author: Baldwin, J.

text:
    DEUTSCHE BANK NATL. TRUST COMPANY, as Indenture Trustee and Custodian FOR OCWEN REAL ESTATE ASSET LIQUIDATING TRUST 2007-1, ASSET BACKED NOTES, SERIES 2007-1, Plaintiff-Appellee v. Richard A. MALLONN II, et al., Defendants-Appellants
    No. 2017CA00132
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: April 9, 2018
    CHRISSY M. DUNN, JOHN R. WIRTHLIN, Blank Rome, LLP, 1700 PNC Center, 201 E. 5th Street, Cincinnati, Ohio 45202, For Plaintiff-Appellee
    WILLIAM C. BEHRENS, MARC E. DANN, The Dann Law Firm, P. O. Box 6031040, Cleveland, Ohio 44103, For Defendant-Appellants
    JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J,. Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Appellants, Freeway Tavern, Inc., Richard A Mallonn, II, and Jill Mallonn appeal the Stark County Court of Common Pleas' June 23, 2017, Judgment Entry and Decree in Foreclosure granting summary judgment to appellee. Appellee is Deutsche Bank National Trust Company, As Indenture Trustee and Custodian for Ocwen Real Estate Asset Liquidating Trust 2007-1, Asset-Backed Notes, Series 2007-1.

STATEMENT OF FACTS AND THE CASE

{¶ 2} Appellants executed a promissory note on December 22, 1998, payable to appellee's predecessor-in-interest, American Business Credit, Inc. ("ABC"), in the original principal amount of $100,000.00, plus interest. ABC endorsed the Note to The Bank of New York, as Indenture Trustee under the Indenture dated as of March 1, 1999, ABFS Mortgage Loan Trust 1999-1 ("BONY"). On August 18, 2006, BONY, through it is attorney-in-fact, Ocwen Loan Servicing, LLC endorsed the Note in blank. The Note was secured by an open-end mortgage executed by the appellants on December 22, 1998, in the amount of $100,000.00, pledging three parcels as collateral. The Mortgage was recorded December 28, 1998, as Instrument Number 1998094436, in the Stark County, Ohio records.

{¶ 3} American Business Credit, Inc. assigned the mortgage on March 10, 2015 to OMAT I REO HOLDINGS, LLC. On November 20, 2015 OMAT I REO HOLDINGS, LLC, assigned the mortgage to Deutsche Bank National Trust Company, As Indenture Trustee and Custodian for Ocwen Real Estate Asset Liquidating Trust 2007-1, Asset-Backed Notes, Series 2007-1. Both mortgage assignments were signed by Ocwen Loan Servicing, LLC as attorney in fact for the assignor.

{¶ 4} On January 1, 2015, appellee issued a notice of default and accelerating the balance due on the note. Appellee filed a complaint on February 5, 2016 seeking judgment against the appellants upon the note in the sum of $69,863.54 plus interest from May 22, 2014, plus additional costs and expenses as well as a foreclosure of the mortgage and an order that the property be sold.

{¶ 5} Appellants Richard and Jill Mallon and Freeway Tavern Inc. filed a motion for leave to file a motion to dismiss as well as a motion for leave to file an answer instanter on April 12, 2016. Both motions were granted October 21, 2016. Appellee filed its memorandum opposing the motion to dismiss on November 3, 2016. The motion to dismiss was denied on November 14, 2016.

{¶ 6} On May 8, 2017 appellee filed a motion for summary judgment supported by the affidavit of Jesse Rosenthal, a contract management coordinator of Ocwen Loan Servicing, LLC, loan servicer for the appellee. Appellants filed a memorandum contra on June 21, 2017 with the affidavits of Richard Mallonn, II and trial counsel, William C. Behrens attached. The court granted the motion for summary judgment and issued a decree of foreclosure on June 23, 2017. Appellants filed a motion to stay the sale and waive bond on July 26, 2017. On July 31, 2017 appellee withdrew its praecipe for order of sale and the court issued an entry withdrawing the praecipe for order of sale on August 4, 2017.

{¶ 7} Appellants filed a notice of appeal on July 17, 2017 and listed seven assignments of error:

{¶ 8} "I. THE TRIAL COURT COMMITED (sic) PLAIN ERROR IN ISSUING A FINAL JUDGMENT THAT WAS DEVOID OF SUFFICIENTLY DETAILED REASONING NECESSARY FOR MEANINGFUL APPELLATE REVIEW."

{¶ 9} "II. THE TRIAL COURT COMMITED (sic) PLAIN ERROR IN WEIGHING EVIDENCE, FAILING TO CONSTRUE ALL EVIDENCE IN FAVOR OF THE NON-MOVING PARTY, AND FAILING TO RESOLVE COMPETING INFERENCES AND QUESTIONS OF CREDIBILITY IN FAVOR OF THE NON-MOVING PARTY."

{¶ 10} "III. THE TRIAL COURT ERRED IN FINDING THAT THE AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT WAS MADE ON PERSONAL KNOWLEDGE AND/OR TRUSTWORTHY BUSINESS RECORDS, AND WAS THEREFORE SUFFICIENT TO ESTABLISH THE MOVING PARTY'S INITIAL BURDEN UNDER CIV. R. 56."

{¶ 11} "IV. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF-APPELLEE HAD ESTABLISHED ITS RIGHT TO ENFORCE THE NOTE AND MORTGAGE."

{¶ 12} "V. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF-APPELLEE HAD ESTABLISHED A DEFAULT AND THE AMOUNT DUE."

{¶ 13} "VI. THE TRIAL COURT ERRED IN FINDING THAT THE AFFIRMATIVE DEFENSES OF THE DEFENDANTS-APPELLANTS DID NOT PRECLUDE SUMMARY JUDGMENT."

{¶ 14} "VII. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF-APPELLEE WAS ENTITLED TO SUMMARY JUDGMENT WHERE THE ACTION WAS BARRED BY R.C.1303.16."

STANDARD OF REVIEW

{¶ 15} Appellants list seven assignments of error attacking the trial court's grant of appellee's motion for summary judgment.

{¶ 16} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. Wedding Party, Inc. , 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987).

{¶ 17} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

{¶ 18} It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment is delineated in Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) : "* * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ , 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

{¶ 19}* * *[t]o properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary quality materials establishing: (1) the plaintiff is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been satisfied; and (5) the amount of principal and interest due.

Wachovia Bank of Delaware, N.A. v. Jackson , 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, 2011 WL 2557039, ¶¶ 40-45.

ANALYSIS

{¶ 20} The appellant's first assignment of error, that the trial court's entry granting summary judgment lacks sufficient detail to permit review, requires that we review the breadth of our obligation to conduct a de novo review of the decision.

{¶ 21} A de novo review requires an independent review of the trial court's decision without any deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993) as cited in State v. Standen , 9th Dist., 173 Ohio App.3d 324, 2007-Ohio-5477, 878 N.E.2d 657, ¶ 7. "Thus, viewing the pleadings in the light most favorable to the [appellee], we must determine whether [appellee] was entitled to judgment as a matter of law." Civ.R. 56(C). Troyer v. Janis , 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6 (2012). Accordingly, we apply the same standard as the trial court and court of appeals in this case.

Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24 (2002). "* * * we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate." Tornado Techs., Inc. v. Quality Control Inspection, Inc. , 8th Dist., 2012-Ohio-3451, 977 N.E.2d 122, ¶ 13.

{¶ 22} Considering the requirements imposed upon this court by precedent and the Ohio Civil Rules, the content of the trial court's entry has little influence. While the decision of the trial court must contain the basic requirements, our review is focused upon the record and not the written decision of the trial court.

{¶ 23} We reject the appellant's suggestion we adopt the rational of the court in Schutte v. Summit Cty. Sheriff's Office , 9th Dist. Summit No. CV 28203, 2017-Ohio-4172, 2017 WL 2467077. In that case the court reversed the trial court's grant of a motion for summary judgment "* * *because we cannot discern the trial court's basis for the award of summary judgment in Defendants' favor on all four counts of the complaint * * *". Schutte at ¶ 11. The cases cited by that court in support of its remand do not address the standard of review for summary judgment, but involve abuse of discretion or, in one case, an admonishment from the court of appeals urging the trial court to set forth its reasoning in its entry so that the court of appeals may conduct a review of the trial court's exercise of discretion. Because we are obligated to conduct a de novo review of the entire record, without any deference or reliance on the trial court's ruling, we must respectfully decline to follow the holding in Schutte.

{¶ 24} Appellants argues that the rapidity with which the trial court issued its ruling and the fact that it did not reference their memorandum opposing summary judgment demonstrates that the trial court failed to consider their arguments. The record shows the memorandum opposing the motion for summary judgment was filed on June 21, 2017 and the judgment entry was not journalized until June 23, 2017. Nothing within record demonstrates that the court acted inappropriately under the circumstances.

