author: CALLAHAN, Judge.

text:
    STATE of Ohio, Appellee v. Kevin ECKER, Appellant
    No. 28431
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: March 14, 2018
    STEPHEN P. HARDWICK, Assistant Public Defender, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Defendant-Appellant, Kevin Ecker, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

I.

{¶ 2} J.C.H. was a young woman who struggled with addiction and lived at home with her family and three-year-old son. On the afternoon of March 22, 2015, her family found her body on the floor of her bedroom. There were drugs and related paraphernalia near her body, and it was later determined that she died as a result of a fentanyl overdose. Following a brief investigation, the police identified Mr. Ecker as the individual whom they believed had provided her with the lethal dose of fentanyl.

{¶ 3} The police secured a warrant to search Mr. Ecker's residence and executed the warrant two days after J.C.H. died. During the search, they uncovered fentanyl, alprazolam, suboxone, marijuana, needles, digital scales, and drug packaging materials. The police then arrested Mr. Ecker and searched him, whereupon they also found two small bindles of fentanyl in his pocket.

{¶ 4} The foregoing events led to a grand jury indicting Mr. Ecker in Criminal Case No. 2015-03-0964. In that case, he was charged with aggravated trafficking in fentanyl, trafficking in marijuana, possessing marijuana, possessing alprazolam, possessing suboxone, illegally using or possessing drug paraphernalia, possessing drug abuse instruments, and multiple forfeiture specifications. Additional charges were then added by way of supplemental indictment. The supplemental indictment charged him with involuntary manslaughter as a result of providing J.C.H. with fentanyl, corrupting her with drugs, aggravated trafficking in fentanyl, and trafficking in marijuana.

{¶ 5} Mr. Ecker remained in jail for some time, but ultimately posted bond. In February 2016, the police went to his new apartment because they received a call that gunshots had been fired at or near that location. While walking through the apartment, officers observed several items that led them to conduct a search. The search uncovered fentanyl, methamphetamine, cocaine, drug packaging materials, a digital scale, and other items. As a result of the search, a grand jury indicted Mr. Ecker in Criminal Case No. 2016-02-0635(A) and charged him with aggravated trafficking in methamphetamine and fentanyl, aggravated possession of methamphetamine and fentanyl, possession of cocaine, possession of drug paraphernalia, and multiple forfeiture specifications.

{¶ 6} Following Mr. Ecker's 2016 indictment, the State moved to consolidate his two cases for trial. Mr. Ecker opposed the motion, and the trial court held a hearing. Over Mr. Ecker's objections, the court granted the State's motion and ordered the cases consolidated for trial.

{¶ 7} Before trial, the State dismissed several counts, and the court permitted Mr. Ecker to plead no contest to the charges of possessing alprazolam and suboxone. His remaining counts were submitted to the jury, save for his minor misdemeanor count for possessing marijuana. The jury found him guilty on all counts, and the court found him guilty of the minor misdemeanor. The court sentenced him to a total of 21 years in prison.

{¶ 8} Mr. Ecker now appeals from the court's judgment and raises four assignments of error for review.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT DENIED KEVIN ECKER A FAIR TRIAL AND DUE PROCESS OF LAW WHEN IT ALLOWED A JOINT TRIAL OF TWO DISTINCT EVENTS.

{¶ 9} In his first assignment of error, Mr. Ecker argues that the trial court abused its discretion when it joined his 2015 and 2016 indictments for trial. He argues that the evidence in each case was not simple and direct and, had each case been tried separately, the evidence from each case would have been inadmissible in the other case. This Court does not agree that the trial court abused its discretion when it joined Mr. Ecker's indictments for trial.

{¶ 10} "It is well-settled that the law favors joinder." State v. Merriweather , 9th Dist. Lorain No. 97CA006693, 1998 WL 239773, *3 (May 13, 1998). "This is because joint trials 'conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.' " State v. Gordon , 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18, quoting Bruton v. United States , 391 U.S. 123, 134, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A trial court "may order two or more indictments * * * to be tried together, if the offenses * * * could have been joined in a single indictment * * *." Crim.R. 13. "If similar offenses are properly joined * * *, a defendant can still move to sever the charges pursuant to Crim.R. 14 if their consolidation will prejudice his or her rights." State v. Schaim , 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992).

{¶ 11} "[A] Crim.R. 14 analysis examines any prejudice resulting from [ ] joinder in light of the evidence introduced at trial." State v. Greathouse , 2017-Ohio-6870, 94 N.E.3d 1083, ¶ 19. A defendant claiming prejudice

must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against [his] right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.

Schaim at 59, 600 N.E.2d 661. Meanwhile, a defendant's "claim of prejudice may be rebutted by the prosecution in one of two manners." State v. Shipley , 9th Dist. Lorain No. 03CA008275, 2004-Ohio-434, 2004 WL 199829, ¶ 75. Accord Schaim at 59, 600 N.E.2d 661. First, the State "can overcome a defendant's claim [of prejudice] * * * by showing that it could have introduced evidence of the joined offenses as 'other acts' evidence under [Evid.R.] 404(B)." State v. Kolvek , 9th Dist. Summit Nos. 28141, 28142, 28143, 28144, 28145, 2017-Ohio-9137, 2017 WL 6542894, ¶ 18. Alternatively, it can show that "the evidence of each crime [is] simple and direct, such that 'the jury is believed capable of segregating the proof on each charge.' " Id. , quoting State v. Roberts , 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980). "[W]hen simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence * * * under Evid.R. 404(B)." State v. Lott , 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).

{¶ 12} Initially, this Court addresses the State's contention that Mr. Ecker has forfeited his joinder argument. This Court has held on multiple occasions that, to preserve a claim of error under Crim.R. 14, a defendant "must renew his * * * motion to sever either at the close of the State's case or at the conclusion of all the evidence." State v. Taylor , 9th Dist. Lorain Nos. 10CA009922, 10CA009915, 2012-Ohio-1263, 2012 WL 1020239, ¶ 17. According to the State, Mr. Ecker failed to renew his motion to sever at either time, so he is limited to a claim of plain error.

{¶ 13} The record reflects that Mr. Ecker repeatedly objected to the joinder of his indictments for trial. Specifically, he opposed the State's initial motion to consolidate, argued against joinder at the hearing on the motion, renewed his objection at the start of trial, renewed his objection during the testimony of the State's seventeenth witness, and renewed his objection during the testimony of the State's penultimate witness. Additionally, at the end of the trial, he renewed "all [his] prior objections and all [his] prior motions." While the better practice may have been for him to articulate a specific joinder objection at the conclusion of trial rather than make a general renewal of all of his prior motions, this Court cannot conclude that his failure to do so resulted in forfeiture. Mr. Ecker made a point of renewing all of his objections and motions and, importantly, at that time he had already articulated his prejudice argument on multiple occasions during the course of the trial. Under these particular facts and circumstances, this Court must conclude that he preserved his objection to joinder.

{¶ 14} Mr. Ecker argues that he was prejudiced by the joinder of his indictments for trial because it allowed the State to use the evidence against him in separate cases "as an aggregate indication as to the validity of each claim." He avers that, had his cases been tried separately, the State would not have been permitted to introduce other acts evidence from one case in the other. Further, he avers that the joinder prejudiced him because the evidence in each case was not simple and direct. He notes that the 2015 case involved complicated DNA testimony and the 2016 case posed certain obstacles for the parties, such as how to keep from the jury the fact that he was on parole at the time of his arrest. According to Mr. Ecker, he was held accountable for the drugs the police found in the 2016 case because the jury was aware that, at the time of his arrest, he had already been charged with a homicide and multiple drug offenses.

{¶ 15} With respect to Mr. Ecker's 2015 case, the State presented evidence that he had been associating with the victim, J.C.H., for several months before her death. The two exchanged text messages wherein they repeatedly arranged to meet so that J.C.H. could purchase either marijuana or heroin from him. There was evidence that they were together directly before J.C.H. overdosed and that Mr. Ecker's DNA profile could not be excluded as the source of the major profile analysts found on one of the baggies in her possession when she died.

{¶ 16} J.C.H. died as a result of a fentanyl overdose. The State presented evidence that the police searched Mr. Ecker's residence two days after her death and found fentanyl, alprazolam, suboxone, marijuana, needles, digital scales, and drug packaging materials in his basement and two bindles of fentanyl on his person. Additionally, two former addicts testified against Mr. Ecker. The first addict testified that he spoke with Mr. Ecker after J.C.H.'s death and Mr. Ecker (1) admitted that he had sold J.C.H. narcotics just before she overdosed, and (2) stated that he was trying to secure more of that "real good dope." The second addict was present when the police raided Mr. Ecker's residence and testified that he was there because he had just purchased heroin from Mr. Ecker.

{¶ 17} With respect to the 2016 case, the State presented evidence that the police came to Mr. Ecker's apartment to follow up on a call they had received. There was no mention of his being on parole, but there was testimony that a search ensued because officers spotted contraband while walking through the apartment. Mr. Ecker was present at the time along with his girlfriend and another male. The search resulted in officers finding fentanyl, methamphetamine, cocaine, drug packaging materials, a digital scale, a snort straw, and three cell phones. The narcotics that they found had been wrapped in women's underwear and tucked into a pair of women's boots. Even so, the State produced evidence that, while being held in jail on the 2015 case, Mr. Ecker made several phone calls and spoke with at least one individual about securing a new drug supplier in anticipation of his release. The State also produced evidence that, after his release, Mr. Ecker exchanged numerous text messages with people, making arrangements to sell them various narcotics. In several of the messages, he referenced having his girlfriend make his deliveries for him.

