[Cite as State v. Masalko, 2015-Ohio-5179.]


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

STATE OF OHIO                                         C.A. No.       15AP0011

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID MASALKO                                         WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2014 CRB 001615

                                 DECISION AND JOURNAL ENTRY

Dated: December 14, 2015



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, David Masalko, appeals the judgment of the Wayne County

Municipal Court convicting him of public indecency and sentencing him to 30 days in jail as

well as an 18-month term of community control. For the reasons that follow, we reverse and

remand.

                                                 I.

        {¶2}     Masalko was charged on one count of public indecency in violation of R.C.

2907.09(A)(2), a misdemeanor of the third degree. The matter proceeded to a bench trial before

a magistrate. The magistrate found Masalko guilty of the charge and issued a magistrate’s

decision with his guilty finding and recommended sentence. The decision is a form document

that has a series of options with boxes to be checked where applicable. One of these boxes is

next to a statement informing the parties that they forfeit appellate review of an issue unless they

file timely objections raising that issue pursuant to Crim.R. 19. This checkbox, however, was
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not marked in the magistrate’s decision. The trial court adopted the magistrate’s decision as its

judgment seven days after the decision’s issuance and Masalko did not file objections. This

timely appeal followed.

                                                II.

                                      Assignment of Error

       The trial court erred by finding Mr. Masalko guilty of public indecency, as
       the evidence clearly weighed against [the] conviction.

       {¶3}    In his sole assignment of error, Masalko argues that his conviction should be

reversed since it is against the manifest weight of the evidence. We do not reach the merits of

Masalko’s argument since we determine that the trial court erred by failing to inform him of the

need to file timely objections as required by Crim.R. 19(D)(3)(a)(iii).

       {¶4}    Since the bench trial was held before a magistrate, Crim.R. 19’s provisions apply

to this matter. Akron v. Jackson, 9th Dist. Summit No. 27077, 2014-Ohio-2036, ¶ 8. Pursuant to

Crim.R. 19(D)(3)(b), a party forfeits appellate review of an issue, except for a claim of plain

error, unless he files objections to the magistrate’s decision within 14 days of its issuance. Id.

Nevertheless, Crim.R. 19(D)(3)(a)(iii) provides that the magistrate’s decision “shall indicate

conspicuously that a party shall not assign as error on appeal the court’s adoption of any factual

finding or legal conclusion * * * unless the party timely and specifically objects to that factual

finding or legal conclusion as required by Crim.R. 19(D)(3)(b).” (Emphasis added.)

       {¶5}    This Court has not addressed the consequences that result from the failure to

provide the notice required by Crim.R. 19(D)(3)(a)(iii) in a magistrate’s decision. But, since

both Civ.R. 53(D) and Juv.R. 40(D) contain provisions with language that is nearly identical to

the language of Crim.R. 19(D)(3)(a)(iii), it is appropriate to rely on this Court’s precedents

applying those provisions. See In re T.S., 9th Dist. Medina No. 11CA0033-M, 2012-Ohio-858, ¶
                                                  3


8 (“Courts have noted that Civ.R. 53(D) and Juv.R. 40(D) are analogous. Thus, we conclude it is

appropriate to rely on our case law examining similar provisions of Civ.R. 53.”). This Court has

previously determined that the failure to properly inform the parties under those analogous

provisions regarding the necessity of filing timely objections to the magistrate’s decision is

erroneous and results in the reversal of the trial court’s subsequent adoption of that decision.

E.g., id. at ¶ 7-8 (reversing trial court’s judgment for failure to inform pursuant to Juv.R.

40(D)(3)(a)(iii)); Williams v. Ormsby, 9th Dist. Medina No. 09CA0080-M, 2010-Ohio-3666, ¶

12-13 (reversing trial court’s judgment for failure to inform pursuant to Civ.R. 53(D)(3)(a)(iii)).

Moreover, in such cases, this Court has remanded the matter for the preparation of a new

magistrate’s decision that complies with the relevant notice provisions and for the trial court to

give the parties the opportunity to file timely objections. See T.S. at ¶ 8; Williams at ¶ 13.

       {¶6}    Here, the caption of the magistrate’s decision was “Magistrate’s Proposed

Decision/Journal Entry Judgment Entry – Sentence.” Such a disjointed caption fails to inform

the parties of the nature of the entry. Additionally, the magistrate’s decision contains a check

box for a notice informing the parties of the necessity of filing timely objections to preserve

issues for appellate review. But, the magistrate did not check that box, indicating that the notice

was inapplicable in this matter. Based on these deficiencies in the magistrate’s decision, we

determine that it failed to provide the required notice of the necessity of filing objections in order

to preserve appellate review. See T.S. at ¶ 8 (determining that magistrate’s decision failed to

provide required notice under Juv.R. 40(D)(3)(a)(iii) since it was mislabeled as an order and it

did not have a marked check box next to the notice for the necessity of filing objections). And,

in reliance on this Court’s previous case law interpreting Civ.R. 53 and Juv.R. 40, we conclude
                                                  4


that the failure to provide the notice required by Crim.R. 19(D)(3)(a)(iii) amounts to reversible

error that requires this matter to be remanded to the trial court.

       {¶7}    Accordingly, we decline to address the merits of Masalko’s assignment of error.

Rather, we reverse the trial court’s judgment and remand this matter so that the magistrate can

prepare and file a decision that comports with Crim.R. 19 and provides the parties with the

opportunity to file timely objections and any relevant transcript or affidavit.

                                                 III.

       {¶8}    In light of the foregoing, we reverse the judgment of the Wayne County

Municipal Court and remand this matter for further proceedings consistent with this opinion.

                                                                                   Judgment reversed,
                                                                                  and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, 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(C). 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.
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      Costs taxed to Appellee.




                                             JULIE A. SCHAFER
                                             FOR THE COURT



MOORE, J.
CONCURS.

HENSAL, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

PATRICK L. BROWN, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
