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City of Cleveland v. Primm

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 17, 2017


         Criminal Appeal from the Cleveland Municipal Court Case No. 2016 CRB 012452

          ATTORNEY FOR APPELLANT James R. Willis James R. Willis Attorney At Law.

          ATTORNEYS FOR APPELLEE Barbara A. Langhenry Director of Law City of Cleveland Kimberly Barnett-Mills Chief City Prosecutor Jennifer M. Kinsley Assistant City Prosecutor.

          BEFORE: Stewart, P.J., S. Gallagher, J., and Jones, J.


          MELODY J. STEWART, P.J.

         {¶1} After conducting a traffic stop, an Ohio state highway patrol trooper cited defendant-appellant Samson Primm for the minor misdemeanor offense of possession of marijuana (he was not charged with any driving offense). An unstated amount of cash was also seized (defense counsel told the court that "they took over $100, 000 from this young man."). The citation was transferred to the city of Cleveland for prosecution. Primm filed a motion to suppress the evidence seized in the traffic stop on grounds that the trooper conducted an illegal stop based on "profile considerations." He also sought return of the cash seized during the traffic stop.

         {¶2} On the day of trial, the city told the court that it wanted to dismiss the drug charges because it would not have the laboratory results before the speedy trial time expired. Primm objected to dismissal and offered to stipulate that the substance found in his vehicle was marijuana. The court granted the motion to dismiss over Primm's objections. It also found Primm's motion to suppress moot.

         {¶3} Primm assigns four errors for review: that the court failed to conduct an evidentiary hearing on his motion to suppress evidence; that the court erred by granting the city's motion to dismiss the prosecution without regard for the pending motion to suppress evidence; that turning the seized property over to the federal government did not deny the court jurisdiction to consider questions related to the property; and that the court failed to articulate a basis for dismissal.

         {¶4} The assignments of error are, for the most part, tangential to a larger issue relating to the seizure of the cash and Primm's desire to have it returned to him. During a hearing on the motion to dismiss the citation, the city told the court that it has never been in possession of the cash - immediately after the traffic stop the highway patrol gave the cash directly to the federal government for adoptive forfeiture under federal law. See R.C. 2981.14(A);[1] see generally Harris v. Mayfield Hts., 2013-Ohio-2464, 991 N.E.2d 1179 (8th Dist). Primm told the court that he could get the money back by showing that the seizure was unlawful for want of probable cause. To do that, he said that he needed the court to rule on his motion to suppress evidence. Primm maintained that the ruling finding his motion to suppress moot hampered his ability to contest the federal asset forfeiture.

         {¶5} The parties agree that the court dismissed the citation under Crim.R. 48(A). That rule 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." The rule embodies two different exercises of discretion: first, that the prosecuting attorney has the discretion "to determine when and which charges should be dropped, " State v. Jones, 8th Dist. Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 31; second, that the court has the discretion to decide whether to grant leave to allow dismissal of an indictment. State v. Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13. The court's discretion, however, is limited by the separation of powers - the decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion of the prosecuting attorney. State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180 (1996) ("the decision whether to prosecute is discretionary, and not generally subject to judicial review"); see also In re United States, 345 F.3d 450, 454 (7th Cir.2003) ("[T]he plenary prosecutorial power of the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of Congress, it assures that no one can be convicted of a crime without the concurrence of all three branches. * * * When a judge assumes the power to prosecute, the number shrinks to two."). Broadly interpreting the Crim.R. 48(A) leave-of-court requirement could be an invitation for the judiciary to exceed its constitutional role and breach the separation of powers by intruding upon the plenary prosecution power of the executive branch.

         {¶6} The court thus has a limited ability to second-guess the government's decisions on whether and what to prosecute. As stated in the context of the similarly worded portion of Fed.R.Crim.P. 48(a), [2] the principal purpose of the leave-of-court requirement is "to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977), fn. 15. Rinaldi also stated that the court could deny leave to dismiss an indictment if the dismissal "is prompted by considerations clearly contrary to the public interest." Id. But Rinaldi made it clear that "the salient issue * * * is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety." Id. at 30.

         {¶7} In short, the court should show deference to the prosecutor's decision to terminate a criminal case, and because the court has the discretion to grant leave to dismiss, we must likewise give deference to the court's decision to grant leave. Nevertheless, the "good cause" component of Crim.R. 48(A) means that a prosecuting attorney does not have unbridled authority to terminate the proceedings. Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (9th Dist.1978). The Crim.R. 48(A) requirement of "good cause" requires "more then a cursory recitation that good cause exists[.]" Lakewood v. Pfeifer, 83 Ohio App.3d 47, 51, 613 N.E.2d 1079 (8th Dist.1992). And even though the court has discretion to grant leave, there is no exercise of discretion by rubber-stamping a request for leave.

         {¶8} At this juncture, we must consider the nature of the dismissal. The city maintains that it dismissed the case with prejudice, but there is nothing in the record to show that the court dismissed the citation with prejudice. When an indictment or citation is dismissed without any indication of whether the dismissal is with or without prejudice, we presume the dismissal to be without prejudice. State v. Miller, 7th Dist. Mahoning No. 07 MA 215, 2008-Ohio-3085, ¶ 43. And more broadly, Crim.R. 48(A) dismissals are considered to be without prejudice to refiling charges unless there is a deprivation of a defendant's constitutional or statutory rights, the violation of which would, in and of itself, bar further prosecution. State v. Dixon, 14 Ohio App.3d 396, 397, 471 N.E.2d 864 (8th Dist.1984); Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, at ¶ 13.

         {¶9} As good cause supporting its motion to dismiss the citation, the city told the court that "we do not have the drug results back from the Ohio state highway patrol lab." It further stated that there was "one day of speedy trial time remaining, and we will not have those lab results before the time of speedy trial is up." While insufficiency of proof is regarded as good cause to support dismissal of criminal charges under Crim.R. 48(A), State v. Sutton,64 Ohio App.2d 105, 107, 411 N.E.2d 818 (9th Dist.1979), Primm vitiated that cause when he stipulated that the substance collected from his car was marijuana. ...

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