{¶ 25} Because we will not follow the holding in Schutte , because we are obligated to conduct a de novo review of the record, and because the entry issued by the court does fulfill the basic requirements for a judgment entry granting summary judgment and was timely journalized, we must overrule appellant's first assignment of error.

{¶ 26} In their second assignment of error, appellants contend the trial court erred by weighing the evidence, failing to construe all evidence in favor of the nonmoving party, and failing to resolve competing inferences and questions of credibility in favor of the nonmoving party, but appellants do not "set forth specific facts demonstrating there is a genuine issue of material fact for trial." Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher, supra.

{¶ 27} Appellants' unsupported contention that the trial court acted inappropriately is unpersuasive. The case cited by appellants, Nationstar Mtge., L.L.C. v. Waisanen , 9th Dist. Summit No. 16CA010904, 2017-Ohio-131, 2017 WL 169097 is not helpful to appellants. In that case, the appellate court provided clear examples of the weighing of evidence that violated the requirements of Civ.R. 56.

This included, but was not limited to, for example, the trial court's evaluation of the evidence submitted by the parties regarding Nationstar's communications with the Waisanens after the loan went into default. In that context, the trial court reviewed the parties' differing versions of the summary judgment evidence and noted the Waisanens' failure to submit additional "corroborating evidence" from Nationstar's records to supplement their own.

Nationstar Mtge. , at ¶ 9

{¶ 28} In the case at bar, appellants contend "Given the contradictory and competing evidence submitted by the parties, summary judgment was inappropriate" but they neglect to provide citations to the record for examples of that alleged contradictory or competing evidence, and thereby fail to fulfill their obligation to "set forth specific facts demonstrating there is a genuine issue of material fact for trial." Vahila, supra.

{¶ 29} For the forgoing reasons, appellant's second assignment of error is overruled.

{¶ 30} Appellant's assignments of error three through five are attacks on the propriety of granting summary judgment and require that we review the materials offered supporting and opposing the motion for summary judgment.

{¶ 31} Appellee supported its motion for summary judgment with the affidavit of Jesse Rosenthal, a contract management coordinator of Ocwen Loan Servicing, LLC, loan servicer for appellee, with accompanying documents. We hold that this affidavit and the attachments satisfied the movant's burden of showing that no genuine issue of material fact existed, shifting the burden to appellee to supply contrary evidence.

{¶ 32} Mr. Rosenthal establishes his competency by identifying himself as a contract management coordinator of Ocwen Loan Servicing, LLC, loan servicer for the appellee and confirms he has personal knowledge of the facts and matters stated within the affidavit. The nature of the facts in the affidavit combined with the identity of the affiant creates a reasonable inference that Mr. Rosenthal has personal knowledge of the facts in the affidavit. PNC Bank, N.A. v. Price , 5th Dist., 2016-Ohio-2887, 64 N.E.3d 402, ¶ 21

{¶ 33} Mr. Rosenthal states that appellee is in possession of the original promissory note and that the copy attached to his affidavit is a true and accurate copy of that note. He states that a true and accurate copy of the mortgage, assignments of mortgage, demand letter, and account history are attached to his affidavit. The affidavit is properly notarized.

{¶ 34} Rosenthal describes the records attached to his affidavit as business records kept in the regular course of business, that he is familiar with and has access to the records, and that the records were made or maintained in the regular and usual course of business. He also confirms records were made at or near the time by, or from information from, a person with knowledge of the transactions. Mr. Rosenthal also provides sufficient evidence to demonstrate that the mortgagor is in default, that all conditions precedent have been satisfied and he states the amount of principal and interest due. Consequently, the affidavit and the attached documents are adequate to satisfy the requirements for issuing a summary judgment in the context of a foreclosure action, Wachovia , supra , ¶ 40-45, and the burden shifts to appellant to demonstrate a material fact remains for trial. Appellants "may not rest upon the mere allegations or denials of his pleadings, but [their] response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Dresher, supra.

{¶ 35} Appellants offered the affidavits of appellant, Richard Mallonn II, and appellant's counsel, William C. Behrens. Mr. Behren's affidavit serves only to identify four exhibits attached to the affidavit and describes them as documents received in response to defendant's first set of request for admissions, interrogatories, and request for production of documents. Mr. Mallonn's affidavit describes the note in the foreclosure action but is ambiguous regarding payments made after December 2013. In paragraph 3 he states "to the best of my recollection, all payments due were made on or around the dates due." In paragraph 6 of his affidavit he states "I made all payments on or around the due dates from September 2007 until Ocwen Loan Servicing, LLC, refused to accept additional payments." Mr. Mallonn's sworn statements do not refute appellee's assertion that the "last payment received was applied to the May, 2014 payment" (Rosenthal Affidavit, ¶ 6) and therefore do not create a genuine dispute over the material fact of default in payment. His contention that he made payments on or around the due dates does not provide evidence that he made timely and full payment of all amounts due under the note prior to the filing of the complaint. Further, he concedes that he stopped making payments on the note.

{¶ 36} Within his affidavit Mr. Mallonn questions the calculation of the amount of the unpaid principal balance and expresses frustration in obtaining an explanation for the calculation. These issues are matters appellants could have pursued through discovery, but chose not to do so. Mr. Mallonn's concerns, frustration, or current questions are insufficient to create a genuine issue of material fact prohibiting summary judgment. For those reasons we hold that neither Mr. Mallonn's nor Mr. Behren's affidavit raises a genuine issue of material fact that would bar summary judgment.

{¶ 37} For the forgoing reasons, we hold that the appellee satisfied the burden of the movant under Civ.R. 56 and appellants' affidavits and attachments are insufficient to create a genuine issue of material fact. We proceed to review the remaining assignments of error to determine whether summary judgment is appropriate.

{¶ 38} Appellants' third assignment of error alleges one discrepancy between the documents attached to the Rosenthal affidavit and the documents provided in discovery and concludes from that alleged defect that Mr. Rosenthal's affidavit should be rejected because it is not based upon personal knowledge or is based upon inaccurate records. Appellant's argument that there are differences in documents provided in discovery by appellee and documents attached to the Rosenthal affidavit is not persuasive. The appellant compares a document captioned Life of the Loan Payment History with a document captioned Detailed Transaction History with no acceptable evidence supporting their argument that the alleged discrepancy is material or that the asserted conflict has an impact on any material fact. Appellant insists that this conflict raises questions regarding the reliability of all of the evidence attached to the Rosenthal affidavit, but the record before the court contains no Civ.R. 56 quality evidence to support that conclusion. Appellant is asking the court to draw an inference that the difference between the documents is material and, from that inference, draw a second inference that the materials attached to the Rosenthal affidavit are unreliable. We must reject the appellant's invitation to stack an inference upon an inference as impermissible. Boles v. Montgomery Ward & Co. , 153 Ohio St. 381, 388, 92 N.E.2d 9, 13 (1950) ; See also Haughey v. Twins Group, Inc. , 2nd Dist. Champaign No. 2004-CA-7, 2005-Ohio-1371, 2005 WL 678919, ¶ 17 Consequently, we must reject the basis of their argument that Mr. Rosenthal's affidavit is defective due to the discrepancy between these two different documents. Appellants' third assignment of error is overruled.

{¶ 39} In their fourth assignment of error, appellants allege an omission in the affidavit of Jesse Rosenthal and the attached documents invalidates the transfer of the note and the mortgage and undermines appellees claim that it is entitled to enforce the note and mortgage. Specifically, they assert that appellee failed to include a copy of the power of attorney authorizing the signature on the second allonge and that therefore appellee is not the holder of the note. They further assert that the assignment is defective due to a difference in the names listed on the documents. Appellees offer no facts to contradict James Rosenthal's statement that appellee is the holder of the note and mortgage, but instead seeks to undermine the truth of that assertion by referring to alleged defects in assignment of those documents.

{¶ 40} Appellants challenge must fail because they have no standing to challenge the assignment of the note and mortgage. "[B]ecause a debtor is not a party to the assignment of a note and mortgage, the debtor lacks standing to challenge their validity." U.S. Bank, N.A. v. Lawson , 5th Dist. Delaware No. 13CAE030021, 2014-Ohio-463, 2014 WL 548150, ¶ 39, citing Deutsche Bank Natl. Tr. Co. v. Whiteman , 10th Dist. Franklin No. 12AP-536, 2013-Ohio-1636, 2013 WL 1749665, ¶ 16 ; See Also U.S. Bank N.A. v. Howard , 5th Dist. Perry No. 15-CA-00002, 2015-Ohio-5230, 2015 WL 8773445, ¶¶ 23-24 and Bank of New York Mellon v. Ettayem , 5th Dist. Delaware No. 14 CAE 04 0020, 2014-Ohio-4487, 2014 WL 5088892, ¶ 78. We acknowledge that the status of the holding in Deutsche has been challenged by another panel in the Tenth District, U.S. Bank Natl. Assn. v. George , 10th Dist., 2015-Ohio-4957, 50 N.E.3d 1049, ¶ 24, but we share the concern of the dissent in that case and the Second District Court of Appeals that the ruling of U.S. Bank is dicta and we are unwilling to rely on that case as a foundation for change in our precedent. Id. at ¶ 44-45 ; U.S. Bank Natl. Assn. for Registered Holders of GE Commercial Mtge. Corp., Commercial Mtge. Pass-Through Certificates, Series 2006-C1 v. Courthouse Crossing Acquisitions, LLC , 2nd Dist. Montgomery, 2017-Ohio-9231, 101 N.E.3d 1243, ¶ 36 (As a result, the position of the Tenth District Court of Appeals is unclear.")