{¶ 18} As noted, prejudice as a result of joinder will not lie if (1) evidence of the joined offenses otherwise would have been admissible in separate trials as other acts evidence, or (2) the evidence of each crime was simple and direct. Kolvek , 2017-Ohio-9137, 2017 WL 6542894, at ¶ 18. Even assuming that the other acts exception does not apply here, the record supports the conclusion that the evidence against Mr. Ecker was simple and direct. See Lott , 51 Ohio St.3d at 163, 555 N.E.2d 293. "Joinder may be prejudicial when the offenses are unrelated and the evidence as to each is very weak * * *, but it is otherwise when the evidence is direct and uncomplicated and can reasonably be separated as to each offense * * *." State v. Brooks , 44 Ohio St.3d 185, 193, 542 N.E.2d 636 (1989), quoting State v. Torres , 66 Ohio St.2d 340, 343-344, 421 N.E.2d 1288 (1981). The evidence against Mr. Ecker was not weak. In each of his respective cases, the State produced compelling, circumstantial evidence tending to show that he possessed and trafficked in large quantities of narcotics and sold a lethal dose of fentanyl to J.C.H. The two cases pertained to different dates and locations, and "the evidence of each crime [was] uncomplicated," such that there was little danger of the jury confusing the evidence on each charge. State v. Hamblin , 37 Ohio St.3d 153, 159, 524 N.E.2d 476 (1988). "The fact that the jury heard cumulative evidence against [Mr. Ecker] does not by itself demonstrate prejudice, as that fact is true in every trial where indictments or defendants are jointly tried." State v. Samuels , 9th Dist. Summit Nos. 25982, 25983, 25984, 2012-Ohio-5401, 2012 WL 5872732, ¶ 13. "While a joint trial may have detracted from the believability of [his] defense, the joinder was permissible so long as the evidence of each case was simple and distinct." Id. at ¶ 14. Because the record supports that conclusion, this Court cannot conclude that the trial court abused its discretion when it joined his indictments for trial. See State v. Bean , 9th Dist. Summit No. 26852, 2014-Ohio-908, 2014 WL 1350772, ¶ 30 ; State v. Boden , 9th Dist. Summit No. 26623, 2013-Ohio-4260, 2013 WL 5437647, ¶ 46-47. Accordingly, Mr. Ecker's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

MR. ECKER'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ALLOWED THE STATE TO PRESENT IRRELEVANT AND OVERLY PREJUDICIAL EVIDENCE ABOUT PRIOR BAD ACTS.

{¶ 19} In his second assignment of error, Mr. Ecker argues that the trial court erred when it allowed the State to present irrelevant and prejudicial testimony. For the following reasons, this Court rejects his argument.

{¶ 20} The decision to admit or exclude evidence lies in the sound discretion of the trial court. State v. Sage , 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). "Absent an issue of law, this Court, therefore, reviews the trial court's decision regarding evidentiary matters under an abuse of discretion standard of review." State v. Aguirre , 9th Dist. Lorain No. 13CA010418, 2015-Ohio-922, 2015 WL 1137854, ¶ 6. An abuse of discretion indicates that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Testimony Regarding Mr. Ecker's Unwillingness to Wear a Wire

{¶ 21} Detective Michael Schmidt interviewed Mr. Ecker at the police station following his arrest in connection with J.C.H.'s death. He testified that Mr. Ecker initially denied having sold heroin or fentanyl to J.C.H. As the interview progressed, however, Mr. Ecker admitted that he had sold her heroin, but claimed that he had not done so for a while. The detective testified that Mr. Ecker was not willing to divulge the name of his drug supplier. He also testified, over objection, that Mr. Ecker said he was unwilling to wear a wire or act as an informant.

{¶ 22} Mr. Ecker argues that the trial court abused its discretion when it permitted Detective Schmidt to testify that he was unwilling to wear a wire. According to Mr. Ecker, that testimony constituted inadmissible, prior bad acts evidence, so the court should have excluded it under Evid.R. 404(B). He further argues that the testimony was inadmissible because it was irrelevant and substantially more prejudicial than probative. See Evid.R. 401 and 403(A).

{¶ 23} To the extent Mr. Ecker argues that Detective Schmidt's testimony was inadmissible under Evid.R. 404(B), this Court rejects his argument. "Not every act implies something about a person's character." State v. Hash , 9th Dist. Medina No. 10CA0008-M, 2011-Ohio-859, 2011 WL 686359, ¶ 74. Evid.R. 404(B) only protects "against the admission of other acts evidence offered for the purpose of 'proving the defendant's propensity to act in conformity with a particular trait of his character .' " (Emphasis added.) State v. Barber , 9th Dist. Summit No. 28507, 2017-Ohio-8010, 2017 WL 4334345, ¶ 26, quoting State v. Myers , 9th Dist. Summit No. 25737, 2012-Ohio-1820, 2012 WL 1419104, ¶ 10. The fact that an individual refuses to wear a wire is not an act that bears upon a particular trait of his character. An individual might refuse to wear a wire for any number of innocuous reasons, and it is not against the law to refuse to do so. Accordingly, Evid.R. 404(B) does not apply in this instance. See Barber at ¶ 28 ; Hash at ¶ 74.

{¶ 24} To the extent Mr. Ecker argues that the detective's testimony was irrelevant and substantially more prejudicial than probative, this Court concludes that any error in the admission of that testimony was harmless. See Crim.R. 52(A) (errors that do "not affect substantial rights shall be disregarded"). The issues at trial were whether Mr. Ecker possessed and trafficked in certain narcotics and whether he caused J.C.H.'s death by providing her with fentanyl. The State produced a wealth of evidence tending to show that he had substantial quantities of narcotics in his possession, that he admitted having sold heroin to J.C.H. before, that he, in fact, had sold her fentanyl directly before her death, and that he routinely sold narcotics to other individuals. At worst, Detective Schmidt's testimony made it appear that Mr. Ecker was unwilling to assist the police in investigating his drug supplier or other individuals involved in the drug trade. That testimony, however, had no bearing on Mr. Ecker's own culpability in the commission of the offenses with which he was charged. Because Mr. Ecker has not shown that the detective's testimony affected the outcome in this matter, this Court rejects his argument concerning the admission of that testimony. See id.

Testimony Regarding the Number of Overdose Deaths in Summit County

{¶ 25} Mr. Ecker also argues that the trial court erred when it allowed the State to interject testimony about the increasing number of overdose deaths in Summit County. His brief, however, contains no analysis on that point other than to note that such testimony had no bearing on his guilt. See App.R. 16(A)(7). Moreover, while he cites three portions of the record in support of his argument, the record reflects that he only objected on two of those occasions. Mr. Ecker did not object on the first occasion, which was the first time the State broached the subject. On that occasion, Detective Tim Harvey testified as to the increasing and specific number of overdose calls he and his partner had investigated over the last year. Later testimony simply mirrored that sentiment; noting that there had been a sizeable increase in the number of local overdose deaths.

{¶ 26} Mr. Ecker has not argued plain error on appeal or explained how he was prejudiced by the admission of later, cumulative testimony, given that he did not object to Detective Harvey's testimony. See id. As this Court has repeatedly held, "[i]f an argument exists that can support [an] assignment of error, it is not this [C]ourt's duty to root it out." Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 WL 224934, *8 (May 6, 1998). Because Mr. Ecker has not analyzed the issue of prejudice, this Court rejects his argument. His second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE PROSECUTORS' MISCONDUCT DENIED MR. ECKER A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16, OF THE OHIO CONSTITUTION.

{¶ 27} In his third assignment of error, Mr. Ecker argues that prosecutorial misconduct deprived him of a fair trial. Specifically, he argues that he was deprived of a fair trial when the prosecutors asked witnesses about the number of overdose deaths in Summit County and referenced that testimony during closing argument. This Court disagrees.

{¶ 28} In deciding whether a prosecutor's conduct rises to the level of prosecutorial misconduct, a court determines if the prosecutor's actions were improper, and, if so, whether the defendant's substantial rights were actually prejudiced. See State v. Smith , 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). "[A] judgment may only be reversed for prosecutorial misconduct when the improper conduct deprives the defendant of a fair trial." State v. Knight , 9th Dist. Lorain No. 03CA008239, 2004-Ohio-1227, 2004 WL 508775, ¶ 6, citing State v. Carter , 72 Ohio St.3d 545, 557, 651 N.E.2d 965 (1995). The defendant must show that, but for the prosecutor's misconduct, the trier of fact would not have convicted him. See State v. Lollis , 9th Dist. Summit No. 24826, 2010-Ohio-4457, 2010 WL 3680964, ¶ 24. "The touchstone of the analysis 'is the fairness of the trial, not the culpability of the prosecutor.' " State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 140, quoting Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Thus, "[t]he prosecutor's conduct must be considered in the context of the entire trial." State v. Pleban , 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, 2011 WL 2571628, ¶ 39.

{¶ 29} Mr. Ecker argues that the prosecutors engaged in misconduct on four separate occasions. The first three occasions occurred during direct examination, when the prosecutors asked three different witnesses about the trend in the number of overdose deaths in Summit County. The fourth occasion occurred during closing argument, when the prosecutors cited the figures that one of those witnesses, Detective Harvey, provided on direct examination. Mr. Ecker argues that the prosecutors' questions and argument were improper and only served to inflame the passions of the jury.

{¶ 30} With regard to the three instances of alleged misconduct that occurred during the prosecutors' direct examinations, this Court notes that those three instances are the same ones that Mr. Ecker cited in support of his second assignment of error. As previously noted, he did not object when the prosecutors asked Detective Harvey about the increasing number of overdose investigations in Summit County. Likewise, the record reflects that he did not object when the prosecutors referenced Detective Harvey's testimony during closing argument. Because Mr. Ecker failed to object to the prosecutors' question and argument on those two occasions, he forfeited all but plain error. See State v. Warrington , 9th Dist. Medina No. 14CA0080-M, 2016-Ohio-244, 2016 WL 363253, ¶ 13 ("[W]hen a defendant fails to object to alleged prosecutorial misconduct, the defendant forfeits all argument except that of plain error."). He has not argued plain error on appeal, however, and this Court declines to construct an argument on his behalf. See, e.g., State v. Dawson , 9th Dist. Summit No. 28311, 2017-Ohio-2833, 2017 WL 2257929, ¶ 36. Thus, this Court will not address the merits of his argument insofar as it pertains to those two alleged instances of misconduct.

