Lakewood v. Pfeifer, 91-B-517

• Citation: 61 Ohio Misc.2d 704,583 N.E.2d 1133
• Decision Date: 08 October 1991
• Docket Number: No. 91-B-517,91-B-517
• Court: Court of Common Pleas of Ohio
• Parties: CITY OF LAKEWOOD v. PFEIFER. *

Page 704

61 Ohio Misc.2d 704

583 N.E.2d 1133

CITY OF LAKEWOOD v. PFEIFER. ^*

No. 91-B-517.

Lakewood Municipal Court, Ohio.

Decided Oct. 8, 1991.

Joan Stafford, City Pros. Atty., and Richard Lillie, Asst. City Pros. Atty., for plaintiff.

Jeffrey Shively, Lakewood, for defendant.

PATRICK CARROLL, Judge.

This case is before the court on the prosecutor's motion to dismiss. No evidence was presented in support of the motion. As such, only the procedural facts of this case are available to the court.

A criminal complaint for domestic violence was issued against the defendant, Robert G. Pfeifer, on May 23, 1991. The complaint was signed by Richard Lillie, assistant city prosecutor. On the day the complaint was filed, a motion for temporary protection order was also filed. The motion was prepared by the prosecutor's office, and signed by the complainant.

The defendant was arrested on this charge on June 7, 1991. Also on this date a temporary protection order was issued. The order was based upon a written agreement to the order between the defendant and prosecutor, Joan Stafford. The effect of the order was to prohibit any contact, direct or indirect, between the defendant and the complaining witness.

The defendant appeared in court on June 8, 1991 and entered a plea of not guilty. The case was set for pretrial conference on July 23, 1991.

The pretrial conference was held as scheduled on July 23, 1991. Discovery was exchanged between the prosecutor and defense counsel at that time. The prosecutor was not willing to dismiss the case, nor was the defendant willing to change his plea of not guilty. Consequently, the case was scheduled for jury trial for Wednesday, August 21, 1991.

On Tuesday, August 20, 1991, in the early afternoon, Stafford informed the court that she was feeling ill and would not be available for the jury trial in this case. When asked by the court if the trial should be continued, Stafford informed the court that the case had been prepared for trial and that either Lillie or some other attorney in the city law department would try the case. There was no discussion of the facts of the case.

Later that day, the city law director filed a motion to continue the jury trial in this case. Notwithstanding Stafford's prior representation of preparation of the case, the motion stated that "no other attorney in the Law Department is available to adequately prepare and try this matter."

Due to the absence of any available prosecutor, the court granted the last-minute request for continuance. The court requested the prosecutor and defense counsel to meet on the scheduled trial date on August 21, 1991 in an attempt to further discuss this case. The attorneys chose not to do so, but, instead, requested that the case be rescheduled for trial.

The court rescheduled the case for jury trial on September 18, 1991. Prior to that date, however, on September 3, 1991, the prosecutor requested another continuance. According to the prosecutor's motion, one of the witnesses, a Lakewood police officer, was unavailable. At the prosecutor's request, the case was again rescheduled for trial on Wednesday, September 25, 1991.

On Tuesday, September 24, 1991, a pretrial conference was held with defense counsel and assistant prosecutor Lillie. Lillie informed the court that he had just met with the complaining witness and, based on this meeting, wanted to dismiss the case. The complaining witness and Stafford were not present at this conference. The court indicated that the motion would not be granted and that the case would proceed as scheduled for jury trial the following day.

At approximately 4:30 p.m., defense counsel and Stafford met with the court to discuss the case. At neither pretrial conference were the specific facts of the case discussed with the court. The defense counsel indicated that his client would waive his right to jury and try the case to the court. Stafford stated that she would proceed to trial as scheduled and present the witnesses to the court for testimony and determination.

On the morning of the trial, the prosecutor filed a formal motion to dismiss. The motion set forth "insufficient evidence" as grounds for the dismissal. The motion contained no factual information or supporting documents. The prosecutor did not request a hearing on the motion.

Court was convened and the court indicated that the motion would be denied. The prosecutor's request for immediate journalization of the order was deferred so that the case could proceed. Upon this notice, the prosecutor asked permission to leave the courtroom to bring in a witness for the trial. The prosecutor returned to the courtroom, not with a witness, but with a prepared and filed notice of appeal. The prosecutor indicated that he had filed the notice of appeal when he stepped out of the courtroom.

Based upon the issue of jurisdiction of the trial court to proceed in light of the notice of appeal, the case was continued to Wednesday, October 2, 1991.