{¶ 41} For those reasons, appellant's fourth assignment of error is overruled.

{¶ 42} In their fifth assignment of error, appellants attack the quality of the evidence establishing the principal and interest due under the note by repeating their contention that the information in the affidavit is unreliable and questioning how the amount due under the note could be possible. We have addressed the appellant's contention regarding the reliability of the affidavit and attached evidence and concluded that the affidavit provides satisfactory evidence in the context of a motion for summary judgment to establish the principal and interest amount due. We have previously held that:

"* * *an averment of outstanding indebtedness in the affidavit of a bank loan officer with personal knowledge of the debtor's account is sufficient to establish the amount due and owing on the note, unless the debtor refutes the averred indebtedness with evidence that a different amount is owed.

PNC Bank, N.A. v. Price , 5th Dist., 2016-Ohio-2887, 64 N.E.3d 402, ¶ 37 The appellants have not offered any evidence to demonstrate a different amount is owed. Their incredulity regarding the amount due cannot serve as a bar to summary judgment. Appellants' fifth assignment of error is overruled.

{¶ 43} Appellants' contend in their sixth assignment of error that the affirmative defenses listed in their answer prevents the grant of summary judgment, but provide no authority for such conclusion. We find this flies in the face of well-established precedent that prohibits parties from relying on the allegations in the pleadings to oppose a motion for summary judgment. Dresher, supra. Appellants' sixth assignment of error is therefore overruled.

{¶ 44} Appellants next argue, in their seventh assignment of error, that a grant of summary judgment was inappropriate because the action was barred by the statute of limitations. Appellants contend appellee delivered letters dated January 18, 2005 notifying appellants of default and the intent to accelerate the entire amount due if the account was not brought current. Appellants argue that appellee was obligated to bring an action on the note within six years of the date of the letters pursuant to R.C. 1303.16(B), but the record contains no evidence of a continued default after the delivery of the letters. Instead, the record shows that appellants continued to make payments toward the balance due on the note and appellee accepted the payments, refuting any contention that the default was not cured or the appellee pursued an acceleration of the note. The record shows that appellants continued to make payments that were accepted by appellees and:

It is the general rule that the unconditional acceptance of past-due installments of principal or interest constitutes a waiver of the right to exercise an option under an acceleration clause in a mortgage or deed of trust based upon a default in the payment of such principal or interest, at least where the payment is made before the exercise of the option granted by the acceleration clause.

{¶ 45} Bank One of Dover v. Bixler , 5th Dist. Tuscarawas No. 1567, 1982 WL 2962, *1

{¶ 46} The January 18, 2005 letters are insufficient to establish that the appellee exercised its option to accelerate the amount due. In fact, the evidence in the record can only be interpreted as a waiver of the right to accelerate in 2005 as payments were made and accepted. Consequently, R.C. 1303.16(B) is inapplicable.

{¶ 47} Appellants' seventh assignment of error is overruled.

{¶ 48} For the forgoing reasons, the decision of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellants.

John Wise, P.J. and Hoffman, J. concur.


source: Caselaw Access Project

author: SHAW, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Benjamin D. HILL, Defendant-Appellant.
    NO. 7-17-07
    Court of Appeals of Ohio, Third District, Henry County.
    Date of Decision: April 9, 2018
    Alan J. Lehenbauer, Swanton, for Appellant
    Anthony C. Johnson, for Appellee
   SHAW, J.

{¶ 1} Defendant-Appellant, Benjamin D. Hill ("Hill"), appeals the September 21, 2017 judgment of the Napoleon Municipal Court, convicting him, following a guilty plea, of one count of persistent disorderly conduct in violation of R.C. 2917.11(A)(1), (E)(3)(a), a misdemeanor of the fourth degree. On appeal, Hill claims that the underlying complaint initiating this case failed to properly invoke the trial court's jurisdiction because it did not comply with Crim.R. 3, and that the trial court failed to comply with Crim.R. 11(E) when it accepted his guilty plea.

{¶ 2} On July 12, 2017, a complaint and probable cause affidavit were filed alleging that Hill "did knowingly cause or attempt to cause physical harm to a family or household member." (Doc. No. 1). The complaint further indicated that Hill's alleged conduct constituted the offense of domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. The probable cause affidavit accompanying the complaint set forth the details of the offense, stating that the victim found at the household claimed Hill had "slapped her 3 times in [sic] the left side of the face, with an open hand, and choked her by placing his hand around her neck and pushing her into the refrigerator." Both the complaint and affidavit were signed by the responding law enforcement agent, Sergeant Robinson of the Deshler Police Department, and displayed a notary public stamp current in commission. Hill was subsequently arraigned and pled not guilty.

{¶ 3} On September 21, 2017, Hill appeared in court represented by counsel and withdrew his not guilty plea and entered a plea of guilty to an amended charge of persistent disorderly conduct, a fourth degree misdemeanor. The trial court accepted Hill's guilty plea and sentenced him to serve 30 days of incarceration, all suspended upon certain conditions, and to pay a $50.00 fine, plus court costs.

{¶ 4} Hill filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT LACKED JURISDICTION BASED ON A COMPLAINT THAT WAS INVALID UNDER CRIMINAL RULE 3.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN ACCEPTING THE DEFENDANT'S PLEA BY FAILING TO COMPLY WITH CRIMINAL RULE 11(E).

{¶ 5} For ease of discussion, we elect to address the assignments of error out of order.

Second Assignment of Error

{¶ 6} In his second assignment of error, Hill contends that the trial court erred in failing to substantially comply with Crim.R. 11(E) when it accepted his guilty plea.

{¶ 7} Crim.R. 11 sets forth distinct procedures for the trial court to follow in accepting a plea, with the procedures varying based upon whether the offense involved is a misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a felony. State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 11. For a "petty offense" misdemeanor, such as Hill's persistent disorderly conduct offense, the trial court was required only to inform Hill of the effect of his guilty plea. Jones at ¶ 14 ; Crim.R. 11(E) ; see Crim.R. 2 (defining classifications of offenses).

{¶ 8} The Supreme Court of Ohio has held that, to satisfy the requirement of informing a defendant of "the effect of the plea" before accepting a guilty plea to a petty misdemeanor, the court is required to inform the defendant that the plea is a complete admission of guilt. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677 at ¶ 25. Unlike the provisions applicable to more serious offenses, Crim. R. 11(E) does not require the trial court to personally address the defendant and determine that the defendant understands the nature of the charge and is entering the plea voluntarily. State v. Wright , 2d Dist. Montgomery No. 26471, 2015-Ohio-3919, 2015 WL 5643081, ¶ 17.

{¶ 9} While literal compliance with Crim.R. 11 is preferred, such compliance is not required when the trial court informs the defendant of a nonconstitutional right, as is "[t]he right to be informed that a guilty plea is a complete admission of guilt." State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12 ; see also , State v. Beach , 2015-Ohio-3445, 41 N.E.3d 187, ¶ 31, citing State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29-32. Consequently, in cases involving the trial court's explanation of the effect of a guilty plea, we must only engage in "a substantial compliance analysis." Griggs at ¶ 12. Under this standard of review, "a slight deviation from the text of the rule is permissible[ ] so long as the totality of the circumstances indicates that 'the defendant subjectively understands the implications of his plea and the rights he is waiving[.]' " Clark at ¶ 31, quoting State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶ 10} Here, prior to accepting his guilty plea, the trial court addressed Hill and stated the following:

So Mr. Hill, you realize then that the Court is approving that amendment [from a change of domestic violence to disorderly conduct] and you would be pleading guilty to an allegation under 2917.11(A)(1)(E)(3)(a), and that on or about July 11, 2017 you did in the Village of Deshler, Henry County, State of Ohio, knowingly engage in fighting and threatening harm to persons or property or a violent or turbulent behavior and persisted in that disorderly conduct after a reasonable warning or requested assist. It is a misdemeanor of the fourth degree and it is punishable by up to thirty days in jail, a $250 fine or both. If you do wish to plead guilty to that charge there is a written waiver for you to sign. Please read over this waiver with your attorney, initial lines three and four and date and sign the bottom where indicated. The Court will find the defendant knowingly, voluntarily and intelligently with full understanding of his rights waived those rights and enters a plea of guilty to a charge as amended. The Court would accept his plea and find him guilty.

