author: HENSAL, Presiding Judge.

text:
    James E. PIETRANGELO, II, Appellant v. The LORAIN CTY. PR. & PUB. CO., et al., Appellee
    No. 16CA010929
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: December 4, 2017
    JAMES E. PIETRANGELO, II, pro se, Appellant.
    MONICA L. DIAS, Attorney at Law, for Appellees.
    J. MICHAEL MURRAY, Attorney at Law, for Appellees.
    ROBERT E. CHUDAKOFF, Attorney at Law, for Appellees.
    JAMES M. POPSON, Attorney at Law, for Appellees.
    DECISION AND JOURNAL ENTRY
   HENSAL, Presiding Judge.

{¶ 1} Plaintiff-Appellant, James Pietrangelo, appeals from the judgments of the Lorain County Court of Common Pleas, granting judgment on the pleadings and summary judgment to Defendants-Appellees. This Court affirms.

I.

{¶ 2} In 2013, Mr. Pietrangelo, an attorney, filed a pro se lawsuit against the City of Avon Lake, seeking to have a local skate park shut down because he believed it was a nuisance. Several local media outlets-including The Chronicle-Telegram, The Press, and Cleveland Scene-published articles online and/or in print regarding Mr. Pietrangelo's lawsuit and the issues related thereto. As a result of those articles, Mr. Pietrangelo filed a defamation and false light complaint against the media outlets, including their respective presidents/CEOs, publishers, managing editors, and reporters. He also sued the City of Avon Lake and two members of the Avon Lake Police Department, asserting defamation and false light claims, and alleging that they violated his constitutional rights in connection with the skate-park dispute.

{¶ 3} The Chronicle-Telegram and the individual defendants associated therewith ("The Chronicle-Telegram") moved for summary judgment on all of Mr. Pietrangelo's claims against them, which the trial court granted. The remaining defendants moved for judgment on the pleadings, which the trial court also granted. Mr. Pietrangelo now appeals, raising five assignments of error for our review. Mr. Pietrangelo's merit brief combines the discussion of the first two assignments of error. For ease of consideration, we will do the same.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR ABUSED [ITS] DISCRETION ("ERRED" HEREINAFTER) IN ISSUING ITS SEPTEMBER 23, 2015 JOURNAL ENTRY, INCLUDING IN GRANTING-WITHOUT ANY PROPER OPINION OR ANALYSIS-SUMMARY JUDGMENT TO DEFENDANTS THE LORAIN COUNTY PRINTING & PUBLISHING COMPANY ("LCPPC") DBA THE CHRONICLE-TELEGRAM, PUBLISHER PAUL B. MARTIN, EDITOR ANDY YOUNG, AND REPORTER ANNA MERRIMAN (COLLECTIVELY "LCPPC DEFENDANTS"), AND IMPLICITLY DENYING PIETRANGELO'S JULY 10, 2015 MOTION TO STRIKE, JULY 10, 2015 RULE 56(F) MOTION, AND AUGUST 3, 2015 MOTION FOR LEAVE.

ASSIGNMENT OF ERROR II

THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR ABUSED [ITS] DISCRETION IN ISSUING ITS JULY 31, 2015 JOURNAL ENTRY, INCLUDING IN DENYING PIETRANGELO'S JULY 30, 2015 MOTION TO STRIKE.

{¶ 4} In his first assignment of error, Mr. Pietrangelo argues that the trial court erred by granting summary judgment in favor of The Chronicle-Telegram. He also argues that the trial court erred by implicitly denying his motion under Civil Rule 56(F), his motion to strike the exhibits from The Chronicle-Telegram's motion for summary judgment, and his motion for leave to file a surreply to The Chronicle-Telegram's opposition to his Rule 56(F) motion.

{¶ 5} We decline to address the latter two motions because Mr. Pietrangelo has failed to properly develop arguments in support of his position that the trial court erred by implicitly denying those motions. See App.R. 16(A)(7). For example, Mr. Pietrangelo fails to indicate the standard of review this Court is to apply, and fails to explain how the cited legal authority applies to the facts presented, among other deficiencies. See Loc.R. 7(B)(7) ( "Each assignment of error shall * * * include the standard * * * of review applicable to that assignment of error * * *."); Ohio Edison Co. v. Williams , 9th Dist. Summit No. 23530, 2007-Ohio-5028, 2007 WL 2781249, ¶ 9, quoting Kremer v. Cox , 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996) ("failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal."). Mr. Pietrangelo's second assignment of error, which challenges the trial court's denial of another motion to strike, fails for the same reasons. Id. We, therefore, are left with deciding whether the trial court erred by granting summary judgment in favor of The Chronicle-Telegram, and whether it erred by implicitly denying Mr. Pietrangelo's Rule 56(F) motion.

{¶ 6} We will first address the trial court's grant of summary judgment in favor of The Chronicle-Telegram. We review an award of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civil Rule 56(C), summary judgment is proper only if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied." Id. at 293, 662 N.E.2d 264. If the moving party fulfills this burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material fact exists. Id. "[The] party opposing summary judgment may not rest upon its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. If a moving party meets the standard for summary judgment required by Civ.R. 56, and a nonmoving party fails to respond with evidence of a genuine issue of material fact, a court does not err in granting summary judgment in favor of the moving party." Todd Dev. Co. v. Morgan , 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 14.

{¶ 7} Here, Mr. Pietrangelo's claims against The Chronicle-Telegram stem from two separate articles: one published in April 2014 titled "Man suing skate park changes focus[,]" and one published in June 2014 titled "Avon Lake police concerned over resident's skate park comment." With respect to the April 2014 article, Mr. Pietrangelo's complaint alleged that the following statements were defamatory: (1) "James Pietrangelo II now has filed a lawsuit against attorneys representing the city of Avon Lake."; and (2) "In another lawsuit filed April 9, Pietrangelo, acting as his own attorney, wrote that he recently learned Koesel and Turnball have been employees of the city since October, when he claims they were made 'Special Assistant Law Directors.' " He asserted that these statements were false, defamatory, and portrayed him in a false light because he did not file a separate lawsuit against the attorneys representing the City of Avon Lake. Rather, he filed a motion to disqualify them in an existing case. The Chronicle-Telegram clarified this discrepancy in the next day's edition, but Mr. Pietrangelo maintains that it was not a meaningful correction given its location within the newspaper.

{¶ 8} Regarding the June 2014 article, Mr. Pietrangelo's complaint alleged that the following statements were defamatory and portrayed him in a false light: (1) "Homeowner who called 54 times this year about issues with park noise tells police he has [a] concealed carry permit."; (2) "During a few calls, Pietrangelo has told police he owns a concealed carry permit and that he is prepared to defend himself if he's confronted, Avon Lake Police Chief Duane Streator said." (3) " 'This whole situation involves a noise nuisance complaint that (Pietrangelo) has with the people using the skate park,' Streator said."; (4) "It's unusual to bring that information into the conversation."; (5) "Police have forwarded information about the calls to the city law director for review, and have told Pietrangelo to bring an officer with him if he goes to the skate park."; and (6) " 'We're trying to diffuse it before anything occurs,' Streator said."

{¶ 9} In its motion for summary judgment, The Chronicle-Telegram argued that Mr. Pietrangelo's defamation and false-light claims failed as a matter of law because: (1) the challenged statements were true or substantially true and not actionable; (2) the statements were not defamatory and the innocent-construction rule mandated dismissal of his claims; (3) the challenged statements were constitutionally protected expressions of opinion, which cannot support a defamation or false light claim; (4) Mr. Pietrangelo could not prove that The Chronicle-Telegram acted with the requisite degree of fault; and (5) the challenged statements were protected by the fair-report privilege, and Mr. Pietrangelo could not prove that The Chronicle-Telegram acted with the requisite degree of fault to overcome that privilege. The trial court summarily granted The Chronicle-Telegram's motion.

