author: Per Curiam.

text:
    DISCIPLINARY COUNSEL v. ENGEL.
    No. 2017-1087
    Supreme Court of Ohio.
    Submitted December 6, 2017 Decided July 31, 2018
    Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel, for relator.
    Pyper and Nordstrom, L.L.C., and Thomas H. Pyper, Dayton, for respondent.
   Per Curiam.

{¶ 1} Respondent, Andrew Mahlon Engel, of Centerville, Ohio, Attorney Registration No. 0047371, was admitted to the practice of law in Ohio in 1990.

{¶ 2} On November 21, 2001, we publicly reprimanded Engel for neglecting a legal matter and attempting to handle it without adequate preparation. Dayton Bar Assn. v. Engel , 93 Ohio St.3d 623, 758 N.E.2d 178 (2001). And on December 22, 2004, we suspended him from the practice of law for two years with six months of the suspension stayed on conditions for intentionally failing to seek the lawful objectives of a client, intentionally failing to carry out a contract of employment, engaging in conduct that adversely reflected on his fitness to practice law, and failing to cooperate in the ensuing disciplinary investigation. Dayton Bar Assn. v. Engel , 105 Ohio St.3d 49, 2004-Ohio-6900, 822 N.E.2d 346.

{¶ 3} In an August 3, 2016 complaint, relator, disciplinary counsel, alleged that Engel neglected a single client matter, failed to keep the client reasonably informed about the status of her legal matter and to comply with her reasonable requests for information, failed to promptly refund the unearned portion of his fee, and failed to cooperate in the resulting disciplinary investigation. The parties submitted joint stipulations in which Engel admitted the charged misconduct and agreed that three aggravating factors and four mitigating factors are present.

{¶ 4} A panel of the Board of Professional Conduct conducted a hearing at which it heard testimony from Engel and three character references and viewed the video deposition of Engel's treating psychologist.

{¶ 5} The panel adopted the parties' stipulations and recommended that Engel be suspended from the practice of law for two years with 18 months of the suspension stayed provided that he meet certain conditions before reinstatement and that once reinstated to the practice of law, he serve a two-year period of monitored probation. The board adopted the panel's report and recommendation, with an additional requirement that on seeking reinstatement, Engel must provide an opinion from a qualified healthcare professional that he is able to return to the competent and ethical professional practice of law. Engel objects based on the panel's denial of his motion to supplement his posthearing brief and objects to the board's recommended sanction. For the reasons that follow, we overrule Engel's objections, adopt the board's findings of fact, misconduct, and aggravating and mitigating factors, and suspend Engel from the practice of law for two years with 18 months of the suspension stayed and we place the recommended conditions on his reinstatement.

Misconduct

{¶ 6} In April 2015, Dianne Shelton hired Engel to represent her in a consumer-debt action. Engel sent letters to counsel for Shelton's creditor on April 27 and June 22, 2015, but Engel did not respond to Shelton's multiple efforts to reach him or take any other action to settle her debt before she filed a grievance with relator in August 2015.

{¶ 7} Engel responded to relator's original letter of inquiry in October 2015 and promised, during a November 19, 2015 telephone conversation with relator, that he would contact Shelton. But he had no contact with Shelton or relator until mid-February 2016. After informing relator that Shelton had agreed to continue his representation and exchanging a few e-mails with Shelton, Engel had no further contact with her until early March-when Shelton told him that she had settled the matter herself. Engel did not respond to relator's letters requesting that he submit proof that he had honored his promise to refund the balance of Shelton's retainer until relator served him with a subpoena for his deposition at the end of May. But even then, he did not provide a copy of the correspondence he had sent to Shelton. The parties stipulated that Engel refunded $50 of Shelton's $500 retainer on May 24, 2016, followed by the remaining $450 on July 11, 2016.

{¶ 8} Therefore, the parties stipulated and the board found that Engel violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable requests for information from the client), 1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the lawyer's withdrawal from employment), and 8.1(b) and Gov.Bar R. V(9)(G) (both requiring a lawyer to cooperate with a disciplinary investigation).

{¶ 9} We adopt the board's findings of fact and misconduct.

Recommended Sanction

{¶ 10} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

{¶ 11} Here, the board considered Engel's misconduct and adopted the parties' stipulated aggravating factors, which include two instances of prior discipline, the commission of multiple offenses, and Engel's failure to cooperate in the investigative stage of the disciplinary process. See Gov.Bar R. V(13)(B)(1), (4), and (5). The board also adopted the parties' stipulations regarding the applicable mitigating factors, including the absence of a dishonest or selfish motive, Engel's eventual full and free disclosure to the board and cooperative attitude toward the disciplinary proceeding, evidence of his good character and reputation, and two qualifying mental disorders-anxiety and depression. See Gov.Bar R. V(13)(C)(2), (4), (5), and (7).

{¶ 12} At the disciplinary hearing and in his posthearing brief, Engel agreed that he should be suspended from the practice of law for two years but argued that the entire suspension should be stayed with a requirement that he serve a period of monitored probation. In contrast, relator argued that a two-year suspension with 18 months stayed is the appropriate sanction.

{¶ 13} The board found that there is no case law to support the imposition of a fully stayed suspension under the facts of this case. On the contrary, it recognized that the presumptive sanction for neglect of client matters coupled with the failure to cooperate in the ensuing disciplinary investigation is an indefinite suspension from the practice of law. See , e.g. , Disciplinary Counsel v. Ford , 133 Ohio St.3d 105, 2012-Ohio-3915, 976 N.E.2d 846, ¶ 24 ; Mahoning Cty. Bar Assn. v. DiMartino , 147 Ohio St.3d 345, 2016-Ohio-5665, 65 N.E.3d 737, ¶ 13.

{¶ 14} But the board also found that we have imposed partially stayed term suspensions on attorneys-both with and without prior discipline-who engaged in conduct comparable to Engel's. See , e.g. , Cleveland Metro. Bar Assn. v. Bancsi , 141 Ohio St.3d 457, 2014-Ohio-5255, 25 N.E.3d 1018 (imposing a two-year suspension with 18 months stayed on an attorney with prior suspensions who neglected a client's legal matter resulting in its dismissal and who failed to reasonably communicate with the affected client); Columbus Bar Assn. v. Reed , 145 Ohio St.3d 464, 2016-Ohio-834, 50 N.E.3d 516 (imposing a two-year suspension with 18 months stayed on a previously disciplined attorney who had neglected client matters, failed to reasonably communicate with the affected clients, and also failed to cooperate in a fee-dispute arbitration and the ensuing disciplinary investigations); and Disciplinary Counsel v. Hallquist , 128 Ohio St.3d 480, 2011-Ohio-1819, 946 N.E.2d 224 (imposing a two-year suspension with six months stayed on an attorney with no prior discipline who had neglected two client matters and failed to cooperate in the resulting disciplinary investigation).

{¶ 15} The board determined that the facts of this case most closely aligned with those of Columbus Bar Assn. v. DiAlbert , 120 Ohio St.3d 37, 2008-Ohio-5218, 896 N.E.2d 137. Like Engel, DiAlbert had neglected a single client's legal matter, had failed to fully cooperate in the disciplinary process, and had a diagnosed mental disorder that contributed to his misconduct. He also had two prior instances of misconduct-one for leading a client to believe that he had filed a motion for judicial release when he had not done so and the other for failing to comply with continuing-legal-education (''CLE'') requirements. Id. at ¶ 1, 8. We suspended DiAlbert's license for two years with 18 months of the suspension stayed on conditions, including compliance with an Ohio Lawyers Assistance Program ("OLAP") contract and completion of a two-year period of monitored probation. Id. at ¶ 12.

