. On

August 12, 2009, the trial court denied Osiecki’s motion for attorney fees.
                                                6


       {¶10} Osiecki filed a notice of appeal on September 14, 2009. On September 24, 2009,

this Court dismissed the appeal by journal entry on the basis that it was not timely filed. On

September 29, 2009, the trial court lifted the stay of the proceedings. On November 12, 2009,

this Court issued a journal entry reinstating the appeal on the basis that Osiecki had demonstrated

that he filed his notice of appeal on September, 11, 2009, and that it was not time-stamped until

September 14, 2009. On December 10, 2009, Osiecki filed an emergency motion to stay

payment of court costs. In his motion, Osiecki argued that he had been notified that his driver’s

license would be suspended if he did not pay $294.00 within 30 days. Osiecki contended that he

had filed a motion to renew the stay with the trial court on December 3, 2009, but the trial court

had not ruled on the motion. Osiecki further noted that the reinstatement of the appeal was not

recorded on the trial court docket sheet for the traffic case. On December 24, 2009, this Court

denied Osiecki’s motion on the basis that a motion for stay of the trial court’s judgment must

first be made to the trial court pursuant to App.R. 7(A) and Osiecki had not demonstrated that the

trial court had denied the requested relief.

       {¶11} Also on December 24, 2009, Osiecki filed with this Court a motion for extension

of time to transmit the record. In the motion, Osiecki indicated that the clerk of courts had

informed him that there had been a delay in preparing the record and the record would not be

ready until after January 1, 2010. On January 5, 2010, Osiecki filed a motion to correct the

record pursuant to App.R. 9(E). In his motion, Osiecki indicated that he had received a letter

from this Court on December 31, 2009, which indicated that the record had been completed on

December 22, 2009. Osiecki contended that the “‘Docket Transcript’ as filed with the Court of

Appeals is not an accurate and complete record of the proceedings in the lower court.” This

Court issued a journal entry on January 29, 2010, which granted Osiecki’s motion to correct the
                                                  7


record, in part, and denied the motion, in part. As the record did not contain the transcript of

proceedings, this Court ordered the notice of filing the record stricken. To the extent that

Osiecki argued that the record was inaccurate and should be corrected, this Court denied the

motion on the basis that it was not within the scope of this Court’s authority to resolve disputes

regarding the trial court record. This Court also denied Osiecki’s motion for an extension of

time as premature.

        {¶12} On February 4, 2010, a transcript of docket and journal entries was filed with this

Court. On February 11, 2010, Osiecki filed an emergency motion to correct the record with the

trial court pursuant to App.R. 9(E). In his motion, Osiecki asked the trial court to order the clerk

of courts “to correct the [appellate] record so that it is consistent with the official records of the

trial court as shown by the official docket sheets kept by the clerk.” On the same day, the trial

court issued a journal entry in which it indicated that it had “reviewed the trial court transcript

filed with the Court of Appeals on February 4, 2010[,]” and identified one error. Specifically,

the trial court noted that the motion for attorney fees filed on March 2, 2009, consisting of items

132-136 on the docket sheet, was incorrectly recorded as “NOTICE FOR ATTORNEY FEES.”

The trial court concluded:

        “The transcript filed with the Court of Appeals as provided by the Clerk of court
        accurately reflects the trial proceedings conducted in this court with only one
        exception: The defendant’s assertion that ‘the clerk fabricated her own record for
        appeal’ is absolutely false. The transcript should reflect case activity for case
        numbers 08CRB00218 and 08TRD01583. The clerk is ordered to immediately
        file a transcript that contains both case numbers on the pages listing the
        documents contained in the transcript and that reflects items 132-136 filed on
        3/2/09 as ‘Motion for Attorney Fees.’

        “The balance of the defendant’s motion to correct the record is denied.”

An updated transcript of docket and journal entries was filed with the Court on February 12,

2010.
                                                   8


        {¶13} On appeal, Osiecki raises six assignments of error. This Court rearranges and

consolidates some of those assignments of error to facilitate review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

        “WHEN A CLERK OF COURT PREPARES A RECORD ON APPEAL TO BE
        TRANSMITTED TO THE APPELLATE COURT AND THE TRANSMITTAL
        INCLUDES DOCUMENTS NOT POSTED ON THE OFFICIAL DOCKET
        SHEETS KEPT BY THE CLERK AND MADE AVAILABLE TO THE PUBLIC
        AND ALSO HAS OTHER CONFLICTING ASPECTS WITH THE DOCKET
        SHEETS, A MUNICIPAL COURT JUDGE ERRS WHEN HE FAILS TO
        REQUIRE THE CLERK TO PREPARE A CORRECT AND ACCURATE
        RECORD ON APPEAL THAT IS NOT THE SAME AS THE OFFICIAL
        DOCKET SHEETS.”

