[Cite as State v. Stokes, 2012-Ohio-2110.]




                IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellant                          :        C.A. CASE NO. 2011 CA 10

v.                                                   :

MATTHEW D. STOKES                                    :        (Criminal appeal from
                                                               Common Pleas Court)
        Defendant-Appellee                           :

                                                     :

                                             ..........

                                             OPINION

                          Rendered on the     11th   day of     May      , 2012.

                                             ..........

R. KELLY ORMSBY III, Atty. Reg. No. 0020615, Prosecuting Attorney and DEBORAH S.
QUIGLEY, Atty. Reg. No. 0055455, Assistant Prosecuting Attorney, Courthouse,
Greenville, Ohio 45331
      Attorneys for Plaintiff-Appellant

WILLIAM H. COOPER, Atty. Reg. No. 0018307, 507 S. Broadway, Greenville, Ohio 45331
     Attorney for Defendant-Appellee

                                             ..........

DONOVAN, J.

        {¶ 1}     Plaintiff-appellant State of Ohio appeals a decision of the Darke County

Court of Common Pleas dismissing defendant-appellee Matthew D. Stokes’ December 17,
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2010, indictment for two count of trafficking in drugs, in violation of R.C.

2925.03(A)(1)(C)(4)(c), both felonies of the third degree. Stokes’ case involved conduct

which allegedly occurred on July 8, 2008, and August 19, 2008. Stokes was indicted along

with several other defendants in a police action dubbed “Operation Silent Night” conducted

by the Greenville Police Department and the Darke County Sheriff’s Office.

       {¶ 2}    On January 20, 2011, Stokes filed a motion to dismiss the charges against

him based on pre-indictment delay by the State. A hearing was held on Stokes’ motion to

dismiss on March 7, 2011. In a written decision filed on April 21, 2011, the trial court

overruled Stokes’ motion to dismiss finding that he failed to prove that he suffered any

actual prejudice as a result of the State’s delay regarding the filing of the indictment. The

trial court, however, stated its intent to review the matter pursuant to Crim. R. 48(B) in order

to determine whether Stokes’ indictment should be dismissed “in the interests of justice.”

       {¶ 3}    On May 13, 2011, the trial court, on its own motion and over objection of

the State, dismissed Stokes’ indictment for the following reasons: 1) the unexplained delay

in the indictment; 2) the State’s argument regarding the protection of a confidential

informant’s identity did not justify delaying the indictment; 3) the memories of the witnesses

could be impacted negatively by the delay; 4) the trial court noted that Stokes had

maintained and obtained employment, as well as voluntarily participating in substance abuse

rehabilitation programs; 5) Stokes had no prior criminal history, thus community control

sanctions were the likely disposition; additional punishment would serve no goal since

Stokes was voluntarily undertaking substance abuse programs; 6) the apparent inefficiency

of the State in processing its caseload; and finally, the trial court noted the ethical
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consideration for prosecutors which emphasizes that the primary duty of a prosecutor is to

seek justice, not merely to convict.

       {¶ 4}    It is from this judgment that the State now appeals.

       {¶ 5}    Because they are interrelated, the State’s first and second assignments of

error will be discussed together as follows:

       {¶ 6}    “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DISMISSED THE INDICTMENT PURSUANT [TO] CRIM. R. 48(B) OVER THE

OBJECTION OF THE STATE.”

       {¶ 7}    “THE TRIAL COURT VIOLATED THE PRINCIPLE OF SEPARATION

                                                                       OF POWERS WHEN IT

                                                                       DISMISSED          THE

                                                                       INDICTMENTS.”

       {¶ 8}    In its first assignment, the State contends that the trial court erred when it

dismissed Stokes’ December 17, 2010, indictment over objection pursuant to Crim. R.

48(B). Specifically, the State argues that the trial court relied on improper considerations

outside the record in making its decision to dismiss Stokes’ indictment.

       {¶ 9}    Crim. R. 48(B), which provides the procedure for the dismissal of a criminal

case by the court over the objections of the State, provides that “if the court over the

objection of the state dismisses an indictment, information, or complaint, it shall state on the

record its findings of fact and reasons for the dismissal.”

       {¶ 10} A trial court's dismissal of an indictment is reviewed for abuse of discretion.

 State v. Busch, 76 Ohio St.3d 613, 616, 669 N.E.2d 1125 (1996). The term “abuse of
                                                                                          4

discretion” implies a decision that is unreasonable, arbitrary or unconscionable. State v.

Rodriguez, 2d Dist. Darke No. 1722, 2008-Ohio-3377, ¶8.

