author: CYPHER, J.

text:
    ESSEX REGIONAL RETIREMENT BOARD v. John SWALLOW & Others.
    State Board of Retirement v. Brian O'Hare & Others.
    SJC-12458 SJC-12511
    Supreme Judicial Court of Massachusetts, Essex County..
    Argued October 1, 2018. Decided January 18, 2019.
    Thomas C. Fallon for John Swallow.
    Eric B. Tennen, Boston, for Brian O'Hare.
    Michael Sacco for Essex Regional Retirement Board.
    David R. Marks, Assistant Attorney General, for State Board of Retirement.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

      Justices of the Salem Division of the District Court Department of the Trial Court.

      Justices of the Cambridge Division of the District Court Department of the Trial Court.

   CYPHER, J.

These two cases present closely related questions concerning the scope of G. L. c. 32, § 15 (4) ( § 15 [4] ), which provides that no member of a public employee retirement system shall be entitled to a retirement allowance after conviction of a criminal offense involving a violation of the laws applicable to his or her office or position.

John Swallow was a police sergeant for the town of Manchester-by-the-Sea on administrative leave when he was charged with several crimes related to the discharge of his personal firearm, charges to which he admitted to sufficient facts to convict. Brian O'Hare was a police sergeant for the State police when he was charged with the Federal crime of using the Internet to entice a person under eighteen years of age to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty.

In these cases, there are neither factual connections between the criminal activity and the officers' respective positions nor apparent violations of any laws expressly applicable to their positions. Notwithstanding, the Essex Regional Retirement Board (Essex board) and the State Board of Retirement (State board) each concluded that the officers' respective convictions violated the fundamental tenets of their positions as trusted law enforcement officials and denied the officers a retirement allowance under § 15 (4) as a result.

We conclude that, while the officers' conduct was entirely reprehensible, in view of the narrow interpretation that we have given to § 15 (4), requiring the forfeiture of their pension allowances was in error. Consequently, we affirm the decisions of the Superior Court judges allowing the officers' respective motions for judgment on the pleadings and vacating the boards' decisions otherwise.

Background. The facts are undisputed in both cases.

1. Swallow. Swallow was a police sergeant for the town of Manchester-by-the-Sea from March 1, 1989, until his termination on January 4, 2013. Following a string of personal tragedies in 2011 and 2012, Swallow began drinking heavily and struggled with significant depression. In June 2012, Swallow was placed on administrative leave pending investigation of an abuse allegation unrelated to this matter. He was required to return his badge and service weapon at that time but retained his license to carry a firearm.

The incident that gave rise to Swallow's convictions took place in October 2012. Swallow and his wife, Lauren Noonan, were at their home; Swallow was drinking heavily and acting erratically. The couple argued, initially because Noonan was concerned that Swallow might drive his car while under the influence of alcohol, and the argument escalated. At one point, Noonan stated that she wanted Swallow to leave the home. Swallow refused, and Noonan indicated that if he did not leave she would testify against him regarding the abuse allegation. Swallow grabbed Noonan by the shirt, yelled at her, and waved a handgun in her face. Noonan left the home and began to walk to a neighbor's home. While in the neighbor's driveway, she heard a single gunshot.

Swallow, apparently contemplating suicide, had fired what he called a "brave shot," i.e., a shot meant to determine whether he had the courage to commit suicide. The bullet grazed his hand. Swallow was arrested by the Beverly police that evening and ultimately pleaded guilty to (1) assault and battery, (2) discharge of a firearm within 500 feet of a building, (3) assault by means of a dangerous weapon, (4) multiple counts of improper storage of a firearm, and (5) intimidation of a witness.

Swallow committed his crimes while on administrative leave and with a personal firearm. He did not use his position as an officer or police resources to facilitate his crime. Nonetheless, the Essex board determined that Swallow's convictions required forfeiture of his pension under § 15 (4) because his offenses "strike at the heart of the duties of a police officer and simply cannot be separated from his position as a law enforcement officer," and his actions "were a violation of the public's trust as well as a repudiation of his official duties."

Swallow sought review in the District Court, arguing that forfeiture was unjustified where there was no reference to public employment in the criminal statute under which he was convicted, no direct factual link between his conduct and his position as a police officer, and no violation of any identifiable law applicable to that position. Swallow also argued that forfeiture violated the excessive fines clause of the Eighth Amendment to the United States Constitution. On cross motions for judgment on the pleadings, a judge in the District Court vacated the Essex board's decision, concluding that Swallow's conduct and subsequent convictions were not connected sufficiently to his position to warrant forfeiture. That decision was subsequently affirmed by a judge of the Superior Court. Thereafter, the Appeals Court concluded that Swallow's use of a gun to threaten another's life violated the public's trust and was a repudiation of his official duties. Essex Regional Retirement Bd. v. Justices of the Salem Div. of the Dist. Court Dep't of the Trial Court, 91 Mass. App. Ct. 755, 760, 79 N.E.3d 1090 (2017). Accordingly, the court reversed and remanded the matter to the District Court for consideration of the Eighth Amendment issue. Id. at 761, 79 N.E.3d 1090.

2. O'Hare. O'Hare served as a trooper for the State police from 1986 until his resignation in October 2006. For several months in 2005 and 2006, O'Hare communicated online with, and eventually arranged to meet with, an individual whom he believed to be a fourteen year old boy but was actually an undercover agent with the Federal Bureau of Investigation (FBI). The FBI arrested O'Hare in February 2006. O'Hare subsequently resigned from his position and pleaded guilty to a charge of using the Internet to attempt to coerce and entice a child under the age of eighteen years to engage in unlawful sexual activity.

O'Hare did not use his position or State police resources to facilitate his crime; he used his personal computer and did not communicate with the undercover agent while on duty. The foregoing notwithstanding, the State board determined that Swallow's conviction required forfeiture of his pension under § 15 (4) because it constituted a violation of the core tenets of his position and went "directly to the heart" of his responsibilities and obligations as a State police trooper.

O'Hare sought review in the District Court, arguing that forfeiture was not warranted where his conviction was not related to his position as a State police trooper. The State board argued that his misconduct, although private, went to the heart of his obligation to enforce the criminal laws and, as a result, forfeiture was required. On cross motions for judgment on the pleadings, a judge in the District Court vacated the State board's decision, concluding that O'Hare's criminal conduct did not warrant forfeiture because it was wholly independent of his job as a State police trooper. That decision was subsequently affirmed by a judge in the Superior Court. Thereafter, the Appeals Court reversed, concluding that forfeiture was required because O'Hare's conduct violated the fundamental tenets of his role as a State police trooper, where the protection of the vulnerable, including children, is at the heart of a police officer's role, and this repudiation of his official duties violated the public's trust and the integrity of the State police. State Bd. of Retirement v. O'Hare, 92 Mass. App. Ct. 555, 559, 91 N.E.3d 677 (2017). Discussion. 1. Standard of review. General Laws c. 249, § 4, "provides for limited judicial review in the nature of certiorari to correct errors of law in administrative proceedings where judicial review is otherwise unavailable." State Bd. of Retirement v. Bulger, 446 Mass. 169, 173, 843 N.E.2d 603 (2006). We may correct "only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff" and "rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public" (citation omitted). Garney v. Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 388, 14 N.E.3d 922 (2014).