        {¶14} In his first assignment of error, Osiecki argues the record transmitted to this Court

is not valid for the purpose of deciding his appeal. We do not reach the merits of his assignment

of error.

        {¶15} App.R. 9(E) states:

        “If any difference arises as to whether the record truly discloses what occurred in
        the trial court, the difference shall be submitted to and settled by that court and the
        record made to conform to the truth. If anything material to either party is
        omitted from the record by error or accident or is misstated therein, the parties by
        stipulation, or the trial court, either before or after the record is transmitted to the
        court of appeals, or the court of appeals, on proper suggestion or of its own
        initiative, may direct that the omission or misstatement be corrected, and if
        necessary that a supplemental record be certified and transmitted. All other
        questions as to the form and content of the record shall be presented to the court
        of appeals.”

        {¶16} The Supreme Court of Ohio has held that, “[t]wo things are clear from the rule.

The first is that either the trial court or the court of appeals may order that a record be corrected

and supplemented. The second is that where a party seeks to have the record corrected, it is

within the province of the trial court to resolve disputes about the record on appeal.” State v.

Schiebel (1990), 55 Ohio St.3d 71, 81.
                                                 9


         {¶17} In discussing the scope of the trial court’s authority to resolve disputes about the

record under App.R. 9, the Supreme Court relied on the Eighth District’s decision in Joiner v.

Illuminating Co. (1978), 55 Ohio App.2d 187, 195-196, which states:

         “Appellate Rules 9(C), (D), and (E) clearly state that if there are any objections,
         proposed amendments, or disagreements as to the proper contents of the statement
         of evidence or proceedings, of an agreed statement, or of the record as usually
         constituted under App.R. 9(A), these differences shall be submitted to and settled
         by the court.”

         {¶18} As noted above, Osiecki filed a motion to correct the record with this Court on

January 5, 2010. To the extent that Osiecki argued that the record was inaccurate and should be

corrected, this Court ruled that the dispute is to be settled by the trial court pursuant to App.R.

9(E). This Court emphasized that it is not within our authority to “resolve disputes about the trial

court’s record in the course of an appeal.” See Schiebel, 55 Ohio St.3d at 82. On February 11,

2010, Osiecki filed an emergency motion to correct the record with the trial court pursuant to

App.R. 9(E). The trial court subsequently issued a journal entry indicating that it had reviewed

the trial court transcript filed with the Court of Appeals and identified only one error. The trial

court noted that the motion for attorney fees filed on March 2, 2009, was incorrectly recorded as

a “notice” for attorney fees. The trial court specifically found that Osiecki’s assertion that the

“‘clerk fabricated her own record for appeal’ is absolutely false.” The trial court ordered the

clerk to correct the one mistake in the record and stated that the remaining portion of the record

“accurately reflect[ed] the trial proceedings conducted in this court[.]” Thus, the dispute with

respect to the appellate record in this case has already been submitted to and settled by the trial

court. Schiebel, 55 Ohio St.3d at 81. As this Court is without authority to address disputes with

respect to the record, this Court declines to reach the merits of Osiecki’s first assignment of

error.
                                               10


                                ASSIGNMENT OF ERROR II

       “WHEN A DEFENDANT PLEADS NO CONTEST TO AN OFFENSE AND A
       MAGISTRATE FAILS TO CONSIDER ANY EXPLANATION OF THE
       CIRCUMSTANCES OF THE OFFENSE, IT IS ERROR TO FIND A
       DEFENDANT GUILTY.”

                               ASSIGNMENT OF ERROR III

       “WHEN A MAGISTRATE DOES NOT NOTIFY THE DEFENDANT OF THE
       IMPOSITION OF COURT COSTS, IT IS ERROR FOR THE JUDGE OF A
       MUNICIPAL COURT TO SUBSEQUENTLY IMPOSE COURT COSTS.”

                               ASSIGNMENT OF ERROR IV

       “WHEN A MAGISTRATE DOES NOT NOTIFY THE DEFENDANT OF THE
       IMPOSITION OF COURT COSTS, IT IS ERROR FOR THE CLERK OF
       COURT TO UNILATERALLY ASSESS COURT COSTS THAT ARE NOT
       ORDERED AND/OR AUTHORIZED BY STATUTE.”

       {¶19} In Osiecki’s second, third, and fourth assignments of error, he raises challenges

relating to the traffic charges contained in Case No. 08TRD01583.

