[Cite as State ex rel. Whittaker v. Lucas Cty. Prosecutor's Office, 2020-Ohio-4093.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio, ex rel. Michael Whittaker                     Court of Appeals No. L-19-1287

        Relator

v.

Lucas County Prosecutor’s Office                             DECISION AND JUDGMENT

        Respondent                                           Decided: August 10, 2020

                                                   *****

        Michael Whittaker, pro se.

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        John A. Borell, Assistant Prosecuting Attorney, for respondent.

                                                   *****

        SINGER, J.

        {¶ 1} This matter is before the court upon the filing of a motion for summary

judgment by relator, Michael Whittaker, and a memorandum in opposition filed by

respondent, Lucas County Prosecutor’s Office, who also seeks summary judgment.
       {¶ 2} Relator has also filed a motion to file a supplemental memorandum asserting

he has more recently obtained access to legal research and wishes to submit more

relevant case law to support his arguments. He later filed a motion for leave to file

instanter a reply memorandum to respondent’s memorandum in opposition to summary

judgment. We hereby deny relator’s motion to file a supplemental memorandum but

grant him leave to file a reply memorandum instanter.

       {¶ 3} In the complaint for a writ of mandamus, relator asserts he filed a “criminal

complaint” pursuant to Crim.R. 3 and R.C. 2935.09(D) by mailing it to the Lucas County

Clerk of Courts. He also alleges he submitted the affidavit required by R.C. 2935.09(D).

He further asserts the clerk did not assign a case number to the complaint and did not file

the complaint. Instead, she forwarded his paperwork to a reviewing judge. On April 25,

2019, the Lucas County Prosecutor’s Office sent relator a letter stating that it must

prosecute felony offenses by indictment and that the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution barred further prosecution.

       {¶ 4} In response, relator filed this mandamus action for a writ to compel the

Lucas County prosecutor to consider his R.C. 2935.09(D) “criminal complaint” and

whether further charges could be filed against Courtnie Lykans and Ronald Collins Jr. for

felonious assault. Relator asserts in his complaint for mandamus that while his minor

child was in the temporary care of Lykans and Collins, they repeatedly abused and

neglected the child. Respondent further asserts the prosecutor should charge these

individuals with felonious assault despite their conviction of felony child endangering.




2.
       {¶ 5} To be entitled to mandamus relief, the relator “must establish by clear and

convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal duty on

the part of respondents to provide it, and (3) the lack of an adequate remedy in the

ordinary course of the law.” State ex rel. Evans v. Tieman, 157 Ohio St.3d 99, 2019-

Ohio-2411, 131 N.E.3d 930, ¶ 11, citing State ex rel. Waters v. Spaeth, 131 Ohio St.3d

55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13.

       {¶ 6} Pursuant to Civ.R. 56(C), summary judgment is appropriate only when it is

clear “(1) that there is no genuine issue as to any material fact; (2) that the moving party

is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but

one conclusion, and that conclusion is adverse to the party against whom the motion for

summary judgment is made, who is entitled to have the evidence construed most strongly

in his favor.” Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66-67, 375

N.E.2d 46 (1978). The burden of establishing that summary judgment is an appropriate

remedy always remains on the moving party. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674

N.E.2d 1164 (1997). The moving party bears the initial burden of coming forward with a

basis for summary judgment, identifying the evidence in the record which establishes

there is no genuine issue of material fact and also identifying the essential elements of

one or more of the nonmoving party’s claims that are not supported by the record. Id. at

430.




3.
       {¶ 7} R.C. 2935.09(D) provides in pertinent part that

       [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 a complaint should be filed by the prosecuting attorney or

       attorney charged by law with the prosecution of offenses in the court or

       before the magistrate.

This statute must be read in pari materia with R.C. 2935.10(A), which sets forth the

procedure that must be filed when the affidavit charges the commission of a felony.

Once a private citizen files an affidavit charging the commission of a felony, the

reviewing official must issue an arrest warrant or refer the matter to the prosecuting

attorney for investigation of the facts unless the official concludes the citizen did not file

the affidavit in good faith or it is meritless. Id.

       {¶ 8} Neither statute mandates the prosecutor prosecute an offense alleged in the

affidavit. State ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d

755, ¶ 20, citing State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d 174, 175,

699 N.E.2d 60 (1998); State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 2006-Ohio-7,

839 N.E.2d 934, ¶ 6. A prosecutor has wide discretion in prosecuting a particular

offense, which is reviewable only for an abuse of discretion. Bunting at ¶ 18.