{¶ 31} Even assuming that the prosecutors engaged in misconduct when they asked two witnesses about the local trends in overdose deaths, Mr. Ecker has not shown that, but for their misconduct, the jury would not have convicted him. See Lollis , 2010-Ohio-4457, 2010 WL 3680964, at ¶ 24. First, the testimony that the prosecutors elicited on those two occasions was merely cumulative of the testimony they elicited from Detective Harvey. See, e.g., State v. Christian , 9th Dist. Summit No. 27205, 2015-Ohio-1720, 2015 WL 2091763, ¶ 33 (admission of evidence harmless where evidence merely cumulative of other evidence presented at trial). Second, "[w]ithin the context of the entire trial, this Court concludes that [Mr. Ecker's] trial was not unfair because it appears beyond a reasonable doubt that the trier of fact would have convicted [him] even in the absence of the State's improper questioning * * *." Pleban , 2011-Ohio-3254, 2011 WL 2571628, at ¶ 43. As set forth above, the State produced a wealth of evidence tending to show that Mr. Ecker had substantial quantities of narcotics in his possession, that he admitted having sold heroin to J.C.H. before, that he, in fact, had sold her fentanyl directly before her death, and that he routinely sold narcotics to other individuals. He has not shown that testimony about trends in overdose deaths, in general, affected the outcome of his trial. Accordingly, his third assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT VIOLATED MR. ECKER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL THROUGH CUMULATIVE ERROR.

{¶ 32} In his fourth assignment of error, Mr. Ecker argues that cumulative error deprived him of his right to a fair trial. This Court disagrees.

{¶ 33} Cumulative error exists only where the errors during trial actually "deprive[d] a defendant of the constitutional right to a fair trial." State v. DeMarco , 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. " '[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.' " State v. Hill , 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996), quoting United States v. Hasting , 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). To support a claim of cumulative error, there must be multiple instances of harmless error. State v. Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). "Because this Court did not find multiple instances of error, the cumulative error doctrine does not apply." State v. Jamison , 9th Dist. Summit No. 27664, 2016-Ohio-5122, 2016 WL 4037193, ¶ 40. Mr. Ecker's fourth assignment of error is overruled.

III.

{¶ 34} Mr. Ecker's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

TEODOSIO, J.

CONCUR.


source: Caselaw Access Project

author: HORTON, J.

license: Public Domain

text:
    CITY OF COLUMBUS, Plaintiff-Appellee, v. Walter G. REINER, Defendant-Appellant.
    No. 16AP-513
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 15, 2018
    On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, Columbus, for appellee. Argued: Orly Ahroni.
    On brief: Eric E. Willison, Hilliard, for appellant. Argued: Eric E. Willison.
    DECISION
   HORTON, J.

{¶ 1} Defendant-appellant, Walter G. Reiner, appeals from a judgment of the Franklin County Municipal Court, Environmental Division, finding him guilty of violating two provisions of the Columbus Health, Sanitation and Safety Code ("the HSS Code"), i.e, Columbus City Code ("CCC") 709.03(B), Standards Relative to Noxious Weeds, and CCC 707.03(A), Standards Relative to Solid Waste, both misdemeanors of the first degree. For the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} The pertinent facts are as follows. Appellant is the owner or the person having charge of property located at 5030 Westerville Road in Columbus, Ohio ("the property"). On August 27, 2014, Code Enforcement Officer Patrick Wilkens received a complaint that appellant had high grass, weeds, and solid waste on his property. Officer Wilkens inspected the property that same day and observed high grass and noxious weeds throughout most of the property. He also observed solid waste that consisted of a large pile of broken granite countertop pieces deposited on the ground.

{¶ 3} Officer Wilkens issued violation notices to appellant which stated that criminal charges might be filed if he did not correct the violations. The notice instructed appellant to cut all noxious weeds and grass growing in excess of 12 inches on his property, and to remove the solid waste. The notice was served on appellant on August 28, 2014.

{¶ 4} On October 7, 2014, Code Enforcement Officer Kyle Kirker took over the file. Officer Kirker testified that he inspected the property and served a non-compliance warning letter on appellant on December 22, 2014. He testified that, among other noxious weeds growing on the property, there were poison hemlock, poison ivy, burdock, thistles, and jimson weed. Officer Kirker stated that the types of noxious weeds growing on appellant's property were poisonous, invasive weeds that could take over natural ecosystems and move quickly to adjacent properties if left unchecked.

{¶ 5} Officer Kirker also testified that the granite countertop pieces were not stored in a sanitary manner because they were piled up on the ground. By being stored on the ground, they could create a habitat for rodents and vermin such as rats, mice, groundhogs, and snakes. The pile of granite on appellant's property had cracks and crevices into which vermin could enter. Officer Kirker further testified that the large pile of granite countertop pieces was particularly dangerous because it was in close proximity to residential areas.

{¶ 6} Based on appellant's requests for additional time to correct the violations, Officer Kirker granted extensions on February 13 and April 22, 2015. On June 16, 2015, Officer Kirker reinspected the property and found that the violations persisted. On July 2, 2015, over ten months after the initial violation notice, Officer Kirker once again reinspected the property and noted that appellant continued to have high grass and noxious weeds throughout most of his property. He also had not removed the solid waste. Officer Kirker swore out a complaint on July 7, 2015, which was filed with the Franklin County Municipal Court on July 15, 2015.

{¶ 7} The complaint alleged that appellant on or about July 2, 2015 was the owner or person having charge over the property and he allowed the growth of grass and various weeds in excess of 12 inches in height in violation of CCC 709.03, and he stored solid waste, debris, and rubbish in violation of CCC 707.03.

{¶ 8} The case was tried to the court over several days in April 2016. The trial court found that appellee produced testimony of Officers Wilkens and Kirker that detailed the property in question being in violation dating back to August 27, 2014 and continuing through July 2, 2015. Appellee also produced photographic evidence of high grass and weeds throughout appellant's property.

{¶ 9} As to the solid waste, appellant argued that he had a nonconforming use of his property as a plant nursery and landscaping business which permitted him to store the granite countertop pieces on his property. He argued that the granite pieces were not solid waste. The trial court disagreed and found that the granite pieces were solid waste and that they were an attractive nuisance for illegal dumping on appellant's property. (May 5, 2016 Decision and Entry at 3-4.) The court also found that appellant did not prove that he had a nonconforming use, and even if he did, the HSS Code may be enforced against nonconforming uses. (Decision and Entry at 2-3.)

{¶ 10} As such, the trial court found that, based on the testimony and exhibits presented at trial, appellant was guilty of both counts. Appellant was sentenced to a 180 day jail term, with all of it suspended.

In addition, although appellant was not fined, he was required to pay $259 in court costs, along with a probation supervision fee of $360.

II. ASSIGNMENT OF ERROR

{¶ 11} Appellant appeals, assigning the following errors:

I. The Trial Court erred when it convicted the defendant for the growth of certain weeds when there was no evidence, let alone evidence beyond a reasonable doubt, that those weeds existed when the original order from the City of Columbus was served upon the Defendant.
II. The Trial Court erred when it found that the granite pile on the Defendant's property was "solid waste" and/or found that the use was not allowed by zoning ordinance.
III. The Trial Court erred when it ignored the evidence of previous nonconforming uses of the property prior to the present rules and regulations.
IV. The Trial Court err [sic] when it allowed the City of Columbus to engage in selective enforcement of the its [sic] code sections concerning weed growth.

III. PRELIMINARY MATTERS

{¶ 12} We first note that appellant makes allegations in his briefs that fall outside the parameters of his assignments of error. Pursuant to App.R. 12(A)(1)(b), an appellate court must "determine [an] appeal on its merits on the assignments of error set forth in the briefs under App.R. 16." Thus, this court rules on assignments of error only, and will not address mere arguments. Ellinger v. Ho , 10th Dist. No. 08AP-1079, 2010-Ohio-553, 2010 WL 596978, ¶ 70, quoting In re Estate of Taris , 10th Dist. No. 04AP-1264, 2005-Ohio-1516, 2005 WL 736627, ¶ 5. Accordingly, we will address appellant's assignments of error only and disregard his extraneous allegations, which we note are not supported by the record properly before this court. Blevins v. Blevins , 10th Dist. No. 14AP-175, 2014-Ohio-3933, 2014 WL 4460284, ¶ 12. For ease of discussion and for logical reasons, we will address appellant's assignments of error out of order.

IV. ASSIGNMENT OF ERROR ONE-NOXIOUS WEEDS AND GRASS

{¶ 13} In appellant's first assignment of error, he alleges that the trial court erred in convicting appellant for the growth of certain weeds when there was no evidence that those weeds existed when the original order was served on appellant. We are interpreting appellant's use of the words "original order" to refer to the August 27, 2014 notice of violation, which was served on appellant on August 28, 2014.

{¶ 14} Appellant alleges that the notice of violation is a condition precedent to filing a criminal complaint against appellant. He claims that it is common knowledge that weeds die over the winter, in this case, the winter of 2014-15, and that in the spring and summer, new weeds may well grow. Appellant argues that no evidence was introduced to say whether the weeds observed on July 2, 2015, were the same weeds that were observed in August 2014, the subject of the notice of violation. As such, appellant claims that the new weed growth should have been the subject of a new notice of violation as a condition precedent to the filing of the complaint, the basis of this action. Therefore, appellant claims the complaint should be dismissed. We disagree.

{¶ 15} First, we note that appellant was charged with violations of the HSS Code for the condition of his property only on or about July 2, 2015, not August 2014. Appellant was charged with, on or about July 2, 2015, having high grass and weeds on his property, in violation of CCC 709.03(B), which provides in relevant part, "No owner or person having charge shall permit to grow on any property or premises in the city, any * * * thistles, burdock, jimson weed, * * * poison ivy, * * * grass or other noxious weeds, exceeding twelve (12) inches in height."