{¶ 10} On appeal, Mr. Pietrangelo argues that The Chronicle-Telegram did not meet its initial burden under the summary-judgment standard because it relied upon incompetent evidence. He also argues that "numerous genuinely disputed or ambiguous material facts remain[ed]" and that The Chronicle-Telegram had "holes in their evidence[.]" He further argues that the trial court erred by not issuing an opinion that contained its analysis with respect to its grant of summary judgment. We reject that argument outright because the Civil Rules do not require the trial court to do so. Civ.R. 52 ("Findings of fact and conclusions of law required by this rule and by Civ.R. 41(B)(2) and Civ.R. 23(G)(3) are unnecessary upon all other motions including those pursuant to * * * Civ.R. 56.").

{¶ 11} Initially, we note that Mr. Pietrangelo alleged defamation per se, not defamation per quod, and we will analyze his claims accordingly. "Defamation per se occurs when material is defamatory on its face; defamation per quod occurs when material is defamatory through interpretation or innuendo." Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne , 183 Ohio App.3d 104, 2009-Ohio-2612, 916 N.E.2d 484, ¶ 7 (9th Dist.), quoting Gosden v. Louis , 116 Ohio App.3d 195, 206, 687 N.E.2d 481 (9th Dist. 1996). This distinction is significant because a claim for defamation per quod requires the plaintiff to plead and prove special damages, which Mr. Pietrangelo has not done.

Id. at ¶ 9. If a statement is defamation per se, on the other hand, damages are presumed. Id.

{¶ 12} To be actionable as defamation per se, the statements must "import an indictable criminal offense involving moral turpitude[,]" "impute a loathsome or contagious disease which excludes one from society[,] or "tend to injure one in his trade or business occupation." Dunnigan v. City of Lorain , 9th Dist. Lorain No. 02CA008010, 2002-Ohio-5548, 2002 WL 31313216, ¶ 35 ; Davis v. Brown , 27 Ohio St. 326, 328-329 (1875) (stating same). The crime of moral turpitude must subject the offender to "infamous punishment[.]" Gilbert v. WNIR 100 FM , 142 Ohio App.3d 725, 742, 756 N.E.2d 1263 (9th Dist. 2001). Defamation per se also includes statements that "reflect[ ] upon a person's character in a manner that will cause him to be ridiculed, hated, or held in contempt * * *." Osborne at ¶ 7. "When not ambiguous, whether a statement is defamation per se is a question of law for the trial court to determine." Id. at ¶ 8.

{¶ 13} Having reviewed the allegations contained in the complaint against The Chronicle-Telegram, we conclude that the allegedly defamatory statements contained therein do not constitute defamation per se as a matter of law. Regarding the April 2014 article, we find nothing defamatory per se with respect to the challenged statements (i.e., "Man suing skate park changes focus [,]"; "James Pietrangelo II now has filed a lawsuit against attorneys representing the city of Avon Lake[,]"; and "In another lawsuit filed April 9, Pietrangelo, acting as his own attorney, wrote that he recently learned Koesel and Turnball have been employees of the city since October, when he claims they were made 'Special Assistant Law Directors.' "). To that end, they do not import an indictable criminal offense involving moral turpitude that subjects him to infamous punishment, impute a loathsome or contagious disease, or tend to injure his trade or business occupation. Dunnigan at ¶ 35, Gilbert at 742, 756 N.E.2d 1263. Further, the statements do not reflect upon Mr. Pietrangelo's character in a manner that would cause him to be ridiculed, hated, or held in contempt. Osborne at ¶ 7. We similarly find that the challenged statements from the June 2014 article do not constitute defamation per se for the same reasons.

{¶ 14} Mr. Pietrangelo also asserts that the "overall gist" of the articles was defamatory. He, however, did not attach copies of the articles to his complaint, and the "overall gist" of the statements contained in his complaint do not constitute defamation per se as a matter of law. Further, to the extent that Mr. Pietrangelo argues that the challenged statements suggest that he filed a frivolous lawsuit, engaged in criminal conduct, and/or engaged in conduct unbecoming an attorney, any such suggestions are not contained on the face of these statements and instead require interpretation and/or innuendo, which sounds in defamation per quod. See id. at ¶ 7.

{¶ 15} Lastly, as The Chronicle-Telegram's merit brief points out, Mr. Pietrangelo has failed to properly develop an argument with respect to his false-light claims. Accordingly, we will not address that issue. See App.R. 16(A)(7) ; Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) ("If an argument exists that can support [an] assignment of error, it is not this court's duty to root it out.").

{¶ 16} We now turn to Mr. Pietrangelo's argument that the trial court abused its discretion by implicitly denying his motion to continue discovery under Rule 56(F). Rule 56(F) provides the following:

Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

"To obtain a continuance under Civ.R. 56(F), a party must file an affidavit that sets forth why it is unable to present sufficient facts to rebut a motion for summary judgment." Cessna v. Lone Star Steakhouse & Saloon of Ohio, Inc. , 9th Dist. Summit No. 20553, 2001 WL 1379451, *4 (Nov. 7, 2001).

{¶ 17} In support of his motion, Mr. Pietrangelo argued that he "could not have already done discovery because this case has been occupied with dispositive motions to which [he] had to respond, and [he] has otherwise been occupied with discovery in the skatepark suit." The Chronicle-Telegram opposed Mr. Pietrangelo's motion, arguing that Mr. Pietrangelo had several months to conduct discovery, yet failed to do so, and that being too busy was an inadequate justification for purposes continuing discovery under Civil Rule 56(F). We agree and hold that the trial court did not abuse its discretion when it implicitly denied Mr. Pietrangelo's motion. See CitiMortgage, Inc. v. Hoge , 196 Ohio App.3d 40, 2011-Ohio-3839, 962 N.E.2d 327, ¶ 10-11 (8th Dist.) (holding that the appellant's assertion that she was "busy" did not justify a continuance of discovery under Rule 56(F) ).

{¶ 18} In light of the forgoing, Mr. Pietrangelo's first and second assignments of error are overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR ABUSED [ITS] DISCRETION IN ISSUING ITS SEPTEMBER 23, 2015 JOURNAL ENTRY, INCLUDING IN GRANTING-WITHOUT ANY PROPER OPINION OR ANALYSIS-JUDGMENT ON THE PLEADINGS TO DEFENDANTS DOUTHIT COMMUNICATIONS, INC. ("DCI") DBA THE PRESS, PUBLISHER HAROLD K. DOUTHIT III, EDITOR PETER COMINGS, AND REPORTER BRYAN WROTEN (COLLECTIVELY, "DCI DEFENDANTS"), AND IMPLICITLY DENYING PIETRANGELO'S APRIL 22, 2015 MOTION TO STRIKE.

{¶ 19} In his third assignment of error, Mr. Pietrangelo asserts that the trial court erred by granting judgment on the pleadings in favor of The Press and the individual defendants associated therewith ("The Press"). He also asserts that the trial court erred by denying his motion to strike certain exhibits attached to The Press's answer. As explained below, we decline to address the merits of Mr. Pietrangelo's assignment of error because he has failed to properly develop arguments in support of his position.

{¶ 20} By way of background, Mr. Pietrangelo's claims against The Press stem from an article it published in June 2014 regarding the skate-park dispute. In its motion for judgment on the pleadings, The Press argued that the statements contained in its article were not actionable because they were opinions, were not false, and were not defamatory. It further argued that the statements were privileged, and that Mr. Pietrangelo failed to show that it acted with actual malice. In granting The Press's motion, the trial court found that "[t]he complained of articles are protected opinions and are neither false nor defamatory; the statements are not privileged; and [Mr. Pietrangelo] has failed to show that the Defendants acted with actual malice."

{¶ 21} On appeal, Mr. Pietrangelo asserts that "there were numerous factual issues between [his] complaint and [The Press's] answer[,]" that he "sufficiently pleaded" his claims against The Press, and that he "could have proved a set of facts upon them or an amendment thereof that would have entitled him to relief." He then asserts that the statements in The Press's article were "clearly materially false," "clearly published with legal malice [,]" "clearly published without privilege[,]" "clearly defamatory[,]" and were "defamation per se * * * and also would be highly offensive to a reasonable person." He then lists over twenty statements from the article that he claims were actionable and concludes that the statements "were clearly defamatory, including as imputing criminal conduct, conduct unbecoming an attorney, and disreputable conduct[.]"