2. Pension forfeiture pursuant to G. L. c. 32, § 15. a. Origins of § 15 (4). General Laws c. 32, § 15, contains four subsections that generally govern the consequences that result from the commission of certain criminal offenses to retirement rights of public employees. Subsection (1) applies to those situations in which a member of the retirement system "has been charged with the misappropriation of funds or property of any governmental unit" in which he or she was employed. Three other subsections establish the consequences of convictions of certain criminal offenses.

Subsections (3) and (3A) are both entitled "Forfeiture of rights upon conviction." Subsection (3) denies a retirement allowance after final conviction of such member "of an offense involving the funds or property of a governmental unit or system referred to in subdivision (1) of this section," and does not permit the return of retirement contributions "unless and until full restitution for any such misappropriation has been made." Subsection (3A) applies only in circumstances where a member has been convicted of certain specified offenses, i.e., those set forth in either G. L. c. 268A, § 2 ("Corrupt gifts, offers or promises to influence official acts; corruption of witnesses"), or G. L. c. 265, § 25 ("Attempted extortion; punishment").

Subsection (4), inserted by St. 1987, c. 697, § 47, and entitled "Forfeiture of pension upon misconduct," provides that "in no event" shall any member of the State retirement system be entitled to a retirement allowance "after final conviction of a criminal offense involving violation of the laws applicable to his office or position." This subsection was enacted in reaction to this court's decision in Collatos v. Boston Retirement Bd., 396 Mass. 684, 488 N.E.2d 401 (1986). See Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 3, 665 N.E.2d 998 (1996). In Collatos, we determined that the Legislature intended subsection (3A) to result in forfeiture only if the employee was convicted of two specific State crimes. Collatos, supra at 687, 488 N.E.2d 401. As a result, a Federal conviction under the Hobbs Act, although arguably equivalent to a State offense enumerated in the statute, did not compel forfeiture. Id. at 687-688, 488 N.E.2d 401. Shortly after that decision, the Legislature inserted § 15 (4)"providing for an intermediate level of pension forfeiture in a broader array of circumstances." Gaffney, supra.

b. Application of § 15 (4). Our first substantive decision considering the applicability of § 15 (4) was Gaffney, 423 Mass. 1, 665 N.E.2d 998. In that case, the superintendent of the Shrewsbury water and sewer department pleaded guilty to stealing money and property from the town over the course of several years. Id. at 2, 665 N.E.2d 998. We reiterated our position in Collatos that pension forfeiture provisions are penal in character and must be construed narrowly. Gaffney, supra at 3, 665 N.E.2d 998. We considered this in tandem with the Legislature's apparent intention to expand the circumstances leading to pension forfeiture. Id. at 3-4, 665 N.E.2d 998 ("In using a broad phrase to describe the condition precedent to forfeiture, the intent clearly is to avoid having the precise form of the criminal enforcement action make a difference with respect to the pension forfeiture issue. Further evidence of this stems from the title of § 15 [4] -- 'Forfeiture of pension upon misconduct' "). In that case we rejected an approach that would have § 15 (4) operate "only in cases of violations of highly specialized crimes addressing official actions, while not providing the same when officials engage in criminal activities in the course of their duties." Id. at 4, 665 N.E.2d 998. We reasoned that the Legislature did not intend for forfeiture to necessarily follow "any and all criminal convictions" and that the "substantive touchstone" is "criminal activity connected with the office or position" (emphasis added). Id. at 4-5, 665 N.E.2d 998 (emphasizing that § 15 [4] targets "[o]nly those violations related to the member's official capacity"). In sum, we concluded that "[l]ooking to the facts of each case for a direct link between the criminal offense and the member's office or position best effectuates the legislative intent of § 15 (4)." Id. at 5, 665 N.E.2d 998.

Massachusetts appellate decisions over the next decade reflect consistent application of § 15 (4) where members had engaged in criminal activities in the course of their duties, often resulting in at least one violation of a statute expressly applicable to public employees or officials. See, e.g., MacLean v. State Bd. of Retirement, 432 Mass. 339, 340, 733 N.E.2d 1053 (2000) (member of Legislature convicted of violating State conflict of interest law); Robinson v. Contributory Retirement Appeal Bd., 62 Mass. App. Ct. 935, 936, 820 N.E.2d 260 (2005) (police officer convicted of, inter alia, conspiring with his partner to embezzle, steal, or obtain by fraud or otherwise significant sums of money that were under care and custody of their department); Fidelity & Deposit Co. of Md. v. Sproules, 60 Mass. App. Ct. 93, 94, 799 N.E.2d 147 (2003) (police chief convicted of larceny of controlled substance; attempting to procure perjury; intimidation of witness; and fraud or embezzlement by city, town, or county officer).

The opinion of Bulger, 446 Mass. at 179, 843 N.E.2d 603, which appears to rest on a broader interpretation of the statute, presented a novel set of facts. In that case, a clerk-magistrate was convicted of perjury and obstruction of justice in the context of an arguably personal matter. The convictions were unconnected factually to his position, and neither conviction expressly applied to public officials or employees. However, this court reasoned that "laws" applicable to clerk-magistrates included the Code of Professional Responsibility for Clerks of the Courts (code), S.J.C. Rule 3:12, as amended, 427 Mass. 1322 (1998). Bulger, supra at 177-178, 843 N.E.2d 603. Because the clerk-magistrate's perjury and obstruction of justice convictions clearly violated the code, a law applicable to his position, they resulted in forfeiture of his pension. Id. at 179, 843 N.E.2d 603.

Notably, we recognized that not every code violation would compel forfeiture: "the language of the code enunciating the high standards to which clerks are held is broad, whereas the language of ... § 15 (4)... is narrower, no doubt due to the severity of pension forfeiture as a sanction for dereliction of duty by a member."

Id. at 178, 843 N.E.2d 603. "Depending on the misconduct at issue, there may be instances when removal of a clerk-magistrate from office is mandated by G. L. c. 211, § 4, because it serves the public good, but pension benefits are not concomitantly terminated because the misconduct at issue does not fall within the purview of G. L. c. 32, § 15. For example, a member may be convicted of a criminal offense that does not involve any violation of the laws applicable to his office or position." Id. at 179, 843 N.E.2d 603. We emphasized that in that case the clerk-magistrate's commission of perjury and obstruction of justice "violated the fundamental tenets of the code." Id. Therefore, forfeiture was required. See Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 671, 6 N.E.3d 1069 (2014) (forfeiture required where register of probate's convictions violated code as well as at least one law plainly applicable to public officers).