{¶ 16} Appellant cites to nothing in the record to support his claim that all of the weeds died during the winter of 2014-15. In fact, the noncompliance warning letter of December 22, 2014, and the two extensions granted to appellant would indicate otherwise. More importantly, contrary to appellant's argument, if there are reasonable grounds to believe that there is a violation of the code, a notice of violation is not a condition precedent and is not required to be issued prior to criminal charges being filed. CCC 701.19. Criminal complaints may be filed for violations of the code. CCC 701.07(B)(1); 701.19(G).

{¶ 17} CCC 701.19 provides, in pertinent part:

Whenever, upon inspection the director determines that there are reasonable grounds to believe that there is a violation of this Health, Sanitation and Safety Code resulting in the existence of an actual or potential public nuisance, or whenever there exist conditions that adversely affect the health, safety or welfare of any person, or when notices issued pursuant to this code * * * do not alleviate such a public nuisance or condition, the director may:
* * *
(G) Cause to be filed a criminal complaint in a court of jurisdiction.

{¶ 18} The word "or" in CCC 701.19 signifies that one of following conditions must occur before a criminal complaint may be filed: (1) after an inspection is conducted, there are reasonable grounds to believe that there is a violation of the HSS Code resulting in the existence of an actual or potential public nuisance; or (2) conditions exist that adversely affect the health, safety or welfare of any person; or (3) notices of violation were issued which did not alleviate the public nuisance or condition. Public nuisance means "real property which is not in compliance with any * * * health or sanitation ordinance of the Columbus City Codes or Columbus City Health Code." CCC 703.17. In this case, the first condition was met and a notice of violation was not required prior to criminal charges being filed.

{¶ 19} In addition, CCC 701.11(A) which governs the issuance of a notice of violation, states: "Whenever the director determines, or has reasonable grounds to believe, that there exists a condition that violates * * * this Health, Sanitation and Safety Code, the director may issue a notice setting forth the alleged violations and advising the owner or person having charge that such violations must be corrected." "Usage of the term 'may' is generally construed to render optional, permissive, or discretionary the provision in which it is embodied." State ex rel. Niles v. Bernard , 53 Ohio St.2d 31, 34, 372 N.E.2d 339 (1978). Thus, a notice of violation may be issued but is not required prior to filing criminal charges. Appellant's first assignment of error is overruled.

V. ASSIGNMENT OF ERROR THREE-NONCONFORMING USES

{¶ 20} Appellant's property was annexed to the city of Columbus in 1972. Thereafter, in 1976, appellant's property was rezoned from Residential District to Commercial Planned Development District. Appellant argues in his merit brief that prior to the annexation, and approved by the 1976 rezoning, he had a prior nonconforming use of the property, i.e., horticulture, agriculture, and landscaping. A nonconforming use of land is a use that was lawful before the enactment of a zoning ordinance, but one which, although no longer valid under the current zoning rules, may be lawfully continued. State ex rel. Bailey v. Madison , 10th Dist. No. 12AP-284, 2012-Ohio-4950, 2012 WL 5266320, ¶ 14.

{¶ 21} As a result, he claims that the HSS Code provisions of which he was convicted are inapplicable to the property because of his past nonconforming use. Appellant argues that the granite pile on the property was a legal nonconforming use of the property and it was error to convict him of violating the solid waste provision of the CCC.

{¶ 22} However, in appellant's reply brief he apparently abandons this claim and states "[i]t is certainly true that health codes can be enforced against preexisting nonconforming uses . However, the question is whether the granite was 'solid waste' or not." (Emphasis added.) (Reply brief at 11.)

{¶ 23} In light of appellant's admission above, we will briefly review the trial court's decision. The trial court found that:

Defendant cites to an October 18, 1976 Ordinance (Ordinance 1179-76, Defendant's Exhibit 1) as proof that he had a prior nonconforming use of the property for a plant nursery, quarry, and "primarily horticultural" use. Def. Ex 1 p. 8.
The Court does not find this argument to be well taken. Ordinance 1179-76 was a rezoning ordinance passed by the City of Columbus-it did not give the Defendant permission to use 5030 Westerville Rd. in any certain way. The Court finds that the Defendant failed to "reasonably demonstrate" that his property or any part thereof was for horticultural use pursuant to C.C.C. 709.03 (D). Furthermore, even if the Defendant had established a legal, non-conforming use for his property, the Court agrees with the City's assertion that the Health, Sanitation and Safety Code applies to all properties, regardless of how they are zoned or used.

(Decision and Entry at 2.)

{¶ 24} The burden of proving a nonconforming use is on the landowner. Bailey at ¶ 15. Our review shows that appellant testified that a landscaping business had always taken place on his land and this use was never abandoned. Appellee introduced evidence that appellant voluntarily discontinued these uses. While the evidence was disputed and conflicting, the trial court, as the finder of fact, found that appellant did not meet his burden of establishing a nonconforming use. The weight given to the evidence, as well as the credibility of the witnesses, are issues determined by the finder of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; Mayle v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 09AP-541, 2010-Ohio-2774, 2010 WL 2433119, ¶ 32. Our review shows that the trial court did not abuse its discretion in finding that appellant had not proven a prior nonconforming use.

{¶ 25} In addition, whether appellant enjoys nonconforming use status under the zoning ordinance is not relevant as to whether he violated CCC 707.03(A). CCC 707.03 is not a zoning ordinance and appellant was not cited for violating the zoning code. Regulations protecting the health, safety and welfare of the public, such as the HSS Code, may be enforced against preexisting, nonconforming uses. C.D.S., Inc. v. Gates Mills , 26 Ohio St.3d 166, 169, 497 N.E.2d 295 (1986) ;

N. Ohio Sign Contractors Assn. v. Lakewood , 32 Ohio St.3d 316, 319, 513 N.E.2d 324 (1987). As such, appellant's third assignment of error is overruled.

VI. ASSIGNMENT OF ERROR TWO-SOLID WASTE

{¶ 26} Appellant was charged with improperly storing solid waste on his land, in violation of CCC 707.03(A). According to the complaint, on or about the 2nd day of July 2015, appellant stored solid waste, debris, and rubbish at the property. The solid waste in question involves a large pile of granite which appellant claims to offer for sale to customers for landscaping projects.

{¶ 27} Appellant argues that the granite pile on the property was not solid waste, demolition debris or construction debris as those terms are ambiguously defined in the CCC. In addition, he argued that in defining ambiguous terms, the trial court must keep in mind the common law rule of lenity that has been codified at R.C. 2901.04(A).

{¶ 28} Appellant was convicted of CCC 707.03(A) which provides, in pertinent part:

Every owner or person having charge of a * * * premises shall store and dispose of all garbage, rubbish, debris or solid waste from those parts of the premises that he or she controls in a clean, sanitary, and safe manner. No owner or person having charge of a * * * premises shall store or dispose of garbage, rubbish, debris or solid waste by placing said solid waste in or on any land or premises in the city.

"Premises" means land. CCC 703.17. The definition of "solid waste" in CCC 703.20 applies "in the interpretation and enforcement of [the] Health, Sanitation and Safety Code." CCC 703.01(A). The HSS Code defines "solid waste" as "residual solid or semi-solid material as results from industrial, commercial, agricultural or residential operations, including but not limited to * * * rubbish, * * * construction debris, demolition debris, * * * bottles, * * * and all other nauseous or offensive materials resulting from human habitation or business or manufacturing enterprises." CCC 703.20. See also CCC 701.01.

{¶ 29} The trial court found that:

The material at issue in this case involves pieces of granite countertops that have been broken into pieces of all shapes and sizes. Many of the granite pieces contained adhesive on one side leftover from its prior use as countertops. The pieces were polished and some still contain cut-outs where kitchen sinks would be placed. The large granite piles also contain other pieces of trash and debris, and grass and weeds are starting to grow around parts of the pile. (See "Plaintiff's Exhibit" H, J, K, L, and O).
The Court finds that the piles of granite at issue in this case are rubbish, construction debris, and demolition debris as contemplated under the definition of "solid waste" in C.C.C. 703.20.
Such piles of solid waste has also resulted in the Defendant's property becoming an ongoing attractive nuisance for illegal dumping. Evidence presented at trial showed frequent incidents of junk, trash, and debris being dumped throughout the Defendant's property. The ragged and poorly kept condition of the granite piles being kept by Defendant on his property leads to the impression that 5030 Westerville Rd. is a dumping ground for all.

(Decision and Entry at 3-4.)

{¶ 30} We agree with the trial court. The trial court properly found that the piles of granite at issue were "rubbish" under the definitions of solid waste. (Decision and Entry at 3.) Rubbish is defined as "combustible and noncombustible waste materials including such items as * * * mineral matter." CCC 703.19. The broken granite countertop pieces are rubbish because they are noncombustible waste materials. Officer Kirker testified that the granite countertops contain mineral matter and stone.

{¶ 31} Likewise, the trial court properly found that the piles of granite were construction debris and demolition debris under the definition of solid waste. Debris is defined as "the scattered remains of something or the ruins of something." CCC 703.05. Materials from construction or demolition operations are defined to "include but not be limited to such materials as * * * stone." CCC 703.14.

{¶ 32} In this case, the granite countertop pieces are construction and/or demolition debris because they are the ruins of stone material. Officer Kirker testified that the granite countertop is comprised of mineral matter and stone. Appellant testified that granite is a stone. Officer Kirker testified that the granite countertop pieces with adhesive on the back are construction debris because they were, at one time, used in a construction project or were remnants from a construction project. They are also demolition debris because they are broken and discarded.

{¶ 33} In the criminal context, the rule of lenity provides that statutes defining offenses shall be strictly construed against the city and liberally construed in favor of the accused. R.C. 2901.04(A). The "touchstone" of the rule of lenity is "statutory ambiguity." Columbus v. Mitchell , 10th Dist. No. 16AP-322, 2016-Ohio-7873, 2016 WL 6906120, ¶ 6. If a statute is not ambiguous, the rule of lenity does not apply. Id. Ambiguity exists only if the language of a statute is susceptible of more than one reasonable interpretation. Id. In this case, we find that CCC 703.20 and 707.01, which define solid waste, are not ambiguous.