{¶ 22} Regarding his motion to strike, Mr. Pietrangelo asserts that The Press's motion "relied on and referred to improper material * * * that was beyond the pleadings and that also was ambiguous, and thus * * * [his] motion to strike * * * should have been granted." He then lists the allegedly improper material-including material that he summarily concludes is hearsay-and cites Civil Rule 10(C) and one case.

{¶ 23} Importantly, the appellant has the burden on appeal. State v. Stevenson , 9th Dist. Summit No. 24408, 2009-Ohio-2455, 2009 WL 1478917, ¶ 21, citing App.R. 16(A)(7). Under Appellate Rule 16(A)(7), the appellant's brief shall include "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." As this Court has stated, "merely setting forth conclusory statements" does not satisfy an appellant's burden on appeal. In re B.P. , 9th Dist. Lorain No. 14CA010531, 2015-Ohio-48, 2015 WL 135200, ¶ 10, citing App.R. 16(A)(7) ; see also State v. Georgeoff , 9th Dist. Medina No. 3195-M, 2002 WL 58003, *6-7 (Jan. 16, 2002) (overruling the appellant's assignment of error under Appellate Rules 12(A)(2) and 16(A)(7) because the appellant failed to apply the law to the facts presented). Similarly, we have stated that "we will not guess at undeveloped claims on appeal." Stevenson at ¶ 21.

{¶ 24} Here, although Mr. Pietrangelo does cite legal authority in his assignment of error, he fails to apply it to the facts presented. Instead, he makes conclusory statements in support of his position that the trial court erred, and fails to explain what proposition the cited legal authority stands for, let alone how it applies to the facts presented. As this Court has consistently stated, "[i]f an argument exists that can support [an] assignment of error, it is not this court's duty to root it out." Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8. Accordingly, we decline to address this inadequately argued assignment of error. Id. , citing App.R. 12(A)(2) and 16(A)(7). Mr. Pietrangelo's third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR ABUSED [ITS] DISCRETION IN ISSUING ITS SEPTEMBER 23, 2015 JOURNAL ENTRY, INCLUDING IN GRANTING-WITHOUT ANY PROPER OPINION OR ANALYSIS-JUDGMENT ON THE PLEADINGS
TO DEFENDANTS EUCLID MEDIA GROUP, LLC ("EMG") DBA CLEVELAND SCENE, PUBLISHER CHRIS KEATING, EDITOR VINCE GRYZGOREK, AND REPORTER ERIC SANDY (COLLECTIVELY "EMG DEFENDANTS").

{¶ 25} In his fourth assignment of error, Mr. Pietrangelo argues that the trial court erred by granting judgment on the pleadings in favor of Cleveland Scene and the individual defendants associated therewith ("The Scene"). Mr. Pietrangelo's claims against The Scene stem from an article it published in June 2014 regarding the skate-park dispute. In support of their motion for judgment on the pleadings, The Scene argued, in part, that its article was a constitutionally protected opinion and was not defamatory as a matter of law. In granting The Scene's motion, the trial court found that "[t]he complained of article is not defamatory, the article is a constitutionally protected opinion, and the light in which the article portrays the Plaintiff is not highly offensive to a reasonable person."

{¶ 26} Much like Mr. Pietrangelo's previous assignment of error, this assignment of error is devoid of any meaningful analysis. Rather, it contains numerous legal conclusions supported by citations to the complaint, as well as citations to legal authority without any explanation or analysis as to how the law applies to the facts of this case. For example, his merit brief states that the "complaint allegations sufficiently stated claims * * * [and he] could have proved a set of facts upon them or an amendment thereof that would [entitle] him to relief[,]" the challenged statements were "materially false[,]" the "articles/statements were * * * clearly published with legal malice[,]" "[t]he article/statements were * * * clearly published without privilege[,]" and were "clearly defamatory[.]" He then lists numerous statements that he asserts were actionable.

{¶ 27} Again, merely setting forth conclusory statements without any explanation as to how the law applies to the facts presented is insufficient for purposes of Appellate Rule 16(A)(7). In re B.P. , 9th Dist. Lorain No. 14CA010531, 2015-Ohio-48, 2015 WL 135200, at ¶ 10 ; Georgeoff , 9th Dist. Medina No. 3195-M, 2002 WL 58003, at *6-7. Mr. Pietrangelo's fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR ABUSED [ITS] DISCRETION IN ISSUING ITS SEPTEMBER 23, 2015 JOURNAL ENTRY, INCLUDING IN GRANTING-WITHOUT ANY PROPER OPINION OR ANALYSIS-JUDGMENT ON THE PLEADINGS TO DEFENDANTS CITY OF AVON LAKE, OHIO ("AVON LAKE"), POLICE CHIEF DUANE STREATOR, AND POLICE LIEUTENANT SEAN BOCKELMAN ("COLLECTIVELY "AVON LAKE DEFENDANTS").

{¶ 28} In his fifth assignment of error, Mr. Pietrangelo argues that the trial court erred by granting judgment on the pleadings in favor of the City of Avon Lake and two members of its police department ("Avon Defendants"). As previously noted, Mr. Pietrangelo asserted defamation and false light claims against the Avon Defendants, and alleged that they violated his constitutional rights in connection with the skate-park dispute.

{¶ 29} In their motion for judgment on the pleadings, the Avon Defendants argued, in part, that: (1) they are immune from the defamation claims; (2) even if they are not immune, the statements attributed to the members of the police department were not actionable; and (3) Mr. Pietrangelo failed to plead sufficient facts to establish a plausible constitutional violation and/or he could not establish that their alleged conduct lacked a rational basis. The trial court summarily granted the Avon Defendant's motion.

{¶ 30} Once again, as the Avon Defendants point out in their merit brief, Mr. Pietrangelo failed to properly develop an argument in support of his assignment of error. Regarding his defamation and false light claims, he asserts that he "sufficiently pleaded all of the elements" of those claims and "could have proved a set of facts upon them or an amendment thereof that would [entitle] him to relief." He then asserts that the challenged statements were "clearly materially false[,]" "were * * * clearly published with legal malice [,]" were "clearly defamatory[,]" and that he "clearly pleaded an exception to political-subdivision immunity[.]" He further asserts that the statements were "defamatory per se * * * [and] would be highly offensive to a reasonable person[.]"

{¶ 31} Regarding his constitutional claims, he asserts that he "sufficiently pleaded Section 1983 claims * * * and Ohio constitutional claims * * * based on the instances of conduct described in the Statement of Facts above and incorporated herein[.]" He then asserts that he "sufficiently pleaded separate First, Fourth, Eighth, and Fourteenth Amendment, and Article I Section 2, 9, 11, 14, and 16 claims" against the Avon Defendants. He then refers generally to the bases of those claims (e.g., he asserts that his "Fourth Amendment-type and/or Eighth Amendment-type claims derived from [the Avon Defendants'] respective wrongful seizure and injury of [his] person, and intrusion upon his property, during/before the * * * April 2014 protest, and the seizure of his personal papers in June 2014[.]") and cites case law without any explanation as to how that law applies to the facts presented. As with the two preceding assignments of error, we decline to address this inadequately argued assignment of error. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, at *8, citing App.R. 12(A)(2) and App.R. 16(A)(7). Mr. Pietrangelo's fifth assignment of error is overruled.

III.

{¶ 32} Mr. Pietrangelo's assignments of error are overruled. The Judgment of the Lorain County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, J.

CONCURS.

CARR, J.

DISSENTS.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Julio H. GOMEZ, Defendant-Appellant.
    No. 16AP-560
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, Columbus, for appellee. Argued: Barbara A. Farnbacher, Columbus.
    On brief: Yeura R. Venters, Public Defender, and John W. Keeling, Columbus, for appellant. Argued: John W. Keeling, Columbus.
    DECISION
   BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Julio H. Gomez, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following his entry of a guilty plea to nine counts of trafficking in heroin and one count of engaging in a pattern of corrupt activity.