       {¶20} As a preliminary matter, this Court is obligated to raise sua sponte questions

related to its jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc. (1972), 29 Ohio

St.2d 184, 186. This Court has jurisdiction to hear appeals only from final judgments. Article

IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02. In the absence of a final, appealable

order, this Court must dismiss the appeal for lack of subject matter jurisdiction.          Lava

Landscaping, Inc. v. Rayco Mfg., Inc. (Jan. 26, 2000), 9th Dist. No. 2930-M.

       {¶21} On February 27, 2009, Osiecki appealed the trial court’s February 3, 2009

judgment entry. On April 2, 2009, this Court issued an order asking the parties to address

several issues relating to this Court’s jurisdiction. Osiecki filed a motion in response on April

24, 2009. This Court subsequently issued a journal entry on May 21, 2009, dismissing Osiecki’s

appeal for lack of a final, appealable order. Osiecki currently appeals from the order which

denied his motion for attorney fees relating to the charge of improperly handling firearms in a
                                                11


motor vehicle. The trial court had previously issued a judgment entry on December 2, 2008,

dismissing the charge of improperly handling firearms in a motor vehicle in Case No.

08CRB00218. Osiecki later filed a motion for attorney fees on March 2, 2009. After a hearing,

the trial court denied the motion on August 12, 2009. On September 14, 2009, Osiecki filed a

notice of appeal “from the final judgment in favor of [the State], which was entered in this action

on August 12, 2009.”      With respect to Case No. 08TRD01583, however, Osiecki has not

demonstrated that he appeals from a final, appealable, order. The fact that the trial Court issued

a judgment entry with respect to Osiecki’s motion for attorney fees in Case No. 08CRB00218

does not cure the jurisdictional issues which arose in Osiecki’s previous appeal. As Osiecki has

already appealed Case No. 08TRD01583 to this Court and had it dismissed for lack of a final,

appealable order, he cannot raise issues relating to the traffic charges in his current appeal from

the denial of his motion for attorney fees in Case No. 08CRB00218. It follows that this Court is

without jurisdiction to address Osiecki’s second, third, and fourth assignments of error.

                                ASSIGNMENT OF ERROR VI

       “WHERE A DEFENDANT IS CHARGED WITH A MISDEMEANOR OF
       IMPROPER TRANSPORTING OF A FIREARM UNDER A MUNICIPAL
       ORDINANCE, AND THE CHARGE IS DISMISSED, IT IS ERROR FOR THE
       TRIAL COURT TO DENY ATTORNEY FEES UNDER [R.C.] 9.68 BY
       HOLDING THAT THE DEFENDANT DID NOT PREVAIL.”

       {¶22} In his sixth assignment of error, Osiecki argues that the trial court erred in

concluding that he was not the prevailing party for the purposes of R.C. 9.68(B). We disagree.

       {¶23} R.C. 9.68 states, in a relevant part:

       “(A) The individual right to keep and bear arms, being a fundamental individual
       right that predates the United States Constitution and Ohio Constitution, and
       being a constitutionally protected right in every part of Ohio, the general
       assembly finds the need to provide uniform laws throughout the state regulating
       the ownership, possession, purchase, other acquisition, transport, storage,
       carrying, sale, or other transfer of firearms, their components, and their
                                                   12


       ammunition. Except as specifically provided by the United States Constitution,
       Ohio Constitution, state law, or federal law, a person, without further license,
       permission, restriction, delay, or process, may own, possess, purchase, sell,
       transfer, transport, store, or keep any firearm, part of a firearm, its components,
       and its ammunition.

       “(B) In addition to any other relief provided, the court shall award costs and
       reasonable attorney fees to any person, group, or entity that prevails in a challenge
       to an ordinance, rule, or regulation as being in conflict with this section.”

The statute does not define the term “prevails.”

       {¶24} In denying Osiecki’s motion for attorney fees, the trial court noted that the

“procedural history of this case is important to the decision concerning the issue before the

court.” Osiecki filed a motion to dismiss for a lack of subject matter jurisdiction the charge of

improperly handling firearms in a motor vehicle on July 8, 2008. In his motion, Osiecki argued

that R.C. 9.68 preempted all municipal firearm ordinances. Specifically, Osiecki argued that (1)

the police officer had no legal authority to charge Osiecki with a firearms violation per the

Medina ordinance; (2) the Assistant Medina Prosecutor had no legal authority prosecute a

firearms charge against Osiecki; and (3), the trial court had no subject matter jurisdiction to hear

a charge made in violation of R.C. 9.68. In support of his position, Osiecki cited Ohioans for

Concealed Carry, Inc. v. Clyde, 6th Dist. Nos. S-06-039, S-06-040, 2007-Ohio-1733. In its

response which was filed on July 29, 2008, the State argued that M.C.O. 549.04(b) is identical to

R.C. 2923.16(C) in both language and punishment. The State argued that pursuant to the Home

Rule Amendment of the Ohio Constitution, M.C.O. 549.04(b) was viable because it was not in

conflict with the general laws of Ohio. Osiecki subsequently filed a reply on August 12, 2008.