After Bulger, Massachusetts appellate courts continued to uphold pension forfeitures in a narrow set of circumstances: those where a member had either (1) engaged in criminal activity factually connected to his or her position or (2) violated a law expressly applicable to public employees or officials. See State Bd. of Retirement v. Finneran, 476 Mass. 714, 722-723, 71 N.E.3d 1190 (2017) (forfeiture required where Speaker of House's conviction of felony obstruction of justice resulted from false testimony he provided concerning his participation as Speaker in redistricting planning process); Buonomo, 467 Mass. at 672, 6 N.E.3d 1069 (forfeiture required where register of probate convicted on multiple counts of breaking into depository [workplace cash vending machine]; larceny; and embezzlement by public officer); Dell'Isola v. State Bd. of Retirement, 92 Mass. App. Ct. 547, 553-554, 90 N.E.3d 784 (2017) (forfeiture required where correction officer's conviction of possession of cocaine resulted from officer's on-duty communications with inmate in custody); Durkin v. Boston Retirement Bd., 83 Mass. App. Ct. 116, 119, 981 N.E.2d 763 (2013) (forfeiture required where police officer used department-issued firearm to shoot fellow officer while intoxicated and off duty); Maher v. Justices of the Quincy Div. of the Dist. Court Dep't, 67 Mass. App. Ct. 612, 616-617, 621, 855 N.E.2d 1106 (2006) (forfeiture required where chief plumbing and gas inspector broke into city's personnel office, destroyed city property, and stole documents from his own personnel file with aim of removing documents criticizing his performance as chief inspector to improve his chances of reappointment).

By contrast, our appellate courts declined to uphold forfeitures where there were neither factual connections nor violations of laws expressly applicable to public employees or officials. See Garney, 469 Mass. at 387 n.7, 394-395, 14 N.E.3d 922 (forfeiture not required as result of teacher's convictions of purchase and possession of child pornography where teacher committed his crimes outside of school, without using school resources or otherwise using his position to facilitate his crimes, and without involving students in his illicit activities); Retirement Bd. of Maynard v. Tyler, 83 Mass. App. Ct. 109, 109, 112-113, 981 N.E.2d 740 (2013) (firefighter's sexual abuse convictions did not support forfeiture where acts occurred off duty outside fire house and firefighter did not use "his position, uniform, or equipment for the purposes of his indecent acts"); Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct. 538, 543, 954 N.E.2d 541 (2011) (forfeiture not required as consequence of library employee's convictions of possession of child pornography where there was no evidence that employee used his position or library resources to facilitate crime); Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 653-655, 933 N.E.2d 666 (2010) (forfeiture not required where housing authority custodian committed indecent assault and battery on daughter because offense was not committed on housing authority property or against any residents there, and offense did not bear other connection to custodian's position).

In short, our precedent requires a "direct link" between the criminal offense and the member's office or position, either "factual" or "legal." Finneran, 476 Mass. at 720, 71 N.E.3d 1190. In cases involving factual links, a public employee's pension is subject to forfeiture only "where there is a direct factual connection between the public employee's crime and position." Id. at 720-721, 71 N.E.3d 1190, and cases cited. In cases involving legal links, a public employee's pension is subject to forfeiture only "when a public employee commits a crime directly implicating a statute that is specifically applicable to the employee's position." Id. at 721, 71 N.E.3d 1190, citing Buonomo, 467 Mass. at 664-666, 6 N.E.3d 1069, and Bulger, 446 Mass. at 177-180, 843 N.E.2d 603. The requisite legal link is shown "where the crime committed is 'contrary to a central function of the position as articulated in applicable laws.' " Finneran, supra, quoting Garney, 469 Mass. at 391, 14 N.E.3d 922.

3. Analysis. Neither Swallow's nor O'Hare's conduct was factually connected to his position as a police officer. In addition, none of their convictions expressly applied to public officials or employees. The question then is whether the convictions nevertheless constituted violations of "the laws applicable" to their positions. G. L. c. 32, § 15 (4).

The boards argue that the officers' convictions violated the fundamental tenets of their positions such that there are sufficient legal links to merit forfeiture. In reaching this conclusion, they emphasize that police officers voluntarily undertake to adhere to a higher standard of conduct than do ordinary citizens, that as law enforcement officials they hold a position of special public trust, and that each officer's conduct blatantly violated that trust. Specifically, the Essex board argues that this case is analogous to Durkin in that Swallow's convictions are inconsistent with his position's obligations and the requirement that he "behave in a manner that brings honor and respect for rather than public distrust of law enforcement." In a similar vein, the State board argues that O'Hare's convictions undermined the central role of a State police trooper as articulated in the rules and regulations of the State police and undercut public confidence in the integrity of the State police.

a. Violation of special public trust. The Essex board argues that under Durkin forfeiture is required where a police officer's violation of the law demonstrates a "violation of the public's trust" and a "repudiation of his official duties." Durkin, 83 Mass. App. Ct. at 119, 981 N.E.2d 763. Indeed, both boards posit that the special position of trust police officers occupy in our society must factor into the determination whether an officer has violated a law applicable to his or her position. The State board goes so far as to suggest that the commission of any crime is contrary to the central functions of a law enforcement official's position as a result of their "special position" in our society and thus might result in forfeiture. We disagree.

First, the Essex board's reliance on Durkin for the proposition that where a police officer violates the public trust and shirks his or her official duties forfeiture is mandatory is misplaced. In that case, forfeiture was required where a police officer was convicted of assault and battery by means of a dangerous weapon for shooting another officer with his department-issued firearm. Id. at 117, 981 N.E.2d 763. Although the court discussed the fundamental nature of the police officer's position and noted that the officer had violated the public trust by "engag[ing] in the very type of criminal behavior he was required by law to prevent," forfeiture was ultimately grounded on the factual connections between the officer's position and the criminal activity. Id. at 118-119, 981 N.E.2d 763. Cf. Tyler, 83 Mass. App. Ct. at 112-113, 981 N.E.2d 740 (forfeiture not required where firefighter's offenses lacked any factual connection to his position). In short, Durkin is not a "legal link" case. Accord Finneran, 476 Mass. at 720, 71 N.E.3d 1190.

Second, we are not persuaded by the State board's argument that law enforcement officials are an exception to the proposition that pension forfeiture should not follow "as a consequence of any and all criminal convictions" because of their "special position" in our society. See Gaffney, 423 Mass. at 5, 665 N.E.2d 998. Indeed, the State board posits that "given the nature of the positions that troopers hold, the commission of any crime is contrary to the central functions of their positions to enforce the law and protect the public." This is precisely the kind of unfettered breadth that we have consistently avoided. See id. ("Yet it is also apparent that the General Court did not intend pension forfeiture to follow as a sequelae of any and all criminal convictions"); Durkin, 83 Mass. App. Ct. at 119 n.5, 981 N.E.2d 763 ("Notwithstanding the high standards placed on firefighters and police officers, not every off-duty illegal act qualifies as a violation of the laws applicable to his office or position" [quotation and citation omitted] ); Tyler, 83 Mass. App. Ct. at 112, 981 N.E.2d 740 ( § 15 [4] as currently written is "not so broad" as to "engulf nearly every public official, especially police officers and firefighters, convicted of any crime"). Regardless of the high standards placed on police officers, "not every off-duty illegal act qualifies as a violation of the laws applicable to his office or position" (quotation and citation omitted). Durkin, supra. Accord Tyler, supra. Indeed, § 15 (4)"requires something more specific than a violation of a special public trust in the particular public position." Garney, 469 Mass. at 393, 14 N.E.3d 922 (criminal conduct insufficient to justify forfeiture where it is "merely inconsistent with a concept of special public trust placed in the position or defiant of a general professional norm applicable to the position, but not violative of a fundamental precept of the position embodied in a law applicable to it"). Were we to adopt the State board's position, we would "expand the parameters" of § 15 (4)"well beyond what the Legislature intended for it to encompass." Id. Every legal link must be "embodied in a law." Finneran, 476 Mass. at 721, 71 N.E.3d 1190, quoting Garney, supra.

