In re Appointment of Special Prosecutor

2025 Ohio 5013

• Court: Ohio Court of Appeals
• Decided: November 3, 2025
• Docket: 24 MA 0110
• Status: Published

Opinion

[Cite as In re Appointment of Special Prosecutor, 2025-Ohio-5013.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

IN RE: APPOINTMENT OF SPECIAL PROSECUTOR (MARTIN P. DESMOND),

Petitioner-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 24 MA 0110.

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2024 CR 99999

BEFORE: Robert J. Patton, John J. Eklund, and Eugene A, Lucci, Judges.

JUDGMENT: Reversed and Remanded.

Atty. Martin P. Desmond, pro se, P.O. Box 14052, Youngstown, OH 44514, for Petitioner-Appellant and

Atty. Lynn Maro, Mahoning County Prosecutor, and John B. Yuhasz, Assistant Prosecutor, 21 W. Boardman Street, Sixth Floor, Youngstown, OH 44503, for Respondent-Appellee.

Dated: November 3, 2025 Case No. 24 MA 0110 –2–

ROBERT J. PATTON, P.J.

{¶1} Petitioner-appellant, Martin P. Desmond (“Desmond”), appeals from the

judgment of the Mahoning County Court of Common Pleas dismissing his petition to

appoint a special prosecutor to investigate allegations of criminal conduct by the former

Mahoning County prosecutor, Gina DeGenova (“DeGenova”) and two Mahoning County

commissioners, Carol Rimedio-Righetti and David Ditzler. The alleged criminal conduct

included several felony and misdemeanor offenses. The petition also suggested that an

assistant prosecuting attorney and the county administrator may be involved in the

alleged criminal conduct.

{¶2} On appeal, Desmond argues that the trial court made findings and imposed

an additional burden on Desmond in violation of Ohio Supreme Court precedent as set

forth in State ex rel. Thomas v. Henderson,123 Ohio St. 474 (1931). Respondent-

appellee, the Mahoning County prosecutor, Lynn Maro (“Maro”), agrees that the trial court

did not comply with Henderson and requests that this matter be remanded to the trial

court.

{¶3} Upon review, we conclude that the trial court did not follow the proper

statutory procedures as outlined in R.C. 2935.10, and therefore erred when it dismissed

Desmond’s petition. Accordingly, the judgment of the Mahoning County Court of Common

Pleas is reversed, and this matter is remanded for further proceedings consistent with this

court’s opinion.

Substantive and Procedural Facts

{¶4} On October 9, 2024, Desmond filed his petition to appoint a special

prosecutor in the Mahoning County Court of Common Pleas. The petition alleged that Case No. 24 MA 0110 –3–

DeGenova, Carol Rimedio-Righetti, and David Ditzler committed several crimes in

relation to the December 2, 2022 termination of Mahoning County maintenance worker,

Ricky Morrison.1 The list of potential charges included: intimidation, a third-degree felony,

in violation of R.C. 2921.03; tampering with records, a third-degree felony, in violation of

R.C. 2913.42; tampering with evidence, a third-degree felony, in violation of R.C. 2921.12;

telecommunications fraud, a fifth-degree felony, in violation of R.C. 2913.05; bribery, a

third-degree felony, in violation of R.C. 2921.02; interfering with civil rights, a first-degree

misdemeanor, in violation of R.C. 2921.45; failure to report a crime, a fourth-degree

misdemeanor, in violation of R.C. 2921.22; dereliction of duty, a second-degree

misdemeanor, in violation of R.C. 2921.44; and engaging in a pattern of corrupt activity,

a first-degree felony, in violation of R.C. 2923.32.

{¶5} The day after Desmond filed his petition, on October 10, 2024, the judges

of the Mahoning County Court of Common Pleas, General Division, recused themselves

and sought the appointment of a visiting judge. Honorable Mark. K. Weist was appointed

by the Supreme Court of Ohio to hear the petition.

{¶6} On October 15, 2024, DeGenova filed a motion to strike the petition, or in

the alternative, a motion to stay and a motion for sanctions. Desmond filed a response to

DeGenova’s motions on November 1, 2024. The trial court did not address these filings.

