[Cite as State ex rel. Tingler v. Howe-Gebers, 2022-Ohio-2237.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

OTTAWA COUNTY

State ex rel. Charles Tingler Court of Appeals No. OT-22-028

Relator

 

v.

Prosecutor Gwen Howe-Gebers DECISION AND JUDGMENT

Respondent Decided: June 29, 2022

* * * * *

Charles Tingler, Pro se.

* * * * *

PIETRYKOWSKI, J.

{¶ 1} This matter is before the court on the petition of relator, Charles Tingler, for 

a writ of mandamus ordering respondent, Prosecutor Gwen Howe-Gebers, to present a 

case against Sheriff Stephen Levorchick to the Ottawa County Grand Jury. For the 

reasons that follow, we find that relator cannot prevail on the facts alleged in the 

complaint, and relator’s complaint is frivolous. Therefore, we sua sponte dismiss 

relator’s petition for a writ of mandamus.
2.

{¶ 2} The facts alleged in relator’s complaint are that in February 2017, he 

contacted the Port Clinton Police Department to file a police report against Ottawa 

County Sheriff Stephen Levorchick for the crime of theft in office. Port Clinton Police 

Detective Corbin Carpenter filed a police report, conducted an investigation, and 

forwarded the results of his investigation to the Ottawa County Prosecutor’s Office. The 

Ottawa County Prosecutor’s Office requested the appointment of a special prosecutor for 

the matter, and respondent was appointed on April 12, 2017. Relator alleges that 

respondent has since failed to present the case against Sheriff Levorchick to the Ottawa 

County Grand Jury. Relator also notes that respondent has prosecuted relator on two 

separate occasions on charges related to his actions against Sheriff Levorchick.

{¶ 3} “To be entitled to a writ of mandamus, [relator] must establish by clear and 

convincing evidence a clear legal right to the requested relief, a clear legal duty on the 

part of [the respondent] to provide it, and the lack of an adequate remedy in the ordinary 

course of the law.” State ex rel. A.N. v. Cuyahoga Cty. Prosecutor’s Office, 165 Ohio 

St.3d 71, 2021-Ohio-2071, 175 N.E.3d 539, ¶ 9. “In general, a prosecutor has no clear 

duty to prosecute an offense alleged in a charging affidavit.” Id. “‘Only when the failure 

to prosecute constitutes an abuse of discretion will a prosecutor be compelled to 

prosecute.’” Id., quoting State ex rel. Capron v. Dattilio, 146 Ohio St.3d 7, 2016-Ohio1504, 50 N.E.3d 551, ¶ 4. “Thus, a prosecutor’s discretionary decision whether to 
3.

prosecute is not generally subject to judicial review.” Id., citing State ex rel. Master v. 

Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180 (1996).

{¶ 4} Here, relator cannot demonstrate that respondent abused her discretion five 

years ago when she failed to seek an indictment against Sheriff Levorchick. In his 

complaint, relator nakedly alleges that Sheriff Levorchick committed the crime of theft in

office. However, relator has not attempted to set forth any facts upon which his criminal 

allegation is based. Furthermore, the February 8, 2017 police report filed by Sergeant 

Corbin Carpenter, which relator attached to his mandamus complaint, states only:

On the aforementioned date & time I received an email from Charles 

Tingler (2-8-2017 at 0005hrs) requesting I contact him regarding a report 

he filed with the Ottawa County Sheriff’s Office (20170209-000) on 1-27-

2017 with Sgt. Zach Bowling. Said OCSO report was attached to the email 

and merely states that Sgt. Bowling spoke with Charles Tingler on the 

phone regarding a theft that allegedly occurred at the Ottawa County 

Courthouse. Sgt. Bowling referred him to this department.

Thus, the entirety of relator’s complaint can be summarized as: “I alleged a crime was 

committed, therefore you must prosecute.”

{¶ 5} Without any facts or evidence—or even allegations of facts or evidence—

upon which to evaluate whether a crime may or may not have occurred, we simply cannot 

say that respondent abused her discretion in declining to present a case against Sheriff 
4.

Levorchick to the Ottawa County Grand Jury. Therefore, we find that relator cannot 

prevail on the facts alleged in the complaint, and relator’s complaint is frivolous.

{¶ 6} Accordingly, we sua sponte dismiss relator’s petition for a writ of 

mandamus. See State ex rel. Jones v. Garfield Hts. Mun. Court, 77 Ohio St.3d 447, 448,

674 N.E.2d 1381 (1997) (“Although sua sponte dismissal of a complaint without notice is 

generally inappropriate, it is warranted if the complaint is frivolous or the claimant 

obviously cannot prevail on the facts alleged in the complaint.”). Costs of this action are 

assessed against relator.

{¶ 7} The clerk is directed to serve upon the parties, within three days, a copy of 

this decision in a manner prescribed by Civ.R. 5(B).

Writ Denied.

Mark L. Pietrykowski, J. ____________________________

JUDGE

Thomas J. Osowik, J. 

____________________________

Myron C. Duhart, P.J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.