{¶ 16} Noting that Engel has twice been disciplined for the same type of misconduct that he has been found to have committed in this case and that unlike DiAlbert, he failed to fully cooperate in the disciplinary process, the board recommended that he be suspended from the practice of law for two years with 18 months of the suspension stayed. On his application for reinstatement, the board would also require him to submit proof that (1) he has continued to receive counseling from a qualified healthcare professional, (2) he is adhering to the recommendations of his primary care physician, (3) he is in compliance with his March 7, 2017 OLAP contract and any extension of it, and (4) a qualified healthcare professional has determined that he is able to return to the competent and ethical professional practice of law. Following his reinstatement to the practice of law, the board further recommended that Engel be required to comply with the recommendations of his healthcare professionals while serving a two-year period of monitored probation pursuant to Gov.Bar R. V(21).

Objections

{¶ 17} Engel's primary objections relate to the board's recommendation that he serve a two-year suspension from the practice of law with just 18 months of that suspension stayed on conditions. But he also objects to the panel's denial of his motion to supplement his posthearing brief. In the interest of clarity, we address Engel's objections in reverse order.

Denial of Motion to Supplement

{¶ 18} In Engel's third objection, he argues that the panel erred in denying his August 1, 2017 motion to supplement his posthearing brief following a dispute with his counsel that allegedly deprived him of the opportunity to highlight certain mitigating factors and cite additional precedent favoring a lesser sanction.

{¶ 19} Engel's motion was not timely, as it was filed more than five weeks after the deadline that the panel had set for filing posthearing briefs and just six days before the full board filed its report and recommendation with this court. The facts that he sought to bring to the panel's attention were already a part of the record, and the board was not limited to the consideration of the precedent cited in the briefs. Moreover, Engel has availed himself of the opportunity to present his proposed supplemental authority in his objections to this court. For these reasons, we find that the board did not abuse its discretion by overruling his motion to supplement his posthearing brief, and we overrule Engel's third objection.

Weight Attributed to Mitigating Evidence

{¶ 20} In his second objection, Engel contends that the board should have afforded greater mitigating weight to his mental disorders and should have considered evidence of additional mitigating factors-including his OLAP contract, his mentoring relationship, his service to economically disadvantaged clients in consumer-protection and foreclosure-defense cases, and changes that he made to his office procedures and staffing to prevent future misconduct. He also urges us to find that his anxiety and depression "contributed significantly" to his misconduct and that, when combined with other mitigating evidence, they warrant the imposition of a fully stayed suspension.

{¶ 21} The board made extensive findings regarding the parties' stipulated mitigating factors and Engel's supporting evidence. It acknowledged that Engel admitted that he had not been attentive to Shelton's case and that he attributed his inattention to her case to its not being in active litigation. The board also credited Engel's testimony that he did not realize he was suffering from anxiety and depression or that his conditions were adversely affecting his practice. The board acknowledged that Engel was incredibly ashamed of and embarrassed by his conduct and that he has taken steps to ensure that it will not recur. For example, it credited Engel's testimony that his health and mood had improved since he started taking a prescribed antidepressant and that in addition to being committed to his course of psychotherapy, he had also entered into and complied with a three-year OLAP contract. And in furtherance of his professional obligations, Engel hired an associate to facilitate communication with his clients and began to confide in a mentor, attorney Jonathan Hollingsworth. Hollingsworth confirmed that the mentoring relationship commenced in July 2016 and that he had met with Engel on three occasions to discuss Engel's personal life, his office arrangement, and his working to maintain a calendar that would allow Engel to meet his clients' needs.

{¶ 22} The board also credited Engel for eight character letters that identified him as a very competent, well-respected attorney of some renown in his area of practice. It noted that three of the attorneys who wrote letters on Engel's behalf also testified to his good character, legal skills, and respect for and commitment to his clients and the legal system. And despite their knowledge of Engel's three disciplinary proceedings, all stated that they would not hesitate to refer clients to him.

{¶ 23} The board also considered the written report and video deposition testimony of Engel's treating psychologist, Marsha K. Weston, Psy.D. The testimony revealed that Dr. Weston began treating Engel for depression and anxiety in August 2016 and had seen him twice a week through April 2017 for 55 to 60 sessions. Dr. Weston observed that Engel has tended to avoid conflict, isolate himself, and shut down emotionally. The board accepted Dr. Weston's testimony that those conditions had been present for many years and that they contributed significantly to Engel's delay in contacting his client, taking action on his client's behalf, and responding to disciplinary counsel. Yet we note that on cross-examination, Dr. Weston was unable to explain why Engel's mental disorders caused him to neglect only a single client matter.

{¶ 24} Ultimately, the board recognized Engel's progress in psychotherapy, his positive response to a prescription antidepressant, and his belief that meetings with his professional mentor are helpful. Furthermore, the board accepted Dr. Weston's testimony that she was satisfied with Engel's progress-which she estimated to be a 75 to 80 percent improvement-and acknowledged her opinion that Engel can safely and competently practice law provided he continues his medication, participates in therapy, and meets with his mentor.

{¶ 25} Although the board did not expressly state that Engel's diagnosed mental conditions were solely, principally, or substantially responsible for his misconduct as Engel now suggests it should have, the board's findings clearly demonstrate that it attributed significant effect to Engel's mitigating evidence. Indeed, those mitigating factors led the board to reduce the recommended sanction from a presumptive indefinite suspension to a two-year suspension with all but six months stayed-even though Engel has already been sanctioned twice for engaging in similar misconduct, has committed multiple offenses, and initially failed to cooperate in relator's investigation. Having independently reviewed the record, we are confident that the panel properly considered and weighed all mitigating evidence. We therefore overrule Engel's second objection.

Precedent for Sanction

{¶ 26} In Engel's first objection, he asserts that our precedent (including that cited by the board) supports the imposition of a fully stayed suspension under the facts of this case. In support, he identifies four cases in which we have imposed fully stayed suspensions on attorneys who had prior records of disciplinary offenses, but all are readily distinguishable from the facts presently before us.

{¶ 27} In Disciplinary Counsel v. Turner , 140 Ohio St.3d 109, 2014-Ohio-3158, 15 N.E.3d 851, we imposed a two-year stayed suspension on an attorney who deposited personal funds into his client trust account, used the account to pay his personal and business expenses, and initially failed to cooperate in the ensuing disciplinary investigation. But Turner's conduct did not affect any clients, and there was no allegation that his client trust account contained any client funds. And although Turner had five prior suspensions, none of them were for similar misconduct. In contrast to Engel, four of Turner's prior suspensions related to noncompliance with attorney registration or CLE requirements, with just one suspension arising from his neglect and other client-related matters.

{¶ 28} In Mahoning Cty. Bar Assn. v. Hanni , 145 Ohio St.3d 492, 2016-Ohio-1174, 50 N.E.3d 542, we imposed a one-year fully stayed suspension with CLE and monitored-probation requirements for an attorney's neglect and failure to communicate with a single client. We had previously suspended Hanni for six months, with the entire suspension stayed, for neglecting another client's matter and making unsubstantiated claims of ethical misconduct against a county prosecutor. Id. at ¶ 1. Similarly, in Cleveland Metro. Bar Assn. v. Berk , 132 Ohio St.3d 82, 2012-Ohio-2167, 969 N.E.2d 256, we imposed an 18-month stayed suspension with two years of monitored probation for misconduct that included a pattern of missed court deadlines and appearances in several client matters that echoed Berk's prior disciplinary offenses. But neither Hanni nor Berk failed to cooperate in their respective disciplinary investigations as Engel has. Hanni at ¶ 11 ; Berk at ¶ 19 ; see also Mahoning Cty. Bar Assn. v. Hanni , 127 Ohio St.3d 367, 2010-Ohio-5771, 939 N.E.2d 1226, ¶ 24 ; Cleveland Bar Assn. v. Berk , 114 Ohio St.3d 478, 2007-Ohio-4264, 873 N.E.2d 285, ¶ 10.