{¶7} A status conference was held on November 20, 2024. At the status

conference, DeGenova provided the trial court with certified election results from the

Mahoning County prosecutorial race. The election results indicated that DeGenova was

1. The petition also alleged that further investigation was needed to determine the culpability of assistant prosecutor, Linette Stratford, and Mahoning County administrator, Audrey Tillis. Case No. 24 MA 0110 –4–

defeated and that Maro was the prosecutor-elect. DeGenova argued at the conference

that Desmond’s petition should be dismissed as moot because the prosecutor-elect can

“review the matter at her leisure” to determine if the petition should proceed. Desmond

disagreed that the issue was moot. Desmond argued that Maro, as newly elected

prosecutor, would also have a conflict of interest because two of the named parties are

Mahoning County commissioners and clients of the Mahoning County Prosecutor’s

Office. Attorney Rankin, on behalf of DeGenova, further argued that the petition should

also be denied because the claims were raised in a federal lawsuit. The federal district

court dismissed DeGenova from the federal case as she was entitled to the protection of

absolute litigation privilege. Morrison v. Mahoning Cnty., Ohio, 2023 WL 3496939, *3

(N.D.Ohio May 16, 2023). The federal court determined it had no obligation to determine

if DeGenova’s e-mail contained fraudulent language. Id. at *2.

{¶8} During the status conference, Desmond asserted that, to succeed on his

petition, he simply had to show that the allegations had some evidentiary support and that

there was a conflict with the current prosecutor. The trial court disagreed and stated:

There’s got to be some threshold that you have to meet before -- and from what I read in here, I think on a motion to dismiss I have got to assume everything you put in here is true. You know, what I read is that you’re saying there is a lot of lying going on, a lot of fraud or E-mail -- false E-mails, false statements about this cover-up of this firing of this employee who, I understand, was almost immediately reinstated and actually sued the county and recovered -- had settled the case for $175,000. I mean, how do you get from there to this whole list of felonies? I just don’t see it.

The trial court concluded the status conference by informing the parties that the petition

would be dismissed by entry. Case No. 24 MA 0110 –5–

{¶9} On November 25, 2024, five days after the status conference, the trial court

dismissed Desmond’s petition concluding that the allegations did not support the

appointment of a special prosecutor. The trial court determined that even under the

assumption that the allegations were true, the allegations “do not amount to probable

cause that any crimes were committed.” The court below further found no basis to invoke

its inherent authority to grant petitioner's request.

{¶10} Desmond timely appeals the trial court’s decision.

The Appeal

{¶11} Desmond raises the following assignment of error for review: “[t]he trial

court erred by dismissing the Petition to Appoint Special Prosecutor.” Desmond alleges

that the trial court failed: to follow legal precedent, to view the evidence in the light most

favorable to the non-moving party, and to presume the allegations are true.

{¶12} Desmond’s petition requested that the trial court appoint a special

prosecutor to investigate allegations of corruption in Mahoning County. Because the

allegations involved the former county prosecutor and county commissioners, Desmond

argued that the Mahoning County Prosecutor’s Office had a conflict of interest which

permitted the trial court to invoke its inherent authority and appoint a special prosecutor.

{¶13} It is well established that “[a] common pleas court has inherent authority to

appoint counsel to assist the grand jury in criminal matters where neither the prosecuting

attorney nor his duly appointed assistant can perform these duties.” State v. Horsley,

2018-Ohio-1591, ¶ 58 (4th Dist.), citing State ex rel. Williams v. Zaleski, 12 Ohio St.3d

109, 111 (1984). See In re Pitts, 2024-Ohio-1618, ¶ 23 (6th Dist.). “In the absence of a

statute controlling the appointment of a special prosecutor, the trial court * * * ha[s] the Case No. 24 MA 0110 –6–

inherent power to take such action.” In re Appointment of Special Prosecutor, 2002-Ohio-

1874 (6th Dist.); see State ex rel. Johnson v. Talikka, 1994 WL 116299, *3 (11th Dist.

Mar. 31, 1994).

{¶14} In State ex rel. Thomas v. Henderson, 123 Ohio St. 474, 478 (1931), the

Supreme Court of Ohio held that a trial court's exercise of its inherent power to appoint a

special prosecutor was proper where the prosecutor's office was under investigation. It

has also been found to be proper where the prosecutor has assented in the request to

appoint a special prosecutor. State ex rel. Stahl v. Webster, 1933 WL 1540 (6th Dist. Oct.

24, 1933).