{¶ 34} As such, we find that there was competent, credible evidence for the trial court to find that the granite pieces were solid waste and, as stated above, were not allowable as a nonconforming use. Whether or not the solid waste can be reused, CCC 707.03(A) requires a person to store solid waste in a clean, sanitary, and safe manner and prohibits solid waste from being stored on land, i.e., the ground. Appellant's second assignment of error is overruled.

VII. ASSIGNMENT OF ERROR FOUR-SELECTIVE ENFORCEMENT

{¶ 35} Appellant alleges that appellee has engaged in unconstitutional selective enforcement. Appellant alleges that, in 1976, he granted appellee an easement through a portion of the property. Appellant claims that appellee is required to maintain the easement. Appellant alleges that the easement, which is now the Alum Creek bicycle trail, has weeds over 12 inches tall. Appellant argues that his prosecution for having high weeds and grass was the result of discriminatory, selective enforcement because the Alum Creek bicycle trail adjacent to his property also had the same violations but the ordinance was not enforced against appellee.

{¶ 36} In addition, appellant testified that on December 19, 2014, Officer Kirker, Paul Freedman from appellee's zoning department, and another individual came to his office and wanted to inspect his property. Appellant claimed that Freedman stated that he was going to "put [appellant] out of business" after appellant advised him that the use of his property was a lawful nonconforming use. (Tr. at 277.) Appellant's employee corroborated his claim. In contrast, Freedman denied telling appellant that he was going to shut down his operation, and Officer Kirker corroborated his testimony. The trial court did not address this factual issue or the selective enforcement argument in the decision and entry.

{¶ 37} Appellee argues that the appellant waived the issue of selective enforcement because he failed to raise it prior to trial. Appellant responds that it was proper to raise the issue at trial because it was tried solely to the trial judge. In light of our finding that appellant's selective enforcement argument lacks merit, we decline to address the issue of waiver.

{¶ 38} The Supreme Court of Ohio articulated a two-part test for establishing a prima facie claim of selective prosecution in State v. Flynt , 63 Ohio St.2d 132, 134, 407 N.E.2d 15 (1980) :

"To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."

Id. , quoting United States v. Berrios , 501 F.2d 1207, 1211 (2d Cir. 1974).

{¶ 39} Appellant relies on the case of Cleveland v. Trzebuckowski , 85 Ohio St.3d 524, 709 N.E.2d 1148 (1999). In Trzebuckowski, a Cleveland police officer issued 5 complaints against the owner of a private for-profit pool hall for allowing a juvenile under the age of 14 not accompanied by either a parent or his legal guardian in his billiard room, a violation of Cleveland Codified Ordinance 688.13. By contrast, minors under the age of 14 and unaccompanied by either parent or his legal guardian were allowed in pool halls owned by the city of Cleveland. Trzebuckowski argues that the ordinance violated his right to equal protection.

{¶ 40} The city of Cleveland did not contest Trzebuckowski's factual assertions and readily conceded and justified its policy by arguing that an adult-oriented facility is likely to have alcohol and other corrupting influences, while the city's pool halls or recreation centers do not. However, in this case, Trzebuckowski testified, and the city does not contest, that his billiard room does not serve alcohol and is otherwise oriented towards teenagers. The court found that "[t]he city therefore has conceded the intentional discrimination, and since it did not present evidence to the contrary, defendant has met his burden of showing that others situated similarly to him have not generally been proceeded against because of the same or similar conduct." Trzebuckowski at 532, 709 N.E.2d 1148.

{¶ 41} We find Trzebuckowski to be inapplicable to the present case. In Trzebuckowski, both the defendant and the city were operating pool halls that were not serving alcohol and were oriented toward teenagers. In the present case, appellee is operating a public bikeway and appellant is a private landowner. Appellant was charged with violating CCC 709.03(B) for permitting grass and noxious weeds exceeding 12 inches in height to grow throughout his property. The violation was brought to the city's attention after a citizen complained to a code enforcement officer that appellant had high weeds, grass, and solid waste on his property. Appellant has produced no evidence to show that he has been "singled out for prosecution." In addition, appellant presented no evidence that the Alum Creek bicycle trail was the subject of a citizen complaint for high weeds and grass, or solid waste, on which the city thereafter failed to respond. As such, we do not find that appellant and appellee are similarly situated. Appellant has not provided any evidence that the prosecutor failed to prosecute other similarly situated individuals for identical conduct. See State v. Moses , 10th Dist. No. 13AP-816, 2014-Ohio-1748, 2014 WL 1673285, ¶ 16.

{¶ 42} Even assuming appellant satisfied the first prong of Flynt, his selective prosecution claim fails because he cannot satisfy the second prong. Appellant cannot meet his heavy burden of showing that his prosecution was invidious or in bad faith, i.e., based on impermissible considerations such as race, religion, or the desire to prevent his exercise of constitutional rights. See Flynt at 134, 407 N.E.2d 15.

{¶ 43} Appellant claims invidious prosecution, but provides no evidence of bad faith motivation. Even if appellant's version of the events is believed and Freedman did threaten to put him out of business, at most it would show that the motivation was based on a disagreement regarding the scope of lawful nonconforming use, and provides no evidence that the prosecution was based on the impermissible considerations of race, religion, or the desire to prevent his exercise of constitutional rights.

{¶ 44} Appellant fails to meet the two-part test for establishing a prima facie claim for selective prosecution. Appellant's fourth assignment of error is overruled.

VIII. DISPOSITION

{¶ 45} Having overruled appellant's four assignments of error, we affirm the judgment of the Franklin County Municipal Court, Environmental Division.

Judgment affirmed.

BROWN, P.J., concurs.

LUPER SCHUSTER, J., concurs in judgment only.


author: BROWN, P.J.

text:
    GAMBLE HARTSHORN, LLC f.k.a. Gamble Hartshorn Johnson, LLC, Plaintiff-Appellee, v. Peter C. LEE, Defendant-Appellant.
    No. 17AP-35
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 15, 2018
    On brief: Gamble Hartshorn LLC, and John L. Chaney, Columbus, for appellee. Argued: John L. Chaney.
    On brief: Baker Fister, LLC, Wilburn L. Baker, and Anna S. Fister, Beavercreek; Gregory N. Finnerty, for appellant. Argued: Wilburn L. Baker.
    DECISION
   BROWN, P.J.

{¶ 1} This is an appeal by defendant-appellant, Peter C. Lee, from a judgment of the Franklin County Court of Common Pleas adopting a magistrate's decision denying appellant's motion for relief from judgment, pursuant to Civ.R. 60(B), following the trial court's grant of summary judgment in favor of plaintiff-appellee, Gamble Hartshorn, LLC.

{¶ 2} On March 17, 2015, appellee filed a complaint against appellant for unpaid legal services, alleging claims for breach of contract, account, unjust enrichment, and quantum meruit. On April 28, 2015, appellant filed a document with the trial court indicating he had "picked up [the] summons sent by the certified mail at post office on 3-27-2015," that he "denied all the allegations against" him, and he was requesting a continuance in order to hire an attorney. (Mag. Decision at 9.)

{¶ 3} On June 18, 2015, appellee filed a motion for summary judgment. By decision and entry filed July 21, 2015, the trial court granted appellee's motion for summary judgment, which was unopposed, and entered judgment in favor of appellee and against appellant in the amount of $62,152.94.

{¶ 4} On July 30, 2015, appellant filed a "motion for continuance of disclosure of witnesses and extension of time to respond to motion for summary judgment and for time to obtain an attorney." On August 5, 2015, attorney Wilburn L. Baker filed a notice of appearance of counsel on behalf of appellant. On August 17, 2015, the trial court denied appellant's motion for continuance, noting it was untimely and the court had already granted summary judgment in favor of appellee.

{¶ 5} On August 26, 2015, appellant filed a Civ.R. 60(B) motion for relief from judgment. On September 23, 2015, appellee filed a memorandum contra appellant's motion for relief from judgment. A magistrate subsequently conducted a three-day hearing on the Civ.R. 60(B) motion. On February 9, 2016, the magistrate issued a decision denying appellant's motion for relief from judgment, finding that the Civ.R. 60(B) motion was untimely, and appellant had established neither excusable neglect nor a meritorious defense.

{¶ 6} On February 23, 2016, appellant filed objections to the magistrate's decision. On May 9, 2016, appellant filed supplemental objections. On May 31, 2016, appellee filed a response to appellant's objections and supplemental objections. On December 14, 2016, the trial court filed a decision and entry adopting the magistrate's decision of February 9, 2016, holding in part the magistrate did not err in finding that appellant's "neglect in failing to file a timely response to [appellee's] motion for summary judgment was not excusable."

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

I. The trial court abused its discretion when it denied Mr. Lee's motion for relief of judgment which was timely and was supported with sufficient evidentiary materials and operative facts showing a meritorious defense and excusable neglect.
II. The trial court abused its discretion when it applied an impossible test in finding that Mr. Lee's neglect was not "excusable neglect" to preclude Mr. Lee's right to relief of judgment.
III. The trial court abused its discretion when it did not find, pursuant to binding authority, that Mr. Lee's neglect was "excusable neglect" as a matter of law.
IV. The trial court abused its discretion when it did not grant Mr. Lee's motion for relief as a matter of law.

{¶ 8} Appellant's four assignments of error, all raising various challenges to the trial court's decision denying his motion for relief from judgment, are interrelated and will be considered together. Under these assignments of error, appellant contends his Civ.R. 60(B) motion was timely and supported by sufficient operative facts showing a meritorious defense and excusable neglect, and the trial court erred in failing to find he demonstrated excusable neglect justifying relief from judgment.

{¶ 9} Civ.R. 60(B) states in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud * * *, misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged * * *; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.