{¶ 29} We also imposed a two-year stayed suspension in Ashtabula Cty. Bar Assn. v. Brown , 151 Ohio St.3d 63, 2017-Ohio-5698, 86 N.E.3d 269, based on the respondent's use of then sitting Justice William O'Neill's name on his office sign and business card approximately 18 years after they had last practiced together. Although several aggravating factors were present, including Brown's prior discipline, selfish motive, and failure to acknowledge the wrongful nature of his conduct, Brown's misconduct differed from Engel's in that it did not mimic his prior offenses or affect any clients and because he cooperated in the disciplinary process.

{¶ 30} Based upon the foregoing, we are not persuaded that our precedent supports the imposition of a fully stayed suspension in this case. Nor do we find Engel's argument that his case is sufficiently distinguishable from the cases cited by the board to warrant the imposition of a lesser sanction here. Rather, given the unique facts and circumstances of this case, we find that a brief actual suspension from the practice of law followed by a longer stayed suspension with monitoring will best protect the public from harm and preserve the public's trust in the legal profession. Therefore, we overrule Engel's first objection and adopt the board's recommended sanction.

Conclusion

{¶ 31} Having overruled Engel's objections, we adopt the board's findings of fact, misconduct, and aggravating and mitigating factors and its recommended sanction. Accordingly, we suspend Andrew Mahlon Engel from the practice of law in Ohio for two years, with 18 months of the suspension stayed on the condition that he engage in no further misconduct. If he fails to comply with the condition of the stay, the stay will be lifted, and he will serve the entire two-year suspension.

{¶ 32} On his application for reinstatement, Engel shall submit proof that he has continued counseling with Dr. Weston or another qualified healthcare professional, is adhering to the recommendations of his primary-care physician, and remains in compliance with his March 7, 2017 contract with OLAP, along with any extensions recommended by his treating professionals or OLAP. He shall also submit proof that a qualified healthcare professional has determined that he is able to return to the competent and ethical professional practice of law.

{¶ 33} On reinstatement to the practice of law, Engel shall serve a two-year period of monitored probation in accordance with Gov.Bar R. V(21), during which time he shall comply with the recommendations of his treating healthcare professionals, maintain compliance with any OLAP terms that may be in effect, and continue to work with a monitoring attorney approved by relator. Costs are taxed to Engel.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, French, Laster Mays, Fischer, and DeWine, JJ., concur.

Kennedy, J., concurs in part and dissents in part, with an opinion.

Anita Laster Mays, J., of the Eighth District Court of Appeals, sitting for O'Neill, J.

{¶ 34} I concur with the majority's decision to suspend Andrew Mahlon Engel from the practice of law in Ohio for two years, with 18 months of the suspension stayed on the condition that he engage in no further misconduct. I also agree that on his application for reinstatement, Engel shall submit proof that he has continued counseling with Dr. Weston or another qualified healthcare professional, is adhering to the recommendations of his primary-care physician, and remains in compliance with his March 7, 2017 contract with the Ohio Lawyers Assistance Program ("OLAP"), along with any extensions recommended by his treating professionals or OLAP. I disagree, however, with the majority's reinstatement requirement for Engel to submit proof that a qualified healthcare professional has determined that he is able to return to the competent and ethical professional practice of law.

{¶ 35} When imposing sanctions for attorney misconduct, we consider the mitigating factors listed in Gov.Bar R. V(13). See Disciplinary Counsel v. Pickrel , 151 Ohio St.3d 466, 2017-Ohio-6872, 90 N.E.3d 853, ¶ 10. Relevant to this case is Gov.Bar R. V(13)(C)(7), which permits a mental disorder or chemical dependency to be considered mitigating upon all of the following:

(a) A diagnosis of a disorder by a qualified health care professional or qualified chemical dependency professional;
(b) A determination that the disorder contributed to cause the misconduct;
(c) In the case of mental disorder, a sustained period of successful treatment or in the case of substance use disorder or nonsubstance-related disorder, a certification of successful completion of an approved treatment program;
(d) A prognosis from a qualified health care professional or qualified chemical dependency professional that the attorney will be able to return to competent, ethical professional practice under specified conditions.

If any one of the factors is not established, the mental disorder or qualified chemical dependency may not be considered as mitigation. See , e.g. , Disciplinary Counsel v. Joltin, 147 Ohio St.3d 490, 2016-Ohio-8168, 67 N.E.3d 780, ¶ 22 (board did not consider attorney's mental-health issues to be mitigating factors, because there was no proof that they caused his misconduct).

{¶ 36} In this matter, the board adopted the parties' stipulation that Engel's mental disorders of depression and anxiety may be considered as mitigation. They agreed that Engel had established all the factors recited in Gov.Bar R. V(13)(C)(7), including "a prognosis from a qualified health care professional that respondent is able to return to the competent, ethical practice of law now and in the future so long as he continues to follow the professional advice of his mental health provider and his family doctor." As Engel has already established that he is currently able to return to the competent and ethical professional practice of law now and in the future, I would not require him to submit this proof with his application for reinstatement.

{¶ 37} Therefore, I respectfully concur in part and dissent in part.

      For a disorder to qualify as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7), there must be (a) a diagnosis by a qualified healthcare professional, (b) a causal relationship between the disorder and the misconduct, (c) a sustained period of successful treatment, and (d) a prognosis from a qualified healthcare professional that the attorney will be able to return to the competent and ethical professional practice of law.


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    The STATE of Ohio, Appellee, v. GOFF, Appellant.
    No. 2017-0021
    Supreme Court of Ohio.
    Submitted June 12, 2018 Decided September 20, 2018.
    Richard M. Moyer, Clinton County Prosecuting Attorney, and Andrew McCoy, Assistant Prosecuting Attorney, for appellee.
    Marshall G. Lachman, Columbus, and Angela Wilson Miller, Springboro, for appellant.
   Kennedy, J.

{¶ 1} Appellant, James R. Goff, was convicted of the aggravated murder of Myrtle Rutledge and sentenced to death. We affirmed his convictions and sentence on direct appeal. State v. Goff , 82 Ohio St.3d 123, 694 N.E.2d 916 (1998) (" Goff I ").

{¶ 2} In 2010, concluding that Goff had received ineffective assistance of appellate counsel with respect to his right to allocution at trial, a federal court granted a writ of habeas corpus effective 120 days later "unless the Ohio courts reopen Goff's direct appeal * * * to permit his counsel to raise this issue." Goff v. Bagley , 601 F.3d 445, 482 (6th Cir.2010) (" Goff II "). In 2015, after Goff's direct appeal was reopened and the case was remanded for resentencing, the trial court conducted a resentencing hearing at which Goff offered a statement in allocution. The trial court again sentenced him to death. The court of appeals affirmed. 2016-Ohio-7834, 2016 WL 6875916 (" Goff III ").

{¶ 3} In this appeal as of right, Goff asserts four propositions of law. For the reasons explained below, we reject each of Goff's propositions of law and affirm his death sentence.

I. FACTS AND PROCEDURAL HISTORY

A. The murder of Myrtle Rutledge

{¶ 4} In Goff I , this court set forth the facts of Rutledge's murder in detail. 82 Ohio St.3d at 124-127, 694 N.E.2d 916. For purposes of this opinion, we summarize those facts as follows.

{¶ 5} In September 1994, Rutledge, an 88-year-old woman, was in the process of moving out of her farmhouse and into a new home. On September 14, Rutledge purchased furniture for her new home from a store in Wilmington, Ohio. The next day, Goff and a coworker, Manuel Jackson, delivered the furniture to Rutledge's home and assembled a bed for her.