{¶15} In Henderson, the judges of the Mahoning County Court of Common Pleas

sua sponte filed an entry appointing a special prosecutor to investigate the alleged

conduct, acts, and doings of the county prosecuting attorney. As the county prosecuting

attorney was the focus of the investigation, neither the prosecuting attorney nor any

assistant prosecutors were able to participate in the proceedings. Thus, the appointment

of a special prosecutor was necessary. As noted by the Henderson Court, no statutory

provision existed for the judges of the court of common pleas to file charges against the

county prosecuting attorney. Furthermore, there was no statutory provision for finding the

temporary disqualification of a prosecuting attorney. Henderson at 478.

{¶16} While the Supreme Court of Ohio recognized the court of common pleas’

inherent authority to appoint a special prosecutor, it disapproved of the procedure used

by the Mahoning County Court of Common Pleas. Id. at 480. In Henderson, the Supreme

Court of Ohio held that when a court seeks to invoke its inherent authority to appoint a

special prosecutor, the prosecuting attorney should be afforded an opportunity to be Case No. 24 MA 0110 –7–

heard and to present any evidence he or she desires to offer before the investigation

proceeds. Henderson at 480. Additionally, the Court also determined that “the judges of

the common pleas court have no power to hear and finally determine the truth of the

charges against the prosecuting attorney, as a basis for his temporary disqualification,

and the hearing to be conducted must necessarily be in the nature of a preliminary inquiry

to determine the probable disqualification of the prosecuting attorney, and whether the

grand jury should be instructed to further investigate.” Id.

{¶17} On appeal, Desmond argues that the trial court failed to follow Ohio

Supreme Court precedent in Henderson, 123 Ohio St. 474 (1931), when it sua sponte

dismissed his petition to appoint a special prosecutor. Maro agrees that the trial court did

not follow the procedure in Henderson when it denied Desmond’s petition. Upon review

of the proceedings below, we agree. It is clear the trial court did not follow the procedures

set forth in Henderson as it failed to determine if a conflict exists.

{¶18} While we agree that the proper procedure outlined in Henderson was not

followed when the trial court dismissed Desmond's petition, this court is unconvinced that

Desmond’s filing can serve as an independent vehicle for such a request. Indeed, there

is little guidance regarding how such requests should be made in the trial court. Notably,

neither Henderson, nor any other case Desmond cited, stands for the proposition that a

private citizen may petition a court to invoke its inherent authority in the absence of a

pending case. Therefore, we must first address the proper procedural framework for such

requests.

{¶19} Upon review, we hold that Desmond's filing must be construed as a filing

under R.C. 2935.09, despite his declaration that it is not. The General Assembly has Case No. 24 MA 0110 –8–

preempted the field of private citizen criminal complaints through the enactment of R.C.

2935.09 and 2935.10.

{¶20} R.C. 2935.09(D) provides:

A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate. A private citizen may file an affidavit charging the offense committed with the clerk of a court of record before or after the normal business hours of the reviewing officials if the clerk's office is open at those times. A clerk who receives an affidavit before or after the normal business hours of the reviewing officials shall forward it to a reviewing official when the reviewing official's normal business hours resume.

This statute provides the exclusive mechanism by which a private citizen may

independently file criminal proceedings against another. The use of the court's inherent

authority at the request of a citizen to cause the arrest and prosecution of another is no

longer applicable since the enactment of these statutes. Henderson and the cases

predating R.C. 2935.09 and 2935.10 cannot be used to bypass this legislative framework.

{¶21} Desmond contends that R.C. 2935.09 is inapplicable because of the

requirement to forward the filing to the prosecutor’s office for further investigation in

accordance with R.C. 2935.10(A). We disagree with Desmond’s contention that R.C.

2935.09 and 2935.10 are inapplicable to this case. There is no question that Desmond’s

filing meets the criteria of R.C. 2935.09. Moreover, R.C. 2935.10 would also provide an

avenue for the trial court to invoke its inherent authority and appoint a special prosecutor Case No. 24 MA 0110 –9–

should the trial court determine that referral to the prosecuting attorney is warranted for

further review.2

{¶22} Under R.C. 2935.10(A), when a judge receives an affidavit charging a

felony, the judge has only two options: (1) if the judge finds probable cause that a crime

has been committed and that the accused committed that crime, the judge shall forthwith

issue a warrant for arrest; or (2) if the judge has reason to believe the affidavit was not

filed in good faith, the claim is not meritorious, or finds reasonable articulable suspicion

warranting further inquiry, the judge shall forthwith refer the matter to the prosecuting

attorney for investigation prior to any issuance of a warrant. R.C. 2935.10(A).