       {¶ 9} Because the decision to prosecute is a discretionary determination, it is

generally not subject to judicial review. Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385,




4.
667 N.E.2d 1197 (1996). However, a court will compel a prosecuting attorney “to

prosecute a complaint * * * when the failure to prosecute constitutes an abuse of

discretion.” State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180

(1996). To establish an abuse of discretion, the relator must demonstrate that the

prosecuting attorney’s decision was “unreasonable, arbitrary or unconscionable.” Id.

       {¶ 10} In his motion for summary judgment, relator asserts that the Lucas County

Prosecutor’s Office abused its discretion by refusing to prosecute these individuals for

felonious assault. Furthermore, relator asserts felonious assault and child endangering

are not allied offenses, the negotiated plea did not involve a plea to a lesser offense of

felonious assault and did not bar further prosecution, and the Double Jeopardy Clause is

not applicable.

       {¶ 11} Respondent argues it did not have any evidence to establish that these

individuals caused the injuries to the child. In support, respondent has supplied us with

the transcript of the plea hearings wherein the state presented the evidence it would have

admitted to support convictions for child endangering. Respondent further contends that

after it presented the evidence to the grand jury, it issued an indictment for felony child

endangering. Because Crim.R. 7(A) requires that felony charges be prosecuted by

indictment, respondent asserts it has no further recourse.

       {¶ 12} In its memorandum in opposition, respondent argues relator is not entitled

to summary judgment because he did not submit any evidence in support of his claims.

We agree.




5.
          {¶ 13} Relator carries the burden of establishing the facts supporting his claim.

Relator has not presented any evidence that the prosecutor acted in an unreasonable,

arbitrary, or unconscionable manner. Respondent reviewed appellant’s R.C. 2935.09(D)

“criminal complaint” and determined further charges could not be pursued against these

individuals. Relator presented no evidence to support a finding that respondent abused its

discretion.

          {¶ 14} While relator submitted an affidavit of his knowledge of the facts relating

to this case, a copy of a partial findings of fact by the juvenile court in the juvenile case

alleging the child is abused, neglected, and dependent; a 2019 case review assessment of

the child’s status by the Ohio Department of Job and Family Services; a letter from

relator’s attorney notifying relator that his child had been adjudicated abused in the care

of Lykans and Collins, neglected due to delay in seeking medical care, and dependent

because both parents are incarcerated and unable to care for her. His attorney further

notified relator that his child’s injuries were determined to from “non-accidental trauma”

and that some injuries were found to be consistent with “shaken baby syndrome”; and

certified copies of the child’s doctor’s medical records as of December, 2018; his child’s

medical bill relating to her injuries; and an e-mail to relator regarding his child’s current

status.

          {¶ 15} However, relater did not submit any evidence that the child’s injuries were

caused by these individuals or that there was new evidence unknown to the prosecution at




6.
the time these individuals were prosecuted. Therefore, we hereby deny relator’s motion

for summary judgment.

       {¶ 16} Furthermore, respondent argues that although it did not file a motion for

summary judgment, it is nonetheless entitled to summary judgment as a nonmoving party

because there is no genuine issue of material fact and it is entitled to judgment as a matter

of law. We agree.

       {¶ 17} When a party moves for summary judgment and the nonmovant has had an

opportunity to respond, a court, after consideration of the relevant evidence, may enter

judgment against the moving party even though the nonmovant did not file a motion for

summary judgment. State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office, 152

Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 9, citing State ex rel. Anderson v.

Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 8, citing Todd Dev.

Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 17. However,

the nonmoving party cannot rest on the allegations of pleading and must set forth specific

facts to support its claims. Mootispaw, 76 Ohio St.3d 383, 667 N.E.2d 1197, at 385.

       {¶ 18} In this action, relator did not assert that he had additional evidence beyond

what the prosecution had at the time and presented to the grand jury. Respondent has

asserted that it presented this evidence to the grand jury and it decided to issue only an

indictment for felony child endangering. Respondent has further shown that it had no

evidence these individuals were the persons who caused the child’s injuries. Therefore,

we find relator cannot establish he has a clear legal right to the requested relief or that the




7.
prosecutor has a clear legal duty to provide the requested relief. Accordingly, we hereby

deny summary judgment to relator and grant summary judgment to respondent. All

pending motions are denied as moot. The petition is hereby ordered dismissed at

relator’s costs. It is so ordered.

       {¶ 19} To the Clerk: Manner of Service.

       {¶ 20} Serve upon all parties in a manner prescribed by Civ.R. 5(B) notice of the

judgment and its date of entry upon the journal.

                                                                             Writ denied.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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