b. Applicable "laws" under § 15 (4). Section 15 (4) is clear and unambiguous: the Legislature intended that pension forfeiture result only where criminal conduct underlying a particular conviction involved a violation of the "laws" applicable to the member's office or position. In determining what this limitation means, we must give the language effect consistent with its plain meaning and refrain from reading into the statute "a provision which the Legislature did not see fit to put there" or "words that the Legislature had an option to, but chose not to include" (citation omitted). Canton v. Commissioner of the Mass. Highway Dep't, 455 Mass. 783, 789, 794, 919 N.E.2d 1278 (2010) (statutory language should not be "enlarged or limited by construction unless its object and plain meaning require it" [citation omitted] ). Moreover, because § 15 (4) is penal in nature, its language must be construed narrowly, "not stretched to accomplish an unexpressed result." Finneran, 476 Mass. at 719-720, 71 N.E.3d 1190, quoting Bulger, 446 Mass. at 174-175, 843 N.E.2d 603.

The State board urges us to conclude that the "laws" applicable to the office or position of State police trooper include the State police rules and regulations, issued by the colonel of the State police pursuant to G. L. c. 22C, §§ 3 and 10, which function as a code of conduct. These regulations require, among other things, that troopers avoid conduct that brings the State police into disrepute and obey all of the laws of the United States and of the local jurisdiction in which the trooper is present. We decline to do so.

First, there is no indication that the Legislature intended § 15 (4) to be triggered by a violation of a rule, regulation, professional oath, code of conduct, or other internal practice or policy that does not have the force of law. Had the Legislature so intended, it certainly could have included language to that effect, as it did in a preceding section. See G. L. c. 32, § 10 (2) (c ) ("Any member who is removed or discharged for violation of the laws, rules and regulations applicable to his office or position ... shall not be entitled to the termination retirement allowance provided for in this subdivision"). We will not conclude that such language is implied where the Legislature has excluded it. See Canton, 455 Mass. at 789, 919 N.E.2d 1278 ("where the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded" [citation omitted] ); State Bd. of Retirement v. Woodward, 446 Mass. 698, 706, 847 N.E.2d 298 (2006) (language appearing in one section of statute should not be read into another section where it does not appear).

Second, the State board's reliance on Bulger and Buonomo for the proposition that codes of conduct might serve as the applicable "law" because they establish the standards governing the norms of conduct and practice is misplaced. In Bulger, we concluded that the "laws" applicable to the office or position of clerk-magistrate include the code because "it establishes the very standards governing the norms of conduct and practice associated with such office," and the code has "the force of law," i.e., it is just as binding on the court and the parties as would be a statute. See Bulger, 446 Mass. at 177-178, 843 N.E.2d 603 ; Buonomo, 467 Mass. at 671, 6 N.E.3d 1069. See also Opinion of the Justices, 375 Mass. 795, 813, 376 N.E.2d 810 (1978) (Supreme Judicial Court has "the authority by rule to establish standards of conduct for judicial employees and officials"); Empire Apartments, Inc. v. Gray, 353 Mass. 333, 337, 231 N.E.2d 361 (1967) ("Rules of court have the force of law ..."); In re Berkwitzk, 323 Mass. 41, 47, 80 N.E.2d 45 (1948) (rules of court "have the force of law and are just as binding on the court and the parties as would be a statute"). The code of conduct relied on by the State board is neither a court rule nor a statute. Cf. G. L. c. 22C (applicable to State police). In short, it is not a "law" for purposes of § 15 (4).

While the officers' actions were clear and serious violations of the law, it does not automatically follow that they are subject to loss of their retirement allowance by virtue of either their heightened obligation to uphold the law or their special position of trust in our society. Our case law is consistent on this point -- a legal link requires in the first instance a violation of an expressly applicable "law." See Finneran, 476 Mass. at 721, 71 N.E.3d 1190 (criminal conduct must directly implicate statute that is specifically applicable to employee's position); Garney, 469 Mass. at 391, 14 N.E.3d 922 (criminal conduct must be contrary to central function of position as articulated in applicable laws). See also Buonomo, 467 Mass. at 670-671, 6 N.E.3d 1069 (sufficient legal link between convictions and office where public official's criminal conduct violated fundamental tenets of code); Bulger, 446 Mass. at 179, 843 N.E.2d 603 (same). In this case, neither board has identified a law expressly applicable to police officers that either Swallow or O'Hare can be said to have violated. Thus, "[t]he critical alignment of crime and office through an applicable law, as required by this narrow statute, is simply not present." Garney, supra at 395, 14 N.E.3d 922. We conclude that in these cases, where there are neither factual links nor legal links between the officers' positions and their convictions, forfeiture of their pension allowances is not legally tenable.

Conclusion. We affirm the decisions of the Superior Court judges affirming the District Court judges' decisions and vacating the boards' decisions.

So ordered.

      These cases were paired for oral argument and combined for purposes of this opinion because they raise essentially identical questions of law. Our analysis and decision apply equally to both.

      A search of the house revealed a considerable collection of firearms and ammunition in the home, including hundreds of weapons that Swallow was storing for a friend who was on a military deployment. The police determined that three of the firearms observed in the house were not properly secured.

      Retirement contributions are returned to the member. G. L. c. 32, § 15 (4) (§ 15 [4] ).

      We also rejected the argument that we should consider whether the clerk-magistrate's convictions, had they occurred while he was still employed as a clerk-magistrate, would have resulted in removal: "such an analysis is too broad, and it fails to recognize that the standards for a member's removal from office and for a member's forfeiture of a retirement allowance are different." State Bd. of Retirement v. Bulger, 446 Mass. 169, 178, 843 N.E.2d 603 (2006). "[The] parameters for entering or remaining in the profession are not the same as the standard for forfeiting a pension to which an employee has contributed and that he or she earned over the course of many years of public service." Garney v. Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 391, 14 N.E.3d 922 (2014).