{¶23} Critically, the statute does not permit the trial court to summarily dismiss the

matter. State ex rel. Brown v. Jeffries, 2012-Ohio-1522, ¶ 10 (4th Dist.), citing State ex

rel. Boylen v. Harmon, 2006-Ohio-7, ¶ 7; In re Pitts, 2024-Ohio-1618, ¶ 1 (6th Dist.)

(“Because the trial court failed to comply with R.C. 2935.10(A)—which requires a court to

either (1) issue an arrest warrant or (2) refer the matter to the prosecuting attorney for

investigation—we reverse and remand.”) Because Desmond’s filing should have been

construed under R.C. 2935.09(D), the trial court could not summarily dismiss the petition.

Such dismissal was the trial court's primary error and requires reversal on appeal.

{¶24} Upon remand and after review of the petition, the trial court must comply

with R.C. 2935.10(A) and determine the appropriate course of action. The trial court must

first determine whether probable cause exists to issue an arrest warrant. If the trial court

2. This procedure has been followed by at least one other court. In State v. L.F., 2020-Ohio-968, ¶ 14 (12th Dist.), the appellate court noted that the trial court appointed a special prosecutor for further investigation upon review of a R.C. 2935.09 affidavit. Case No. 24 MA 0110 – 10 –

finds the affidavit was not filed in good faith, lacks merit, or warrants further investigation,

it must refer the matter for prosecutorial investigation. However, because the accused

individuals include the former prosecuting attorney and current county commissioners

who are clients of the prosecutor's office, a clear conflict of interest prevents the current

prosecutor from conducting the investigation.

{¶25} When an R.C. 2935.09 affidavit alleges crimes by the prosecuting attorney

and their governmental clients, the prosecuting attorney is necessarily conflicted and

cannot perform the investigative function contemplated by R.C. 2935.10(A). Thus, where

a trial court does not issue a warrant on the petition, the trial court must invoke its inherent

authority to appoint a special prosecutor to fulfill the investigative role that would

otherwise be performed by the conflicted prosecutor's office. The trial court has no

discretion in this matter. Where a structural conflict exists, the appointment of a special

prosecutor is mandatory.

{¶26} Therefore, the trial court must appoint a special prosecutor to investigate

the allegations presented in Desmond's affidavit after the prosecuting attorney has been

afforded an opportunity to be heard and to present any evidence he or she desires to

offer before the investigation proceeds. Henderson, 123 Ohio St. at 478 (1931).

{¶27} We emphasize that the trial court's role at this stage is limited. The trial

court is not to make final determinations about the truth of the charges or whether crimes

were actually committed. As Henderson instructs, "the hearing to be conducted must

necessarily be in the nature of a preliminary inquiry to determine the probable

disqualification of the prosecuting attorney, and whether the grand jury should be

instructed to further investigate." Henderson at 480. As such, the trial court erred when it Case No. 24 MA 0110 – 11 –

assumed the allegations to be true and then concluded they "do not amount to probable

cause that any crimes were committed." Thus, the trial court exceeded its authority under

both R.C. 2935.10 and Henderson.

{¶28} Accordingly, the judgment of the Mahoning County Court of Common Pleas

is reversed, and this matter is remanded for further proceedings consistent with this

JOHN J. EKLUND, J.,

EUGENE A. LUCCI, J.,

concur. Case No. 24 MA 0110 – 12 –

For the reasons stated in the Opinion rendered herein, the assignment of error is sustained and it is the final judgment and order of this court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is reversed. We hereby remand this matter to the trial court for further proceedings according to law and consistent with this court’s Opinion. Costs to be taxed against the Appellee. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the Mahoning County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

________________________________________________ PRESIDING JUDGE ROBERT J. PATTON, JUDGE OF THE 11TH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT

________________________________________________ JUDGE JOHN J. EKLUND, JUDGE OF THE 11TH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT concurs

________________________________________________ JUDGE EUGENE A. LUCCI, JUDGE OF THE 11TH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT concurs

NOTICE OF COUNSEL Pursuant to App.R. 22 and 27, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the Clerk.