State v. Davis

[Cite as State v. Davis, 

.]



                 IN THE COURT OF APPEALS OF OHIO
                            ELEVENTH APPELLATE DISTRICT
                                   LAKE COUNTY

STATE OF OHIO,                                   CASE NOS. 2023-L-009
CITY OF MENTOR,                                            2023-L-010

                 Plaintiff-Appellee,             Criminal Appeal from the
                                                 Mentor Municipal Court
        - vs -

KENNETH RAY DAVIS, JR.,                          Trial Court Nos. 2022 CRA 01371 B
                                                                  2022 CRA 01371 A
                 Defendant-Appellant.


                                           MEMORANDUM
                                             OPINION

                                     Decided: February 21, 2023
                                    Judgment: Appeals dismissed


Joseph P. Szeman, City of Mentor Director of Law, The Matchworks Building, 8500
Station Street, Suite 245, Mentor, OH 44060 (For Plaintiff-Appellee).

Kenneth Ray Davis, Jr., pro se, 1460 East 196th Street, Euclid, OH 44117 (Defendant-Appellant)


EUGENE A. LUCCI, J.

        {¶1}     Appellant, Kenneth Ray Davis, Jr., pro se, filed a notice of appeal on

January 17, 2023, from a judgment entry issued by the Mentor Municipal Court on

January 9, 2023, which denied his motion to vacate the court’s bind over order.

        {¶2}     On December 16, 2022, appellant was charged with receiving stolen

property, in violation of R.C. 2913.51(A). After the municipal court held a preliminary

hearing, probable cause was found, and the court ordered that appellant be bound over

to the court of common pleas on January 5, 2023.
       {¶3}     Pursuant to Crim.R. 5(B)(4)(a) and (5):

       {¶4}     “Preliminary Hearing in Felony Cases; Procedure.

       {¶5}     “….

       {¶6}     “Upon conclusion of all the evidence … the court shall do one of the

following:

       {¶7}     “(a) Find that there is probable cause to believe the crime alleged … has

been committed and that the defendant committed it, and bind the defendant over to the

court of common pleas ….

       {¶8}     “(5) Any finding requiring the accused to stand trial on any charge shall be

based solely on the presence of substantial credible evidence thereof. No appeal shall

lie from such decision ….”

       {¶9}     Appellant’s attempt to appeal the bind-over order is precluded by the Ohio

Criminal Rules. Thus, appellant cannot challenge the bind over to the court of common

pleas. See State v. Miller, 9th Dist. Summit No. 12198, 

, *2 (Jan. 22, 1986).

(Citing the foregoing criminal rule and holding an appellant “cannot challenge the trial

court’s finding of probable cause and subsequent binding over to the grand jury for

indictment.”)

       {¶10} Appeals dismissed.



JOHN J. EKLUND, P.J.,

MARY JANE TRAPP, J.,

concur.



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Case Nos. 2023-L-009 and 2023-L-010