{¶ 6} Two days later, Rutledge's daughter went to her mother's house to pick her up for a family reunion and "found her mother's battered and naked body lying on the floor of the bedroom." Id. at 125, 694 N.E.2d 916. A deputy coroner determined that Rutledge had "died from blunt and sharp trauma to the head, neck, shoulders, and ankle." Id. Additionally, Rutledge had suffered "blood loss due to multiple stab wounds, one of which severed [her] carotid artery." Id .

B. Goff's trial and initial sentence

{¶ 7} A jury found Goff guilty of aggravated murder, aggravated robbery, aggravated burglary, and grand theft of a motor vehicle.

{¶ 8} At the mitigation phase of Goff's trial, the defense presented testimony from Goff's former teacher, his former landlord, and a psychologist, Dr. Jeffrey Smalldon. Dr. Smalldon had examined Goff and also compiled a social history.

{¶ 9} The jury recommended a sentence of death. After conducting its own independent weighing of the aggravating circumstance and mitigating factors, the trial court sentenced Goff to death.

C. Direct appeal and collateral review in state court

{¶ 10} Goff unsuccessfully appealed his convictions and death sentence to the Twelfth District Court of Appeals. State v. Goff , 12th Dist. Clinton No. CA95-09-026, 1997 WL 194898 (Apr. 21, 1997). We affirmed the appellate court's judgment. Goff I , 82 Ohio St.3d 123, 694 N.E.2d 916.

{¶ 11} Goff then pursued postconviction relief in state court without success. See State v. Goff , 12th Dist. Clinton No. CA2000-05-014, 2001 WL 208845 (Mar. 5, 2001) (petition for state postconviction relief); State v. Goff , 12th Dist. Clinton No. CA2000-10-026, 2001 WL 649820 (June 11, 2001) (motion for relief from judgment under Civ.R. 60(B)(5) ); State v. Goff , 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700 (application to reopen direct appeal pursuant to App.R. 26(B) ).

D. Collateral review in federal court

{¶ 12} In 2002, Goff filed a petition for habeas corpus relief in the United States District Court for the Southern District of Ohio, which was denied. Goff v. Bagley , S.D.Ohio No. 1:02-cv-307, 2006 WL 3590369 (Dec. 1, 2006). On appeal, however, the United States Court of Appeals for the Sixth Circuit determined that his appellate counsel had provided constitutionally ineffective assistance by not raising the trial court's failure to afford Goff his right to allocute before sentencing. Goff II , 601 F.3d at 464-467. The Sixth Circuit granted a writ of habeas corpus effective 120 days later "unless the Ohio courts reopen Goff's direct appeal * * * to allow Goff to raise his allocution argument." Id . at 473.

E. Reopening of Goff's direct appeal and resentencing

{¶ 13} In accordance with the Sixth Circuit's directive, the Twelfth District reopened Goff's direct appeal to permit him to raise his allocution claim. State v. Goff , 12th Dist. Clinton No. CA95-09-026, 2012-Ohio-1125, 2012 WL 937016, ¶ 12. The appellate court confirmed its prior affirmance of Goff's convictions. However, due to the trial court's failure to afford Goff his right to allocution, the court vacated its prior affirmance of appellant's sentence and remanded the matter for resentencing. The court of appeals instructed the trial court, "[u]pon remand, * * * to personally address [Goff] and afford him his right to allocution before imposing its sentence." Id . at ¶ 20.

{¶ 14} On remand, the trial court granted Goff's motion to proffer new mitigation evidence and awarded him funds to hire a consulting psychologist.

{¶ 15} At the resentencing hearing, Goff's counsel proffered a report prepared by psychologist Dennis Eshbaugh, Ph.D., as representative of testimony Dr. Eshbaugh would have given had he been permitted to testify at the hearing. Counsel urged the court to impose a life sentence, emphasizing Goff's difficult childhood, his youth at the time of the offenses, his substance abuse at the time of the offenses, and his positive adjustment to prison life. The state advocated for a death sentence. Goff then made a statement in allocution. He noted that he had not been violent in prison, referred to his difficult childhood, and asked the court for leniency. The trial court sentenced Goff to death.

{¶ 16} The court of appeals affirmed Goff's sentence. Goff III , 2016-Ohio-7834. Goff appealed.

II. ANALYSIS

{¶ 17} Goff raises four propositions of law, urging reversal of his death sentence:

1. Defendant-Appellant Goff was denied his substantive and procedural due process rights to a fair trial when the trial court refused to empanel a new jury for the sentencing proceeding.
2. The trial court erred when it excluded testimony of additional mitigating evidence in the time between the two sentencing hearings, in violation of Goff's rights under [the United States and Ohio Constitutions].
3. Trial counsel rendered ineffective assistance by failing to adequately prepare their client for allocution and by failing to proffer available, mitigating information from Goff's institutional file, in violation of Goff's rights under [the United States and Ohio Constitutions].
4. The Defendant-Appellant was denied due process, freedom from cruel and unusual punishment, and a fair and reliable sentence when his death sentence was imposed, in part, on the basis of information that he had no opportunity to deny or explain.

We will address Goff's propositions out of order for ease of analysis.

A. Exclusion of new mitigation evidence

{¶ 18} Goff's second proposition of law asserts that the trial court violated his Eighth Amendment rights by excluding testimony that he sought to present as additional mitigating evidence, including evidence of Goff's good behavior in prison since the first sentencing hearing. Goff argues that he "should have been permitted to present any and all relevant mitigation evidence at the time of resentencing." In support of this argument, he relies on the United States Supreme Court's decisions in Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion) (a sentencer may "not be precluded from considering, as a mitigating factor , any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death'' [emphasis sic] ); Eddings v. Oklahoma , 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (a sentencer may not "refuse to consider, as a matter of law , any relevant mitigating evidence'' [emphasis sic] ); Skipper v. South Carolina , 476 U.S. 1, 7-8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (testimony about a defendant's good behavior in jail pending trial was relevant mitigation evidence that should not have been excluded).

{¶ 19} We have previously rejected claims similar to Goff's argument, and we find the argument unpersuasive in the current procedural context of this case.

{¶ 20} We have held that when "the errors requiring resentencing occur[ ] after the close of the mitigation phase of the trial"-after the jury has returned its verdict and made a sentencing recommendation-"the trial court is to proceed on remand from the point at which the error occurred." State v. Chinn , 85 Ohio St.3d 548, 565, 709 N.E.2d 1166 (1999). We reaffirmed this holding in State v. Roberts , 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 25, 35-36, in rejecting a capital defendant's argument that she was entitled to a full presentation of mitigation at her resentencing hearing. In Roberts , we explained that Lockett , Eddings , and Skipper were distinguishable in that each "involved the trial court's exclusion of, or refusal to consider, evidence in the original sentencing proceeding. None of these cases involved a proceeding on remand." (Emphasis added.) Roberts at ¶ 34. By contrast, Roberts "involve[d] a proceeding on remand for the limited purpose of correcting an error that occurred after the defendant had had a full, unlimited opportunity to present mitigating evidence to the sentencer." (Emphasis sic.) Id. We concluded that the Lockett line of cases did not "require[ ] the trial court to reopen the evidence after an error-free evidentiary hearing had already taken place." Roberts at ¶ 35, citing Chinn at 564-565, 709 N.E.2d 1166. And we recently stated that "[n]o binding authority holds that the Eighth Amendment requires a resentencing judge to accept and consider new mitigation evidence at a limited resentencing when the defendant had the unrestricted opportunity to present mitigating evidence during his original mitigation hearing." State v. Jackson , 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 73.