{¶ 10} In order to obtain relief from judgment under Civ.R. 60(B), a movant must demonstrate that: "(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

{¶ 11} The above three requirements of the GTE Automatic test "are independent of one another and in the conjunctive." Technical Servs. Co. v. Trinitech Internatl. , 9th Dist. No. 21648, 2004-Ohio-965, 2004 WL 384352, ¶ 10. Accordingly, "if the movant fails to satisfy any one of these requirements, the trial court must deny the motion." Id. See also Stojkoski v. Main 271 South, LLC, 9th Dist. No. 25407, 2011-Ohio-2117, 2011 WL 1734062, ¶ 5 ("The three-part test set forth in GTE Automatic is a conjunctive one, therefore, the moving party's failure to satisfy any of these three requirements will result in a denial of the motion."). A reviewing court evaluates a trial court's decision to grant or deny a Civ.R. 60(B) motion under an abuse of discretion standard. Technical Servs. at ¶ 11.

{¶ 12} As noted under the facts, the magistrate conducted a three-day hearing on appellant's motion for relief from judgment. Based on the testimony and exhibits submitted, the magistrate rendered a decision which included the following findings of fact. Appellant entered into a written contract for legal services with attorney Douglas Warnock, and the fee agreement stated in part: "It further is understood and agreed that the Attorney shall serve as co-counsel in the case for the Client with Joel H. Mirman, Attorney at Law, and the law firm of Gamble Hartshorn LLC, who will serve as lead counsel for the Client in the case."

{¶ 13} Appellee provided legal services to appellant "from November 14, 2006 through October 5, 2009." (Mag. Decision at 3.) On October 5, 2009, appellant discharged attorney Ray Drexel (of the firm Gamble Hartshorn, LLC).

{¶ 14} On March 17, 2015, appellee filed its complaint against appellant, asserting claims for breach of contract, account, unjust enrichment, and quantum meruit. "[W]ithout leave of Court," appellant e-filed a document and entered an appearance in the action on April 28, 2015. (Mag. Decision at 3.)

{¶ 15} On June 18, 2015, appellee filed its motion for summary judgment, to which appellant "filed no response." (Mag. Decision at 4.) In his affidavit attached to the motion for relief from judgment, appellant stated: "[S]oon after the middle of June, 2015, I received a copy of Gamble Hartshorn, LLC's motion for summary judgment." (Mag. Decision at 4.) Although appellant acknowledged receiving appellee's motion for summary judgment, he did not file a memorandum in opposition to the summary judgment motion "because he was confused." (Mag. Decision at 4.) Appellant further stated in his affidavit that "he 'thought we could discuss this motion for summary judgment at the scheduled August 4, 2015 hearing.' " (Mag. Decision at 4.) The record, however, indicated "there was no hearing scheduled for August 4, 2015," and appellant "acknowledged under oath that he did not attend a court hearing on August 4, 2015." (Mag. Decision at 4.)

{¶ 16} While acknowledging receipt of the complaint in April 2015 and the motion for summary judgment in June 2015, appellant "still delayed in seeking legal counsel, according to the testimony of John Scaccia." (Mag. Decision at 4.) On July 21, 2015, the trial court granted appellee's motion for summary judgment on its claims for breach of contract and account.

{¶ 17} During the hearing before the magistrate, when "asked 'with whom did you speak in an effort to get a lawyer,' [appellant] replied, 'the first one I went to [was] Mr. John Scaccia.' " (Mag. Decision at 5.) Appellant's statement "was corroborated by John Scaccia's testimony, which was that [appellant] contacted him in late July 2015 to represent him in the underlying case." (Mag. Decision at 5.) Scaccia, however, "could not represent [appellant] because his license to practice law in Ohio was suspended." (Mag. Decision at 5.) Scaccia testified that he referred appellant to attorney Wilburn Baker. The magistrate found that, "from April 28, 2015 to late July 2015, [appellant] did not take any action to hire an attorney to represent him in the underlying lawsuit." (Mag. Decision at 5.)

{¶ 18} Approximately one week after the trial court granted summary judgment in favor of appellee and the case was terminated, appellant, pro se, "e-filed a document with this Court on July 30, 2015." (Mag. Decision at 5.) The document, "titled 'motion for continuance of disclosure of witnesses and extension of time to respond to motion for summary judgment and for time to obtain an attorney,' " was signed by appellant and had a "handwritten notation backdating it to '7-22-2015.' " (Mag. Decision at 5.) On August 5, 2015, appellant's counsel entered an appearance. By decision and entry filed August 17, 2015, the trial court denied appellant's July 30, 2015 motion. On August 26, 2015, counsel for appellant filed the Civ.R. 60(B) motion for relief from judgement.

{¶ 19} In considering the testimony and exhibits submitted, the magistrate found that "the overwhelming evidence supports [appellant's] familiarity with litigation, legal documents, and the legal system." (Mag. Decision at 5.) The magistrate noted that "in addition to the underlying lawsuit, [appellee] represented [appellant] in at least two other legal matters." (Mag. Decision at 6.) The magistrate further found that "the documents [appellant] e-filed with this Court appear to have been prepared at his direction." (Mag. Decision at 6.)

{¶ 20} We initially address appellant's contention the trial court abused its discretion in failing to find excusable neglect under Civ.R. 60(B)(1). According to appellant, the trial court employed an "impossible test" in determining that his neglect was not excusable. Appellant characterizes this test as a "Control Rule," and he challenges prior decisions by this court and other Ohio courts generally holding that neglect is not excusable if the party could have prevented the circumstances from occurring.

{¶ 21} In considering whether neglect is excusable under Civ.R. 60(B)(1), "a court must consider all of the surrounding facts and circumstances." Maggiore v. Barensfeld, 5th Dist. No. 2011CA00180, 2012-Ohio-2909, 2012 WL 2415184, ¶ 26, citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988). This court has previously observed that " '[t]he term "excusable neglect" is an elusive concept which has been difficult to define and to apply.' " Natl. City Bank v. Calvey, 10th Dist. No. 05AP-1229, 2006-Ohio-3101, 2006 WL 1681397, ¶ 8, quoting Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996). The Supreme Court of Ohio has determined that neglect is inexcusable when the movant's inaction "reveals a complete disregard for the judicial system and the rights of the appellee." GTE Automatic at 153, 351 N.E.2d 113. Further, this court has held "[u]nusual or special circumstances can justify neglect, but if the party could have controlled or guarded against the happening or event [he or] she later seeks to excuse, the neglect is not excusable." Calvey at ¶ 8, citing Natl. City Bank v. Kessler, 10th Dist. No. 03AP-312, 2003-Ohio-6938, 2003 WL 22976609. See also Covington v. P.I.E. Mut. Ins. Co., 149 Ohio App.3d 406, 2002-Ohio-4732, 777 N.E.2d 870, ¶ 24 (10th Dist.) (noting the facts and circumstances did not constitute excusable neglect where "[t]he matter was within [the appellant's] control and he failed to act reasonably to make sure that the act was performed").

{¶ 22} Upon review of the record in this case, we conclude the trial court did not abuse its discretion in determining appellant failed to demonstrate excusable neglect. As set forth under the findings of fact rendered by the magistrate, appellee filed its complaint on March 17, 2015, and appellant acknowledged receiving a copy of the complaint by certified mail. Appellant e-filed a document on April 28, 2015 which, the magistrate noted, was filed without leave of court and did not contain a certificate of service. In that document, appellant expressed his intent to hire an attorney. On June 18, 2015, appellee filed its motion for summary judgment, to which appellant filed no response, and the trial court entered summary judgment in favor of appellee on July 21, 2015. Approximately one week after summary judgment was granted in favor of appellee, appellant filed a document titled "motion for continuance of disclosure of witnesses and extension of time to respond to motion for summary judgment and for time to obtain an attorney." Appellant acknowledged he did not seek legal counsel until late July 2015, and appellant's counsel did not file a notice of appearance until August 5, 2015. On August 17, 2015, the trial court denied appellant's motion for continuance, and appellant filed his Civ.R. 60(B) motion on August 26, 2015.

{¶ 23} In his motion for relief from judgment, appellant argued his April 28, 2015 filing constituted a motion to continue, and he believed such motion was to be heard by the trial court on August 4, 2015. Appellant further argued that his failure to respond to appellee's motion for summary judgment was excusable neglect because he was not proficient in English and lacked technology to communicate with the court.

{¶ 24} Both the magistrate and trial court addressed and rejected appellant's arguments with respect to his April 28, 2015 filing. The magistrate, noting that appellant did not seek leave to file the document out of rule and that such document failed to include a certificate of service, concluded that the filing at issue, "whether characterized as an 'Answer' (a pleading) or a 'motion for continuance,' does not comply with Ohio's civil rules." (Mag. Decision at 7.) In a similar vein, the trial court, noting case law holding that pro se litigants are held to the same standards as are members of the bar with respect to procedural rules, cited appellant's admission "that his 'filings' failed to comply with the Rules of Civil Procedure." (Feb. 9, 2016 Decision & Entry Adopting Mag. Decision at 8.)

{¶ 25} The trial court also addressed appellant's claim that he believed his April 28, 2015 filing was a motion to continue to be heard by the court on August 4, 2015. The court observed that appellant "nevertheless filed another motion on July 30, 2015, requesting additional time to obtain an attorney and respond to [appellee's] motion for summary judgment," and the court concluded that appellant's conduct "belies his contention that he believed his earlier motion to continue would be heard on August 4, 2015." (Feb. 9, 2016 Decision & Entry Adopting Mag. Decision at 8, 9.) The court further noted that appellant "admitted during his testimony that he did not appear on August 4, 2015 for this 'hearing.' " (Feb. 9, 2016 Decision & Entry Adopting Mag. Decision at 9.)