A dismissal of a criminal charge by a prosecutor is governed by Crim.R. 48(A). Crim.R. 48(A) states:

"The state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate." (Emphasis added.)

Prior to the adoption of Crim.R. 48, a prosecutor's authority to dismiss a criminal case was governed by R.C. 2941.33. This statute similarly permitted the prosecutor to dismiss a criminal charge only upon leave of the court.

As the court noted in United States v. Strayer (C.A.10, 1988), 846 F.2d 1262, 1265:

"Requiring the government to obtain leave of the court to dismiss an indictment serves two purposes. The primary purpose is to protect a criminal defendant from prosecutorial harassment. The rule is also intended to allow courts to consider public interest, fair administration of criminal justice, and preservation of judicial authority when evaluating motions to dismiss."

See, also, United States v. Carrigan (C.A.10, 1985), 778 F.2d 1454, 1463.

The term "leave of court" as a requirement for dismissal by the prosecutor, mandates the exercise of discretion by the court. There is no dispute that the prosecutor has complete discretion in the initiation of a criminal proceeding. Once that discretion is exercised by the prosecutor and the criminal charge is brought, however, control of the case shifts from the prosecutor to the court. As such, while the court is required to give strong consideration to the prosecutor's decision to terminate a criminal action, the prosecutor's decision alone is not determinative of the issue.

Courts which have addressed this issue have uniformally held that it is the court, not the prosecutor, who makes the ultimate decision to terminate a criminal prosecution. Thus, in State v. Trocodaro (1973), 36 Ohio App.2d 1, 65 O.O.2d 1, 301 N.E.2d 898, the court held that a prosecutor is without the authority to dismiss a criminal charge. Rather, it may " * * * only be done by the court upon the recommendation of the prosecutor." (Emphasis added.) Trocodaro, id., 36 Ohio App.2d at 10, 65 O.O.2d at 7, 301 N.E.2d at 904. The Ohio Supreme Court, in State ex rel. Lotz v. Hover (1963), 174 Ohio St. 380, 22 O.O.2d 443, 189 N.E.2d 433, also upheld the position that it is the role of the court, not the prosecutor, to dismiss a criminal proceeding.

Construing the similarly worded Fed.Crim.R. 48, the court in United States v. Cowan (C.A.5, 1975), 524 F.2d 504, stated that the deliberate insertion of the phrase "by leave of court" denotes judicial choice. Id. at 512. At common law there was no such restriction on the prosecutor. The adoption of the language in Crim.R. 48 manifested a clear intent " * * * to make a significant change in the common law rule by vesting in the courts the power and the duty to exercise a discretion for the protection of the public interest." (Emphasis added.) Id. at 511.

In the motion to dismiss, the prosecutor acknowledges that the leave of court is required to dismiss a criminal prosecution. It is the prosecutor's position, however, that a conclusory statement as grounds for dismissal, without any supporting factual statements or evidence, is sufficient to meet this requirement. The prosecutor argues that a presumption of good faith and a claim of client confidentiality precludes the court from inquiring into the underlying reason for the dismissal.

This argument ignores the fact that a single conclusory legal statement, without factual information, does not provide the court with a basis for making a decision. A motion to dismiss by the prosecutor seeks to have the court put its approval on the prosecutor's decision to terminate the criminal case. United States v. Krakowitz (S.D.Ohio 1943), 52 F.Supp. 774. Such an approval cannot be given unless the court is aware of the factual basis for the prosecutor's decision. Moreover, for the court to blindly accept the prosecutor's unsupported assertion of "insufficient evidence" without inquiry would be merely to give a "rubber stamp" approval of the prosecutor's motion. Such a result is not only contrary to the express language of Crim.R. 48, but is also contrary to the duty of the court to consider the public interest.

The court has reviewed all of the cases cited by the prosecutor in the motion to dismiss. In all of the cases cited by the prosecutor, however, the one common, uniform element is that the court's ruling on the prosecutor's motion to dismiss was made after testimony or other evidence was presented to the court. In none of the cases cited did the court accept an unsupported legal conclusion of insufficient evidence as grounds for dismissal.

Two cases were noted by the prosecutor on the issue of insufficiency of evidence. State v. Dixon (1984), 14 Ohio App.3d 396, 14 OBR 513, 471 N.E.2d 864, and United States v. Greater Blouse, Skirt & Neckware Contractors Assn. (S.D.N.Y.1964), 228 F.Supp. 483. A...