{¶ 21} The underlying error currently at issue is the trial court's failure to provide Goff an opportunity to allocute at his initial sentencing hearing. Crim.R. 32(A)(1) requires a trial court to ask the defendant whether he "wishes to make a statement in his * * * own behalf" "[a]t the time of imposing sentence." (Emphasis added.) This cannot occur until after the defendant has had an opportunity to present mitigation evidence and the factfinder has made its sentencing recommendation. See State v. Mason , 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 11-12 (providing sequential description of imposition of a death sentence in Ohio). On remand for Goff's resentencing, the trial court had to proceed from the point of providing Goff an opportunity to allocute, which occurred after his opportunity to present mitigation evidence. Therefore, the trial court did not err in excluding testimony that Goff sought to present as additional mitigation evidence.

{¶ 22} Goff urges us to apply-instead of the above caselaw-the Sixth Circuit's holding in Davis v. Coyle that "at resentencing, a trial court must consider any new evidence that the defendant has developed since the initial sentencing hearing," 475 F.3d 761, 774 (6th Cir.2007), citing Skipper , 476 U.S. at 8, 106 S.Ct. 1669, 90 L.Ed.2d 1.

{¶ 23} We have already rejected similar claims based on Coyle : "To hold, as Coyle does, that a new mitigation hearing must be held, even though no constitutional error infected the original one, would transform the right to present relevant mitigation into a right to update one's mitigation. Such a right has no clear basis in Lockett or its progeny." (Emphasis sic.) Roberts , 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 36. "Establishing a right to update mitigation could result in arbitrary distinctions between similarly situated capital defendants" because a defendant's ability to update his mitigation evidence would turn on whether or not a posthearing sentencing error took place that required a remand. Id. at ¶ 37. Because Goff fails to present a persuasive argument to depart from this analysis, we decline to do so.

{¶ 24} We reject proposition of law No. 2.

B. Denial of jury for resentencing

{¶ 25} As his first proposition of law, Goff contends that the trial court violated his substantive- and procedural-due-process rights by refusing to empanel a new jury for the resentencing hearing. He presents both statutory and constitutional arguments in support of this proposition.

1. R.C. 2929.06(B)

{¶ 26} Goff asserts that R.C. 2929.06(B) directs the trial court on remand " 'to empanel a new jury and conduct a fresh penalty hearing,' " Goff's brief at 5, quoting State v. White , 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 2, because he was originally tried by a jury and his initial death sentence was vacated.

{¶ 27} R.C. 2929.06(B) provides:

Whenever any court of this state or any federal court sets aside, nullifies, or vacates a sentence of death imposed upon an offender because of error that occurred in the sentencing phase of the trial and if division (A) of this section does not apply, the trial court that sentenced the offender shall conduct a new hearing to resentence the offender. If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing.

{¶ 28} We have previously considered and rejected Goff's argument. In State v. Roberts , 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, we had vacated Donna Roberts's death sentence because the trial court failed to consider her allocution at her initial resentencing, id. at ¶ 21. On remand for a second resentencing, the trial court considered Roberts's allocution and again sentenced her to death without empaneling a new jury. Id. at ¶ 23-25. On appeal, Roberts urged this court to conclude that " R.C. 2929.06(B) should apply to the resentencing and require a de novo penalty-phase hearing before a new jury." Id. at ¶ 43.

{¶ 29} We found Roberts's argument unpersuasive. We reasoned that there was "no indication in R.C. 2929.06(B) that the General Assembly intended to abrogate" in capital cases the general rule that required the trial court on remand to proceed from the point at which the error occurred. Id. at ¶ 45. Because the error was the trial court's failure to consider Roberts's allocution, which occurred after the jury was discharged, on remand the "trial court was required to proceed from the point of error, not from an earlier point in the sentencing proceedings." Id. We further stated, "Because a legally valid penalty-phase jury verdict has already been rendered in this case, there is no reason to empanel a jury and retry the evidentiary portion of either the guilt or penalty phases of the proceeding." Id. at ¶ 46.

{¶ 30} As in Roberts , the sentencing error at issue in this case occurred after the verdict and R.C. 2929.06(B) did not require the trial court to empanel a new jury for resentencing.

2. Constitutional right to trial by jury

{¶ 31} Relying on Hurst v. Florida , 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), Goff next argues that the trial court's failure to empanel a new jury for resentencing violated his Sixth Amendment and due-process rights.

{¶ 32} The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The right to a jury extends to determinations of guilt and to "any fact that increases the penalty for a crime beyond the prescribed statutory maximum." Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This includes the finding of a statutory aggravating circumstance in a capital case, which is " 'the functional equivalent of an element of a greater offense.' " Ring v. Arizona , 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), quoting Apprendi at 494, fn. 19, 120 S.Ct. 2348.

{¶ 33} In Hurst , the United State Supreme Court considered the constitutionality of Florida's capital-punishment scheme, which provided that " '[a] person who has been convicted of a capital felony shall be punished by death' only if an additional sentencing proceeding 'results in findings by the court that such person shall be punished by death.' " Hurst at ----, 136 S.Ct. at 620, quoting former Fla.Stat. 775.082(1), C.S.H.B. No. 3033, Ch. 98-3, Laws of Fla. The law provided for the jury to render an " 'advisory sentence' " recommending death but did not require the jury to specify the aggravating circumstances that influenced its decision. Id ., quoting former Fla.Stat. 921.141(2). The sentencing judge then imposed a death sentence after independently determining and weighing the aggravating and mitigating circumstances. Id ., citing former Fla.Stat. 921.141(3).

{¶ 34} Relying on Apprendi and Ring , the Supreme Court determined that Florida's scheme violated the Sixth Amendment because it "required the judge alone to find the existence of an aggravating circumstance," Hurst , 577 U.S. at ----, 136 S.Ct. at 624, 193 L.Ed.2d 504, and the jury was "not require[d] * * * to make the critical findings necessary to impose the death penalty," id . at ----, 136 S.Ct. at 622. The jury's advisory sentence was immaterial for Sixth Amendment purposes because it did not include " 'specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation [was] not binding on the trial judge.' " Id ., quoting Walton v. Arizona , 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).

{¶ 35} We have previously concluded that "Ohio's death-penalty scheme * * * does not violate the Sixth Amendment" because it "requires the critical jury findings that were not required by the laws at issue in Ring and Hurst ." Mason , 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, at ¶ 21, citing R.C. 2929.03(C)(2). Nevertheless, Goff contends that a jury should have been empaneled for his resentencing hearing to perform the weighing required under R.C. 2929.03(D)(2). He asserts that for Sixth Amendment purposes, the weighing of aggravating circumstances and mitigating factors is itself a factual finding necessary to impose a death sentence.

{¶ 36} Again, Goff's argument fails. The weighing that occurs in the sentencing phase " 'is not a fact-finding process subject to the Sixth Amendment.' " (Emphasis added in Belton .) Mason at ¶ 29, quoting State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 60. "The Sixth Amendment was satisfied once the jury found [Goff] guilty of aggravated murder and a felony-murder capital specification." Mason at ¶ 29.

{¶ 37} Goff also contends that he was entitled to a jury at resentencing because the trial court imposed his 2015 death sentence not only "based upon a jury recommendation made twenty-two years ago but also recent independent factfinding by the trial court." He characterizes these "critical findings" as ones "necessary to impose the death penalty."

{¶ 38} In its sentencing opinion, the trial court noted:

The Court has reviewed and considered all of the trial transcripts of this matter, as well as all of the mitigating factors presented at the original trial, in addition to those that were presented or re-presented with regard to the resentencing hearing. The Court has further searched the entire record for any further evidence as to mitigation. Although parts of this opinion are similar to the Court's original opinion herein, it has considered anew, the evidence, testimony, arguments of counsel as well as the Defendant's allocution.

The court "also reviewed the proffered evidence (report of Dr. Eshbaugh, Ph.D.) by the Defendant." After considering all these materials, the court "found additional mitigating evidence as of the date of this hearing."