(Doc. No. 26 at 3).

{¶ 11} The record further indicates that at the time of entering his guilty plea, Hill also signed and initialed a written statement acknowledging the wavier of his right to a trial and/or a trial by jury. We believe the record supports a finding that the totality of the circumstances indicates that Hill subjectively understood the implications of his plea and the rights he was waiving, and thus, the trial court substantially complied with Crim.R. 11(E).

{¶ 12} Even assuming that the trial court failed to satisfy its obligation under Crim.R. 11 to inform Hill of the effect of his guilty plea, the Supreme Court of Ohio has held that a defendant must establish that the failure to comply with nonconstitutional rights, such as the information contained in Crim.R. 11(B)(1), resulted in prejudice, meaning the defendant would not have entered his plea. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677 at ¶ 52.

{¶ 13} There is no evidence of prejudice in this case. At the change of plea hearing, Hill did not claim innocence. Instead, he acknowledged that he "made a mistake" and "apologize[d] to the State for the inconvenience." (Doc. No. 26 at 4). By failing to assert his innocence, Hill is "presumed to understand that a plea of guilty is a complete admission of guilt." Jones at ¶ 54, citing State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 19. Hill further requested that his recommended sentence of thirty days of jail suspended be "filed" as thirty days with credit for time served. The Court explained to Hill that he was not eligible for credit because he was serving time on another case while awaiting the resolution in the case sub judice . Accordingly, we are not persuaded by Hill's arguments on appeal that the trial court erred in accepting his guilty plea and the second assignment of error is overruled.

First Assignment of Error

{¶ 14} In his first assignment of error, Hill asserts that the trial court lacked jurisdiction to hear the case based upon his allegation that the complaint failed to comport with the requirements of Crim.R. 3 because it did not contain a written statement of the essential facts and was not made upon oath before an authorized person.

{¶ 15} Crim.R. 3 states that "[t]he complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. It shall be made upon oath before any person authorized by law to administer oaths." Crim.R. 3. "The purpose of a complaint filed in a criminal case is to provide reasonable notice to the defendant of the nature of the offense." State v. Smith , 2017-Ohio-9283, 102 N.E.3d 1111, ¶ 21. "A valid complaint "must contain * * * 'a written statement of the essential facts constituting the offense charged[,]' " and " 'may be in the words of the applicable section of the statute, * * * or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.' " State v. Jones , 2016-Ohio-6987, 72 N.E.3d 63, ¶ 18, citing Crim.R. 3 and Crim.R. 7(B).

Written Statement of the Essential Facts

{¶ 16} As previously indicated, the complaint initiating this case described Hill's alleged conduct by using all the elements which comprise the offense of domestic violence, as well as including the numerical designation of the applicable statute and the level of the offense. As such, we find that the complaint adequately apprised Hill of the nature of the offense with which he was charged and find no error on this basis.

Made Upon Oath Before an Authorized Person

{¶ 17} Hill next argues that the complaint is invalid and his conviction is void based upon his allegation that "there is no attestation by the charging officer before a person authorized by law to administer oaths, as required by Crim.R. 3." (Appt. Brief at 6). The record establishes that the complaint and probable cause affidavit were both signed by Sergeant Robinson as the complainant and affiant. On the line underneath Sergeant Robinson's signature on both documents appears the statement "Sworn to and subscribed before me by the Complainant [Affiant] on July 11, 2017." Appearing over the signature line on the probable cause affidavit and under the signature line on the complaint is a stamp that states "Rhonda Slee Notary Public My Commission Expires." Handwritten underneath the stamp appears the date "4-11-22." In addition to the Notary Public stamp, both documents bear the stamped seal stating "Notary Public State of Ohio" with the official State Seal.

{¶ 18} Despite all these indicators that a Notary Public may have been present to administer an oath upon Sergeant Robinson signing these documents, the record fails to indicate that a Notary Public signed the documents verifying the complaint and/or affidavit were sworn under oath by Sergeant Robinson in the presence of someone authorized to administer the oath. "As a general proposition, a jurat is merely a certificate which is intended to establish that the oath was duly administered by a duly authorized individual." State v. Davies , 11th Dist. Ashtabula No. 2012-A-0034, 2013-Ohio-436, 2013 WL 501626, ¶ 24 citing Taxis v. Oakwood , 19 Ohio L.Abs. 498 (2nd Dist.1935). "Notwithstanding the fact that the signature is usually dispositive of the 'verification' issue, it has been held that the lack of the signature, or the total omission of the jurat, will not render the complaint void under all circumstances." Id. at ¶ 26, citing Taxis , 19 Ohio L.Abs. 498. "Instead, the validity of the complaint can still be upheld if the prosecution can otherwise show, based upon other language in the document or evidence outside the record, that a proper oath was administered by a person duly authorized to take the oath." Id.

{¶ 19} In this case, Hill did not raise the issue of a jurisdictional defect based upon the lack of signature by the Notary Public before the trial court. As a result, the trial record does not contain any factual findings verifying that Rhonda Slee, or another authorized person, administered the oath to Sergeant Robinson upon him signing the complaint and accompanying affidavit. For this reason, the judgment of the trial court is reversed.

{¶ 20} If evidence outside the record shows that Rhonda Slee actually administered the oath, despite not personally signing, or someone else authorized to administer an oath actually did so, the complaint would not be defective and the conviction would not be void. Accordingly, this case is reversed and remanded for a hearing to determine whether the complaint was sworn under oath by Sergeant Robinson in the presence of someone authorized to administer an oath as required by Crim.R. 3. Therefore, to this extent only, the first assignment of error is sustained.

{¶ 21} For the aforementioned reasons, we overrule the second assignment of error and sustain the first assignment of error on the limited basis set forth above. Accordingly, the judgment of the trial court is affirmed in part and reversed in part, and the case is hereby remanded so that an evidentiary hearing can be held on the issue of whether the complaint was sworn under oath by Sergeant Robinson in the presence of someone authorized to administer oaths.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

WILLAMOWSKI, P.J., and PRESTON, J., concur.


author: CALLAHAN, Judge.

text:
    STATE of Ohio, CITY OF TWINSBURG, Appellee v. Jennifer T. MILANO, Appellant
    No. 28674
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: April 11, 2018
    WILLIAM B. NORMAN, Attorney at Law, for Appellant.
    FRANKLIN BENI, Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Defendant-Appellant, Jennifer Milano, appeals from the judgment of the Stow Municipal Court, denying her motion to withdraw her guilty plea. This Court reverses.

I.

{¶ 2} Ms. Milano was arrested on one count of domestic violence, a first-degree misdemeanor, after striking her boyfriend with a picture frame. She was taken to jail and arraigned the following day by video link, at which time she entered into an uncounseled guilty plea. The court sentenced her to a fine and ten days in jail, but suspended her jail sentence on the condition that she obey all laws for two years and serve six months of community control.

{¶ 3} Subsequently, Ms. Milano filed a motion to withdraw her guilty plea. Because the audio recording of her plea hearing was incomplete, she attached to her motion to withdraw the partial recording and an affidavit. In her affidavit, she averred that the court had accepted her guilty plea without informing her of certain items, including the effect of her plea. She further averred that, had she been properly advised, she would have retained counsel and would not have pleaded guilty. Upon review, the trial court denied her motion to withdraw.

{¶ 4} Ms. Milano now appeals from the court's judgment and raises one assignment of error for this Court's review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING [MS.] MILANO'S MOTION TO WITHDRAW HER GUILTY PLEA WITHOUT AN EVIDENTIARY HEARING WHERE [MS.] MILANO, A PREGNANT, PRO-SE DEFENDANT ENTERED HER GUILTY PLEA AT HER FIRST ARRAIGNMENT AND THE RECORD CONTAINS NO INDICATION THAT SHE WAS ADVISED OF HER CONSTITUTIONAL TRIAL RIGHTS, THE STATUTORY PENALTIES OF THE CHARGE, THE ELEMENTS OR NATURE OF THE OFFENSE, OR THE EFFECT OF A GUILTY PLEA.

{¶ 5} In her assignment of error, Ms. Milano argues that the trial court erred when it denied her motion to withdraw her guilty plea. For the reasons that follow, this Court agrees.

{¶ 6} " 'One who enters a guilty plea has no right to withdraw it.' " State v. Brown , 9th Dist. Summit No. 24831, 2010-Ohio-2328, 2010 WL 2091163, ¶ 8, quoting State v. Xie , 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). Accordingly, "the decision whether to grant a motion to withdraw a guilty plea rests within the sound discretion of the trial court," and this Court "will not reverse a trial court's denial of a motion to withdraw a plea absent an abuse of discretion." State v. Pippert , 2016-Ohio-1352, 62 N.E.3d 918, ¶ 16. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 7} "A defendant filing a post-sentence motion to withdraw a guilty plea 'has the burden of establishing the existence of manifest injustice.' " State v. Robinson , 9th Dist. Summit No. 28065, 2016-Ohio-8444, 2016 WL 7600897, ¶ 11, quoting State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

A manifest injustice has been defined as a "clear or openly unjust act." State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208 [699 N.E.2d 83] (1998). * * * "Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process." State v. Williams , 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, 2004 WL 2616430, ¶ 5.