{¶ 2} On August 14, 2015, appellant was indicted on one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32 (a felony of the first degree), seven counts of trafficking in heroin, in violation of R.C. 2925.03 (all felonies of the first degree), one count of trafficking in heroin, in violation of R.C. 2925.03 (a felony of the second degree), and one count of trafficking in heroin, in violation of R.C. 2925.03 (a felony of the third degree). The indictment also named four co-defendants.

{¶ 3} On May 16, 2016, appellant appeared before the trial court and entered a plea of guilty to all ten counts of the indictment. During the plea proceedings, the prosecutor gave the following recitation of the facts, beginning with Count 2 of the indictment. According to the prosecutor, the events giving rise to Count 2 occurred on June 30, 2015, after detectives with the Columbus Police Department identified "the group that was indicted in this case involving [appellant] and his co-defendants." On that date, co-defendant Manuel Montero, characterized by the prosecutor as a "runner" dispatched by appellant, "sold over 50 grams of heroin to * * * Richard Adams." Adams was detained by detectives "and found in possession of the heroin." (May 16, 2016 Tr. at 9.)

{¶ 4} The group remained under surveillance, and the events giving rise to Count 3 occurred "[t]wenty-one days later," when detectives "observed a similar narcotics trafficking incident with Joseph Martini," whereby "Martini would call [appellant] and Montero did the sale [for] over 250 grams of heroin." (May 16, 2016 Tr. at 9, 10.) With respect to Count 4, the prosecutor related that "Martini became an informant after his first arrest and made a controlled purchase from the same two individuals for over 50 grams of heroin on July 28, 2015." Count 5 involved "an additional sale to the informant of greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.)

{¶ 5} The conduct giving rise to Counts 6, 7, 8, 9, and 10 of the indictment occurred on August 5, 2015, as "[s]earch warrants were executed at about six or seven locations identified as either the places in which the defendants were sleeping, where they were obtaining the drugs, cutting up the drugs or storing the drugs and money." Specifically, Count 6 involved "one of the locations [that] had numerous kilos of heroin that was used as a storage location by this group." With respect to Count 7, heroin was discovered in "the co-defendant's car with him" (i.e., specifically, co-defendant Omar Sanchez). (May 16, 2016 Tr. at 10.)

{¶ 6} The prosecutor represented that Count 8 was for "another of the locations and that was greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.) Count 9 involved the discovery of heroin at "another storage location, greater than 250 grams." Finally, Count 10 involved the recovery of "greater than ten grams" of heroin at the home of co-defendant Sanchez. (May 16, 2016 Tr. at 11.)

{¶ 7} Regarding the facts giving rise to Count 1, the prosecutor related that appellant "would take calls from customers and dispatch Montero to facilitate the trafficking in heroin for this group on more than two occasions for the RICO offense." The prosecutor further related that the heroin "was being sold for about 900 to $1,100 an ounce," and that "each of these transactions was for about $9,000 or so." (May 16, 2016 Tr. at 11.)

{¶ 8} Following the recitation of facts, the trial court engaged in a colloquy with appellant regarding his plea. The trial court accepted appellant's guilty plea, ordered a presentence investigation report and scheduled a sentencing hearing date.

{¶ 9} The trial court conducted a sentencing hearing on June 23, 2016. During the hearing, the trial court noted that, at the time of the May 16, 2016 plea hearing, "the Court incorrectly advised the defendant regarding the maximum possible sentence in this case." (June 23, 2016 Tr. at 2.) Specifically, the court noted:

The flaw was related to Count Seven where it was originally pled as an F-1, requiring-or having the maximum of 11 years of mandatory prison time. However, Count Seven is actually an F-3 and on the previous guilty plea it was listed as both. And on the previous guilty plea * * * the Court previously advised Mr. Gomez that his maximum prison sentence that was possible was 110 years when in actuality, the maximum prison sentence that's possible for Mr. Gomez is less than 110 years and is actually 99 years.

(June 23, 2016 Tr. at 2-3.)

{¶ 10} The trial court inquired of appellant whether he understood, and appellant responded affirmatively. Defense counsel represented to the court that he had explained this development to appellant "outside of the courtroom." Defense counsel further stated on the record: "We would waive any defect in the plea, proceed on the plea as originally entered, but with this amendment obviously to his benefit." (June 23, 2016 Tr. at 4.)

{¶ 11} The prosecutor, "out of [an] abundance of caution," noted that the trial court, at the time of the plea, "indicated there were no promises as to sentencing," and that defense counsel "had indicated an approximate range" of sentence "pursuant to off-the-record discussions." (June 23, 2016 Tr. at 5-6.) The prosecutor further noted that, based on subsequent events, "the Court has become aware more fully of the facts of this case, as well as the existence of a previously unknown significant record." The prosecutor then represented to the court: "In case the defendant is not sentenced in the range that was indicated by [defense counsel], we want you to make sure that the defendant has the opportunity, if he wishes, to withdraw his guilty plea." (June 23, 2016 Tr. at 6.)

{¶ 12} In response, defense counsel stated: "I have told my client today that because of the facts that came out during the presentence report and specifically this arrest and deportation that the Court wasn't aware of, that may not be the range." Defense counsel also represented that he told his client "he would be able to withdraw his plea, but that * * * plea negotiations would probably stop and this will be set for trial and go that route." (June 23, 2016 Tr. at 7.) Defense counsel stated that his client wanted to proceed "with the sentencing today with this amendment." (June 23, 2016 Tr. at 8.) The trial court then inquired of appellant whether he wished to proceed with sentencing, and appellant responded affirmatively.

{¶ 13} By decision and entry filed August 23, 2016, the trial court sentenced appellant to an aggregate term of 22 years imprisonment. The court's entry also indicated that appellant was subject to a mandatory five-year term of post-release control.

{¶ 14} On appeal, appellant sets forth the following two assignments of error for this court's review:

[I.] THE STATE ERRED WHEN IT CREATED FIVE SEPARATE CHARGES OUT OF THE SIMULTANEOUS POSSESSION OF THE SAME DRUG FOUND AT SEPARATE LOCATIONS INSTEAD OF AGGREGATING THE AMOUNTS INTO A SINGLE OFFENSE. THE TRIAL COURT CONSEQUENTLY ERRED WHEN IT FAILED TO PROPERLY ADVISE THE DEFENDANT ON THE MAXIMUM PENATLY OF THE CHARGES, THE NATURE OF THE CHARGES, AND THE EFFECTS OF THE PLEA, AS A RESULT OF THE FAILURE TO MERGE THE FIVE CHARGES INTO A SINGLE OFFENSE.
[II.] THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY WITH CRIM.R. 11 BY INFORMING THE DEFENDANT THAT HE COULD NOT BE COMPELLED TO
TESTIFY AGAINST HIMSELF AT TRIAL.

{¶ 15} Under the first assignment of error, appellant challenges Counts 6 through 10 of the indictment as multiplicitous, arguing that the counts involved the same type of drug (i.e., heroin), found on the same date at five different locations. Appellant argues that, based on plaintiff-appellee, the State of Ohio's, recitation of the facts, police officers executed search warrants on August 5, 2015 at seven apartments and one storage locker, and heroin was found at five of the locations, constituting grounds for Counts 6 through 10 of the indictment. Appellant maintains that the above facts give rise to the legal issue of whether the state can file separate charges for simultaneous possession of the same type of drug found at different locations, or whether the state was required to aggregate the drugs into a single offense.