      We also have declined to require forfeiture pursuant to § 15 (4) where total forfeiture would violate the excessive fines clause of the Eighth Amendment. See Public Employee Retirement Admin. Comm'n v. Bettencourt, 474 Mass. 60, 78-79, 47 N.E.3d 667 (2016) (§ 15 [4] could not be enforced against police officer who violated laws applicable to his position by illegally accessing personnel files of fellow officers while on duty in his official capacity as watch commander, on department premises, and while using department computer, because complete forfeiture of retirement benefits was not proportional to gravity of underlying offenses of which he was convicted).


source: Caselaw Access Project

license: Public Domain

text:
    Marc ALDANA v. COMMONWEALTH.
    SJC-12587
    Supreme Judicial Court of Massachusetts.
    January 24, 2019
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Marc Aldana, pro se.
    Marc Aldana appeals from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3. Aldana was indicted on charges of home invasion and other offenses. The Commonwealth moved for an order requiring him to submit a buccal swab for purposes of deoxyribonucleic acid testing. A judge in the Superior Court allowed the motion. Aldana's G. L. c. 211, § 3, petition sought relief from that ruling. The single justice denied relief without a hearing, stating that Aldana, if convicted, has an adequate, alternate remedy in the normal appellate process. The single justice also denied Aldana's subsequent motion for an emergency stay.
    The case is before us on Aldana's memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). In his memorandum, Aldana states that the buccal swab has since been taken, and he acknowledges that his request for relief is moot. We agree that Aldana's "challenge to the Superior Court order has become moot, as that order has been fully carried out." Matter of a Grand Jury Investigation, 477 Mass. 1012, 1012, 74 N.E.3d 1258 (2017), citing Lenardis v. Commonwealth, 452 Mass. 1001, 1001, 891 N.E.2d 674 (2008). Moreover, Aldana does not suggest that the matter is capable of repetition, yet evading review. The appeal must be dismissed.
    Aldana would fare no better if we were to consider his rule 2:21 memorandum on its merits. The rule requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2). "At this juncture, our focus is not on the merits of any ruling made by [a Superior] Court judge, but on the availability of other remedies." Luke v. Commonwealth, 460 Mass. 1002, 1002, 949 N.E.2d 434 (2011), quoting Muckle v. Commonwealth, 455 Mass. 1008, 1008, 916 N.E.2d 760 (2009). Aldana has not carried his burden under the rule. In his memorandum, he argues primarily that he is entitled to relief on the merits (as to which we express no view) and only briefly asserts that he has suffered irremediable harm. Our law is to the contrary. First, "the taking of a buccal swab itself, without more, is not a substantial bodily intrusion warranting interlocutory review under G. L. c. 211, § 3.... While the taking of a buccal swab implicates 'the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures,' ... it is, without more, not so significant an intrusion as to render the intrusion irreparable through the normal process of appeal." Commonwealth v. Bertini, 466 Mass. 131, 138-139, 993 N.E.2d 654 (2013). Second, "any harm resulting from the evidentiary use to which the swabs might be put is [also] fully remediable on appeal." Id. at 138, 993 N.E.2d 654. In these circumstances, the single justice did not err or abuse his discretion by denying relief.
    Appeal dismissed.

      In addition, Aldana makes new requests for relief in his memorandum that were not before the single justice. They are not properly before us, and we do not consider them.

      There are additional reasons not to disturb the judgment of the single justice. Aldana's record appendix does not comply with the rule, as it omits his G. L. c. 211, § 3, petition and the Commonwealth's opposition. S.J.C. Rule 2:21 (2) ("[t]he appeal shall be presented ... on the papers filed in the single justice session"). See Bishay v. Land Court Dep't of the Trial Court, 477 Mass. 1032, 1033 n.2, 81 N.E.3d 292 (2017). It also appears that Aldana has been represented by counsel in the Superior Court at all times. He is therefore not entitled to challenge interlocutory rulings pro se, as he has done here and before the single justice. Azubuko v. Commonwealth, 464 Mass. 1014, 1014, 983 N.E.2d 707 (2013), citing Commonwealth v. Molino, 411 Mass. 149, 152, 580 N.E.2d 383 (1991).


author: Harsha, J.

text:
    In the MATTER OF: Z.E.N.
    Adjudicated Juvenile Traffic Offender
    No. 18CA3826
    Court of Appeals of Ohio, Fourth District, Scioto County.
    RELEASED: May 16, 2018
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} Z.E.N. appeals from a juvenile court finding that she is a juvenile traffic offender for operating a motor vehicle above the posted speed limit, going 70 mph in a 50 mph zone. She asserts the trial court's finding was not supported by sufficient evidence.

{¶ 2} The state based the underlying speeding offense on a state trooper's testimony that he visually observed Z.E.N. operating a motor vehicle well over the posted speed limit, which he then confirmed by using an LTI 20-20 laser device. However, the trial court committed plain error by relying on the trooper's testimony about the laser device readout. The state failed to introduce evidence to demonstrate the device's scientific reliability, and the trial court failed to take judicial notice of this fact. Moreover, R.C. 4511.091(C)(1) precluded the trial court from relying on the trooper's unaided visual estimation of Z.E.N.'s vehicle's speed to convict her of speeding.

{¶ 3} Because the trial court's finding that Z.E.N. is a juvenile traffic offender based on her speeding was not supported by sufficient evidence, we sustain her assignment of error.

I. FACTS

{¶ 4} The state filed a traffic ticket in the Scioto County Court of Common Pleas, Juvenile Division, charging Z.E.N. with speeding by traveling 70 mph in a 50 mph zone, in violation of R.C. 4511.21, and alleging that she is a juvenile traffic offender, as defined in R.C. 2151.02(N). Although the ticket did not state which subsection of R.C. 4511.21 she allegedly violated, by stating she operated a motor vehicle by traveling 70 mph in a 50 mph zone, it alleged a violation of R.C. 4511.21(D)(5), which provides that "[n]o person shall operate a motor vehicle * * * upon a street or highway * * * [a]t a speed exceeding the posted speed limit upon a highway, expressway, or freeway * * *."

{¶ 5} At the adjudicatory hearing Ohio Highway Patrol Trooper Bradley A. Johnson testified he was outside his patrol car and using an LTI 20-20 laser unit on U.S. 52 in Scioto County where the posted speed limit was 50 mph.

{¶ 6} According to Trooper Johnson the LTI 20-20 laser unit was properly calibrated and he was trained and qualified in its use. He observed Z.E.N., who he later learned was 16 years old, driving around a curve on U.S. 52 and who "appeared to be well over the posted speed limit of fifty miles an hour down through there." He then "checked the speed with the laser and checked it at seventy miles an hour in a fifty zone." Trooper Johnson testified that he couldn't have aimed the laser device at the wrong car even though Z.E.N.'s car was next to another vehicle. That was because he aimed the laser at Z.E.N.'s car by using the scope and placing the red dot on that. Z.E.N. did not object to the trooper's testimony, despite the fact the state did not offer any testimony establishing concerning the scientific reliability of the LTI 20-20 laser device. Nor did the trial court take judicial notice of it.

{¶ 7} Z.E.N. testified that she was not going 70 mph on the date in question.

{¶ 8} In closing argument, Z.E.N.'s attorney stated that because the state failed to produce evidence of the scientific reliability of the laser device, there was insufficient evidence to prove that she had been speeding in violation of R.C. 4511.21(D) :

Additionally, no testimony was provided as to the scientific reliability of the laser and no judicial notice was asked for with regard to it. And so, therefore, because it's a laser reading, insufficient evidence was provided * * *. Insufficient evidence with regard to the laser and the mechanics of the particular machine was provided to the Court.