State v. Ruby , 9th Dist. Summit No. 23219, 2007-Ohio-244, 2007 WL 163015, ¶ 11. "Under the manifest injustice standard, a post-sentence 'withdrawal motion is allowable only in extraordinary cases.' " Brown at ¶ 9, quoting Smith at 264, 361 N.E.2d 1324.

{¶ 8} "A trial court's obligations in accepting a plea depend upon the level of offense to which the defendant is pleading." State v. Smith , 9th Dist. Medina No. 14CA0122-M, 2016-Ohio-3496, 2016 WL 3403006, ¶ 6. If a misdemeanor case involves a serious offense, the court must address the defendant personally, inform her of the effect of her plea, determine that she is making the plea voluntarily, and, if she is unrepresented, address her right to counsel. Crim.R. 11(D). If a misdemeanor case involves a petty offense, "[t]he plain language of [Crim.R.] 11(E) requires a trial court to do one thing before accepting a plea * * *[:] 'inform[ ] the defendant of the effect of the plea * * *.' " State v. Higby , 9th Dist. Wayne No. 10CA0054, 2011-Ohio-4996, 2011 WL 4526820, ¶ 4, quoting State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, paragraph one of the syllabus. A misdemeanor is a "serious offense" if "the penalty prescribed by law includes confinement for more than six months." Crim.R. 2(C). Otherwise, a misdemeanor is a "petty offense." See Crim.R. 2(D).

{¶ 9} Ms. Milano argues that she did not knowingly, voluntarily, and intelligently enter her plea because the court accepted it without informing her of all of her rights. She asserts that the court never advised her of her right to subpoena witnesses, to confront her accusers, or to demand a jury trial. She further asserts that the court failed to advise her of the elements of her offense, the statutory penalties associated with her offense, or the effect of her plea. Because there is no evidence in the record that she understood her rights, the penalties she faced, or the effect of her plea, she argues, her plea is invalid.

{¶ 10} Ms. Milano pleaded guilty to a first-degree misdemeanor that could have resulted in a maximum of 180 days in jail. See R.C. 2919.25(A) and 2929.24(A)(1). Consequently, she pleaded guilty to a "petty offense," see Crim.R. 2(C) and (D), and the trial court only had to inform her of the effect of her guilty plea before accepting it. See Crim.R. 11(E). See also Higby at ¶ 4, quoting Jones at paragraph one of the syllabus. The court was not required to tell her that she had the right to subpoena witnesses, confront her accusers, or demand a jury trial. See Smith , 2016-Ohio-3496, 2016 WL 3403006, at ¶ 8, citing State v. Watkins , 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 28. Likewise, it was not required to explain the elements of her offense or the penalties she faced. See Higby at ¶ 6 ; State v. Klingsbergs , 9th Dist. Wayne No. 10CA0044, 2011-Ohio-6509, 2011 WL 6323018, ¶ 9. To the extent Ms. Milano argues otherwise, her argument is overruled. The only question is whether the court informed her of the effect of her guilty plea. See Crim.R. 11(E).

{¶ 11} "To satisfy the requirement of informing a defendant of the effect of a plea, a trial court must inform [her] of the appropriate language under Crim.R. 11(B)." Jones at paragraph two of the syllabus. "The trial court may advise a defendant of the language of Crim.R. 11(B) either 'orally or in writing.' " Smith , 2016-Ohio-3496, 2016 WL 3403006, at ¶ 8, quoting Jones at ¶ 51. If the plea is one of guilt, the court must inform the defendant that her plea "is a complete admission of [her] guilt." Crim.R. 11(B)(1). Because the defendant's right to be so informed is a nonconstitutional one, it is "subject to review under a standard of substantial compliance." State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

Under this standard of review, "a slight deviation from the text of the rule is permissible[ ] so long as the totality of the circumstances indicates that 'the defendant subjectively understands the implications of [her] plea and the rights [she] is waiving * * *.' " [ State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,] ¶ 31, quoting State v. Nero , 56 Ohio St.3d 106, 108 [564 N.E.2d 474] (1990). If the trial court did not substantially comply with Crim.R. 11 when addressing a nonconstitutional right, [this Court] "must determine whether the trial court partially complied or failed to comply with the rule." (Emphasis sic.) [ Clark ] at ¶ 32. When the trial court partially complies with the rule, the defendant must demonstrate prejudice. Id. But, the trial court's "complete failure to comply with the rule will result in [the vacating] of the plea, regardless of whether prejudice has been shown." [ State v. Beach , 9th Dist. Summit Nos. 26021, 27124, 2015-Ohio-3445, 41 N.E.3d 187,] ¶ 31.

State v. Johnson , 9th Dist. Summit No. 27550, 2016-Ohio-480, 2016 WL 542633, ¶ 8.

{¶ 12} It is undisputed that a full transcript of Ms. Milano's plea hearing does not exist due to "technical defects in the court's [audio recording] system." Nevertheless, a portion of the hearing was preserved, and Ms. Milano had that portion transcribed. The transcript of that portion of the plea hearing does not reflect that the court ever advised her of the effect of her guilty plea. Moreover, in an affidavit that she attached to her motion to withdraw, Ms. Milano averred that the court never advised her of the effect of her plea.

{¶ 13} In response to Ms. Milano's motion to withdraw, the trial court acknowledged that the full recording of her plea hearing had been lost. The trial judge claimed, however, that he "specifically remember[ed] the colloquy" that had taken place some fourteen months earlier. According to the judge, he "specifically remember[ed] reviewing the rights enumerated on the acknowledgement and waiver on [the date of the plea hearing] * * *" with Ms. Milano. Accordingly, the court denied her motion to withdraw.

{¶ 14} The record contains the acknowledgment and waiver of rights form that the court apparently reviewed with Ms. Milano in conjunction with accepting her plea. Though the form outlines a number of rights and potential consequences, it makes no mention of the effect of a guilty plea. That is, it contains no language informing Ms. Milano that her guilty plea would be "a complete admission of [her] guilt." Crim.R. 11(B)(1). Thus, this Court cannot conclude that the trial court advised Ms. Milano of the effect of her plea in writing. See Smith , 2016-Ohio-3496, 2016 WL 3403006, at ¶ 9, quoting Jones at ¶ 51.

{¶ 15} Even assuming the trial judge remembered a plea he accepted by video link more than a year earlier, he never indicated that he recalled telling Ms. Milano about the effect of her guilty plea. He only recalled the fact that, during the colloquy, he had reviewed with Ms. Milano the acknowledgement and waiver of rights form. Yet, the form did not address the effect of her plea. "Due to the lack of any indication in the record that the trial court informed [Ms. Milano] of the effect of [her] guilty plea, [this Court] determine[s] that there [was] a complete lack of compliance with Crim.R. 11." Johnson , 2016-Ohio-480, 2016 WL 542633, at ¶ 10.

{¶ 16} As noted, "[a] trial court's 'complete failure to comply with [ Crim.R. 11 ] will result in [the vacating] of [a] plea, regardless of whether prejudice has been shown.' " Id. at ¶ 8, quoting Beach , 2015-Ohio-3445, 41 N.E.3d 187, at ¶ 31. Because the record supports Ms. Milano's contention that she did not knowingly, voluntarily, and intelligently enter her plea, it was unreasonable for the trial court to deny her motion to withdraw. See Johnson at ¶ 10. See also Smith , 2016-Ohio-3496, 2016 WL 3403006, at ¶ 11-13. Accordingly, her sole assignment of error is sustained.

III.

{¶ 17} Ms. Milano's sole assignment of error is sustained. The judgment of the Stow Municipal Court is reversed, and the cause is remanded for further proceedings consistent with the foregoing opinion.

Judgment reversed, and cause remanded.

TEODOSIO, P.J.

HENSAL, J.

CONCUR.

