[Cite as State ex rel. Brown v. Jeffries, 2012-Ohio-1522.]



                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY

STATE EX. REL. STEVEN BROWN,          :    Case No. 11CA3275
                                      :
     Plaintiff-Appellant,             :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
WARDEN JEFFRIES, ET AL.,              :
                                      :    RELEASED 03/28/12
                                      :
     Defendant-Appellees.             :
______________________________________________________________________
                            APPEARANCES:

Steven S. Brown, Lucasville, Ohio, pro se.

Michael Dewine, Ohio Attorney General, and Peter L. Jamison, Ohio Assistant Attorney
General, Columbus, Ohio, for appellees.
______________________________________________________________________
Harsha, J.

        {¶1}     Steven Brown appeals the trial court’s decision not to issue warrants

based on his affidavit for a criminal complaint, arguing that the court abused its

discretion by failing to hold a hearing before deciding whether his affidavit had merit, i.e.

established probable cause. R.C. 2935.10 applies in this case and requires a judge to

summarily issue a warrant or refer the matter to the prosecutor for further investigation.

Accordingly, we reverse.

                                                   I. FACTS

        {¶2}     While incarcerated in Ross Correctional Institute, Steven Brown filed an

affidavit with the Ross County Court of Common Pleas seeking the issuance of criminal

warrants under R.C. 2935.09 against several prison officials for committing both felonies

and misdemeanor crimes against him. Without holding a hearing, or referring the
Ross App. No. 11CA3275                                                                            2

matter to the prosecuting attorney for investigation, the trial court found Brown’s affidavit

was “not meritorious”, i.e. did not constitute probable cause to believe any of the named

prison officials had committed criminal acts. Accordingly, the trial court denied Brown’s

request to issue criminal warrants. This appeal followed.

                                   II. ASSIGNMENT OF ERROR

        {¶3}    Brown presents one assignment of error for our review: 1

        {¶4}    “THE LOWER COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DISMISSED THE CASE WITHOUT A PROBABLE CAUSE HEARING.”

                                      III. CITIZEN AFFIDAVITS

        {¶5}    Brown argues the trial court abused its discretion by terminating this

matter without first holding an evidentiary hearing to determine whether his affidavit

established probable cause to initiate a criminal action. Brown also claims that he was

denied the equal protection of the laws and his First Amendment rights under the United

States Constitution. However, his assignment of error and brief focus on

nonconstitutional issues. Likewise, we will do the same.

        {¶6}    A private citizen may initiate the arrest or prosecution of a person charged

with committing an offense if the citizen complies with the requirements of R.C.

2935.09(D). State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶

6. R.C. 2935.09(D) provides: “A private citizen having knowledge of the facts who

seeks to cause an arrest or prosecution under this section may file an affidavit charging

the offense committed with a reviewing official for the purpose of review to determine if
1
 Brown did not specifically designate this statement as an “Assignments of Error” in his brief.
Nonetheless, we recognize it as one.
Ross App. No. 11CA3275                                                                                     3

a complaint should be filed by the prosecuting attorney * * *.” A “reviewing official” is a

judge, the prosecuting attorney, or a magistrate. R.C. 2935.09(A).2

        {¶7}    The Supreme Court has consistently held that “‘R.C. 2935.09 does not

mandate prosecution of all offenses charged by affidavit.’” State ex rel. Boylen v.

Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 6 (per curiam). R.C.

2935.09 “‘must be read in pari materia with R.C. 2935.10, which prescribes the

subsequent procedure to be followed.’” Id.

        {¶8}    Under R.C. 2935.10(A) if the affidavit charges the commission of a felony,

the judge, clerk, or magistrate, “must issue a warrant for the arrest of the person

charged in the affidavit unless the judge, clerk, or magistrate ‘has reason to believe that

it was not filed in good faith, or the claim is not meritorious.’ ‘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.’” Boylan, supra, at ¶

7. Under R.C. 2935.10(B) if the affidavit charges the commission of a misdemeanor the

judge, clerk, or magistrate may: “(1) Issue a warrant for the arrest of such person * * * ”

or “(2) Issue summons * * * commanding the person against whom the affidavit or

complaint was filed to appear forthwith, or at a fixed time in the future, before such court

or magistrate.” Here, because Brown’s affidavit alleges various felonies and

misdemeanors, both R.C. 2935.10(A) and (B) apply to his case.

        {¶9}    In Boylen the Supreme Court of Ohio determined that the procedure

calling for a probable cause hearing under Crim.R. 4(A) was applicable where affidavits


2
  This subsection was amended in 2006 to substitute the words “reviewing official” for the former
language that referred to “a judge, clerk of court, or magistrate”. R.C. 2935.10 apparently has not been
amended to reflect this change. See paragraph 8.
Ross App. No. 11CA3275                                                                           4

are filed with a valid criminal complaint under Crim.R. 3. It concluded Crim.R. 4(A) does

not apply where only affidavits are filed under R.C. 2935.09. Boylen, supra, at ¶ ¶9 &

10. Rather the court pointed out that R.C. 2935.10 applies and affords the reviewing

official only two options: 1) issue a warrant or 2) refer the matter to the prosecutor for

investigation if there is a belief that the affidavit lacks a meritorious claim, i.e. probable

cause, or was not made in good faith. Id. at ¶ 7. See also State v. Slayman, 5th Dist.

No. 08CA70, 2008-Ohio-6713, ¶ 21 and State v. Boylen, 5th Dist. No. 2005CA00164,

2006-Ohio- 2030, ¶ 21.

       {¶10} R.C. 2935.10 does not provide the trial court with the third option of

summarily dismissing the matter. However, that is the course of action taken here.

Accordingly, we must reverse the court’s judgment and remand with instructions to refer

the matter to the prosecuting attorney for investigation.

                                                               JUDGMENT REVERSED
                                                                   AND REMANDED.
Ross App. No. 11CA3275                                                                        5

                                    JUDGMENT ENTRY


      It is ordered that the JUDGMENT IS REVERSED AND REMANDED and that
Appellees shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.



                                            For the Court



                                            BY: ________________________
                                                William H. Harsha, Judge



                                  NOTICE TO COUNSEL


       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