       {¶ 11} As we recently discussed in State v. Montiel, 185 Ohio App.3d 362,

2009-Ohio-6589, 924 N.E.2d 375 (2d Dist.):

              The Ohio Supreme Court has held that Crim. R. 48(B) “does

              not limit the reasons for which a trial judge might dismiss a

              case, and we are convinced that a judge may dismiss a case

              pursuant to Crim.R. 48(B) if a dismissal serves the interest of

              justice.” Busch, supra at 615. The Court also stated that trial

              courts are on “the front lines of the administration of justice in

              our judicial system, dealing with the realities and practicalities

              of managing a caseload and responding to the rights and

              interests of the prosecution, the accused, and victims. A court

              has the ‘inherent power to regulate the practice before it and

              protect the integrity of its proceedings.’ ” Id. “The Court

              also stressed the flexibility a trial court should have to devise a

              solution in a given case, and went on to state that ‘[t]rial

              judges have the discretion to determine when the court has

              ceased to be useful in a given case.’ ” State v. Rodriguez,

              supra at ¶10, quoting Busch, supra, at 616.

       {¶ 12} The State argues that the trial court improperly considered how local

budgetary issues potentially impacted the decision to file the indictment against Stokes, as
                                                                                              5

well as other defendants with older pending drug charges. During the evidentiary hearing

held on March 14, 2011, the trial court noted that the timing of Stokes’ indictment on the

two-year old charges coincided with the Darke County sheriff’s request for additional

allocations from the county commissioners during meetings. The trial court essentially

stated that it had heard rumors that the decision to indict the older drug cases was an attempt

to persuade the county commissioners to allocate more funds to the sheriff’s office by

demonstrating that Darke County had a serious drug problem that could only be addressed

by additional fiscal appropriations. Ultimately, however, the trial court stated that it did not

believe that there was a connection between the timing of the indictments and the sheriff’s

budget requests, but merely noted that the simultaneous occurrence was coincidental. At

the close of the hearing, the trial court requested the parties to submit additional arguments

regarding whether the court should dismiss Stokes’ indictment pursuant to Crim. R. 48(B).

       {¶ 13} On May 13, 2011, the trial court issued a written decision dismissing Stokes’

indictment pursuant to Crim. R. 48(B). In the decision, the trial court cited seven factors

supporting dismissal, none of which were related to the discussion regarding the timing of

the indictments and the sheriff’s decision to request additional funds during budget talks.

The seven factors relied upon by the trial court to dismiss Stokes’ indictment are as follows:

1) the unexplained delay in the indictment; 2) the State’s argument regarding the protection

of a confidential informant’s identity did not justify delaying the indictment; 3) the

memories of the witnesses could be impacted negatively by the delay; 4) the trial court noted

that Stokes had maintained and obtained employment, as well as voluntarily participated in

substance abuse rehabilitation programs; 5) Stokes had no prior criminal history, thus
                                                                                              6

community control sanctions were the likely disposition; additional punishment would serve

no goal since Stokes was voluntarily undertaking substance abuse programs; 6) the apparent

inefficiency of the State in processing its caseload; and finally, the trial court noted the

ethical consideration for prosecutors which emphasizes that the primary duty of a prosecutor

is to seek justice, not merely to convict. As the trial court speaks through its judgment

entries, we find that the court did not consider the rumored coincidence between the budget

talks and the timing of the pending indictments when it dismissed Stokes’ indictment “in the

interests of justice” pursuant to Crim. R. 48(B). Essentially, the trial court found that

dismissal of the indictment was proper because the State could not cogently explain its

reason for delaying the filing of the indictment against Stokes, nor would the “interests of

justice” be served by prosecuting a two-and-a-half year-old case when in the interim, Stokes

had no prior criminal history and had maintained employment, as well as voluntarily

participated in substance abuse rehabilitation programs.

       {¶ 14} Upon review, we conclude that the trial court complied with the terms of

Crim. R. 48(B) by setting forth its findings of fact and reasoning for the dismissal. We

further conclude that the trial court did not abuse its discretion in determining that dismissal

of this charge furthers the interests of justice, as required by Busch.

       {¶ 15} In its second and final assignment, the State argues that the trial court violated

R.C. 309.08 by sua sponte dismissing Stokes’ indictment because it encroached upon the

authority of the State to prosecute cases. As previously stated pursuant to Crim. R. 48(B)

and the Ohio Supreme Court’s holding in Busch, the trial court was vested with the authority

to dismiss Stokes’ indictment if it adequately set forth its findings of fact and underlying
                                                                                             7

reasoning for its decision. In its decision dismissing Stokes’ indictment, the trial court

specifically stated that “while deference is usually given to the charging decisions of the

prosecutor, such deference is not unlimited.” The trial court further stated that it “possesses

a duty to measure justice equally as to all parties.” These are correct statements of law. In

the instant case, the trial court was acting well within the confines of Crim. R. 48(B) when it

dismissed Stokes’ indictment for the reasons set forth in its decision issued on May 13,

2011.

        {¶ 16} In light of the foregoing, the State’s first and second assignments of error are

overruled.

        {¶ 17} The State’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

                                         ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

R. Kelly Ormsby III
Deborah S. Quigley
William H. Cooper
Hon. Jonathan P. Hein