{¶ 39} As explained above, the weighing process is not fact-finding subject to the Sixth Amendment. Moreover, to the extent that the trial court improperly considered Dr. Eshbaugh's report as new mitigation evidence in its sentencing determination, Goff fails to explain how the court's consideration of the report as new mitigation evidence prejudiced him. See Washington v. Recuenco , 548 U.S. 212, 215, 221, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ( Apprendi claims are subject to harmless-error analysis).

{¶ 40} We reject proposition of law No. 1.

C. Ineffective assistance of counsel

{¶ 41} Goff asserts as his third proposition of law that trial counsel were ineffective at the resentencing hearing for inadequately preparing Goff for his allocution and failing to proffer mitigating information from Goff's institutional file.

{¶ 42} To prevail on a claim of ineffective assistance of counsel, Goff must (1) show that counsel's performance "fell below an objective standard of reasonableness," as determined by "prevailing professional norms," and (2) demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When performing a Strickland analysis, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id . at 689, 104 S.Ct. 2052.

1. Inadequate preparation for allocution

{¶ 43} Goff acknowledges that he made a statement when the trial court, in accord with Crim.R. 32(A)(1), invited him to allocute at his resentencing hearing. He argues, however, that the "brief, detached" nature of his statement proves that trial counsel did not adequately prepare him for allocution. Goff contends that counsel should have helped him make "a coherent, compelling presentation," guided him by asking questions, encouraged him to apologize to the victim's family, and explained to Goff "the importance of his statements to the court."

{¶ 44} Goff has failed to satisfy Strickland. First, there is nothing in the record detailing what steps counsel did or did not take to prepare Goff for allocution. To prove that counsel's performance was deficient, Goff would need to rely on evidence outside the record, which is " 'not appropriately considered on a direct appeal,' " State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 102, quoting State v. Madrigal , 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000).

{¶ 45} Second, even if counsel had performed deficiently in preparing Goff for his allocution, Goff has not demonstrated "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland , 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. While asserting that "allocution is a significant opportunity for the defendant and can impact the outcome of the proceedings," Goff fails to make the crucial argument that his sentence would have been different had counsel better prepared him to allocute.

2. Failure to proffer evidence from Goff's institutional file

{¶ 46} Goff argues that his trial counsel were also ineffective for failing to "attempt to proffer testimony of prison staff or information from prison records" at the resentencing hearing and that he was prejudiced by that failure.

{¶ 47} As discussed above, the trial court correctly denied Goff's request to present new mitigation evidence, including evidence of his positive adjustment to incarceration in the 20 years since his initial sentence; he did not have a right to present new mitigation evidence at his resentencing. See Jackson , 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, at ¶ 73. Therefore, Goff was not prejudiced by trial counsel's failure to proffer the testimony as new mitigation evidence. See State v. Clowers , 134 Ohio App.3d 450, 457, 731 N.E.2d 270 (1st Dist.1999) (rejecting claim of ineffective assistance based on counsel's failure to proffer evidence when, even if counsel had preserved the objection, the evidence would have been inadmissible).

{¶ 48} We reject proposition of law No. 3.

D. Denial of opportunity to deny or explain evidence

{¶ 49} In his fourth proposition of law, Goff asserts that his constitutional rights were violated because he was sentenced to death based, in part, on information that he had no opportunity to deny or explain. Specifically, he claims that he was denied the opportunity to introduce evidence of his behavior while incarcerated to rebut the prosecutor's "argument that he was too dangerous for a life in prison."

{¶ 50} A defendant is denied due process of law when the death sentence is "imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Gardner v. Florida , 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion). Goff, however, has not been denied this opportunity. After defense counsel argued in favor of a life sentence for Goff, the prosecutor stated, "[Goff] comes in here today, after he's spent all this time in jail, and to be blunt about it, if the death penalty really worked, he should have been put to death already!-And he asks for a chance to live?"

{¶ 51} Contrary to Goff's assertion, the prosecutor's statement did not portray Goff's behavior while incarcerated or his adjustment to death row as support for imposing the death penalty. Instead, the statement was an observation regarding the significant period of time that Goff had been incarcerated without being executed.

{¶ 52} We reject proposition of law No. 4.

E. Independent sentence evaluation

{¶ 53} Having considered Goff's propositions of law, we must now independently review his death sentence for appropriateness and proportionality, as R.C. 2929.05(A) requires. This review requires weighing all the facts and other evidence to determine whether the aggravating circumstance outweighs the mitigating factors and whether Goff's sentence of death is appropriate. We previously completed much of the independent sentence evaluation when we affirmed Goff's original death sentence on direct appeal. See Goff I , 82 Ohio St.3d at 141-143, 694 N.E.2d 916.

1. Aggravating circumstance

{¶ 54} The evidence at trial established beyond a reasonable doubt that Goff committed the aggravated murder of Rutledge in the course of an aggravated burglary. See R.C. 2929.04(A)(7). The evidence also established beyond a reasonable doubt that Goff was the principal offender in the aggravated murder. See id.

2. Mitigation evidence

{¶ 55} We must weigh the above aggravating circumstance against the mitigating factors contained in R.C. 2929.04(B). We must consider the mitigation evidence from Goff's trial in 1995 and any mitigating information presented during Goff's allocution at his resentencing hearing.

{¶ 56} In Goff I , this court found nothing in mitigation with respect to the nature and circumstances of the murder. 82 Ohio St.3d at 141, 694 N.E.2d 916. Instead, our primary focus was on Goff's "history, character, and background." Id. ; R.C. 2929.04(B). Goff was significantly affected by his father's death when Goff was only four years old. Goff was left to be raised by a mother who "was a failure at motherhood, providing very little supervision." Goff I at 142, 694 N.E.2d 916. Goff's mother did not "provide even the basic needs of food, clothes and school," and Goff began shoplifting when he was six years old. Id. at 143, 694 N.E.2d 916. The family subsisted on welfare benefits and often lived in condemned housing, frequently lacking even toilet facilities. He skipped school often and never graduated from high school. Goff was eventually removed from his mother's custody and placed in foster care. We concluded that Goff's "history, character, and background [were] entitled to some mitigating weight." Id.

{¶ 57} The court identified three additional mitigating factors in Goff I : Goff's age of 19 at the time of the crime; his voluntary abuse of alcohol, marijuana, speed, inhalants, and crack cocaine; and the testimony of Dr. Smalldon, the defense psychologist, that Goff likely would adjust well to life in prison. See R.C. 2929.04(B)(4) and (7). The court afforded little weight to any of these additional mitigating factors.

{¶ 58} We now, however, afford some weight to Goff's adjustment to prison life. In his allocution, Goff stressed that he had not "shown any violence" since he was imprisoned. Goff's statement supports Dr. Smalldon's testimony at the initial trial that he would likely adjust well to life in prison.

{¶ 59} Goff also implied during his allocution that he did not accept a plea deal because he did not know what the deal entailed. While it is unclear how this information is mitigating, a reasonable interpretation is that Goff may have been willing to accept responsibility for the murder if he had understood the plea deal. We assign this evidence no weight.

{¶ 60} Finally, Goff referred to his troubled childhood. His statement, however, failed to provide information that was not presented at the 1995 sentencing hearing. Therefore, we maintain the view that Goff's "history, character, and background" is "entitled to some mitigating weight." Id. , 82 Ohio St.3d at 143, 694 N.E.2d 916.

{¶ 61} Upon independent weighing, we again find that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. See id. Goff identified Rutledge, an 88-year-old woman, as a potential burglary victim while delivering furniture to her. He returned to Rutledge's home and murdered her in the course of the burglary. In contrast, Goff's mitigation evidence has little significance.

{¶ 62} Finally, we hold that Goff's death sentence is proportionate to death sentences that we have affirmed in similar cases. See State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31 ; State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547 ; State v. Thomas , 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017.