{¶ 9} The trial court found that the state had proved Z.E.N. to be a juvenile traffic offender by speeding, without commenting on the scientific reliability of the laser device:

* * * I do believe, after sitting in here, that the prosecutor has carried his burden of proving that she was doing that, that speed, that rate of speed. Calibration was talked about. The line of sight with the scope, that it's a red dot scope. I believe that he said that it was, they can check the alignment and it was checked. Talked about that there were two vehicles. So, I believe, that the burden has been carried and that she has been proven to be a juvenile traffic offender. So, I will so find, young lady, that you are a juvenile traffic offender.

{¶ 10} The trial court entered a judgment adjudicating Z.E.N. to be a juvenile traffic offender and ordering her to pay costs.

II. ASSIGNMENT OF ERROR

{¶ 11} Z.E.N. assigns the following error for our review:

THE TRIAL COURT ERRED BY FINDING BEYOND A REASONABLE DOUBT THAT APPELLANT WAS A JUVENILE TRAFFIC OFFENDER BECAUSE THE TRIAL COURT'S FINDING WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

III. STANDARD OF REVIEW

{¶ 12} "When a court reviews the record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also State v. Adams , 9th Dist. Medina No. 03CA0098-M, 2004-Ohio-3253, 2004 WL 1397943, ¶ 7 (applying same standard of review to review sufficiency of evidence claim in juvenile traffic offender case).

{¶ 13} A sufficiency assignment of error challenges the legal adequacy of the state's prima facie case, not its rational persuasiveness. State v. Koon , 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, 2016 WL 527289, ¶ 17.

{¶ 14} "That limited review does not intrude on the [factfinder]'s role 'to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.' " Musacchio v. United States , --- U.S. ----, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Jackson at 319, 99 S.Ct. 2781.

IV. LAW AND ANALYSIS

A. Laser Device Evidence

{¶ 15} Z.E.N. asserts that the trial court's finding that she is a juvenile traffic offender was not supported by sufficient evidence. A juvenile traffic offender "means any child who violates any traffic law * * * of this state * * *." R.C. 2152.02(N). The trial court's finding that Z.E.N. is a juvenile traffic offender is based on her speeding above the posted speed limit in violation of R.C. 4511.21(D), a state traffic law. As noted previously, R.C. 4511.21(D)(5) prevents any person from operating a motor vehicle upon a street or highway "[a]t a speed exceeding the posted speed limit."

{¶ 16} The state based the speeding violation on the trooper's testimony that the LTI 20-20 laser device registered her as traveling 70 mph in a 50 mph zone. Z.E.N. contends on appeal, as she did at trial, that there was no evidence concerning the scientific reliability of the device.

{¶ 17} "In order for a person to be convicted of speeding based on the use of a laser device, a two-part test must be satisfied. First, evidence must be introduced to show that the device is in proper working condition to make accurate readings and that the officer is qualified to administer the laser device. * * * Second, evidence must be introduced to show that the device is scientifically reliable."

Campbell v. Rosario , 2018-Ohio-337, 101 N.E.3d 681, ¶ 13 (7th Dist.). It is the second part of this test that is at issue here.

{¶ 18} "In order to be convicted of speeding based on laser-device evidence, there must be evidence introduced at trial that the device is scientifically reliable." State v. Starks , 196 Ohio App.3d 589, 2011-Ohio-2344, 964 N.E.2d 1058, ¶ 21 (12th Dist.), citing State v. Palmer , 1st Dist. Hamilton No. C-050750, 2006-Ohio-5456, 2006 WL 2987715, ¶ 10. "The scientific reliability of a speed-measuring device can be established through expert testimony or judicial notice." Campbell at ¶ 16, citing New Middletown v. Yeager , 7th Dist. Mahoning No. 03 MA 104, 2004-Ohio-1549, 2004 WL 614868, ¶ 9. The three general methods for taking judicial notice of the accuracy of a scientific device in a case within the territorial jurisdiction of the trial court are: (1) a trial court decision; (2) an appellate court decision from that jurisdiction; or (3) previous consideration of expert testimony about a specific device where the trial court notes it on the record. State v. Cleavenger , 2018-Ohio-446, 93 N.E.3d 1027 (7th Dist.), citing Columbus v. Bell , 10th Dist. Franklin No. 09AP-1012, 2010-Ohio-2908, 2010 WL 2555108, ¶ 14.

{¶ 19} The state did not offer any expert testimony to establish the scientific reliability of the LTI 20-20 laser device that Trooper Johnson used to determine that Z.E.N. was speeding. Nor did the trial court take judicial notice of the scientific reliability of these devices.

{¶ 20} Instead, the state cites a concurring opinion in Greater Cleveland Metroparks v. Ismail , 8th Dist. Cuyahoga No. 104412, 2017-Ohio-5570, 2017 WL 2815200, ¶ 20, which opined that "[r]equiring expert testimony for moving systems is absurd. The same can be said for laser devices, which have an even greater level of accuracy and reliability." That concurring opinion cited a majority opinion in Cleveland v. Tisdale , 8th Dist. Cuyahoga No. 89877, 2008-Ohio-2807, 2008 WL 2346440, ¶ 18, another speeding case involving a radar device, where the court of appeals stated that it believed that "expert testimony is no longer required to establish the general reliability of radar or laser devices that are used to determine speed."

{¶ 21} Ultimately, however, the Eighth District Court of Appeals subsequently criticized its prior holding in Tisdale as "an outlier of the well-established body of law on the issue." See Beachwood v. Joyner , 2012-Ohio-5884, 984 N.E.2d 388, ¶ 13 (8th Dist.), and cases cited; State v. Hari , 2016-Ohio-2987, 65 N.E.3d 238, ¶ 18 (3d Dist.) (emphasis sic.) ("this Court has not extended judicial notice to the reliability of laser -based devices absent prior testimony related specifically to the device or a prior court decision finding the laser-based device reliable"). Therefore, we will not apply the dicta in Tisdale here.

{¶ 22} The state also argues that Z.E.N. waived any error in the trial court's reliance upon the trooper's testimony about the LTI 20-20 laser device reading. It is true that Z.E.N. did not timely object to the reliability of the laser device when Trooper Johnson testified. But the lack of foundation for a speed measuring device like the LTI 20-20 laser constitutes plain error and implicates the sufficiency of the evidence where judicial notice was not taken. Cleavenger , 2018-Ohio-446, 93 N.E.3d 1027, ¶ 25 ("Appellate courts have concluded the lack of foundation for a speed measuring device implicates the sufficiency of the evidence where judicial notice was not taken"), and cases cited; Campbell , 2018-Ohio-337, 101 N.E.3d 681, ¶ 10-16 (reversing speeding conviction because of insufficient evidence to support conviction where state failed to introduce testimony to demonstrate scientific reliability of radar device and trial court failed to take judicial notice of device's reliability notwithstanding defendant's failure to object).

