[Cite as State ex rel. Bunting v. Styer, 2015-Ohio-3662.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE EX REL                                         :      JUDGES:
PAUL EDWARD BUNTING                                  :      Hon. William B. Hoffman, P.J.
                                                     :      Hon. Patricia A. Delaney, J.
         Relator                                     :      Hon. Craig R. Baldwin, J.
                                                     :
-vs-                                                 :
                                                     :
TUSCARAWAS COUNTY                                    :      Case No. 2014 AP 12 0054
PROSECUTOR RYAN STYER                                :
                                                     :
        Respondent                                   :      OPINION



CHARACTER OF PROCEEDING:                                    Writ of Mandamus




JUDGMENT:                                                   Dismissed




DATE OF JUDGMENT:                                           September 8, 2015



APPEARANCES:

For Relator                                                 For Respondent

PAUL EDWARD BUNTING, Pro Se                                 ROBERT R. STEPHENSON II
PID No. A395279                                             Assistant Prosecuting Attorney
In care of Belmont Correctional Institution                 Tuscarawas County, Ohio
68518 Bannock Road, S.R. 331                                125 East High Ave.
PO Box 540                                                  New Philadelphia, OH 44663
St. Clairsville, OH 43950-0540
Tuscarawas County, Case No. 2014 AP 12 0054                                                 2



Baldwin, J.

       {¶1}   Relator, Paul Edward Bunting, has filed a Petition for Writ of Mandamus

requesting this Court issue a writ ordering Respondent, the Tuscarawas County

Prosecutor, to present the results of his investigation to the municipal court.

       {¶2}   Respondent has filed a motion to dismiss for failure to state a claim upon

which relief may be granted. Relator in turn has moved the Court to strike the motion as

untimely which the Court grants.       Nonetheless, we have authority to sua sponte

consider dismissal of the complaint for failure to state a claim upon which relief may be

granted.

       {¶3}   “Sua sponte dismissal of a complaint for failure to state a claim upon

which relief can be granted is appropriate if the complaint is frivolous or the claimant

obviously cannot prevail on the facts alleged in the complaint. State ex rel. Bruggeman

v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287.” State ex rel.

Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667.

                                             FACTS

       {¶4}   In August 2000, Relator began serving an 18 year prison sentence.

According to Relator, he gave his mother a power of attorney to take care of his affairs

while Relator was in prison. Pursuant to the power of attorney, Relator’s mother moved

Relator’s van and motorcycle to be stored at a farm of a family friend.

       {¶5}   After Relator’s mother died in 2008, Relator claims the family friend

keeping the motorcycle stopped corresponding with Relator. Relator then contacted the

Sheriff’s office to pursue charges of theft against the family friend as well as against

Relator’s daughter.      Relator initially accused both the farm owner and Relator’s
Tuscarawas County, Case No. 2014 AP 12 0054                                                 3


daughter of forging the titles to Relator’s van and motorcycle. He alleged the two forged

the titles and sold the vehicles. Eventually, Relator filed an affidavit pursuant to R.C.

2935.09 alleging a crime had been committed.

       {¶6}   On July 30, 2013, Respondent notified Relator that a referral had been

made by the New Philadelphia Municipal Court pursuant to R.C. 2935.10. Further,

Respondent indicated he would make a decision as to whether charges would be filed

after reviewing the report from the Tuscarawas County Sheriff’s Office. On August 21,

2013, the Sheriff’s report was issued.

       {¶7}   Attached to Relator’s complaint is a copy of the Investigation Narrative

conducted by the Tuscarawas County Sheriff’s Office. The investigation revealed the

van was located at the Sheriff’s impound lot. Relator had been notified of the need to

make arrangements for the van from the farm, but when that did not occur, the van was

towed to the impound lot. Apparently because the van had been located, Relator’s

instant complaint deals only with the alleged theft of the motorcycle.