{¶ 26} The record on appeal supports the findings and conclusions of the trial court with respect to appellant's filing of the April 28, 2015 document. The "vast majority" of Ohio courts have held that "lack of counsel and ignorance of the legal system does not constitute 'excusable neglect.' " Dayton Power & Light v. Holdren, 4th Dist. No. 07CA21, 2008-Ohio-5121, 2008 WL 4436003, ¶ 12. Rather, " ' "[i]t is well established that pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are represented by counsel." ' " Id., citing State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family Servs. , 145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (10th Dist. 2001). Thus, "[c]ourts should not generally use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system," and "a pro se litigant's confusion or misunderstanding of the law does not provide grounds for granting a Civ.R. 60(B) motion for relief from judgment." Id. See also Ragan v. Akron Police Dept., 9th Dist. No. 16200, 1994 WL 18641 (Jan. 19, 1994) ("Acting pro se * * * is neither excusable neglect nor any other reason justifying relief from judgment. A party has a right to represent himself, but if he does so, he is subject to the same rules and procedures as litigants with counsel.").

{¶ 27} The magistrate and trial court also addressed appellant's failure to respond to the motion for summary judgment based on his contention that he was not proficient with the English language, and he lacked familiarity with the legal system. As noted, the magistrate, following an extensive hearing on the Civ.R. 60(B) motion, rendered findings that the document appellant filed with the court on April 28, 2015 demonstrated his "familiarity and sophistication with the legal process and litigation, and his command of the English language," and that the filing indicated appellant "knew he could hire an attorney to represent him, as he had done in previous lawsuits filed against him." (Mag. Decision at 9, 10.) Similarly, the magistrate cited the fact that the document filed by appellant on July 30, 2015, which included a certificate of service, demonstrated his familiarity with the legal process and command of the English language. Noting that appellee had represented appellant "in at least two other prior legal matters," the magistrate found the record "replete with evidence supporting [appellant's] familiarity with litigation and the legal system." (Mag. Decision at 11.)

{¶ 28} The trial court, in overruling appellant's objections to the magistrate's decision, found that "from April 28, until July 30, 2015, when he filed his motion for an extension of time, [appellant] did nothing to engage or protect himself in these proceedings," and that "[h]is earlier request for a continuance to obtain a lawyer indicates that he was aware that he needed to retain legal counsel." (Feb. 9, 2016 Decision & Entry Adopting Mag. Decision at 9.) The trial court concluded that appellant "[certainly] could have prevented the circumstances he now [complains] of by either retaining counsel or checking with the Court about the case schedule and the status of his 'motion.' " (Feb. 9, 2016 Decision & Entry Adopting Mag. Decision at 9.)

{¶ 29} Ohio courts have held that "[t]he neglect of an individual to seek legal assistance after being served with court papers is not excusable." Associated Estates Corp. v. Fellows , 11 Ohio App.3d 112, 116, 463 N.E.2d 417 (8th Dist. 1983). Thus, "[a] party who is informed of court action against him and fails to seek legal assistance does so at his risk and such conduct cannot be said to constitute 'excusable neglect' under Civ.R. 60(B)(1) or (5) unless a compelling reason is presented, like a serious illness." Yuhanick v. Cooper , 7th Dist. No. 96-CO-45, 1998 WL 811355 (Nov. 16, 1998), citing Bajtkiewicz v. Wisniewski , 8th Dist. No. 63661, 1993 WL 19537 (Jan. 28, 1993). Further, Ohio courts have held that "a litigant who fails to respond to a motion for summary judgment ordinarily may not later litigate the issues that could have been raised in the motion." Harshman Dynasty, LLC v. Mason, 2d Dist. No. 25873, 2014-Ohio-1108, 2014 WL 1337598, ¶ 18. Rather, "[i]f allowed, such practice would 'undermine the purposes of Civil Rule 56 and 60(B) ' and create a ready avenue for delay." Id., quoting Brigadier Constr. Servs. v. JLP Glass Prods., 8th Dist. No. 98672, 2013-Ohio-825, 2013 WL 871925, ¶ 23.

{¶ 30} Thus, courts have rejected claims of excusable neglect in instances where a party, whether represented by counsel or acting pro se, has failed to respond to a properly served motion for summary judgment. See BAC Home Loans Servicing, L.P. v. Mapp, 12th Dist. No. CA2013-10-193, 2014-Ohio-2005, 2014 WL 1896494, ¶ 33 (appellant's failure to respond to motion for summary judgment "simply cannot be said to constitute excusable neglect"; the fact appellant "appeared pro se does not change this finding as he was subject to the same rules and procedures as those represented by counsel"); Harshman at ¶ 23 (noting that pro se litigants are held to the same standards as members of the bar with respect to procedural matters, and holding that trial court properly denied Civ.R. 60(B) motion where appellant, who was served with complaint and represented himself until after summary judgment had been granted, failed to show excusable neglect for lack of response to summary judgment motion).

{¶ 31} Upon review of the facts and circumstances presented in this case, we agree with the trial court that appellant's inattention to the civil rules, his delay (from late April 2015 through late July 2015) in seeking to obtain counsel, and his failure to respond to appellee's motion for summary judgment cannot be said to constitute excusable neglect. Accordingly, because appellant failed to demonstrate excusable neglect, the trial court did not abuse its discretion in denying the Civ.R. 60(B) motion.

{¶ 32} Appellant's contention that the trial court held him to an "impossible" standard is not persuasive. It has been observed that "[u]nder the general definition of excusable neglect, it is some action 'not in consequence of the party's own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident.' " McEnteer v. Moss, 9th Dist. No. 22201, 2005-Ohio-2679, 2005 WL 1283707, ¶ 14, citing Vanest v. Pillsbury Co. , 124 Ohio App.3d 525, 536, 706 N.E.2d 825 (1997), fn. 8, quoting Black's Law Dictionary 566 (6 Ed. 1990). In the absence of "special, disruptive, or unusual circumstances," reviewing courts, including this court, have distinguished between "mere neglect" (which is insufficient to obtain relief under Civ.R. 60(B)(1) ) and "excusable neglect." Ron Christopher Co. v. Borruso, 10th Dist. No. 17AP-369, 2017-Ohio-9033, 2017 WL 6389174, ¶ 12 (affirming trial court's denial of motion for relief from judgment where appellant's failure to respond to motion for summary judgment constituted mere neglect rather than excusable neglect). See also PPF Mtge. Corp. v. Northup, 4th Dist. No. 11CA6, 2011-Ohio-6814, 2011 WL 6927641, ¶ 20 (facts and circumstances of case did not demonstrate excusable neglect or inadvertence where counsel's failure to respond to appellee's motion for summary judgment demonstrated "mere neglect").

{¶ 33} Having determined that the trial court did not err in finding appellant failed to establish one of the three required prongs under the GTE Automatic test, we find no error by the trial court in declining to consider the other two prongs of that test. See , e.g. , Scott v. Wolny, 9th Dist. No. 2227-M, 1994 WL 122275 (Apr. 13, 1994) (because requirements under GTE Automatic are conjunctive, referee "had only to determine that one of the conditions" for relief was missing); Stojkoski at ¶ 5 ("moving party's failure to satisfy any of these three requirements will result in a denial of the motion").

{¶ 34} Based upon the foregoing, appellant's four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

DORRIAN and HORTON, JJ., concur.

      In its decision, the trial court found the second prong of the GTE Automatic test to be dispositive, i.e., that appellant failed to demonstrate he was entitled to relief under Civ.R. 60(B). Based on the trial court's determination that appellant failed to establish excusable neglect, the court declined to consider appellant's arguments as to whether he met the other two prongs of the test.


author: ANITA LASTER MAYS, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Anthony J. JONES, Defendant-Appellant
    No. 105279
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    David M. Lynch, 333 Babbitt Road, Suite 333, Euclid, Ohio 44123, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Daniel T. Van, Assistant County Prosecutor, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Anthony J. Jones ("Jones") appeals the trial court's denial of his motion to vacate his guilty plea and the denial of credit for time served through a nunc pro tunc order. We affirm in part, reverse in part, and remand.

{¶ 2} On March 23, 2016, Jones pled guilty to aggravated vehicular assault, a fourth-degree felony, in violation of R.C. 2903.08(A)(2)(a). Jones was sentenced to 18 months in prison to be served consecutively to the time he was currently serving for violating his community control sanctions from a previous case, Cuyahoga C.P. No. CR-15-596387. In addition, Jones was ordered to pay restitution in the amount of $2,790.12, and given credit for time served on this case.

{¶ 3} On May 11, 2016, Jones filed a motion for jail-time credit that the judge ordered during his sentencing. Without a hearing, on May 19, 2016, the trial court issued a journal entry that granted the motion. On July 12, 2016, the trial court issued a nunc pro tunc entry indicating that the motion for jail-time credit was denied since Jones was serving consecutive sentences. On October 14, 2016, Jones filed two motions: a motion to correct the nunc pro tunc entry in order to restore the jail-time credit and a motion to vacate the plea.

{¶ 4} In his motion to vacate his guilty plea, Jones argued that, under the threat of the state reindicting him to include an alcohol specification, he was forced to plead guilty to the lesser charge of aggravated vehicular assault. Both motions were denied, and Jones filed this timely appeal asserting two assignments of error:

I. The trial court committed error by denying Jones's motion to vacate his guilty plea when he was threatened with re-indictment on a more severe crime if he did not plead guilty; and,
II. The trial court committed error by withdrawing credit for time served sua sponte in a nunc pro tunc entry.

I. Motion to Vacate a Guilty Plea

A. Standard of Review

{¶ 5} Crim.R. 32.1 provides that "[a] motion to withdraw a plea of guilty * * * may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Crim.R. 32.1.

Thus, pursuant to Crim.R. 32.1, a postsentence motion to withdraw a guilty plea, such as Britton's, may be granted only to correct manifest injustice. State v. Xie , 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). "A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

State v. Britton , 8th Dist. Cuyahoga No. 98158, 2013-Ohio-99, 2013 WL 178101, ¶ 16.

{¶ 6} However, we review a trial court's decision to deny a defendant's postsentence motion to withdraw a guilty plea under an abuse of discretion standard. State v. Britton , 8th Dist. Cuyahoga No. 98158, 2013-Ohio-99, 2013 WL 178101, ¶ 17, citing Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph two of the syllabus, and State v. Peterseim , 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980). An "abuse of discretion" requires more than an error of law or of judgment; it "implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Unless it is shown that the trial court acted unreasonably, arbitrarily, or unconscionably in denying Jones's request to withdraw his plea, there is no abuse of discretion. State v. Rogers , 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, 2013 WL 3895354, ¶ 28.