{¶ 23} Nor did Z.E.N.'s failure to timely object to the trooper's testimony about the laser device invite the trial court's error. " 'Under [the invited-error] doctrine, a party is not entitled to take advantage of an error that he himself invited or induced the court to make.' " See Martin v. Jones , 2015-Ohio-3168, 41 N.E.3d 123, ¶ 71 (4th Dist.), quoting State ex rel. Kline v. Carroll , 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27. Z.E.N. never conceded that the laser device was reliable; just the opposite-her attorney emphasized in closing argument that the laser device had not been established by testimony or judicial notice to be scientifically reliable.

{¶ 24} Therefore, the state's laser device evidence did not provide sufficient evidence to support Z.E.N.'s speeding conviction, which underlies the trial court's finding that she is a juvenile traffic offender.

B. Visual Estimation of Speed of Vehicle

{¶ 25} The state also argues that any error in relying on the trooper's testimony about the laser was harmless because Trooper Johnson also testified, based on his visual observation, that her car "appeared to be well over the posted speed limit of fifty miles an hour."

{¶ 26} In 2010, the Supreme Court of Ohio held that a police officer's unaided visual estimation of a vehicle's speed constituted sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D)"without independent verification of the vehicle's speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization * * * and is experienced in visually estimating vehicle speed." Barberton v. Jenney , 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, syllabus.

{¶ 27} But the next year the General Assembly amended R.C. 4511.091 to legislatively overrule Barberton in part by providing that no person shall be arrested, charged, or convicted of most speeding offenses under R.C. 4511.21 based simply on a peace officer's unaided visual estimation of the speed of a motor vehicle:

No person shall be arrested, charged, or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar. This division does not do any of the following:
(a) Preclude the use by a peace officer of a stopwatch, radar, laser, or other electrical, mechanical, or digital device to determine the speed of a motor vehicle;
(b) Apply regarding any violation other than a violation of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a substantially similar municipal ordinance;
(c) Preclude a peace officer from testifying that the speed of operation of a motor vehicle, trackless trolley, or streetcar was at a speed greater or less than a speed described in division (A) of section 4511.21 of the Revised Code, the admission into evidence of such testimony, or preclude a conviction of a violation of that division based in whole or in part on such testimony.

R.C. 4511.091(C)(1).

{¶ 28} Because this case was based upon speeding in violation of R.C. 4511.21(D)(5), amended R.C. 4511.091(C)(1) precluded the trial court from relying solely on the trooper's estimate of speed for the conviction. Helke , 2015-Ohio-4402, 46 N.E.3d 188, ¶ 17 ; Greater Cleveland Metroparks , 2017-Ohio-5570, ¶ 17. The state's citation of the exception in R.C. 4511.091(C)(1)(c) does not help its position because that exception applies only in R.C. 4511.21(A) speeding cases, in which it is alleged that a person operated a motor vehicle "at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle * * * upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead." The trooper's ticket did not charge Z.E.N. with a violation of R.C. 4511.21(A). We reject the state's claim of harmless error.

{¶ 29} Consequently, the state did not introduce sufficient evidence to support the trial court's finding that she is a juvenile traffic offender based on the traffic offense of speeding. We sustain Z.E.N.'s assignment of error.

V. CONCLUSION

{¶ 30} Accordingly, we reverse the trial court's judgment and remand with instructions to discharge Z.E.N.

JUDGMENT REVERSED AND CAUSE REMANDED.

Abele, J.,

{¶ 31} I respectfully dissent.

{¶ 32} During the trial to the court, the arresting officer testified that the LTI 20-20 laser unit had been properly calibrated, that the officer had been properly trained and qualified to use the device, and that the juvenile traffic offender operated her vehicle at 70 miles per hour in a 50 mile per hour zone. The prosecution elicited the foregoing testimony, and the trial court received the foregoing evidence, without objection. Consequently, I believe that the lack of any objection waived any error associated with the admission of evidence regarding the speed of the vehicle. I further note that the use of the LTI 20-20 laser device has been accepted in courts throughout Ohio. Thus, the prosecution did not produce evidence from an unknown or unreliable speed detection device.

Hoover, P.J.: Concurs in Judgment and Opinion.

Abele, J.: Dissents with dissenting opinion.

      The Second District Court of Appeals has held that the LTI 20-20 laser is scientifically reliable based on the expert testimony introduced in a prior case in their territorial jurisdiction. See State v. Helke , 2015-Ohio-4402, 46 N.E.3d 188, ¶ 33 (2d Dist.), citing State v. Reck , 2d Dist. Darke No. 1352 CA, 1994 WL 718230, *6 (Dec. 21, 1994). " 'However, the fact that a court in one jurisdiction has taken judicial notice of a device's accuracy cannot serve as the basis for a court in another jurisdiction to take judicial notice.' " State v. Zhovner , 2013-Ohio-749, 987 N.E.2d 333, ¶ 17 (3d Dist.), quoting Bell , 2010-Ohio-2908, at ¶ 14. In State v. Henry , 4th Dist. Hocking No. 94CA1, 1994 WL 534892, *3 (Sept. 28, 1994), we rejected a claim that a trial court erred in taking judicial notice of the scientific reliability of the LTI 20-20 laser because the trial court convicted the defendant in that case of speeding after stating that it would not use the laser evidence. Therefore, our court has not addressed this issue.

      To prevail on a claim of plain error a defendant must show that an error occurred, that the error was plain, and that but for the error, the outcome of the trial clearly would have been otherwise. State v. Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69.


author: TIMOTHY P. CANNON, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Madison K. COZZONE, Defendant-Appellant.
    No. 2017-G-0141
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided June 11, 2018
    James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).
    Anthony J. Bondra, 1414 South Green Road, Suite 310, Cleveland, OH 44121 (For Defendant-Appellant).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Madison K. Cozzone, appeals from the October 17, 2017 order of the Geauga County Court of Common Pleas. Appellant raises issues pertaining to her sentence. For the following reasons, the trial court's judgment is affirmed in part and reversed in part, and the matter is remanded for resentencing.

{¶ 2} Appellant was previously employed as a pharmacy technician in a supermarket pharmacy. After the pharmacy received complaints from customers indicating their prescriptions for various strengths of Oxycodone/APAP did not contain the full amount of prescribed medication, the pharmacy surveillance footage was reviewed. The footage showed appellant tampering with customer prescriptions on September 27, October 8, and October 17, 2012. Appellant was questioned regarding the incidents and admitted to stealing Oxycodone/APAP and Xanax from customer prescriptions.

{¶ 3} On December 7, 2012, appellant was indicted on three counts of Theft of Drugs, fourth-degree felonies in violation of R.C. 2913.02(A)(1) and (B)(6), and one count of Aggravated Possession of Drugs, a fifth-degree felony in violation of R.C. 2925.11(A) and (C)(1)(a). Appellant entered a plea of not guilty.

{¶ 4} On March 28, 2013, appellant filed a motion requesting intervention in lieu of conviction. A hearing was held, and the court found appellant met the eligibility requirements and granted her motion pursuant to R.C. 2951.041. The court accepted appellant's guilty plea, found her guilty, and stayed all criminal proceedings against her. Appellant was ordered to serve three years of rehabilitation pursuant to her intervention plan and to comply with the conditions outlined by the court. The court notified appellant that she could be sentenced for a violation of intervention to 18 months in prison on each of Count 1, Count 2, and Count 3 and 12 months in prison on Count 4. The trial court stated Count 3 and Count 4 would merge for purposes of sentencing and also notified appellant regarding post-release control.

