State v. Parker

• Decision Date: 14 April 2017
• Docket Number: No. 2016–CA–54,2016–CA–54
• Citation: 89 N.E.3d 152,2017 Ohio 1389
• Parties: STATE of Ohio, Plaintiff–Appellee v. Megan N. PARKER, Defendant–Appellant
• Court: Ohio Court of Appeals

89 N.E.3d 152

2017 Ohio 1389

STATE of Ohio, Plaintiff–Appellee

v.Megan N. PARKER, Defendant–Appellant

No. 2016–CA–54

Court of Appeals of Ohio, Second District, Clark County.

Rendered on April 14, 2017.

MARC T. ROSS, Atty. Reg. No. 0070446, City of Springfield Prosecutor's Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502, Attorney for Plaintiff–Appellee

AARON S. HESKETT, Atty. Reg. No. 0093801, 333 North Limestone Street, Suite 202A, Springfield, Ohio 45503, Attorney for Defendant–Appellant

OPINION

TUCKER, J.

{¶ 1} Defendant-appellant Megan Parker appeals a decision of the Clark County Municipal Court denying her motion to dismiss misdemeanor charges pending against her after the dismissal of a felony charge arising from the same act or transaction. She argues that the court violated Crim.R. 5(B) when it failed to dismiss the misdemeanor charges after the State elected to indict on the felony but not the misdemeanor charges. She further argues that the municipal court erred in adjudicating the misdemeanor charges because Crim.R. 5(B) divested the court of jurisdiction.

{¶ 2} We conclude that the provisions of Crim.R. 5(B) are not applicable to the procedural posture of this case. Thus, the court did not err in denying the motion to dismiss. Therefore, the judgment of the municipal court is affirmed.

I. Facts and Procedural History

{¶ 3} On November 3, 2015, Parker was driving a vehicle when she was stopped by City of Springfield Police Department patrol officers due to a suspected window tint violation. As a result of the stop, Parker was charged with operating a vehicle while under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; possession of drug abuse instruments in violation of R.C. 2925.12(A), a second degree misdemeanor; possession of drugs in violation of R.C. 2925.11(A), a fifth degree felony; and violation of City of Springfield Ordinance 337.28(a)(1)(C) regarding window tint, a minor misdemeanor. At arraignment, Parker entered a plea of not guilty, and was assigned counsel.

{¶ 4} According to the briefs of the parties, Parker was indicted on a felony drug charge on January 20, 2016. In its August 15, 2016 entry denying Parker's motion to dismiss, the trial court indicates that the indictment was issued on February 1, 2016. However, there is nothing else in the record indicating the date of the indictment. Also, the brief of the State indicates, and Parker's brief implies, that the felony charge before the municipal court was dismissed prior to the issuance of the indictment. Again, the record before us does not contain information as to the date the felony charge was dismissed.

{¶ 5} On February 17, 2016, Parker filed a motion to dismiss arguing that the court should dismiss the misdemeanor charges "because [she] was indicted on felony charges arising from the same set of circumstances that give rise to the OVI charge and current promulgations from the Ohio Supreme Court require that misdemeanor charges arising out of the same set of circumstances that give rise to the felony charge be made a part of the felony indictment." Dkt. p. 22.

{¶ 6} Following a hearing on the motion, the municipal court entered a decision in which it stated there is no "authority for the proposition that [the court] has lost jurisdiction over these cases and must enter dismissal of them." Dkt. p. 24. The municipal court denied the motion. Thereafter, Parker entered a plea of no contest to the charge of OVI. The remaining misdemeanor charges were dismissed. Parker appeals.

II. Crim.R. 5(B) Not Violated.

{¶ 7} Parker asserts the following for her first and second assignments of error:

THE TRIAL COURT ERRED BY FAILING TO DISMISS THE MISDEMEANOR CHARGES IN ACCORDANCE WITH CRIMINAL RULE 5(B)(1) WHEN THE STATE INDICTED A FELONY CHARGE ARISING FROM THE SAME ACT OR TRANSACTION AND ELECTED TO NOT INCLUDE THE MISDEMEANOR CHARGES IN THE FELONY INDICTMENT.

THE TRIAL COURT ERRED IN DENYING PARKER'S MOTION TO DISMISS BECAUSE THE MUNICIPAL COURT NO LONGER HAD JURISDICTION TO PROCEED WITH THE MATTER REGARDING THE MISDEMEANOR CHARGE THAT AROSE FROM THE SAME ACT OR TRANSACTION AS THE INDICTED FELONY CHARGE BUT WAS NOT INCLUDED IN THE FELONY INDICTMENT AS REQUIRED BY OHIO CRIMINAL RULE 5 WHEN NO GOOD CAUSE WAS SHOWN.

