State v. Ebersole, WM-21-002

• Decision Date: 22 October 2021
• Docket Number: WM-21-004,WM-21-005,WM-21-003,WM-21-002
• Citation: 2021 Ohio 3763
• Parties: State of Ohio/City of Bryan Appellee v. Dylan R. Ebersole Appellant
• Court: Ohio Court of Appeals

2021-Ohio-3763

State of Ohio/City of Bryan Appellee v. Dylan R. Ebersole Appellant

Nos. WM-21-002, WM-21-003, WM-21-004, WM-21-005

Court of Appeals of Ohio, Sixth District, Williams

October 22, 2021

Trial Court Nos. TRC2002488A, TRC2002488B, CRB2000663A, CRB2000663B

Rhonda L. Fisher, Bryan City Attorney, for appellee.

Autumn D. Adams, for appellant.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

{¶ 1} In this consolidated appeal, defendant-appellant Dylan Ebersole, appeals the January 8, 2021 judgments of the Bryan Municipal Court which, following its denial of his motion to transfer the charges to the general division of the Williams County Court of Common Pleas where a related felony charge was pending and appellant's no contest pleas, sentenced him to various fines, a license suspension and 13 days in jail with the remainder of the time suspended. Because we find no reversible error, we affirm.

{¶ 2} According to materials submitted in the trial court by appellant, on October 11, 2020, appellant was stopped by Bryan, Ohio, police after he failed to stop behind the stop bar at an intersection. During the stop, appellant failed to cooperate with police and displayed indicators of impairment. Appellant was ultimately removed from the vehicle and placed under arrest. A marijuana cigarette as well as a glass smoking vessel with marijuana residue were recovered from the vehicle. At the police station, appellant was observed pushing the glass vessel off the counter; it broke on the floor.

{¶ 3} On October 12, 2020, appellant was charged with one felony and five misdemeanors stemming from the traffic stop. A preliminary hearing on the felony charge was set for October 21, 2020. After requesting a continuance, the hearing date was set for October 29, 2020. The order setting the hearing noted: "*CASE TO BE PRESENTED TO GRAND JURY 10/27/2020. IF INDICTED, THIS HEARING WILL BE VACATED.*" On October 27, appellant was indicted by the grand jury on the felony, tampering with evidence charge. The municipal court then dismissed the charge.

{¶ 4} On October 28, 2020, appellant filed a motion requesting that that the remaining misdemeanor charges of OVI, driving under an OVI suspended license, obstructing official business, drug possession, and drug paraphernalia be "bound over" to common pleas court to be tried with the felony case. Appellant asserted that the charges all stemmed from the same encounter with Bryan police. The motion was denied without explanation.

{¶ 5} On January 8, 2021, appellant entered pleas of no contest to OVI, OVI while under suspension, obstructing official business, and drug paraphernalia. On the same date, appellant filed an objection to the court's failure to bind over the misdemeanors and a renewed request for findings of fact and conclusions of law. This appeal followed with appellant raising the following assignment of error:

Assignment of Error I: The trial court erred in denying Ebersole's motion for his misdemeanor cases to be transferred to the common pleas division.

{¶ 6} In his sole assignment of error, appellant argues that his misdemeanor convictions should be reversed because the municipal court erroneously retained jurisdiction over the cases, in contravention of Crim.R. 5, following the grand jury's indictment of appellant on a related felony. The state conversely argues that because there was no preliminary hearing, Crim.R. 5(B)(1) is not applicable and, regardless, the court was not divested of jurisdiction over the misdemeanors. Crim.R. 5 relevantly provides:

(B) Preliminary Hearing in Felony Cases; Procedure.

(1) In felony cases a defendant is entitled to a preliminary hearing unless waived in writing. If the defendant waives preliminary hearing, the judge or magistrate shall forthwith order the defendant bound over to the court of common pleas. Except upon good cause shown, any misdemeanor, other than a minor misdemeanor, arising from the same act or transaction involving a felony shall be bound over or transferred with the felony case. * * *. The preliminary hearing shall not be held, however, if the defendant is indicted * * *. (Emphasis added.)

{¶ 7} Ohio appellate districts have examined instances where the municipal court either ceded jurisdiction over related misdemeanors with pending felonies in the common pleas court or refused to dismiss pending misdemeanor actions under similar circumstances. In State v. Murray, 12th Dist. Clermont No. CA2016-01-005, 2016-Ohio-7364, the state appealed the municipal court's dismissal of three misdemeanor counts of endangering children following the defendant's indictment and conviction on a felony drug possession charge stemming from the same incident. Id. at ¶ 5.

{¶ 8} Reversing the lower court, the appellate court noted that Crim.R. 5(B)(1) did not apply because there was neither a preliminary hearing nor a waiver of the hearing. Id. at ¶ 10. The court further rejected the assertion that the court properly dismissed the charges under Crim.R. 48, finding that it failed to consider all the interests implicated in dismissing child endangering charges. Id. at ¶ 15. See State v. Parker, 2017-Ohio-1389, 89 N.E.3d 152 (2d Dist.); State v. Desarro, 7th Dist. Columbiana No. 19 CO 0009, 2020-Ohio-335.

{¶ 9} Similarly, this court, citing Murray and Parker, reversed a municipal court's sua sponte dismissal of misdemeanor charges based on a mistaken belief that it had been divested of jurisdiction under Crim.R. 5(B)(1). Toledo v. Lear, 6th Dist. Lucas No. L-17-1261, 2018-Ohio-1874. We further concluded that Crim.R. 48 did not provide a basis for the court's dismissal as its stated reason, reliance on Crim.R. 5(B)(1), was incorrect. Id. at ¶ 11. Finally, this court found that the double-jeopardy protections were not violated by successive prosecutions. Id. at ¶ 15

{¶ 10} In contrast, appellant urges us to adopt the reasoning of the Cleveland Municipal Court in Cleveland v. Spencer, 143 N.E.3d 1188 (M.C. 2019), which held that the requirement under Crim.R. 5(B)(1) that related felony and misdemeanor charges be tried together is not limited to instances where the felony is subject to a preliminary hearing and bound over to the common pleas court.

{¶ 11} In Spencer, the trial court dismissed the pending misdemeanor charges following the defendant's related felony conviction. The court determined that the transfer requirements under Crim.R. 5(B)(1) should not be limited to cases where the charges all emanate in municipal court and the felony is then bound over following a preliminary hearing. Id. at 1190. The court then concluded that the failure to show good cause as to why the charges should remain in municipal court warranted their dismissal. Id. So finding, the court reasoned:

Clearly, the intent of the rule is to ensure all charges, including the misdemeanor charge be adjudicated together. Otherwise, the defendant, his or her attorney, and the witnesses must appear in two courts for charges that arose out of the same incident. Additionally, two separate prosecutors must handle the charges, rather than one. Consequently, unjustifiable delay and expenses incur. Moreover, if convicted in both counts, the defendant may be subject to two community controls. These consequences are in direct contradiction of the purpose of Criminal Rule 1(B).

Id.

{¶ 12} Following the Spencer decision, the Eighth Appellate District reversed two Cleveland Municipal Court decisions dismissing misdemeanor cases where the related felony charge was initially pursued by grand jury indictment. In Cleveland v. Wanton, 8th Dist Cuyahoga No. 109828, 2021-Ohio-1951, the defendant was charged with three misdemeanors stemming...