{¶ 16} At the outset, we note the state raises the issue of whether appellant has waived his claim that the indictment was multiplicitous by failing to raise an objection to the indictment and by entering a guilty plea to the offenses at issue. In support, the state relies on State v. Conn, 12th Dist. No. CA2014-04-059, 2015-Ohio-1766, 2015 WL 2169273, ¶ 47, in which the court held the defendant waived any claim that his 50-count indictment was defective and multiplicitous by failing to raise alleged defects in the indictment prior to entering his guilty plea. The state also cites this court's decision in State v. Fortner, 10th Dist. No. 08AP-191, 2008-Ohio-5067, 2008 WL 4416533, ¶ 10 (holding that "[b]ecause appellant pled guilty to six counts of aggravated robbery as charged in his indictment, he has waived his right to challenge alleged defects in the indictment"). The state, however, acknowledges that appellant has also raised a merger argument (which, when not raised in the trial court, operates as a forfeiture, not waiver, of all but plain error). See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 19-21.

{¶ 17} Accepting, for purposes of argument, that appellant has not waived the issue of multiplicity, we disagree with his contention that the state was precluded from charging him with multiple counts of trafficking based on conduct occurring on the same date. In general, "[a]n indictment is multiplicitous where it charges a single offense in multiple counts." State v. Hendrix , 11th Dist. No. 2011-L-043, 2012-Ohio-2832, 2012 WL 2369411, ¶ 51. In this respect, the " 'vice of a multiplicitous indictment lies in the possibility of multiple punishments for a single offense in violation of the cumulative punishment branch of the Double Jeopardy Clause of the Fifth Amendment.' " Id. , quoting State v. Childs , 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).

{¶ 18} Even if counts are multiplicitous, "merging them for purposes of sentencing, pursuant to R.C. 2941.25, will cure any threat of double jeopardy." Id. Thus, under Ohio law, "the state may charge a defendant with multiple counts for multiple offenses, based upon the criminal conduct of the defendant." Conn at ¶ 48. Specifically, R.C. 2941.25, which "codifies the protections of the Double Jeopardy Clause of the United States and Ohio Constitutions, clearly provides that 'where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." (Emphasis sic.) Id. , quoting R.C. 2941.25.

{¶ 19} R.C. 2925.03 sets forth the offense of trafficking in drugs, and states in part:

(A) No person shall knowingly do any of the following:
* * *
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

{¶ 20} As noted, appellant contends Counts 6 through 10 of the indictment are multiplicitous as involving the simultaneous possession of the same contraband. In support, appellant relies on federal cases holding that possession of drug stashes recovered on the same day constitute a single offense under the federal statute for possession with intent to distribute ( 21 U.S.C. 841(a)(1) ). See , e.g. , United States v. Stephens, 118 F.3d 479 (6th Cir.1997) ; Thompson v. United States, N.D.N.Y. No. 3:04-CV-1321, 2005 WL 1173560 (May 2, 2005) ; United States v. Clay, 355 F.3d 1281 (11th Cir.2004) ; United States v. Woods, 568 F.2d 509 (6th Cir.1978).

{¶ 21} As observed by the state, however, under Ohio law, the primary legislative statement on multiplicity is set forth in R.C. 2941.25, which addresses allied offenses of similar import. See , e.g. , State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5977, 2012 WL 6632786, ¶ 8 ("In Ohio, R.C. 2941.25 codifies federal and state constitutional protections."); State v. Painter, 12th Dist. No. CA2014-03-022, 2014-Ohio-5011, 2014 WL 5812320, ¶ 17 ("the remedy for a multiplicitous indictment is to analyze the charges according to the allied offenses statute, R.C. 2941.25").

{¶ 22} Further, as earlier noted, "[a]n accused's failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error." Rogers at ¶ 3. Forfeited error "is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of injustice." Id. In considering whether plain error has occurred, "an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus." Id. In the absence of such a showing, "the accused cannot demonstrate that the trial court's failure to inquire whether the convictions merge for purposes of sentencing was plain error." Id.

{¶ 23} In the instant case, the state argues that appellant cannot demonstrate plain error where the facts indicate Counts 6 through 10 involve varying amounts of heroin discovered at multiple different locations. We agree.

{¶ 24} Under Ohio law, the fact that drugs may have been recovered on the same date is not dispositive of the allied offense issue. See State v. Lewis, 12th Dist. No. CA2008-10-045, 2012-Ohio-885, 2012 WL 698895, ¶ 21 (two trafficking offenses occurring on same date not allied offenses of similar import where defendant sold less than 5 grams of cocaine to an undercover officer and then, after leaving scene, was stopped by law enforcement officers who found cocaine that defendant had discarded at the time he was stopped). See also State v. Williams, 5th Dist. No. 11-CA-115, 2012-Ohio-3211, 2012 WL 2877549, ¶ 20 (rejecting argument that sale of drugs (psilocybin/psilocin mushrooms) and possession of same type of drugs on same date constitute same conduct or animus; act of "selling or offering was separated in time and space from the possession of different mushrooms in a different bag in a different location"); State v. Ward, 3d Dist. No. 13-10-11, 2011-Ohio-254, 2011 WL 290528, ¶ 29 (convictions for trafficking in marijuana not allied offenses; although the three sales of marijuana all took place on same date, they were separate sales and thus "stemmed from three separate transactions").

{¶ 25} Here, the limited record on appeal indicates that law enforcement officials recovered differing quantities of heroin in different locations on the date at issue. Specifically, according to the state's sentencing hearing memorandum and the recitation of facts provided during the plea hearing, the following amounts of heroin were recovered at the following locations: (1) 8,083 grams of heroin located on Chestnut Ridge Loop, (2) 1,041 grams of heroin at an apartment located on Freedom Crossing, (3) 9.6 grams of heroin at an apartment located on Glenmore Way, (4) 950.6 grams of heroin located on Taliesin Place, and (5) 154.3 grams of heroin located on Pendergrast Place. On review, we agree with the state that, where the facts presented indicate the recovery of stashes found at separate locations, involving different quantities of drugs, appellant has not shown a reasonable probability that the convictions at issue are allied offenses of similar import committed with the same conduct and without a separate animus. Rogers at ¶ 3. Thus, appellant cannot demonstrate the trial court's failure to inquire whether the convictions merged for purposes of sentencing constituted plain error. Id.

{¶ 26} Appellant also contends the failure to properly merge the offenses into a single offense also adversely affected the voluntary and knowing nature of the plea proceedings on grounds he was erroneously advised the maximum penalty he was facing was 99 years (instead of, according to appellant, 66 years had the offenses merged). Having found, however, that appellant has failed to demonstrate plain error as to the merger issue, we find no merit with his claim that the trial court's failure to merge the offenses affected the plea proceedings.

{¶ 27} Based on the foregoing, appellant's first assignment of error is without merit and is overruled.

{¶ 28} Under the second assignment of error, appellant argues the trial court erred in failing to strictly comply with Crim.R. 11 by not properly advising him of his right against self-incrimination. Specifically, appellant contends the trial court failed to inform him that he could not be compelled to testify against himself.

{¶ 29} Crim.R. 11(C)(2) states as follows:

In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶ 30} Certain rights enunciated under Crim.R. 11(C)(2) are constitutional rights of which a defendant must be personally informed, i.e., "(1) the right to a jury trial, (2) the privilege against self-incrimination, (3) the right to compulsory process, and (4) the right to confront one's accusers." State v. McKee, 11th Dist. No. 97-T-0036 (June 19, 1998). A trial court "must strictly comply with those provisions of Crim.R. 11(C) that relate to the waiver of constitutional rights." State v. Hussing, 8th Dist. No. 97972, 2012-Ohio-4938, 2012 WL 5292878, ¶ 19.

{¶ 31} Strict compliance, however, does not require a "rote recitation of Crim.R. 11(C)," and a trial court's "failure to use the exact language of the rule is not fatal to the plea. Rather, the focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant." State v. Ballard, 66 Ohio St.2d 473, 480, 423 N.E.2d 115 (1981). Thus, while the preferred method of advising a criminal defendant of his or her constitutional rights during the plea colloquy is to utilize the language contained in Crim.R. 11(C), "a trial court's failure to literally comply with Crim.R. 11(C) does not invalidate a plea agreement if the record demonstrates that the trial court explained the constitutional right ' "in a manner reasonably intelligible to that defendant ." ' " (Emphasis added in Veney .) State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 14, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 27, quoting Ballard at 473, 423 N.E.2d 115.