{¶ 63} Accordingly, we affirm Goff's sentence of death.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    WELLS FARGO BANK, N.A., Appellant, v. BURD, Appellee, et al.
    No. 2017-0279
    Supreme Court of Ohio.
    Submitted April 24, 2018 Decided September 27, 2018
    Thompson Hine, L.L.P., Scott A. King, and Terry W. Posey Jr., Dayton, for appellant.
    Legal Aid Society of Columbus and Scott E. Torguson; Southeastern Ohio Legal Services and Peggy P. Lee; and Manner Law Firm, L.L.C., and Mathias D. Manner, Columbus, for appellee, A. Christopher M. Burd.
    Steven Sharpe, Noel Morgan, Columbus, Alpha Taylor, and John Schrider, urging affirmance for amicus curiae Legal Aid Society of Southwest Ohio, L.L.C.
    Katherine B. Hollingsworth and Thomas Mlakar, urging affirmance for amicus curiae Legal Aid Society of Cleveland.
    Stanley A. Hirtle, Dayton, urging affirmance for amicus curiae Advocates for Basic Legal Equality, Inc.
    John M. Petit and Gregory R. Sain, urging affirmance for amicus curiae Community Legal Aid Services, Inc.
    Rosemary E. Scollard, urging affirmance for amicus curiae Pro Seniors, Inc.
    {¶ 1} This cause is dismissed as having been improvidently accepted.
    O'Connor, C.J., and French, Fischer, DeWine, and Miller, JJ., concur.
   Kennedy, J., dissents, with an opinion joined by Piper, J.

Robin N. Piper, J., of the Twelfth District Court of Appeals, sitting for O'Donnell, J.

Charles M. Miller, J., of the First District Court of Appeals, sitting for DeGenaro, J.

{¶ 2} I respectfully disagree with the decision to dismiss this appeal as having been improvidently accepted. I believe that one of the propositions of law submitted by appellant, Wells Fargo Bank, N.A., presents a matter of public or great general interest. Therefore, I would address the merits of the appeal.

Background

{¶ 3} In September 2006, appellee, Christopher Burd, obtained a loan from Centennial Home Mortgage, L.L.C., and signed a note promising to repay the loan. The note was secured by a mortgage in favor of Centennial on property located in Blacklick, Ohio. The mortgage provided that the underlying loan was insured by the Federal Housing Administration ("FHA"). Subsequently, Centennial indorsed the note to Wells Fargo and assigned the mortgage to Wells Fargo.

{¶ 4} In April 2009, Wells Fargo filed a complaint seeking judgment on the note and foreclosure of the mortgage. Thereafter, Wells Fargo and Burd entered into a loan-modification agreement, and Wells Fargo voluntarily dismissed the complaint with prejudice.

{¶ 5} A second complaint was filed by Wells Fargo in February 2012 seeking judgment on the note and foreclosure of the mortgage. The date of default alleged in the complaint was October 1, 2011.

{¶ 6} The parties participated in court-sponsored mediation in August 2012 but were unsuccessful in resolving the dispute. Thereafter, the trial court granted summary judgment in favor of Burd, holding that Wells Fargo had failed to satisfy the requirements of 24 C.F.R. 203.604.

{¶ 7} In August 2014, Wells Fargo filed its third complaint seeking judgment on the note and foreclosure on the mortgage. Wells Fargo asserted that the date of default was October 1, 2011, the same date of default alleged in the second foreclosure complaint. The trial court again granted summary judgment in favor of Burd, holding that Wells Fargo had failed to comply with the face-to-face-meeting requirement set forth in 24 C.F.R. 203.604, which it concluded was a condition precedent to foreclosure of an FHA-insured mortgage loan.

{¶ 8} Wells Fargo appealed to the Tenth District Court of Appeals, arguing that the trial court erred in granting summary judgment in Burd's favor. Specifically, it argued that the August 2012 court-sponsored mediation fulfilled the face-to-face meeting requirement of 24 C.F.R. 203.604.

{¶ 9} The Tenth District assumed for the sake of analysis that the court-sponsored mediation constituted a face-to-face meeting for purposes of 24 C.F.R. 203.604. 2016-Ohio-7706, 2016 WL 6680386, ¶ 14. Nevertheless, the Tenth District rejected Wells Fargo's assertion of compliance with the requirements of 24 C.F.R. 203.604. 2016-Ohio-7706 at ¶ 14. The appellate court reasoned that by asserting that the note was due and owing from October 1, 2011, and the face-to-face meeting between Wells Fargo and Burd occurred on August 1, 2012, "Wells Fargo effectively admits that it did not have a face-to-face meeting with Burd 'before three full monthly installments due on the mortgage [were] unpaid' as required by 24 C.F.R. 203.604(b)." ( Brackets sic.) 2016-Ohio-7706 at ¶ 12. The Tenth District further held that the fact that court-sponsored mediation occurred before the third foreclosure proceeding had been initiated did not alter the result:

It is true that this appeal arises from a new foreclosure complaint filed after the unsuccessful mediation session occurred, but that new complaint was based on the same alleged default as the second complaint. Thus, Burd had no opportunity to avoid foreclosure arising from that alleged default.

Id. at ¶ 14.

{¶ 10} We accepted the following issues for review:

In interpreting an administrative regulation, a court should adopt an interpretation that is consistent with the overall regulatory scheme in which the individual regulation is included.
A mortgagee's failure to comply with the timelines provided in 24 C.F.R. § 203.604 does not bar an action to foreclose a mortgage insured by the Federal Housing Association as long as the mortgagee holds or makes a reasonable effort to hold a face-to-face meeting prior to initiating foreclosure.

See 150 Ohio St.3d 1451, 2017-Ohio-8136, 83 N.E.3d 938.

Issue of Public or Great General Interest

{¶ 11} The FHA, which is a part of the Department of Housing and Urban Development's Office of Housing, https://www.hud.gov/program_offices/housing/fhahistory (accessed Aug. 15, 2018), provides mortgage-loan insurance on loans made by FHA-approved lenders. The insurance protects lenders against losses that may result from homeowners defaulting on their mortgage loans.

{¶ 12} When a mortgage loan is insured by the FHA, the mortgagee is required to satisfy certain obligations before it can file a foreclosure action. See U.S. Bank, N.A. v. McMullin , 55 Misc.3d 1053, 1058, 47 N.Y.S.3d 882 (2017). "It is the intent of the Department [of Housing and Urban Development] that no mortgagee shall commence foreclosure * * * until the requirements of this subpart have been followed." 24 C.F.R. 203.500. 24 C.F.R. 203.606(a) goes on to provide:

Before initiating foreclosure, the mortgagee must ensure that all servicing requirements of this subpart have been met. The mortgagee may not commence foreclosure for a monetary default unless at least three full monthly installments due under the mortgage are unpaid * * *.

And 24 C.F.R. 203.604(b) obligates the mortgagee to "have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid."

{¶ 13} A number of Ohio appellate courts have considered the effect of a mortgagee's failure to have a timely face-to-face interview with the mortgagor or make a reasonable effort to arrange such a meeting. There is a division in the courts as to whether 24 C.F.R. 203.604 creates a condition precedent or provides an affirmative defense. The Third, Fifth, Seventh, Eighth, and Ninth Districts have held that it is a condition precedent. Huntington Natl. Bank v. Filippi , 3d Dist. Union No. 14-15-03, 2015-Ohio-3096, 2015 WL 4611381, ¶ 16 ; U.S. Bank, N.A. v. Detweiler , 191 Ohio App.3d 464, 2010-Ohio-6408, 946 N.E.2d 777, ¶ 53 (5th Dist.) ; PNC Mtge. v. Garland , 7th Dist. Mahoning No. 12 MA 222, 2014-Ohio-1173, 2014 WL 1325908, ¶ 27, 31 ; Bank of Am., N.A. v. Michko , 8th Dist. Cuyahoga No. 101513, 2015-Ohio-3137, 2015 WL 4660060, ¶ 18 ; Wells Fargo Bank, N.A. v. Awadallah , 2015-Ohio-3753, 41 N.E.3d 481, ¶ 21, (9th Dist.). Only the Second District has held that it is an affirmative defense. Wells Fargo Bank, N.A. v. Goebel , 2014-Ohio-472, 6 N.E.3d 1220, ¶ 20 (2d Dist.).