      As a general rule, this Court has presumed regularity in instances where an appellant has not filed a complete transcript on appeal or availed herself of the alternative procedures outlined in App.R. 9(C) and App.R. 9(D). See, e.g., State v. Knox , 9th Dist. Lorain No. 16CA010985, 2018-Ohio-43, 2018 WL 327831, ¶ 9-12. That is because an appellant bears the burden of supplying this Court with an adequate record and may not hope to " 'predicate reversal upon the basis of a silent record.' " Id. at ¶ 12, quoting In re Wilson , 9th Dist. Lorain No. 98CA007128, 1999 WL 195566, *3 (Mar. 31, 1999). In this particular instance, however, the trial court approved a partial transcript and indicated that it was denying Ms. Milano's motion because it specifically recalled having reviewed the acknowledgement and waiver of rights form with her during her plea hearing. The court never claimed that it orally notified Ms. Milano of the effect of her guilty plea, and the acknowledgment and waiver of rights form itself is part of the record. Thus, Ms. Milano has not predicated her argument upon a silent record. Under these unique facts and circumstances, this Court declines to presume regularity due to the absence of a complete transcript.


author: Myers, Presiding Judge.

text:
    The MURPHY ELEVATOR COMPANY, INC., Plaintiff-Appellee, v. 11320 CHESTER LLC, d.b.a. Splash Cincinnati Waterpark, f.k.a. Coco Key Hotel and Water Resort, Defendant-Appellant.
    NO. C-170251
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: April 11, 2018
    Christopher R. Heekin Co. LLC and Christopher R. Heekin, Cincinnati, for Plaintiff-Appellee,
    Repper-Pagan Law, Ltd., and Christopher J. Pagan, for Defendant-Appellant.
    OPINION.
   Myers, Presiding Judge.

{¶ 1} Defendant-appellant 11320 Chester LLC ("Chester") has appealed from the trial court's entry granting judgment in the amount of $13,626.14 to plaintiff-appellee The Murphy Elevator Company ("Murphy") on Murphy's claim for breach of contract.

{¶ 2} Because the trial court used the wrong measure of damages when calculating the damages owed to Murphy for the remaining months under the second year of the parties' three-year contract, we reverse that portion of the trial court's judgment. The judgment of the trial court is otherwise affirmed.

Factual and Procedural Background

{¶ 3} Chester and Murphy entered into a contract for Murphy to perform maintenance services on certain elevators located in a hotel and waterpark owned by Chester. The contract commenced on August 1, 2014, and provided that it would continue for a period of three years.

{¶ 4} Chester was required to pay Murphy $4,000 per quarter for the first year of the contract. However, if Chester paid for an entire contract year up front, it was only required to pay $15,000 for the year. With respect to the price owed by Chester for the second and third years of the contract, the contract provided that the price "is subject to adjustment at the end of each year in which this agreement is in force. The following formula for adjustment will be used: not more than 3% of the current price."

{¶ 5} The contract specified the exact services covered and stated that "[n]o work, service or liability, on the part of The Murphy Elevator Company other than that specifically mentioned herein is included or intended as a part of the contract." The contract further listed the hours and days during which services would be performed, and it provided that Chester would incur an additional charge for covered work performed outside of the specified days and times.

{¶ 6} Chester paid $15,000 up front for the first year of the contract. On July 1, 2015, Murphy submitted an invoice for the second year of the contract in the amount of $16,371. This amount was a three-percent increase to the price paid during the first year of the contract, plus sales tax. During the first and second years of the contract, Murphy submitted additional invoices to Chester for work performed that was outside the scope of the contract and for work covered under the contract that was performed outside of the contractually provided days and times.

{¶ 7} After paying for the first year of the contract up front, Chester made only two additional payments to Murphy. It made a payment of $168.13, which corresponded to an invoice for work that had been performed on a day or time not covered under the contract. And it made an additional payment of $8,500 on September 17, 2015.

{¶ 8} In June of 2016, Murphy sued Chester for breach of contract for Chester's failure to pay the submitted invoices. Murphy sought approximately $22,126 in damages.

{¶ 9} During a bench trial, Murphy's Vice President of Administration Travis Carlisle testified regarding the unpaid invoices that Murphy had submitted to Chester. He explained that with respect to work that Murphy had performed that was not covered under the contract, Murphy billed Chester the rate it would charge for a technician's regular time, holiday time, or overtime, depending on when the work was performed. And for work covered under the contract but performed outside of the contractually provided days and times, Carlisle stated that Murphy billed Chester the difference between a technician's regular and overtime rates, as was provided for in the parties' contract.

{¶ 10} Carlisle explained the circumstances surrounding each invoice that had been submitted, including whether the work had been covered under the contract. He conceded on cross-examination that Chester's payment of $8,500 should be applied to the amount invoiced for the second year of the contract.

{¶ 11} Carlisle testified that Murphy had stopped performing under the contract in March of 2016 because of Chester's nonpayment. He additionally explained that Murphy generally receives a 33 percent profit margin on this type of service contract.

{¶ 12} Vijaya Kumar Vemulapalli testified on behalf of Chester that neither he nor anyone else had requested that Murphy perform any services on weekends or during premium, noncovered time. He explained that prior to signing the contract with Murphy, he informed the company that he did not want to pay for services performed on the weekend. Vemulapalli testified that Murphy had told him that despite their standard contract language excluding weekends from coverage, it would not charge him for weekend service calls.

{¶ 13} The trial court found that the parties' contract covered only the days and times specified in the contract and that Murphy's submitted invoices were valid. It voided the third year of the contract as a matter of equity, and it awarded Murphy $22,126.14 in damages.

{¶ 14} Chester filed a motion for reconsideration. It argued that the trial court should have credited its payment of $8,500 towards the amount billed for the second year of the parties' contract, that the trial court should not have charged Chester premium rates for services performed outside the contract, and that Chester should not have been required to pay for the second half of the second year of the contract.

{¶ 15} The trial court issued a modified judgment crediting Chester for the $8,500 payment and awarding Murphy $13,626.14 in damages.

Billing Rates

{¶ 16} In its first assignment of error, Chester argues that the trial court erred in failing to enforce the clear and unambiguous terms of the contract to services performed outside the scope of the contract.

{¶ 17} Where a contract's terms are clear and unambiguous, interpretation of the contract is a matter of law. Ruehl v. Air/Pro, Inc. , 1st Dist. Hamilton Nos. C-040339 and C-040350, 2005-Ohio-1184, 2005 WL 627789, ¶ 4. In such instances, this court conducts a de novo review. Id. But where the terms of a contract are ambiguous, "the meaning of the words in the contract becomes a question of fact, and the trial court's interpretation will not be overturned on appeal absent a showing that the court abused its discretion." Kelly Dewatering and Constr. Co. v. R.E. Holland Excavating, Inc., 1st Dist. Hamilton No. C-030019, 2003-Ohio-5670, 2003 WL 22415591, ¶ 21. A contract will be considered ambiguous where "its terms cannot be clearly determined from a reading of the entire contract or if its terms are susceptible to more than one reasonable interpretation." Id.

{¶ 18} Chester first argues that a rate of $90 per hour should govern all charges for work performed outside of the contractually specified dates and times and for work that was not covered under the contract. It relies on the following provision in the parties' contract: "If you request that the normal and regular examination, adjustments, and/or repairs be made at times other than the regular working hours as set forth above, then you agree to pay the difference between our regular and overtime billing rates." With respect to the difference in rates, the contract contained the following clause: "Rates for the year 2014: The difference between Straight and Overtime will be $90.00 per man hour."

{¶ 19} For covered services performed outside of the contractually specified dates and times, Murphy initially invoiced Chester at a rate of $90 per hour. But in two invoices in the year 2016, Murphy invoiced Chester at a rate of $126 per hour for such services. Carlisle addressed this discrepancy and explained that in 2016, the difference between regular and overtime rates had increased from $90 to $126 per hour.

{¶ 20} Chester contends that the trial court erred in awarding Murphy judgment calculated at a rate of $126 per hour on these two invoices. But the contract language providing that Chester would owe the difference between a technician's regular and overtime billing rates for this type of work was clear and unambiguous. The contract was equally clear that $90 was the difference between such rates in the year 2014. The trial court did not err in relying on Carlisle's testimony and determining both that the difference in rates was $126 per hour in the year 2016 and that Chester was required to pay these two invoices as charged.

{¶ 21} As to services performed that were not covered under the parties' contract, Murphy invoiced Chester at either a technician's regular rate, holiday rate, or overtime rate, depending on when the services were performed. These rates ranged from $196 per hour to $362 per hour. Chester contends that Murphy could only have charged a rate of $90 per hour (described as the difference between regular and overtime rates) for services not covered under the contract.

{¶ 22} The contract clearly and unambiguously provided that only certain services were covered. And while the contract did not specify the exact hourly rate that Chester would be required to pay for services not covered, the only reasonable interpretation of the contract is that Chester would be charged Murphy's standard rate for such services. Chester's argument that Murphy was limited to charging a rate of $90 is meritless. The $90 amount specified in the contract was not an hourly rate otherwise charged by Murphy. Rather, it was the difference between the rates charged for a technician's regular time and overtime. The trial court did not err in relying on Carlisle's undisputed testimony and the submitted invoices to determine the rates that Murphy charged for a technician's regular time, holiday time, and overtime, and in awarding Murphy judgment for services not contractually covered based on those rates.

