[Cite as State v. McKeever, 2019-Ohio-4913.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLINTON COUNTY




 STATE OF OHIO,                                  :

        Appellant,                               :      CASE NO. CA2018-12-025

                                                 :            OPINION
     - vs -                                                    12/2/2019
                                                 :

 DONALD L. McKEEVER,                             :

        Appellee.                                :




              CRIMINAL APPEAL FROM CLINTON COUNTY MUNICIPAL COURT
                               Case No. CRB 1801963


Laura Railing Gibson, Wilmington City Prosecutor, 69 North South Street, Wilmington, Ohio
45177, for appellee

Donald L. McKeever, 250 S. Nelson Ave., Lot 80, Wilmington, Ohio 45177, pro se


        S. POWELL, J.

        {¶ 1} Appellant, the state of Ohio, appeals the decision of the Clinton County

Municipal Court sua sponte amending a complaint charging appellee, Donald L. McKeever,

with first-degree misdemeanor domestic violence to a lesser charge of minor misdemeanor

disorderly conduct. For the reasons outlined below, we reverse the trial court's decision

and remand this matter for further proceedings.

        {¶ 2} On December 12, 2018, a complaint was filed charging McKeever with one
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count of domestic violence, a first-degree misdemeanor. As alleged in the complaint, the

charge arose after Patrol Officer Anthony Mitchell was dispatched to a Clinton County trailer

park on reports of a domestic dispute.             Upon his arrival, Officer Mitchell contacted

McKeever. When contacted by Officer Mitchell, McKeever admitted to striking his adult son

in the face while the two were drinking because his son "kept running his mouth." McKeever

also admitted that "he knew it was wrong" to strike his son in the face "and that he was very

sorry."

          {¶ 3} Two days later, McKeever appeared before the trial court at his arraignment.

During this hearing, for which the record indicates only the victim's advocate was present,

the trial court advised McKeever that a complaint had been filed charging him with first-

degree misdemeanor domestic violence. Upon advising McKeever of the charge levied

against him, the trial court then engaged McKeever in the following exchange:

                THE COURT: So, does anything good ever happen to you when
                you've been drinking, Don?

                MR. MCKEEVER: Seems like it doesn't, sometimes I get along
                and sometimes I get out of hand when I drink too much
                (inaudible) it's time for me to try to quit it all, I'm 60 years old and
                everything, it's time for me to quit.

                THE COURT: You remember that time, gosh, 15, 20 years ago
                when you passed out right here in front of the City Building and
                hit your head on the curb?

                MR. MCKEEVER: Yeah.

                THE COURT: I mean, we've [been] doing this a long time.

                MR. MCKEEVER: Yeah, I know.

          {¶ 4} Following this exchange, the trial court sua sponte amended the charge from

first-degree misdemeanor domestic violence to a lesser charge of minor misdemeanor

disorderly conduct. The trial court explained its decision to amend the charge down to a

minor misdemeanor because McKeever had merely struck his adult son in the face rather

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than "beating up your little kid[.]" Specifically, as the trial court stated when amending the

charge to minor misdemeanor disorderly conduct:

               All right. What we got here is really not the same thing as
               beating up your little kid, really not the same thing. What we've
               got is engaging in fighting, threatening harm to persons or
               property and violent or turbulent behavior. What we've got is
               engaging in conduct while you're voluntarily intoxicated that
               presents a risk of harm to another person. Therefore, I'm
               ordering this charge amended to disorderly conduct.

        {¶ 5} Upon sua sponte amending the charge from domestic violence to disorderly

conduct, the trial court asked McKeever how he wished to plead. To this, McKeever stated

that he wanted to plead guilty. Finding the plea knowingly, intelligently, and voluntarily

entered, the trial court accepted McKeever's guilty plea. After accepting McKeever's guilty

plea, the trial court then proceeded immediately to sentencing and ordered McKeever to

pay a $50 fine and court costs. The trial court then told McKeever "[d]on't hit your boy in

the face anymore, it just causes trouble for you." McKeever responded and stated, "Yes,

sir."

        {¶ 6} The state now appeals, raising the following single assignment of error for

review.

        {¶ 7} THE TRIAL COURT ERRED BY AMENDING THE CHARGE FROM

DOMESTIC VIOLENCE TO DISORDERLY CONDUCT.

        {¶ 8} In its single assignment of error, the state argues that the trial court erred by

sua sponte amending the charge from first-degree misdemeanor domestic violence to a

lesser charge of minor misdemeanor disorderly conduct. We agree.

        {¶ 9} Although a procedural oddity, this exact factual scenario occurred in Akron v.

Shuman, 9th Dist. Summit No. 18851, 1998 Ohio App. LEXIS 2472 (May 27, 1998). In

Shuman, just like in the case at bar, a complaint was issued charging appellant with one

count of domestic violence. The trial court, however, sua sponte amended the complaint

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"to the lesser charge of disorderly conduct and sentenced [appellant] accordingly." Id. at

*1. The state then appealed arguing that "the trial court abused its discretion by amending

a charge of domestic violence to disorderly conduct without the involvement of the

prosecutor." Id. at *2. The Ninth District Court of Appeals agreed. In so holding, the Ninth

District stated:

               [T]he trial court acted outside its discretion when it amended the
               charge against [appellant] from domestic violence to disorderly
               conduct. In doing so, the trial court deprived [the state] of its
               day in court. The action of the trial court in sua sponte amending
               the charge constituted a violation of Crim.R. 7(D).

(Internal citations and emphasis deleted) Id.

       {¶ 10} Pursuant to Crim.R. 7(D), a trial court may amend a complaint at any time

either before, during, or after a trial "in respect to any defect, imperfection, or omission in

form or substance, or of any variance with the evidence, provided no change is made in the

name or identity of the crime charged." "If an amendment changes the penalty or degree

of the charged offense, it changes the identity of the offense and is not permitted by Crim.R.

7(D)." State v. Bradley, 12th Dist. Warren No. CA2016-11-094, 2017-Ohio-7121, ¶ 19,

citing State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, ¶ 13. "Whether or not an

amendment changes the name or identity of the offense with which one is charged is a

matter of law, and therefore we must review this issue de novo." State v. McGlothin, 12th

Dist. Clermont No. CA2015-02-017, 2015-Ohio-2992, ¶ 19, citing State v. Craft, 181 Ohio

App.3d 150, 2009-Ohio-675, ¶ 22 (12th Dist.).

       {¶ 11} Here, the trial court's decision to sua sponte amend the charge from domestic

violence to disorderly conduct changed both the name and identity of the offense. As noted

above, the complaint charged McKeever with domestic violence, a first-degree

misdemeanor. The amendment, however, charged McKeever with disorderly conduct, a

minor misdemeanor. Therefore, just like in Shuman, the trial court's decision to sua sponte

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amend the charge from domestic violence to disorderly conduct without any involvement of

the state constituted a violation of Crim.R. 7(D). Rather than the trial court judge, "[t]he

decision whether to prosecute and what charge to file is within the prosecutor's discretion."

State v. Lewis, 5th Dist. Coshocton No. 2019CA0009, 2019-Ohio-4193, ¶ 9, citing State ex

rel. Jones v. Garfield Heights Municipal Court, 77 Ohio St.3d 447, 448 (1997); and

Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). Therefore, because the trial court

erred by sua sponte amending the charge from first-degree misdemeanor domestic

violence to a lesser charge of minor misdemeanor disorderly conduct, the state's single

assignment of error is sustained.

      {¶ 12} Judgement reversed and remanded for further proceedings.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




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