Attached to the reply was a copy of the police report, in which the officer stated:

       “I asked for his driver’s license and insurance card. He handed me the OL and
       CWW permit. I asked him if he was carrying his weapon on him and he stated
       no. I asked if it was in the vehicle and he stated that it was. I asked where and he
       said that it was in the dash. He then opened a compartment in the dash that was
                                                13


        less than arms length from him. Inside was a semi-automatic pistol and laying
        beside it was the magazine, clearly loaded w/ ammo.”

The State filed a rebuttal to the reply August 27, 2008, and on September 5, 2008, Osiecki filed a

reply to the State’s rebuttal.

        {¶25} At the time Osiecki was charged, R.C. 2923.16(F)(4) stated:

        “Divisions (B) and (C) of this section do not apply to a person who transports or
        possesses a handgun in a motor vehicle if, at the time of that transportation or
        possession, all of the following apply:

        “(a) The person transporting or possessing the handgun is carrying a valid license
        or temporary emergency license to carry a concealed handgun issued to the person
        under [R.C.] 2923.125 or 2923.1213 or a license to carry a concealed handgun
        that was issued by another state with which the attorney general has entered into a
        reciprocity agreement under [R.C.] 109.69.

        “(b) The person transporting or possessing the handgun is not knowingly in a
        place described in division (B) of [R.C.] 2923.126.

        “(c) One of the following applies:

        “(i) The handgun is in a holster on the person’s person.

        “(ii) The handgun is in a closed case, bag, box, or other container that is in plain
        sight and that has a lid, a cover, or a closing mechanism with a zipper, snap or
        buckle, which lid, cover, or closing mechanism must be opened for a person to
        gain access to the handgun.

        “(iii) The handgun is securely encased by being stored in a closed, locked glove
        compartment or in a case that is locked.”

At the time Osiecki was charged, M.C.O. 549.04(d)(2) contained identical language to R.C.

2923.16(F)(4). Subsequent to the filing of Osiecki’s motion to dismiss but prior to the issuance

of a ruling on the motion, the Ohio legislature amended R.C. 2923.16(F)(4)(c)(iii).            The

amendment, which took effect on September 9, 2008, deleted the word “locked” before “glove

compartment” and inserted the language “or vehicle console” after “glove compartment.”

        {¶26} Before the trial court could issue a ruling on Osiecki’s motion to dismiss for lack

of subject matter jurisdiction, the State filed a motion to dismiss on November 14, 2008. The
                                                 14


State moved to dismiss the charge of improperly handling firearms charge on the basis that there

had been “a change in R.C. 2923.16 which inure[d] to the defendant’s benefit.” The State noted

that the statutory change took effect on September 9, 2008, and asked that the case be dismissed

with costs to the State. The State indicated that it intended to proceed with the traffic citations in

Case No. 08TRD01583. On December 2, 2008, the trial court issued a journal entry dismissing

the improperly handling firearms charge in Case No. 08CRB00218 and assessed costs to the

State.

         {¶27} In subsequently finding that Osiecki was not the prevailing party for the purposes

of awarding attorney fees under R.C. 9.68(B), the trial court stated, “Although the law in effect

at the time the defendant was cited required that the glove compartment be closed and locked,

the State chose to exercise its discretion because the change in the law occurred while the case

was pending and was to the benefit of the defendant.” In support of its conclusion, the trial court

cited the Supreme Court of Ohio’s decision in Sturm v. Sturm (1992), 63 Ohio St.3d 671, 675,

for the proposition that a prevailing party does not exist when a claim is voluntarily dismissed.

         {¶28} On appeal, Osiecki argues that the State filed a motion to dismiss in an attempt to

circumvent R.C. 9.68(B). Osiecki contends that the State was aware that he would be awarded

attorney fees if it continued to prosecute the case. Osiecki contends that “the prosecution knew it

was facing a serious problem” in light of the Supreme Court of Ohio’s decision in Ohioans for

Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, in which the high court

held that a city ordinance that conflicted with general law governing licenses to carry concealed

handguns was unconstitutional. Osiecki further contends that, because the amended statutory

language would not be applied retroactively, the State was not obligated to dismiss the charge on

the basis that the change in law benefited Osiecki. In his merit brief, Osiecki notes that there are
                                                15


no cases which address the issue of what constitutes a prevailing party in the criminal context.