{¶ 23} Chester last argues under this assignment of error that the trial court erred in awarding judgment to Murphy on the invoice numbered 101382 because Murphy had failed to establish that Chester had requested the services charged in that invoice during a time not covered under the contract. The record belies this argument. With respect to the invoice numbered 101382, Carlisle testified that the service call had come in at night. He specifically stated, "[i]t certainly came in, in the evening at some point." The trial court did not err in relying on Carlisle's testimony and awarding Murphy the amount sought for overtime work in this invoice.

{¶ 24} Because the trial court did not err in awarding judgment on services that were performed outside the scope of the contract, we overrule Chester's first assignment of error.

Damages for Year Two of the Contract

{¶ 25} In its second assignment of error, Chester argues that the trial court erred in awarding a judgment encompassing full payment under the second year of the contract.

{¶ 26} Murphy invoiced Chester $16,371 for the second year of the contract. The trial court awarded Murphy judgment for this full amount, less Chester's $8,500 payment that Carlisle had conceded should be applied towards payment of the second year contract price.

{¶ 27} Chester argues that because Murphy had stopped performing on the contract in March of 2016, the trial court erred in awarding Murphy the full amount invoiced for year two of the contract. It contends that Murphy is only entitled to damages on the months that it performed services during that contractual year. While we agree with Chester's argument that the trial court erred in calculating the damages owed to Murphy for its services under year two of the contract, we disagree with Chester's suggested measure of determining the correct amount of damages.

{¶ 28} An award of damages should put the injured party in the same position it would have been in if there had been no breach. Evans Landscaping, Inc. v. Grubb , 1st Dist. Hamilton No. C-090139, 2009-Ohio-6645, 2009 WL 4882817, ¶ 12. Here, had there been no breach, Murphy would have received the remainder of the amount invoiced on year two of the contract, less its expenses. Murphy therefore was entitled to damages in the amount of the lost profits that it would have received for the remainder of year two of the contract. See Andrew v. Power Marketing Direct, Inc. , 2012-Ohio-4371, 978 N.E.2d 974, ¶ 66 (10th Dist.) (lost profits may be recovered in an action for breach of contract where "(1) profits were within the contemplation of the parties at the time the contract was made; (2) the loss of profits was the probable result of the breach of contract; and (3) the profits are not too remote or speculative.").

{¶ 29} Carlisle testified that Murphy generally receives a 33 percent profit margin on a service contract. But rather than award Murphy its lost profits encompassing 33 percent of the amount owed by Chester for the remaining months of year two of the contract, the trial court awarded Murphy the gross revenue it would have received for the services covered under year two of the contract. This was in error.

{¶ 30} We sustain Chester's second assignment of error, and we vacate the portion of the trial court's judgment awarding Murphy full payment on the amount invoiced for year two of the contract. This cause is remanded for the trial court to calculate the lost profits on the remaining months of the second year of the contract and to award Murphy damages in that amount. The judgment of the trial court is otherwise affirmed.

Judgment affirmed in part, reversed in part, and cause remanded.

Miller and Deters, JJ., concur.


author: TIM McCORMACK, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellant v. John KAFANTARIS, Defendant-Appellee
    No. 105937
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Daniel T. Van, Melissa Riley, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLANT
    Dean A. Colovas, 4403 St. Clair Avenue, The Brownhoist Building, Cleveland, OH 44103, Walter H. Edwards, Jr., 614 W. Superior Avenue, Ste. 1300, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE,
    BEFORE: McCormack, P.J., Blackmon, J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, P.J.:

{¶ 1} Plaintiff-appellant, the state of Ohio (the "state"), appeals from the trial court's May 25, 2017 decision to grant defendant-appellee John Kafantaris's motion to dismiss the indictment based on preindictment delay. For the reasons that follow, we affirm.

Factual and Procedural History

{¶ 2} On August 31, 2016, Kafantaris was indicted on one count of rape in violation of R.C. 2907.02(A)(2) and one count of kidnapping in violation of R.C. 2905.01(A)(4) for offenses that allegedly occurred on September 5, 1996.

{¶ 3} On September 4, 1996, the alleged victim, E.M., met Kafantaris at Club 1148, a nightclub no longer in existence that was located in Cleveland's Flats. The two exchanged phone numbers, and early in the morning on September 5, Kafantaris called E.M. and asked to come over to her apartment on the west side of Cleveland.

{¶ 4} What follows is a summary of the events as described in the incident report from September 8, 1996. E.M. agreed to let Kafantaris come over to her apartment, but told him they would not have sex. Kafantaris arrived at the apartment around 4:30 a.m. Kafantaris started to kiss E.M. and try to pull her shorts down. She pulled away and resisted, telling him no. Kafantaris went to sleep in the bedroom. E.M. went into the living room. A short while later, she returned to the bedroom and got into bed with Kafantaris. Kafantaris tried to have sex with E.M. She told him that she was menstruating and was using a tampon. He pulled the tampon out and proceeded to have sex with her. E.M. reported that she asked Kafantaris to use a condom, but he refused, instead ejaculating on her bed sheets. E.M. reported that her clothes and sheets were bloody from the incident. Kafantaris ultimately left the apartment around 11 a.m. on September 5.

{¶ 5} At the urging of two friends, E.M. went to the hospital.

{¶ 6} On September 8, 1996, E.M. contacted the Cleveland Police Department to report the incident. Based on her statement, police retrieved her rape kit from the hospital and the bed sheets from her apartment.

{¶ 7} The September 8 incident report also noted that E.M. reported receiving several threatening phone calls from Kafantaris in the days following the incident. These alleged threats were never investigated.

{¶ 8} On October 8, 1996, E.M. met with the detective assigned to the case and informed him that because of personal reasons she did not wish to pursue the case. E.M. further explained that she had time to think about the situation and that she felt partially responsible for the incident. In response, the detective provided her with a no-prosecution form, which she signed without influence. The file was subsequently marked "exceptional cleanup," and the investigation effectively ceased.

{¶ 9} In March 2013, E.M.'s rape kit was submitted to the BCI as part of the sexual assault kit testing initiative, with the submission sheet listing John Kafas and John Kafantaris.

{¶ 10} In August 2016, police obtained a search warrant to collect a buccal sample from Kafantaris. Upon collecting that sample, it was sent to BCI with E.M.'s bed sheets. BCI tested the evidence and determined that Kafantaris's DNA was found on the bed sheets. The August 31 indictment was the result of these tests.

{¶ 11} On October 19, 2016, Kafantaris filed a motion to dismiss the indictment based on preindictment delay. On December 30, 2016, the state filed a brief in opposition to Kafantaris's motion to dismiss. On January 23, 2017, the court held a hearing on the motion to dismiss. The corresponding journal entry notes that the parties were instructed to submit supplemental briefing by February 17, 2017.

{¶ 12} On February 17, 2017, the state filed a supplemental brief in opposition.

{¶ 13} On February 24, 2017, the trial court denied Kafantaris's motion to dismiss and issued a journal entry stating:

At this time, defendant's motion to dismiss for pre-indictment delay is denied. As this case continues, the trial court will allow the defendant to re-file this motion for further consideration by this court.

{¶ 14} On May 22, 2017, Kafantaris filed a supplemental motion to dismiss, relying largely on this court's decision in State v. Crymes , 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, 2017 WL 1743873.

{¶ 15} On May 25, 2017, the trial court held a hearing on the supplemental motion to dismiss, in which the state argued that this case was factually distinguishable from Crymes , and Kafantaris rested on his supplemental motion. The trial court granted Kafantaris's motion to dismiss, stating in a journal entry, in relevant part:

After considering the facts presented at the motion to dismiss hearing, arguments of counsel, and State v. Crymes , 2017-Ohio-2655, the court grants the defendant's motion to dismiss.

{¶ 16} It is from this decision that the state appeals.

Legal Analysis

{¶ 17} In its sole assignment of error, the state argues that Kafantaris has failed to demonstrate that he suffered actual prejudice as a result of the nearly 20-year delay between the date of the alleged offense and the indictment. The state further argues that, even if Kafantaris suffered actual prejudice, the trial court's dismissal was in error because the state established that the delay was justified.

{¶ 18} "In reviewing a trial court's decision on a motion to dismiss for preindictment delay, we apply a de novo standard of review to the legal issues but afford great deference to findings of fact made by the trial judge." State v. Tate, 2016-Ohio-5622, 70 N.E.3d 1056, ¶ 18 (8th Dist.), citing State v. Smith , 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, 2014 WL 3400677, ¶ 23.

{¶ 19} Preindictment delay violates due process only when it is unjustifiable and causes actual prejudice. State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. The Ohio Supreme Court has established a burden-shifting framework for analyzing preindictment delay due process claims. State v. Whiting , 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). Under this framework, a defendant is first required to present evidence of actual prejudice; if actual prejudice is established, the burden shifts to the state to produce evidence of a justifiable reason for the delay. Id.

