[Cite as State ex rel. Dunkle v. Marcelain, 2018-Ohio-1019.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO, ex rel.      :                                  JUDGES:
DAVID E. DUNKLE             :
                            :                                  Hon. W. Scott Gwin, P.J.
     Relator                :                                  Hon. William B. Hoffman, J.
                            :                                  Hon. Patricia A. Delaney, J.
-vs-                        :
                            :
THOMAS M. MARCELAIN         :                                  Case No. 17-CA-94
JUDGE COURT OF COMMON PLEAS :
                            :
     Respondent             :                                  OPINION



CHARACTER OF PROCEEDING:                                       WRIT OF MANDAMUS




JUDGMENT:                                                      DISMISSED




DATE OF JUDGMENT:                                              March 15, 2018




APPEARANCES:

For Respondent:                                                For Relator:

CAROLYN J. CARNES                                              DAVID E. DUNKLE, PRO SE
Assistant Prosecuting Attorney                                 Marion Correctional Institution
20 South Second Street, 4th Floor                              P.O. Box 57
Newark, OH 43055                                               Marion, OH 43301-0057
Delaney, J.

       {¶1}   Relator, David E. Dunkle, has filed a Petition for Writ of Mandamus

requesting a writ issue “compelling Respondent . . .to . . .show cause how the Respondent

gained subject matter jurisdiction without the compliance of the rules of procedure of

criminal proceedings, and according to, as a matter of law.”

       {¶2}   Relator was charged with Rape by way of a complaint filed on April 1, 1986

in the Licking County Municipal Court. Thereafter, a multi count indictment was filed on

April 10, 1986 in the Licking County Court of Common Pleas which included counts of

rape, complicity to commit rape, and a firearm specification.

       {¶3}   Relator maintains the trial court lacked subject matter jurisdiction because

a complaint was never filed. Respondent has filed a motion to dismiss with an attached

copy of the complaint filed in the Licking County Municipal Court charging Relator with

rape. Relator in turn acknowledges a complaint was filed in the municipal court but argues

it was also required to be file stamped in the Court of Common Pleas. He argues the

failure to file stamp the original complaint in the court of common pleas divests the court

of common pleas of jurisdiction over his case.

       {¶4}   On April 4, 2017, Relator filed a “Motion to Arrest Judgment” in the

underlying criminal case raising the same issues raised in the petition before us.

Respondent denied the motion on August 24, 2017. Relator did not appeal the denial of

the motion. Rather, Relator instituted the instant petition to raise the issue.

       {¶5}   “For a writ of mandamus to issue, the relator must establish a clear legal

right to the relief prayed for; the respondent must have a clear legal duty to perform the

act; and the relator must have no plain and adequate remedy in the ordinary course of
the law.” State ex rel. Widmer v. Mohney, 11th Dist. Geauga No. 2007–G–2776, 2008–

Ohio–1028, ¶31.

      {¶6}   Relator cites no case law or statutory authority in support of his contention

that the municipal court complaint must also be filed in the court of common pleas as a

prerequisite to the common pleas court’s gaining jurisdiction over a criminal felony case.

Relator was not convicted by virtue of the municipal court complaint. Rather, he was

charged by way of grand jury indictment filed on April 10, 1986 and convicted based upon

the indictment.

      {¶7}   Relator cites R.C. 1901.31(E) for the proposition the complaint must be filed

in the court in which a defendant is to appear. This code section applies to municipal

courts. The complaint was filed in the municipal court as is evidenced by the time stamp

on the complaint.

      {¶8}   After Respondent provided the time-stamped complaint, Relator began to

argue the complaint was required to be filed in the court of common pleas. The rule cited

by Relator, Crim. R. 5(B)(7), merely requires the municipal court or municipal court clerk

to transmit the municipal court record to the court in which the defendant is going to

appear which in this case would have been the Licking County Court of Common Pleas.

      {¶9}   Crim. R. 5(B)(7) provides,

      Upon the conclusion of the hearing and finding, the court or the clerk of such
      court, shall, within seven days, complete all notations of appearance, motions,
      pleas, and findings on the criminal docket of the court, and shall transmit a record
      of the appearance docket entries, together with a copy of the original complaint
      and affidavits, if any, filed with the complaint, the journal or docket entry of
      reason for changes in the charge, if any, together with the order setting bail and
      the bail including any bail deposit, if any, filed, to the clerk of the court in which
      defendant is to appear.
       {¶10} Even assuming arguendo the municipal court complaint should have been

file stamped in the court of common pleas, courts have held that any irregularity with the

initial charging document is harmless error once the indictment issues. See e.g. State v.

Gaitor, 7th Dist. Mahoning No. 13 MA 189, 2014-Ohio-4010, ¶ 16 (any error in failing to

file a complaint was rendered harmless by the issuing of the indictment).

       {¶11} In this case, the indictment issued on April 10, 1986 and was filed in the

court of common pleas. Not only has Relator failed to direct this Court to any case law

or statute which requires a common pleas court clerk to file stamp a municipal court

complaint, but any error in failing to file a municipal court complaint, if it were required,

would be harmless once an indictment is filed.

       {¶12} Because Relator has failed to any claim upon which relief may be granted,

the writ will not issue.


By Delaney, J.

Gwin, P.J. and

Hoffman, J. concur.