{¶ 32} A review of the plea hearing in the instant case indicates that, as part of those proceedings, the trial court engaged in the following colloquy with appellant:

THE COURT: Do you understand you have the right to a trial by a jury of 12 people.
THE INTERPRETER: Yes.
THE COURT: Do you understand you could waive your right to a jury and have me decide this matter instead?
THE INTERPRETER: Yes.
THE COURT: Do you understand that the decision to go to trial or plead guilty today rests entirely with you?
THE INTERPRETER: Yes.
THE COURT: Do you understand if you went to trial, the prosecution would have to prove your guilt beyond a reasonable doubt?
THE INTERPRETER: Yes.
THE COURT: Do you understand that you would have the right to face and question witnesses, and to call or compel witnesses to come in and testify on your behalf?
THE INTERPRETER: Okay. Okay. Yeah.
THE COURT: Do you understand that you could testify on your own behalf or not have your silence used against you if you chose not to testify?
THE INTERPRETER: Yes.
THE COURT: Do you understand you would have the automatic right to appeal a verdict rendered by a jury or by me?
THE INTERPRETER: Yes.
THE COURT: And that by pleading guilty today you're giving up that right?
THE INTERPRETER: Yes.
THE COURT: Okay. Do you have any questions about any of the rights we just discussed?
THE INTERPRETER: No.

(May 16, 2016 Tr. at 20-22.)

{¶ 33} In asserting the trial court did not adequately inform him of his privilege against self-incrimination, appellant challenges the following language (cited above) by the court: "Do you understand that you could testify on your own behalf or not have your silence used against you if you chose not to testify?" (May 16, 2016 Tr. at 21.)

{¶ 34} Ohio courts, however, have addressed and rejected challenges involving similar colloquy language. Under the facts in State v. Bassett, 8th Dist. No. 90887, 2008-Ohio-5597, 2008 WL 4748656, ¶ 17, the trial court advised the defendant in part: "[Y]ou can choose not to testify and the prosecutor could not comment upon that fact in violation of your 5th Amendment right." The defendant in Bassett argued that the plea was invalid because the trial court did not inform her that "she could not be compelled to testify against herself if she chose to go to trial." Id. at ¶ 8. The court in Bassett disagreed, holding that "the court's wording that appellant could choose not to testify is the equivalent of saying that the state could not compel her to testify and amounts to strict compliance under Crim.R. 11(C)(2)." Id. at ¶ 20.

{¶ 35} In State v. Scanlon, 5th Dist. No. 95-134, 1998 WL 430531 (June 29, 1998), the appellant argued the trial court's advice on the constitutional right not to testify was flawed because the court failed to inform him the state could not compel him to testify against himself. Under the facts of that case, the trial court advised the appellant that, if he pled no contest, he was "waiving his right to testify at trial if he wanted to, or refuse to testify if he did not wish to." On appeal, the court in Scanlon rejected the appellant's argument, holding that the trial court had complied with Crim.R. 11. See also State v. Finney , 8th Dist. No. 99646, 2014-Ohio-1054, 2014 WL 1340223, ¶ 13 (trial court strictly complied with Crim.R. 11 in informing defendant that "he had the right to choose not to testify and that no one could use his silence in any way"); State v. Adams, 8th Dist. No. 70045, 1997 WL 272385 (May 22, 1997) (trial court complied with Crim.R. 11(C) by advising defendant he had "the right to testify or to choose not to testify").

{¶ 36} This court has also addressed and rejected similar challenges. In State v. Truitt, 10th Dist. No. 10AP-795, 2011-Ohio-2271, 2011 WL 1842247, ¶ 12, the appellant argued the trial court had failed to advise him of the privilege against compulsory self-incrimination when it informed him that, by entering a guilty plea, he was waiving the "right to remain silent." The appellant in Truitt argued on appeal "that the trial court merely explained to [appellant] that he was giving up the right to remain silent and did not adequately explain to [appellant] that he could not be compelled by the state to testify on his own behalf." (Emphasis sic.) Id. at ¶ 15. In rejecting appellant's argument, this court held that "[t]he plain meaning of the trial court's words suggest that appellant had the right to say absolutely nothing at trial, if he so desired." Id. at ¶ 21. This court also noted that "the trial court inquired whether appellant had any questions regarding the colloquy, and appellant answered 'no, sir.' " Id. Based on the record presented, this court concluded the trial court "explained waiver of the privilege against self-incrimination in a reasonably intelligent manner and in strict compliance with Crim.R. 11(C)(2)(c)." Id.

{¶ 37} In State v. Allen, 10th Dist. No. 11AP-640, 2012-Ohio-2986, 2012 WL 2523728, the appellant argued the trial court failed to strictly comply with Crim.R. 11(C)(2)(c) in explaining the constitutional privilege against compulsory self-incrimination. Under the facts of Allen, the trial court, analogous to the facts in Truitt, had advised the appellant that his rights included "the right to remain silent." Id. at ¶ 17. In Allen, this court relied on Truitt in holding the trial court's advisement of appellant's right to remain silent "intuitively means that, if appellant chose to remain silent, appellant would opt to engage his privilege against self-incrimination and not testify against himself." Allen at ¶ 18. Thus, this court concluded that "the trial court explained appellant's privilege against compulsory self-incrimination in a reasonably intelligible manner." Id.

{¶ 38} We note that federal courts have observed that "[t]he words 'compelled' and 'self-incrimination' need not be ritualistically invoked." United States v. Loutos, 284 F.Supp.2d 942, 955 (N.D.Ill.2003). In Loutos, the defendant argued that he was "not advised of 'the right against compelled self-incrimination.' " Id. Under the facts of that case, the defendant "responded affirmatively to the questions: 'Do you understand that you would have a right to testify if you wished to do so? However, if you wish to remain silent, your silence could not be used against you?' " Id. at 954. The court in Loutos rejected the defendant's Fed.Crim.R. 11 challenge, holding that "[b]eing able to remain silent and not have it used against the defendant is the right against compelled self-incrimination." Id. at 955.

{¶ 39} In the present case, in addition to the plea colloquy cited above, appellant also signed a guilty plea form delineating the rights he was waiving. While the written plea form is not a substitute for the trial court's requirement under Crim.R. 11(C), the Supreme Court of Ohio has held that "when a trial court addresses all the constitutional rights in the oral colloquy, a reviewing court should be permitted to consider additional record evidence to reconcile any alleged ambiguity in it." Barker at ¶ 24. Thus, "an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea, in determining whether the defendant was fully informed of the right in question." Id. at ¶ 25.

{¶ 40} In the present case, appellant signed the guilty plea form which, as noted by the state, included an explanation that, by pleading guilty, he was waiving a number of constitutional rights, including "the right to have a trial by jury, * * * at which I cannot be compelled to testify against myself." Appellant acknowledged before the trial court that, prior to signing the guilty plea form, he had reviewed it with his counsel, and his counsel explained the contents of the document and answered any questions he had.

{¶ 41} As to the Crim.R. 11 plea colloquy, the record indicates the trial court engaged in a meaningful dialogue with appellant, and we conclude the court explained his constitutional rights, including the privilege against self-incrimination, in a reasonably intelligible manner. Accordingly, we find the trial court complied with the requirements of Crim.R. 11(C)(2)(c) in accepting the plea.

{¶ 42} Appellant's second assignment of error is not well-taken and is overruled.

{¶ 43} Based on the foregoing, appellant's two assignments are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

SADLER and HORTON, JJ., concur.