       {¶8}   The two suspects told the same story relative to the motorcycle. They

indicated the motorcycle frame and parts were stored in a barn which had been

destroyed by a fire. The sheriff’s deputy confirmed there was a barn fire through CAD

records.

       {¶9}   Upon completion of his investigation, the deputy sheriff concluded, “I have

not found any evidence of a theft or forgery offense against either suspect…”

       {¶10} Respondent refused to pursue charges against the alleged suspects.
Tuscarawas County, Case No. 2014 AP 12 0054                                                   4


                                     LAW AND ANALYSIS

      {¶11} Revised Code 2935.09 allows a citizen to file an affidavit if the citizen has

knowledge of facts indicating a crime has been committed. Thereafter, a court may

make a referral pursuant to R.C. 2935.10 to the prosecutor’s office for investigation if

the affidavit alleges a felony has been committed.

      {¶12} The Supreme Court has explained, “R.C. 2935.09 does not mandate

prosecution of all offenses charged by affidavit. Although 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 a person charged, it must be read in pari materia with R.C. 2935.10,

which prescribes the subsequent procedure to be followed. State ex rel. Strothers v.

Turner (1997), 79 Ohio St.3d 272, 273, 680 N.E.2d 1238, 1239. R.C. 2935.10 does not

place any duty upon city prosecutors to prosecute misdemeanors charged by affidavit

filed under R.C. 2935.09.” State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d

174, 175, 1998-Ohio-128, 699 N.E.2d 60, 61 (1998)

      {¶13} “A prosecuting attorney will not be compelled to prosecute a complaint

except when the failure to prosecute constitutes an abuse of discretion. State ex rel.

Squire v. Taft (1994), 69 Ohio St.3d 365, 368, 632 N.E.2d 883, 885; State ex rel. Murr v.

Meyer (1987), 34 Ohio St.3d 46, 47, 516 N.E.2d 234, 235. Therefore, the decision

whether to prosecute is discretionary, and not generally subject to judicial review. Ohio

Assn. of Pub. School Emp., Chapter 643, AFSCME, AFL–CIO v. Dayton City School

Dist. Bd. of Edn. (1991), 59 Ohio St.3d 159, 160, 572 N.E.2d 80, 82.” State ex rel.

Master v. Cleveland, 75 Ohio St.3d 23, 27, 1996-Ohio-228, 661 N.E.2d 180, 184 (1996).
Tuscarawas County, Case No. 2014 AP 12 0054                                                     5


       {¶14} R.C. 2935.10 provides in relevant part, “(A) 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 refer the matter to the prosecuting attorney or

other attorney charged by law with prosecution for investigation prior to the issuance of

warrant.”

       {¶15} In this case, the municipal court made the required referral to the

prosecuting attorney who, through the sheriff’s office, conducted an investigation. As

the result of the investigation, Respondent decided no criminal charges were warranted.

       {¶16} While the exact relief sought by Relator is difficult to comprehend by

reading the complaint, it appears Relator wants this Court to order Respondent to

present his findings to the municipal court. Relator cites no authority for the proposition

that Respondent be required to present his findings to the referring court for

examination.

       {¶17} A prosecutor is merely required to conduct an investigation and will only

be required to pursue a complaint where the failure to do so amounts to an abuse of

discretion. See R.C. 2935.10(A) and State ex rel. Squire v. Taft (1994), 69 Ohio St.3d

365, 368, 632 N.E.2d 883, 885; State ex rel. Murr v. Meyer (1987), 34 Ohio St.3d 46,

47, 516 N.E.2d 234, 235.
Tuscarawas County, Case No. 2014 AP 12 0054                                               6


      {¶18} Relator has not presented any evidence beyond mere speculation that

Respondent abused his discretion by failing to pursue criminal charges. The result of

Respondent’s investigation failed to support the filing of a criminal complaint because

no evidence of theft or forgery was discovered. For these reasons, we find the cause

should be dismissed for failure to state a claim upon which relief may be granted.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