{¶ 8} Parker contends that Crim.R. 5(B)(1) mandates the dismissal of the misdemeanor charges that remained pending in the municipal court after the felony was subject to indictment and dismissed from the municipal court docket. She argues that the failure to follow the rule divested the municipal court of jurisdiction over the misdemeanor charges. Alternatively, she argues that the municipal court has no authority to adjudicate the charges, and that the State abandoned the misdemeanor charges when it failed to indict her on those charges.

{¶ 9} The current version of Crim.R. 5, which became effective on July 1, 2014, is set forth in pertinent part below:

(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. If the defendant does not waive the preliminary hearing, the judge or magistrate shall schedule a preliminary hearing within a reasonable time, but in any event no later than ten consecutive days following arrest or service of summons if the defendant is in custody and not later than fifteen consecutive days following arrest or service of summons if the defendant is not in custody. The preliminary hearing shall not be held, however, if the defendant is indicted. * * *

* * *

(4) Upon conclusion of all the evidence and the statement, if any, of the accused, the court shall do one of the following:

(a) Find that there is probable cause to believe the crime alleged or another felony has been committed and that the defendant committed it, and bind the defendant over to the court of common pleas of the county or any other county in which venue appears.

(b) Find that there is probable cause to believe that a misdemeanor was committed and that the defendant committed it, and retain the case for trial or order the defendant to appear for trial before an appropriate court.

(c) Order the accused discharged.

(d) 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. (Emphasis added)¹

{¶ 10} The only case which has addressed this amendment is State v. Murray , 12th Dist. Clermont No. CA2016-01-005, 2016-Ohio-7364, 2016 WL 6069067. In that case, the defendant overdosed on drugs in the presence of his three minor children. Id. at ¶ 2. During the course of investigating the overdose, police discovered heroin and fentanyl on the premises. Id. Murray was charged in municipal court with two separate complaints; one complaint contained three misdemeanor counts of endangering children, while the second complaint contained one count of felony drug possession. Id. The municipal court set the misdemeanor counts for trial or plea and the felony for preliminary hearing. Id. Murray failed to appear, and a bench warrant was issued for his arrest. Id.

{¶ 11} Subsequently, a grand jury returned an indictment for two felony counts of drug possession stemming from the overdose incident. Murray at ¶ 3. Murray was later arrested, and he appeared in the municipal court for a bond hearing. Id. At that time, the State dismissed the municipal court felony charge. Id. Murray eventually entered a guilty plea to one count of felony drug possession in the common pleas court. Id. at ¶ 4. He then filed a motion to dismiss the municipal court charges arguing that the "maintenance of those charges * * * violated Crim.R. 5(B), which requires the municipal court to bind over any pending misdemeanor charges with any pending felony charges arising from the same ‘ act or transaction.’ " Id. The motion was granted, and the State appealed. Id. at ¶ 5.

{¶ 12} The Twelfth District, in discussing the application of Crim.R. 5(B), held:

It is clear from the language of the rule that it does not apply to the procedural posture in this case because there was neither a preliminary hearing nor a waiver of the preliminary hearing in regards to the municipal court felony. Rather, the prosecutor dismissed the municipal court felony after the grand jury returned an indictment for the same charge before a preliminary hearing was conducted or waived. Moreover, the procedural posture of this case does not fall within Crim.R. 5(B), as the rule states a "preliminary hearing shall not be held * * * if the defendant is indicted." Crim.R. 5(B) applies to situations where the state files related felony and misdemeanors charges in the municipal court, and requires the misdemeanor charges to be bound over with the related felony charges. The rule does not address the situation of this case where the state files misdemeanor charges in municipal court and the grand jury returns a separate indictment on related felony charges.

In this case, the state may prosecute the misdemeanor charges separately in municipal court because a related felony charge was not bound over to the common pleas court. See Crim.R. 7(A) (providing the state may prosecute misdemeanor charges in courts inferior to the common pleas court). Thus, the municipal court abused its discretion by relying solely on Crim.R. 5(B) to dismiss the endangering children [misdemeanor] charges.

Murray , 2016-Ohio-7364, 2016 WL 6069067, ¶¶ 10–11.

{¶ 13} Parker argues that the facts in Murray are distinguishable. She argues that her case "was...