      We note, however, a number of federal courts have held that convictions for multiple counts of possession on the same date involving distinct stashes of drugs do not raise multiplicity or double jeopardy issues. See , e.g. , State v. Maldonado, 849 F.2d 522, 524 (11th Cir.1988) (two-count indictment for possession with intent to distribute on same date not multiplicitous where two separate stashes, each with a different quantity of cocaine, were found in separate locations); Davis v. Berghuis, E.D.Mich. No. 2:07-CV-10129, 2008 WL 1902116 (Apr. 30, 2008) (convictions for possession with intent to deliver 225-650 grams of cocaine and possession with intent to deliver less than 50 grams of cocaine, where one stash found on defendant and another found in bedroom on same date, did not violate double jeopardy); United States v. Williams, 339 Fed.Appx. 654, 658 (7th Cir.2009) (although defendant was convicted of "two counts charging him with possessing a controlled substance on the same day, his convictions raise no issue of multiplicity" where prosecution proved defendant possessed 100 grams of crack cocaine found in aerosol can found in car and he also possessed 240 grams of cocaine in apartment).


text:
    Amy MCCUALSKY, et al., Plaintiffs-Appellants, v. APPALACHIAN BEHAVIORAL HEALTHCARE, Defendant-Appellee.
    No. 17AP-476
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: F. Harrison Green Co., LPA, and F. Harrison Green, Cincinnati, for appellants. Argued: F. Harrison Green, Cincinnati.
    On brief: Michael DeWine, Attorney General, and Eric A. Walker, Columbus, for appellee. Argued: Eric A. Walker, Columbus.
    DECISION
   BROWN, J.

{¶ 1} Amy McCualsky (individually "appellant") and David McCualsky ("David"), plaintiffs-appellants, appeal from the judgment of the Court of Claims of Ohio, in which the court granted the motion to dismiss filed by Appalachian Behavioral Healthcare ("Appalachian"), defendant-appellee, which is an agency operating under the Ohio Department of Mental Health.

{¶ 2} On December 21, 2008, appellant sought treatment for pneumonia at O'Bleness Memorial Hospital ("O'Bleness"). An issue arose with appellant's care, and O'Bleness contacted Appalachian, as well as police. Drs. Curtis B. Wright and Christopher A. Kovell, who worked for Appalachian, arrived at O'Bleness and asked appellant to come to Appalachian for treatment. After appellant went to Appalachian, Drs. Wright and Kovell prescribed appellant lithium. During her stay at Appalachian, appellant left to visit her home for four days. Appellant alleged that Appalachian released her to a stranger to transport her home, and that person sexually assaulted her.

{¶ 3} Appellants provided notice of a potential medical negligence action to the potential defendants on January 16, 2010, pursuant to R.C. 2305.113(B)(1), thereby extending the statute of limitations by 180 days, expiring in July 2010.

{¶ 4} On July 15, 2010, appellant and her husband, David, filed an action against the state of Ohio, Appalachian, and Drs. Wright and Kovell ("first complaint" or "first action"). Appellants alleged negligence claiming that Drs. Wright and Kovell prescribed massive and dangerous doses of lithium that damaged appellant. They claimed the cause of actions accrued on or about January 16, 2009. With regard to the premises liability claim, appellants alleged that Appalachian allowed an unauthorized person to take custody of appellant knowing that she was incapable of making independent judgments and that person sexually assaulted her. The complaint also included a loss of consortium claim on behalf of David. The Court of Claims subsequently sua sponte struck Drs. Wright and Kovell as defendants in the case pursuant to R.C. 2743.02(E). On August 18, 2010, appellant voluntarily dismissed the first complaint, without prejudice, pursuant to Civ.R. 41(A)(1).

{¶ 5} On August 15, 2011, appellant and David filed a complaint against the state of Ohio, Appalachian, and Drs. Wright and Kovell ("second complaint" or "second action"), alleging the same facts and causes of action as in the first complaint. After a trial on the matter was continued twice, the case came for trial before a magistrate on September 21, 2015. Appellants requested a continuance for the purpose of obtaining the testimony of the treating physician. The magistrate denied the motion and appellants moved to dismiss their complaint pursuant to Civ.R. 41. On October 13, 2015, the magistrate issued an "Order of Dismissal," dismissing the complaint pursuant to Civ.R. 41(A)(2). On December 24, 2015, appellants filed a "Motion for Dismissal Under Rule 41(A)." On January 22, 2016, the magistrate issued a decision wherein the magistrate repeated the findings and conclusions made in the October 13, 2015 order of dismissal and recommended appellants' complaint be dismissed pursuant to Civ.R. 41(A)(2). Appellants filed objections on February 8, 2016, arguing that the magistrate erred by recommending dismissal, pursuant to Civ.R. 41(A)(2), rather than an involuntary dismissal per Civ.R. 41(A)(1), which appellants claim would have entitled them to refile the matter. On March 23, 2016, the court issued an entry of dismissal, in which the court denied appellants' objections as untimely filed, adopted the magistrate's recommendation, and dismissed appellants' complaint pursuant to Civ.R. 41(A)(2).

{¶ 6} On April 8, 2016, appellants filed a motion for reconsideration arguing that they had mailed their objections on February 3, 2016, within the 14-day deadline, but, through no fault of their own, the Court of Claims did not file the objections until February 8, 2016. On May 10, 2016, the Court of Claims denied the motion for reconsideration as a nullity. Appellants appealed, and in McCualsky v. Appalachian Behavioral Healthcare , 10th Dist. No. 16AP-442, 2017-Ohio-1064, 2017 WL 1090983, we dismissed the appeal, as a motion for reconsideration is a nullity and any order ruling on such is also a nullity and not a final, appealable order.

{¶ 7} On March 3, 2017, appellants filed another complaint ("third complaint" or "third action") against the state of Ohio. The third complaint involved the same facts alleged in the first and second complaints and was essentially identical to the prior complaints. Appellants filed an amended complaint on March 14, 2017, dismissing the state of Ohio as a defendant and naming Appalachian as the defendant, but otherwise alleging the same facts and causes of action.

{¶ 8} On March 30, 2017, Appalachian filed a motion to dismiss the amended complaint based on the statute of limitations and the double dismissal rule in Civ.R. 41(A)(1). Appalachian argued that appellants utilized the "savings statute" in R.C. 2305.19(A) to refile the second complaint; thus, the savings statute could not be used to file the third complaint beyond the statute of limitations.

{¶ 9} On June 21, 2017, the court issued an entry of dismissal. The court found the double dismissal rule in Civ.R. 41(A)(1) did not apply here. However, the court found the third action was barred by the statute of limitations and could not be made timely by application of the savings statute in R.C. 2305.19(A). Appellants appeal the judgment of the Court of Claims, asserting the following assignment of error:

The trial court erred in applying the savings statute to the second complaint and dismissing Plaintiffs' third complaint, where the first complaint was not filed against these Defendants and the second complaint was involuntarily and improperly dismissed.

{¶ 10} Appellants argue in their sole assignment of error that the court erred when it applied the savings statute to the second complaint and dismissed appellants' third complaint, when the first complaint was not filed against the current appellees and the second complaint was involuntarily and improperly dismissed.

{¶ 11} A motion to dismiss for failure to state a claim on which relief can be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt. , 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiff's favor. Id. at ¶ 12 ; LeRoy v. Allen, Yurasek & Merklin , 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14. A court may dismiss a claim under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the face of the complaint conclusively shows that the claim is time-barred. Ohio Bur. of Workers' Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 13. Appellate court review of a trial court's decision to dismiss a claim pursuant to Civ.R. 12(B)(6) is de novo. Id. at ¶ 12.

{¶ 12} The statute of limitations for claims brought in the Court of Claims is set forth in R.C. 2743.16(A), which provides, in pertinent part: "[C]ivil actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties." "Under Ohio law, the general rule is that 'a cause of action accrues and the statute of limitations begins to run at the time the wrongful act was committed.' " Marok v. Ohio State Univ. , 10th Dist. No. 13AP-12, 2014-Ohio-1184, 2014 WL 1347535, ¶ 25, discretionary appeal not allowed , 140 Ohio St.3d 1415, 2014-Ohio-3785, 15 N.E.3d 884, quoting Collins v. Sotka , 81 Ohio St.3d 506, 507, 692 N.E.2d 581 (1998).