Instead of looking to the Supreme Court’s decision in Sturm for guidance on what constitutes a

prevailing party for the purposes of R.C. 9.68(B), Osiecki urges this Court to consider its

decision in Haynes v. Christian, 9th Dist. No. 24556, 2009-Ohio-3973.1

        {¶29} In light of the aforementioned procedural history of this case, we conclude that

Osiecki did not “prevail[] in a challenge to an ordinance, rule, or regulation as being in conflict

with [R.C. 9.68].” See R.C. 9.68(B). This Court recognizes a distinction between mounting a

successful challenge to the validity of a criminal statute and avoiding conviction because the

State moved to dismiss a charge. Unlike the circumstances at issue in Clyde, Osiecki did not file

an action “seeking an order striking down the ordinance and, further, seeking injunctive relief

prohibiting [him] from curtailing gun owners’ rights.” Clyde at ¶19. This case involved a

criminal proceeding where there was never a decision or verdict rendered in favor of Osiecki. A

trier of fact did not make a finding that Osiecki was not guilty of improperly handing firearms in

a motor vehicle and Osiecki did not prevail on his motion to dismiss for lack of subject matter

jurisdiction.   Instead, the State exercised its discretion to dismiss the improperly handling

firearms in a motor vehicle charge due to a change in the law. Osiecki’s argument that the State

moved to dismiss the charge simply to circumvent R.C. 9.68(B) is not supported by the record.

In its motion in opposition to Osiecki’s motion for attorney fees, the State noted that it moved to

dismiss the charge under M.C.O. 549.04(b)(2) “on the grounds that R.C. 2923.16, the

identically-worded state statute on which the city ordinance is based, had been amended effective




1
 In Haynes, this Court considered the definition of “prevailing party” for the purposes of Civ.R.
54 in a case where an injured motorist brought a personal injury action against a driver with
whom she was involved in a motor vehicle accident.
                                                16


September of 2008 (nearly six months after Defendant’s offenses) in a manner that inured to the

Defendant’s benefit.” As explained in Comment 1 to Rule 3.8 of the Ohio Rules of Professional

Conduct, “A prosecutor has the responsibility of a minister of justice and not simply that of an

advocate. This responsibility carries with it specific obligations to see that the defendant is

accorded justice[.]” See, also, State v. Kirby, 9th Dist. No. 23814, 2008-Ohio-3107, at ¶36.

Thus, the State may move the trial court to dismiss a criminal charge, as it did in this case, when

it finds that doing so would be in the interest of justice. As Osiecki did not prevail for the

purposes of R.C. 9.68(B), the trial court did not err in denying Osiecki’s motion for attorney

fees.

        {¶30} Osiecki’s sixth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR V

        “WHERE A DEFENDANT IS CHARGED WITH A MISDEMEANOR OF
        IMPROPER TRANSPORTING OF A FIREARM UNDER A MUNICIPAL
        ORDINANCE, AND THE ELEMENTS CLAIMED TO HAVE BEEN
        VIOLATED IN THE PROSECUTION CONSTITUTE A FELONY UNDER
        STATE LAW, IT IS ERROR FOR THE TRIAL COURT TO HOLD THAT THE
        MUNICIPAL ORDINANCE AND THE STATE LAW REGARDING
        FIREARMS ARE IDENTICAL.”

        {¶31} In his fifth assignment of error, Osiecki argues that the trial court erred in holding

that the municipal ordinance and the state law were identical. In light of our resolution of

Osiecki’s sixth assignment of error, this Court declines to address his fifth assignment of error as

it is rendered moot. See App.R 12(A)(1)(c).

                                                III.

        {¶32} This Court is without jurisdiction to reach the merits of Osiecki’s first, second,

third, and fourth assignments of error. Osiecki’s sixth assignment of error is overruled. This
                                                17


Court does not reach the merits of Osiecki’s fifth assignment of error as it is rendered moot. The

judgment of the Medina Municipal Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                     DONNA J. CARR
                                                     FOR THE COURT

WHITMORE, J.
DICKINSON, P. J.
CONCUR

APPEARANCES:

CHARLES E. MCFARLAND, Attorney at Law, for Appellant.

RICHARD BARBERA, Assistant Prosecuting Attorney, for Appellee.