{¶ 14} The inconsistency on this issue creates uncertainty for trial courts and litigants and compels us to exercise our constitutional duty. See Article IV, Section 2(B)(2)(e) of the Ohio Constitution. Indeed, "our role as a court of last resort is not to serve as an additional court of appeals on review, but rather to clarify rules of law arising in courts of appeals that are matters of public or great general interest." State v. Bartrum, 121 Ohio St.3d 148, 2009-Ohio-355, 902 N.E.2d 961, ¶ 31 (O'Donnell, J., dissenting). The determination whether the face-to-face-meeting requirement set forth in 24 C.F.R. 203.604 is a condition precedent or an affirmative defense will affect the decision as to what actions a mortgagee must take, and when, in order to satisfy 24 C.F.R. 203.604's face-to-face-meeting requirement. Deciding these issues will have a widespread effect by providing guidance to litigants, counsel, and courts, and therefore, the issues personify the concept of "public or great general interest." By dismissing this appeal, the majority is permitting the inconsistent outcomes in the appellate courts to continue and is denying the citizens of Ohio a uniform application of the law.

{¶ 15} The court has missed an opportunity today. The fact that the court accepted this case shows that it believed that this area of the law needed clarity, but by dismissing the case, the court permits 24 C.F.R. 203.604 to evade clarification. The issues were thoroughly briefed and well argued before the court; nonetheless, the legal and business communities and the public that are affected by Ohio foreclosure law and practice will have to continue to wait in silence.

{¶ 16} Therefore, I must dissent from the judgment dismissing the appeal as having been improvidently accepted.

Piper, J., concurs in the foregoing opinion.


text:
    TOLEDO BAR ASSOCIATION v. REHKOPF.
    No. 2018-0539
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided September 27, 2018
    Joseph P. Dawson, Perrysburg, Bar Counsel; Bugbee & Conkle, L.L.P., and Janell M. Matuszak ; and Goranson, Parker & Bella Co., L.P.A., and Christopher F. Parker, Toledo, for relator.
    Gallagher Sharp, L.L.P., Monica Sansalone, and Kevin Marchaza, Cleveland, for respondent.
   Per Curiam.

{¶ 1} Respondent, Brandon Rehkopf, of Toledo, Ohio, Attorney Registration No. 0089374, was admitted to the practice of law in Ohio in 2012. In October 2017, relator, Toledo Bar Association, charged him with violating multiple professional-conduct rules for representing two clients with conflicting interests. The Board of Professional Conduct considered the case on the parties' consent-to-discipline agreement. See Gov.Bar R. V(16).

{¶ 2} In the agreement, Rehkopf admitted that in August 2014, he agreed to represent Althea Hemmert and her ex-husband, Anthony Collins, in a tax-foreclosure lawsuit. Rehkopf later discovered, however, that another attorney had already entered an appearance on Hemmert's behalf. Rehkopf therefore advised Hemmert that he could represent only Collins and not her. Nevertheless, over the next two years, Rehkopf met with Hemmert and Collins on several occasions, counseled them regarding the tax-foreclosure case, and regularly communicated with Hemmert by phone and e-mail.

{¶ 3} At one point, Hemmert and Collins met with Rehkopf, and Collins directed Rehkopf to prepare a deed transferring the foreclosed property from Collins to Hemmert. Both Collins and Hemmert signed an agreement waiving any conflict of interest resulting from Rehkopf's joint representation of them for purposes of the property transfer. Rehkopf thereafter prepared a deed and a transfer agreement. However, he made no attempt to determine whether Hemmert was still represented by other counsel or to obtain consent from that attorney before drafting the documents. Nor did he attempt to discern whether Hemmert wished to speak to another attorney before entering into the transaction. {¶ 4} Later in the foreclosure proceeding, Collins directed Rehkopf to settle all claims against him. On behalf of Collins only, Rehkopf agreed to a consent entry, which eventually resulted in the court concluding that the deed transferring the property to Hemmert was void. Rehkopf neither consulted with nor advised Hemmert about the consent entry.

{¶ 5} Based on this conduct, the parties stipulated that Rehkopf engaged in improper dual representation of Collins and Hemmert-or, at the very least, that he created the appearance of dual representation-and therefore violated Prof.Cond.R. 1.7(a) (providing that a lawyer's representation of a client creates a conflict of interest if the representation will be directly adverse to another current client or if there is a substantial risk that the lawyer's ability to represent the client will be materially limited by the lawyer's responsibilities to another client), 1.7(b) (prohibiting a lawyer from accepting or continuing the representation of a client if the representation would create a conflict of interest, unless the lawyer would be able to provide competent, diligent representation to each affected client, each affected client gives informed consent in writing, and the representation is not prohibited by law or would not involve the assertion of a claim by one client against another in the same proceeding), and 1.7(c)(2) (prohibiting a lawyer from continuing a representation if a conflict of interest is created, even with client consent, if the representation would involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding). The parties also stipulated that by giving Hemmert advice in the foreclosure proceeding, Rehkopf violated Prof.Cond.R. 4.2 (prohibiting a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order).

{¶ 6} The parties agreed that no aggravating factors are present and that in mitigation, Rehkopf has no prior disciplinary record, he lacked a dishonest or selfish motive, he made timely restitution by refunding Hemmert's $500 retainer, he cooperated in the disciplinary proceedings, and he submitted evidence of his good character and reputation. See Gov.Bar R. V(13)(C)(1) through (5). As a sanction, the parties jointly recommended a public reprimand.

{¶ 7} The board found that the consent-to-discipline agreement conforms to the requirements of Gov.Bar R. V(16) and recommends that we adopt the agreement in its entirety. To support the recommended sanction, the board cited a number of cases imposing public reprimands for similar violations of Prof.Cond.R. 1.7 or 4.2-or the corresponding disciplinary rule under the former Code of Professional Responsibility-and with comparable mitigating factors. See, e.g. , Mahoning Cty. Bar Assn. v. Reid , 102 Ohio St.3d 402, 2004-Ohio-3121, 811 N.E.2d 542 ;

ClevelandMetro. Bar Assn. v. Leiken , 143 Ohio St.3d 21, 2014-Ohio-5220, 34 N.E.3d 73 ; Ohio State Bar Assn. v. Wick , 116 Ohio St.3d 193, 2007-Ohio-6042, 877 N.E.2d 660 ; Disciplinary Counsel v. Sartini & Tarighati , 114 Ohio St.3d 205, 2007-Ohio-3601, 871 N.E.2d 543 ; Toledo Bar Assn. v. Mansour-Ismail , 86 Ohio St.3d 27, 711 N.E.2d 223 (1999).

{¶ 8} Upon our review of the record, we agree that Rehkopf engaged in the stipulated misconduct. "Lawyers must avoid all actual and potential conflicts of interest so as not to dilute their independent loyalty to each client." Disciplinary Counsel v. Jacobs , 109 Ohio St.3d 252, 2006-Ohio-2292, 846 N.E.2d 1260, ¶ 8. We also agree that consistent with our precedent, the circumstances here warrant a public reprimand. We therefore adopt the parties' consent-to-discipline agreement.

{¶ 9} Brandon Rehkopf is hereby publicly reprimanded for violating Prof.Cond.R. 1.7(a), 1.7(b), 1.7(c), and 4.2. Costs are taxed to Rehkopf.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.