{¶ 13} In the present case, appellants asserted in their complaint that the causes of action accrued on January 16, 2009. Pursuant to R.C. 2305.113, the statute of limitations for a medical negligence claim, as well as a derivative loss of consortium claim, is one year. Appellant served a "180-day letter," pursuant to R.C. 2305.113(B)(1), on Appalachian; thus, the statute of limitations was extended 180 days for the medical negligence and loss of consortium claims to July 16, 2010. Pursuant to R.C. 2305.10(A), the statute of limitations for a premises liability claim is two years. Thus, the statute of limitations for appellants' premises liability claim expired on January 16, 2011.

{¶ 14} However, a statute of limitations may be "extended," pursuant to R.C. 2305.19(A), the "savings statute." R.C. 2305.19 affords a plaintiff a limited period of time to refile a dismissed claim that would otherwise be time-barred. The statute provides: "In any action that is commenced or attempted to be commenced, * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of * * * the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later." R.C. 2305.19(A). Thus, after the applicable statute of limitations has expired, the savings statute permits a plaintiff to refile within one year after the action has failed "otherwise than upon the merits." A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than on the merits within the meaning of the savings statute. Frysinger v. Leech , 32 Ohio St.3d 38, 512 N.E.2d 337 (1987), paragraph two of the syllabus; Ruch v. Ohio Dept. of Transp. , 10th Dist. No. 03AP-1070, 2004-Ohio-6714, 2004 WL 2893150, ¶ 9.

{¶ 15} In the present case, the trial court found that appellants utilized the savings statute to refile their second complaint; thus, the claims in their third complaint were filed outside the applicable statute of limitations. The court reasoned that the statute of limitations for the medical negligence and loss of consortium claims expired July 16, 2010, and appellants filed their first complaint on July 15, 2010, which was within the statute of limitations. Appellants voluntarily dismissed their complaint on August 18, 2010 pursuant to Civ.R. 41(A)(1). Appellants then filed their second complaint on August 15, 2011, which was within one year of their voluntary dismissal. The court found it was apparent appellants utilized the savings statute in filing their second complaint because, otherwise, their medical negligence and loss of consortium claims would have been untimely filed beyond their July 16, 2010 statute of limitations. Similarly, with regard to appellants' premises liability claim, the court found that because the statute of limitations expired on January 16, 2011, appellants obviously used the savings statute to refile the premises liability claim in their second complaint on August 15, 2011; otherwise, that claim would have been untimely. The court concluded that, having used the savings statute once to file their claims in their second complaint, they could not use the savings statute again to timely file their claims in their third complaint. Therefore, because appellants filed their third complaint on March 3, 2017, it was filed beyond the statute of limitations for the three claims.

{¶ 16} We agree with the analysis of the court and find appellants' arguments in this appeal without merit. Appellants' first argument is that the second complaint was timely filed because it added defendants and a cause of action, distinguishing it from the first complaint. Presumably, appellants raise this issue in an attempt to claim that the second complaint should be considered the initial complaint, so as not to necessitate the use of the savings statute in filing the second complaint, as the Ohio savings statute applies only if a party files a substantially similar action within one year of the dismissal without prejudice. See Children's Hosp. v. Ohio Dept. of Public Welfare , 69 Ohio St.2d 523, 433 N.E.2d 187 (1982), paragraph one of syllabus (finding that the savings statute applies when the original suit and the new action are substantially the same; the savings statute does not apply when the parties and relief sought in the new action are different from those in the original action).

{¶ 17} However, appellants are clearly incorrect on both of the above claims. The first and second complaints raise the same three causes of actions and are even separated by the same distinct headings for each claim: (1) negligence, (2) premises liability, and (3) loss of consortium. As for appellants' claim that the second complaint added defendants not present in the first complaint, both the first and second complaints named as defendants the state of Ohio, Appalachian, and Drs. Wright and Kovell. In both cases, the Court of Claims sua sponte dismissed Drs. Wright and Kovell pursuant to R.C. 2743.02(E). Thus, both complaints named the same defendants. Therefore, this argument is without merit.

{¶ 18} Appellants next argue that the doctrine of equitable estoppel prevented Appalachian from the inequitable use of the statute of limitations. "Equitable estoppel prevents relief when one party induces another to believe certain facts exist and the other party changes his position in reasonable reliance on those facts to his detriment." State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. , 71 Ohio St.3d 26, 34, 641 N.E.2d 188 (1994). As recognized by the Supreme Court of Ohio, "[t]he purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice."

Ohio State Bd. of Pharmacy v. Frantz , 51 Ohio St.3d 143, 145, 555 N.E.2d 630 (1990). To invoke the doctrine as a bar to statute of limitations defense, however, the plaintiff must be able to show the defendant's specific actions prevented the plaintiff from timely filing the lawsuit. Doe v. Archdiocese of Cincinnati , 116 Ohio St.3d 538, 2008-Ohio-67, 880 N.E.2d 892, ¶ 8-9 (defendant cannot be equitably estopped from asserting a defense premised on the expiration of the applicable limitations period when nothing in the complaint suggests defendant prevented plaintiff from timely filing suit). "Equitable tolling is only available in compelling cases which justify a departure from established procedure." Sharp v. Ohio Civ. Rights Comm. , 7th Dist. No. 04 MA 116, 2005-Ohio-1119, 2005 WL 589889, ¶ 11. Thus, equitable tolling is to be applied sparingly and only in exceptional circumstances. Byers v. Robinson , 10th Dist. No. 08AP-204, 2008-Ohio-4833, 2008 WL 4328189, ¶ 56. A litigant seeking equitable tolling must demonstrate that he or she diligently pursued his or her rights, but some extraordinary circumstance stood in his or her way and prevented timely action. In re Regency Village Certificate of Need Application , 10th Dist. No. 11AP-41, 2011-Ohio-5059, 2011 WL 4541358, ¶ 37.

{¶ 19} Here, appellants claim that Appalachian did not object to the court's dismissal of the second complaint by raising the statute of limitations, so Appalachian should be estopped from raising it in the third action. Appellants also assert that, because Appalachian did not raise the issue of statute of limitations until its motion to dismiss in the third action, appellants believed they could file a third complaint utilizing the savings statute, and such was misleading to appellants.

{¶ 20} We first note that appellants failed to raise equitable estoppel at the trial court level. Failure to raise the issue below results in a waiver of the issue here on appeal. State v. Williams , 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977). See also Fiorini v. Speaker , 8th Dist. No. 79483, 2002-Ohio-3541, 2002 WL 1500586, ¶ 34 (plaintiff waived the theory of equitable estoppel in defense of the plaintiff's statute of limitations argument because he failed to raise it in trial court). Notwithstanding their failure to raise equitable estoppel in the Court of Claims, appellants failed to cite any authority for the proposition that it was somehow Appalachian's duty to advise appellants regarding the statute of limitations and the application of the savings statute. We fail to find Appalachian made any representations or misrepresentations during the second case that would have led appellants to believe they could refile the action pursuant to a second use of the savings statute. To the contrary, in the magistrate's October 13, 2015 order of dismissal, the magistrate specifically indicated that "[c]ounsel for defendant stated that he did not object to plaintiffs' motion, however, noted that he did object to any future attempts to file this case." Thus, Appalachian did, in fact, raise this issue during the second action and expressed its view that appellants could not file a third action.

{¶ 21} Appellants also spend considerable time, particularly in their reply brief, arguing that the court erred when it failed to grant a continuance in the second action and, instead, dismissed the action pursuant to Civ.R. 41(A)(2). However, this issue is not properly before us in the present appeal. Any error in the second action is res judicata for purposes of the present appeal. Therefore, this argument is without merit. For these reasons, we overrule appellants' sole assignment of error.

{¶ 22} Accordingly, appellants' sole assignment of error is overruled, and the judgment of the Court of Claims of Ohio is affirmed.

Judgment affirmed .

TYACK, P.J., and LUPER SCHUSTER, J., concur.