{¶ 20} The Ohio Supreme Court has held that "the determination of 'actual prejudice' involves 'a delicate judgment based on the circumstances of each case.' " State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, citing United States v. Marion , 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The mere "possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice," as those are manifestations of the prejudice inherent in any delay. State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 105, citing Marion at 326, 92 S.Ct. 455. An actual prejudice analysis requires courts to undertake a case-by-case consideration of the relevance of the lost evidence and its purported effect on the defense. Id. , citing Walls at ¶ 52.

{¶ 21} "Actual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state's evidence and bolster the defense." Jones at ¶ 28, citing State v. Luck , 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984). The Luck court found that the grounds set forth by the defense in that case-deaths of witnesses, the fading of memories, and the loss of evidence-"when balanced against the other admissible evidence" established that the defendant suffered actual prejudice. Luck at 157-158, 472 N.E.2d 1097.

{¶ 22} Here, the state argues that Kafantaris has not shown that he suffered actual prejudice as a result of the nearly 20-year delay in prosecution. Kafantaris argues that he suffered actual prejudice based on the loss of the original case file, the unavailability of any documents E.M. filed with the Attorney General's office seeking victim compensation, the unavailability of phone records that could have established E.M. was lying about the threatening phone calls, and his inability to interview witnesses who may have observed or interacted with Kafantaris or E.M. before or after the incident. Applying the burden-shifting analysis, we determine that Kafantaris would suffer actual prejudice were he required to stand trial today.

{¶ 23} We turn first to the loss of the original case file. All that remains of the original case file is a short incident report. The state has lost the original file, including the signed no-prosecution form. Kafantaris argues that he is prejudiced by the inability to refer to any notes regarding the detective's impression of the alleged victim, as well as notes describing investigative steps taken. Although the no-prosecution form is referenced in the incident report, the loss of the original form cannot be understated. Therefore, we cannot say that the loss of the case file-including the no-prosecution form-would not prejudice Kafantaris. This is especially true in light of the fact that the file was marked "exceptional cleanup," meaning that no further investigation was to take place. Even acknowledging the state's policy in which it declined to pursue rape cases without the cooperation of the victim, we find it possible that notes in the original case file could have minimized or eliminated the impact of the state's evidence.

{¶ 24} The same can be said for the now unavailable victim's advocate fund file. A program is available through the Ohio Attorney General by which alleged victims of crimes can be compensated for certain expenses. The program generally maintains a file for the alleged victim containing receipts, reports, and narratives provided by the individual applying for funds. Although we know that E.M. sought funds through this program, the Attorney General no longer has any files related to this incident. Therefore, statements made by E.M. shortly after the incident in 1996 are no longer available. Because E.M. ultimately told police that she felt partly responsible for the incident, it is possible that any additional statements she made could have been useful to the defense in impeaching her credibility.

{¶ 25} We turn next to the unavailable phone records. The trial court's decision to dismiss this case was based largely on this court's decision in State v. Crymes , 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, 2017 WL 1743873. In Crymes , the defendant argued that he was prejudiced by the unavailability of phone records where such records could have negatively impacted the alleged victim's credibility. The alleged victim in that case had told the police that she did not know why the defendant had come over to her house the morning of the alleged rape. The defendant, however, had told the police that the victim had called him twice early that morning and asked if he was coming over to her house. This court held that the defendant suffered actual prejudice because the phone records went directly to the victim's credibility. Specifically, the court found that the phone calls, "although not direct proof of consent, would help appellee verify his account of the event, thereby bolstering the defense." Crymes at ¶ 20.

{¶ 26} The state argues that in light of the factual differences between this case and Crymes , Kafantaris's success here would require this court to adopt a broad rule that, pursuant to Crymes , actual prejudice is established whenever phone records are unavailable in a case. We agree with the state that such a broad rule would distort the actual prejudice standard articulated by Ohio courts. We disagree, however, that such a broad rule is necessary for our decision here.

{¶ 27} The decision in Crymes was premised on the idea that in rape cases where consent is the only issue, the case often becomes a credibility contest between the accused and the accuser. Here, the defense theory of the case is based entirely on consent. Kafantaris argues that the victim's claim that he made four or five threatening phone calls to her after the alleged rape was at one point an eminently verifiable fact that, had he retained the ability to verify it, could have been disproven had he been able to secure phone records from the days following the incident. The fact that the phone records no longer exist mean that Kafantaris, like the defendant in Crymes , has lost the ability to fully cross-examine his accuser or impeach her credibility.

{¶ 28} We note that, like in Crymes , the content of the alleged phone calls is not material here. E.M. alleged that Kafantaris called her several times and threatened her. Kafantaris alleges that he never made these phone calls. Phone records could have served to help verify either E.M.'s or Kafantaris's version of the events and, similarly, potentially cast doubt on E.M.'s credibility in a way that certainly would have minimized the impact of the state's evidence.

{¶ 29} Kafantaris also argues that he and several potential witnesses in the matter have demonstrably faded memories. We are mindful that " 'a defendant's own general assertion that he does not remember details of an event that occurred nearly 20 years ago does not, in and of itself, constitute actual prejudice.' " State v. Hunter , 8th Dist., 2017-Ohio-4180, 92 N.E.3d 137, ¶ 18, citing State v. Smith , 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, 2014 WL 3400677, ¶ 26 ; State v. Ricosky , 5th Dist. Stark No. 2003CA00174, 2004-Ohio-2091, 2004 WL 882477, ¶ 15. In analyzing the impact of Kafantaris's faded memory in this case, we again emphasize that the sole issue in the case is consent. As such, the defendant's own ability to clearly recall the events in question is of the utmost importance. A diminished memory, on its own, would likely not create actual prejudice, but we find that in this case, it is one of several forms of degradation of potential evidence and testimony that amounts to actual prejudice to Kafantaris.

{¶ 30} Further, while a defendant is not required to articulate specifically what the testimony of a missing witness would have been, he is required to provide an explanation of what exculpatory testimony the witness might have offered. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, at ¶ 28, citing Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 103. Here, Kafantaris identifies several "potential" witnesses, including his brothers and employees of Club 1148, who might have interacted with him or E.M. the night of the incident. He states that observations of both his and E.M.'s demeanor was an important part of the defense's investigation in this case, but he does not explain how the testimony of these potential witnesses would have been exculpatory. Therefore, we find Kafantaris's assertion that the loss of "potential" witnesses would have created actual prejudice too speculative.

{¶ 31} We must note, though, that this case is distinct from preindictment delay cases in which the defendant was questioned, arrested, or otherwise apprehended as part of the initial investigation. It is also distinct from preindictment delay cases in which a "cold case" is ultimately reopened. Here, the state does not dispute that it had sufficient information to identify and locate Kafantaris in 1996. Nevertheless, that did not happen. In fact, Kafantaris's first indication that he had been accused of rape came nearly 20 years after the 1996 events, when the investigation was reopened. Under these circumstances, we cannot ignore the challenge Kafantaris faces in defending against charges stemming from an incident of which he initially had no independent recollection.

{¶ 32} Because we find that missing evidence, including the lost case file and unavailable phone records, would create actual prejudice were Kafantaris required to stand trial today, we move on to a discussion of whether the state has produced evidence of a justifiable reason for the delay in prosecution.

{¶ 33} Without attempting to explain its justification, the state asserts that the nearly 20-year delay was justified. A delay in the commencement of prosecution by the state would be found unjustified under one of two conditions: (1) when it is done in an attempt to gain a tactical advantage over the defendant, or (2) when the state "through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased." Luck , 15 Ohio St.3d at 157-158, at 158, 472 N.E.2d 1097, citing Marion, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468. The state argues that neither condition applies here. We are not persuaded.

{¶ 34} Nothing in the record indicates that the delay was done in an attempt to gain a tactical advantage over the defendant. The record clearly shows that the state, through negligence or error in judgment, effectively ceased the active investigation of the case. Therefore, in order to justify the delayed prosecution, the state must be relying on new evidence. Critically, the state does not explicitly articulate that the delay is justified based on new evidence, as required. Instead, it asserts that the DNA results "add value" to the case by negating Kafantaris's ability to deny that the sexual conduct occurred at all. This is insufficient to justify the delay. It is clear from what remains of the original file that the state effectively ceased the investigation of this case in 1996, when it obtained a no-prosecution form from the alleged victim and marked the file for "exceptional cleanup." At that time, the state was aware of Kafantaris's identity, as the alleged victim had provided police with his name, a physical description, and even information about his family. Similarly, the rape kit existed in 1996 and could have been tested. The state does not argue otherwise. Thus, an argument that there was no value in the DNA evidence in this case prior to 2016 is not persuasive. Therefore, the DNA evidence obtained in 2013 and 2016 does not constitute new evidence.

{¶ 35} In light of the foregoing, we affirm the trial court's decision to grant Kafantaris's motion to dismiss and the assignment of error is overruled.

PATRICIA ANN BLACKMON, J., and KATHLEEN ANN KEOUGH, J., CONCUR