B. Law and Analysis

{¶ 7} In Jones's first assignment of error, he argues that the trial court erred by denying his motion to vacate his guilty plea.

The withdrawal of a guilty plea is governed by Crim.R. 32.1, which states: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

Id. at ¶ 23.

{¶ 8} Jones must establish that a manifest injustice exists.

[A] defendant who moves to withdraw his plea after the imposition of sentence "has the burden of establishing the existence of manifest injustice."
State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), at paragraph one of the syllabus. Either way, a motion made pursuant to Crim.R. 32.1 is "addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." Smith at paragraph two of the syllabus.

State v. Mathis , 8th Dist. Cuyahoga No. 100342, 2014-Ohio-1841, 2014 WL 1776018, ¶ 16.

{¶ 9} As such, [t]his court has described "manifest injustice" as a

"clear or openly unjust act," * * * "an extraordinary and fundamental flaw in the plea proceeding[,]" * * * a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her. [State v.] Nicholson [8th Dist. No. 97873, 2012-Ohio-4591, 2012 WL 4755164] at ¶ 15, quoting State v. Sneed , 8th Dist. No. 80902, 2002-Ohio-6502 [2002 WL 31667630].

Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, 2013 WL 3895354, ¶ 26.

{¶ 10} During the plea hearing, the trial court asked Jones, "[h]as anyone threatened you with anything or promised you anything outside of what we've put on the record in open court this afternoon to get you to enter into this plea?" (Tr. 5.) To which Jones replied, "No, your honor." (Tr. 5.) In his statement to the trial court, Jones was clear to the court that he was not threatened.

{¶ 11} In Mathis at ¶ 12, this court found no error with the trial court explaining to the defendant, "he should be aware that the plea bargain might be his best option in light of the possibility of a reindictment." Additionally, the Mathis court held that "[t]here is not any indication that the trial court induced his guilty plea by false promises or threats." Id. at ¶ 14. Similarly in this case, we find no error with Jones's counsel explaining to him that it was a possibility that the state could reindict him on a much serious felony. In fact, as his attorney, it was his duty to explain the consequences of Jones accepting or not accepting a plea. "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice." Prof.Cond.R. 2.1. We find that the trial court did not abuse its discretion when it denied appellant's motion to vacate because the appellant had not establish that a manifest injustice occurred.

{¶ 12} Jones's first assignment of error is overruled.

II. Nunc Pro Tunc Order

{¶ 13} In Jones's second assignment of error, he contends that the trial court committed error by withdrawing credit for time served sua sponte in a nunc pro tunc entry. We agree.

In Scaglione v. Saridakis , 8th Dist. Cuyahoga No. 91490, 2009-Ohio-4702 [2009 WL 2894334], this court reiterated the longstanding rule of the use of nunc pro tunc as follows: "A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth. It is used to record that which the trial court did, but which has not been recorded. It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued. Thus, the office of a nunc pro tunc order is limited to memorializing what the trial court actually did at an earlier point in time. It can be used to supply information which existed but was not recorded, to correct mathematical calculations, and to correct typographical or clerical errors. A nunc pro tunc order cannot be used to supply omitted action, or to indicate what the court might or should have decided, or what the trial court intended to decide. Its proper use is limited to what the trial court actually did decide." Id. at ¶ 9, quoting State v. Greulich , 61 Ohio App.3d 22, 24-25, 572 N.E.2d 132 (9th Dist.1988).

Alden v. FirstEnergy Corp ., 8th Dist. Cuyahoga No. 100575, 2014-Ohio-3235, 2014 WL 3700550, ¶ 10.

{¶ 14} In State ex rel. Townsend v. Calabrese , 8th Dist. Cuyahoga No. 97822, 2012-Ohio-1649, 2012 WL 1253169, ¶ 6, this court stated that "[n]unc pro tunc orders may be used only to correct authentic clerical errors and not to effect what the judge intended to do or should have done * * *." A nunc pro tunc entry does not replace the original judgment entry; it relates back to the original entry. State v. Bonnell , 8th Dist. Cuyahoga No. 102630, 2015-Ohio-4590, 2015 WL 6797870, ¶ 14.

{¶ 15} However, in the instant case, the trial court used the nunc pro tunc order to withdraw credit for jail-time served that it had previously granted. At sentencing, the trial court gave Jones credit for time he already served on this case. The original journal entry did not reflect that particular part of the trial court's judgment. Jones then filed a motion for the jail-time credit to be reflected in the journal entry. The trial court granted the motion. Then soon after, through a nunc pro tunc order, rescinded the original decision, stating that because Jones was serving consecutive sentences, the jail-time credit was incorrect.

{¶ 16} The trial court cannot use a nunc pro tunc order in this fashion.

The purpose of a nunc pro tunc entry "is restricted to placing upon the record evidence of judicial action which has been actually taken" and "it can be exercised only to supply omissions in the exercise of functions that are clerical merely." Jacks v. Adamson , 56 Ohio St. 397, 402, 47 N.E. 48 (1897) ; "The function of nunc pro tunc is not to change, modify, or correct erroneous judgments, but merely to have the record speak the truth." Ruby v. Wolf , 39 Ohio App. 144, 177 N.E. 240 (1931) (Emphasis added.); Dentsply Internatl., Inc. v. Kostas , 26 Ohio App. 3d 116, 498 N.E.2d 1079 (1985). See also , Pepera v. Pepera , 8th Dist. Cuyahoga Nos. 51989 and 52024m [1987 WL 8586], 1987 Ohio App. LEXIS 6807 (Mar. 26, 1987), (A court may not by way of a nunc pro tunc entry, enter of record that which it intended or might have made but which in fact was not made.)

McGowan v. Giles , 8th Dist. Cuyahoga No. 76332, 2000 WL 284174 (Mar. 16, 2000)

{¶ 17} The trial court unquestionably erred by granting Jones's May 11, 2016 motion for jail-time credit. Pursuant to R.C. 2967.191, a defendant is not entitled to any jail-time credit for any period of incarceration that arose from facts separate and apart from those facts on which his or her current sentence is based. State v. Lowe, 8th Dist. Cuyahoga No. 99176, 2013-Ohio-3913, 2013 WL 5004278, ¶ 29 ; State v. Frazier, 8th Dist. Cuyahoga No. 86984, 2006-Ohio-3023, 2006 WL 1645017, ¶ 14. Here, Jones was serving a consecutive sentence for a separate offense during the pendency of this case. Accordingly, he was not entitled to jail-time credit in this case.

{¶ 18} However, in addition to not being able to use a nunc pro tunc entry to correct its prior judgment, a trial court has no authority to sua sponte vacate or modify its final orders.

Dickerson v. Cleveland Metro. Hous. Auth., 8th Dist. Cuyahoga No. 96726, 2011-Ohio-6437, 2011 WL 6287991, ¶ 7, citing N. Shore Auto Financing, Inc. v. Valentine , 8th Dist. Cuyahoga No. 90686, 2008-Ohio-4611, 2008 WL 4183327, ¶ 12. Relevant to the issue presented in this case, Ohio courts have held that an order awarding the jail-time credit is a final appealable order pursuant to R.C. 2505.02(B). See State v. Patton , 5th Dist. Stark No. 2009 CA 00201, 2009-Ohio-6562, 2009 WL 4761415, ¶ 14 ; State v. Tully , 5th Dist. Stark No. 2001 CA 00313, 2002 WL 433461 ; State v. Magee , 5th Dist. Guernsey No. 04-CA-13, 2005-Ohio-483, 2005 WL 299709. Thus, the trial court did not have the authority to sua sponte modify its May 19, 2016 order granting Jones's motion for 102 days of jail-time credit. Rather, the authority to challenge the trial court's judgment awarding Jones jail-time credit rested with the state.

{¶ 19} It is imperative that final judgments be disturbed only pursuant to the limited avenues afforded under the law. In order to correct the trial court's error in this case, the state was required to obtain leave from this court to file an appeal within 30 days of the final order. "[W]e note that the state's authority to pursue an appeal from the decision of the trial court granting jail-time credit, as well as the calculation of the number of days to be credited, is not by right under R.C. 2945.67, but rather may only be appealed by leave of court." State v. Olmstead , 5th Dist. Richland No. 2007-CA-119, 2008-Ohio-5884, 2008 WL 4881119, ¶ 10. See App.R. 5(C) ; State v. Roey , 8th Dist. Cuyahoga No. 97484, 2012-Ohio-2207, 2012 WL 1758700, ¶ 9 ; State v. Norman , 5th Dist. Muskingum No. CT2012-0061, 2013-Ohio-1866, 2013 WL 1907706. In this case, the state did not attempt to obtain leave from this court to appeal the trial court's May 19, 2016 order.

{¶ 20} While R.C. 2929.19(B)(2)(g)(iii) grants trial court's continuing jurisdiction to correct any error made in making a determination of the amount of jail-time credit upon the motion filed by the offender, the statute does not provide the state with the same post-sentence rights. Thus, the trial court was without continuing jurisdiction at the time it modified its original judgment via a nunc pro tunc entry. The trial court's nunc pro tunc entry was a nullity. It follows that the trial court's subsequent denial of Jones's renewed motion for jail-time credit was also a nullity. Accordingly, the trial court's May 19, 2016 order remains in effect. Therefore, we reverse the trial court's decision to withdraw credit for jail-time served.

{¶ 21} Appellant's second assignment of error is sustained.

{¶ 22} In conclusion, the trial court's denial of appellant's motion to vacate his guilty plea is affirmed. However, we reverse the trial court's order to withdraw appellant's jail-time credit and order that the May 19, 2016 judgment granting Jones's motion for 102 days of jail-time credit be reinstated.

{¶ 23} Judgment is affirmed in part and reversed in part. This matter is remanded to the trial court for proceedings consistent with this opinion.

MARY J. BOYLE, J., CONCURS;

EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY