1e2f COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72988 CITY OF MAPLE HEIGHTS, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : KIRK D. SPEARMAN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Garfield Heights Municipal : Court : Case No. 97-CRB-2795 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Michael G. Ciaravino Maple Heights Prosecutor 5005 Rockside Road Crown Centre - Suite 600 Independence, Ohio 44131-2155 For defendant-appellant: Elliott S. Barrat 33840 Aurora Road Suite 200 Cleveland, Ohio 44139-3795 -2- NAHRA, J.: Appellant submitted a motion to transfer the matter to Cuyahoga County Court of Common Pleas on the ground that Garfield Heights Municipal Court lacked jurisdiction over the case because he had a prior conviction for domestic violence, and thus, he should have been charged with a felony of the fifth degree over which the Garfield Heights Municipal Court would not have jurisdiction. The motion was denied. Appellant entered a plea of no contest. The court found appellant guilty of domestic violence under R.C. 2919.25(A), a misdemeanor of the first degree, and it is from this decision that appellant timely appeals. Appellant's sole assignment of error states: THE GARFIELD HEIGHTS MUNICIPAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO TRANSFER (RECOGNIZING APPELLANT TO APPEAR BEFORE A COURT OF COMMON PLEAS) WHEN IT WAS CLEARLY ESTABLISHED THAT APPELLANT WAS PREVIOUSLY CONVICTED OF DOMESTIC VIOLENCE UNDER R.C. 2919.25(A), AND THEREFORE, HAVING BEEN CHARGED WITH A SECOND DOMESTIC VIOLENCE OFFENSE, APPELLANT SHOULD HAVE BEEN CHARGED WITH A FELONY OF THE FIFTH DEGREE AS MANDATED UNDER R.C. 2919.25(D), INSTEAD OF A MISDEMEANOR OF THE FIRST DEGREE, AND IF PROPERLY CHARGED, THIS MATTER WOULD HAVE BEEN OUTSIDE THE SUBJECT MATTER JURISDICTION OF GARFIELD HEIGHTS MUNICIPAL COURT. R.C. 2919.25 provides in pertinent part: (A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. (D) Whoever violates this section is guilty of domestic violence *** a violation of division (A) *** of this section is a misdemeanor of the first degree. If the offender previously has been convicted of domestic violence *** involving a person who was a family or household member at the time of the violation, a violation of division (A) *** of this section is a felony of the fifth degree ***. -3- It is undisputed that appellant had a prior domestic violence conviction under R.C. 2919.25(A). It is appellant's contention that due to this prior conviction he should have been charged with a fifth degree felony under R.C. 2919.25(D) and not with a first degree misdemeanor under R.C. 2919.25(A). Appellant maintains that had he been charged with a felony, the case would have been transferred to Cuyahoga County Court of Common Pleas. However, it is appellee's contention that R.C. 2919.25 does not mandate that prosecutors charge repeat offenders with a felony, but rather the prosecutors are granted a wide degree of latitude, and the decision to charge and to what degree is left to their discretion. The scope of prosecutorial discretion has been addressed numerous times and on numerous levels. It has been widely held that a prosecutor may choose with which statute to charge a defendant when two statutes prohibit the same conduct. State v. Miles (1983), 8 Ohio App.3d 410, 457 N.E.2d 944, State v. Powell (1993), 87 Ohio App.3d 157, 621 N.E.2d 1328. More on point however, in State ex rel. Jones v. Garfield Heights Municipal Court (1997), 77 Ohio St.3d 447, 448, 674 N.E.2d 1381, Jones claimed that he too was improperly charged with a misdemeanor and not a felony which allowed the city of Garfield Heights to retain jurisdiction to his prejudice. In that case, the Supreme Court, in denying his claim, stated that [t]he decision whether to prosecute is discretionary and not normally subject to review. Appellant argues that our court had held that when a court sentences a defendant who has been convicted of domestic violence -4- under R.C. 2919.25(A), and who has been previously convicted of domestic violence, the trial court must follow the sentencing requirements of R.C. 2919.25(D); i.e., and sentence as a felony. State v. Canitia (June 13, 1993), Cuyahoga App. Nos. 62492 & 62639, unreported. In that case, the defendant was charged with a felony of domestic violence with a prior conviction specification which was stipulated to at trial. Nothing in our court's ruling indicated the prior offense must be included in the charge. Appellant's main concern here is that the city prosecutor undercharged him and that he should have been charged with a felony, not a misdemeanor. It is clear that the prosecutor has wide latitude in choosing to enhance a subsequent conviction with a prior conviction when the statute allows. In the instant case, the prosecutor chose not to charge appellant with a felony and charged a first degree misdemeanor. This choice was properly left to his discretion and is not subject to judicial review. Judgment affirmed. -5- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Garfield Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA JUDGE BLACKMON, A.J., and MICHAEL J. CORRIGAN, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the . 0