{¶ 5} On January 9, 2015, the Adult Probation Department filed a petition alleging appellant had violated the conditions of her intervention. Appellant had failed to report to her Supervising Officer on December 10, December 17, and December 31, 2014; failed to verify her chemical dependency treatment; and tested positive for opiates on December 19 and December 24, 2014. At a hearing on the petition, appellant admitted to the violations. The trial court ordered a presentence investigation report ("PSI").

{¶ 6} On July 10, 2015, the trial court sentenced appellant to a total of three years of community control sanctions. Appellant was ordered to serve six months of residential sanctions in the Geauga County Safety Center and up to six months in the NorthEast Ohio Community Alternative Program ("NEOCAP") with the balance of community control to be served as nonresidential sanctions. Appellant was further ordered to pay a fine and costs. The trial court notified appellant she faced a potential prison term of 66 months for a violation of community control sanctions.

{¶ 7} After a review hearing, appellant was released from NEOCAP on January 14, 2016, and the trial court suspended her remaining period of incarceration in the Geauga County Safety Center.

{¶ 8} On July 26, 2016, the Adult Probation Department filed a petition alleging appellant had violated the conditions of her community control. Appellant had overdosed on heroin on July 22, 2016. Appellant admitted to the violation at a hearing on the petition. Appellant was ordered to remain in the Geauga County Safety Center. The hearing was continued for appellant to be interviewed by a physician and later resumed on October 3, 2016. The trial court modified and extended appellant's community control for a total period of five years under the same conditions imposed in its July 10, 2015 entry with the added condition that appellant would participate in the Lake-Geauga Recovery Centers' alcohol and drug program and follow all recommendations.

{¶ 9} On May 16, 2017, the Adult Probation Department filed another petition alleging appellant had violated the conditions of community control. Appellant had overdosed on heroin on May 12, 2017.

{¶ 10} On October 5, 2017, appellant filed a mitigation packet, including opioid treatment progress reports, medical records, an employment letter, and personal letters from appellant's family and friends.

{¶ 11} A hearing on the Adult Probation Department's petition was held on October 6, 2017. Appellant admitted to the community control violation. After finding appellant had violated her community control sanctions, the trial court merged Count 4 with Count 3 and sentenced appellant to a prison term of 18 months on each of Count 1, Count 2, and Count 3 to be served consecutively for a total prison term of 54 months with 380 days of jail-time credit. Regarding the imposition of consecutive sentences, the trial court stated the following at the hearing:

I do find that consecutive service is necessary to protect the public from future crime on the part of this defendant and to punish this defendant. I also find that consecutive sentences are not disproportionate to the seriousness of the defendant's conduct and to the danger she poses to the public.
And people may want to say, well, she's not hurting the public. Yes, she is. At the very least, again, she is stealing medication belonging to somebody else.
And each call on an overdose where the emergency squads get to come and treat her is another time that that squad's unavailable to somebody who has a medical need that this defendant has chosen, albeit unwittingly because of addiction, to utilize those services for herself. So the public does need protection from her conduct.
And certainly her history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by her.

Appellant was notified of post-release control and the consequences for violating post-release control. The trial court further invited the parties to submit, after the sentence was journalized, written arguments addressing whether the amendments to R.C. 2929.15 were applicable to appellant's case.

{¶ 12} The trial court's sentencing entry was filed October 17, 2017. The sentencing entry states:

Pursuant to R.C. § 2929.14(C)(4), the Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and that pursuant to § R.C. 2929.14(C)(4)(a), the offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or R.C. 2929.18 of the Revised Code, or was under post-release control for a prior offense, and pursuant to R.C. 2929.14(C)(4)(c), the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

We note the finding under R.C. 2929.14(C)(4)(a) included in the sentencing entry was not made at the sentencing hearing.

{¶ 13} On October 24, 2017, appellant filed a motion for reconsideration of her sentence in response to the trial court's invitation to brief the issue of the applicability of R.C. 2929.15. Appellant maintained that under newly enacted R.C. 2929.15(B)(1)(c), the maximum prison term that could be imposed for a "technical" community control violation on a theft-related fourth-degree felony was 180 days per case. The state filed a response, arguing appellant's violation of community control was not "technical" in nature. On November 16, 2017, the trial court overruled appellant's motion, noting Ohio law does not provide for the filing of motions for reconsideration of sentences.

{¶ 14} Appellant noticed a timely appeal from the trial court's October 17, 2017 sentencing entry.

{¶ 15} Appellant asserts three assignments of error on appeal. They state:

[1.] The sentence imposed was not supported by the record and was contrary to law.
[2.] The imposition of maximum consecutive sentences was not supported by the record and it is contrary to law.
[3.] The trial court erred by not following the mandates of R.C. 2929.15.

{¶ 16} Under appellant's first assignment of error, she argues her sentence is not supported by the record and is contrary to law because the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.

{¶ 17} "The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court." R.C. 2953.08(G)(2). "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * (a) [t]hat the record does not support the sentencing court's findings under division * * * (C)(4) of section 2929.14, or * * * (b) [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2).

{¶ 18} " 'A sentence is contrary to law if (1) the sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.' " State v. Wilson , 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, 2017 WL 3382767, ¶ 18, quoting State v. Price , 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, 2017 WL 632448, ¶ 14 (citations omitted). " 'When a sentence is imposed solely after the consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts "may vacate or modify any sentence that is not clearly and convincingly contrary to law" ' " only if the appellate court clearly and convincingly finds that the record does not support the sentence. Id. at ¶ 18, quoting Price , supra , at ¶ 14, quoting State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

{¶ 19} Appellant could have received a prison term of 18 months on each of Count 1, Count 2, and Count 3. See R.C. 2913.02(B)(6) and R.C. 2929.14(A)(4). Therefore, after merging Count 4 with Count 3, the trial court's imposition of a prison term of 18 months on each of Count 1, Count 2, and Count 3 is within the statutory range. The trial court did not explicitly state it considered R.C. 2929.11 and R.C. 2929.12 when it imposed appellant's sentence; however, we presume a trial court considered R.C. 2929.11 and R.C. 2929.12 from a silent record.

State v. Foster , 11th Dist. Portage No. 2011-P-0087, 2012-Ohio-3744, 2012 WL 3553467, ¶ 9.

{¶ 20} To ensure the sentence complies with the overriding principles of felony sentencing as stated in R.C. 2929.11, a court imposing a felony sentence is required to consider the seriousness and recidivism factors found in R.C. 2929.12. The trial court, however, "is not required to 'use specific language or make specific findings on the record in order to evince the requisite consideration of the applicable seriousness and recidivism factors (of R.C. 2929.12.)' " State v. Webb , 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198, 2004 WL 1778852, ¶ 10, quoting State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000) ; see also State v. O'Neil , 11th Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, 2011 WL 1837406, ¶ 34. Further, the "trial court is not required to give any particular weight or emphasis to a given set of circumstances" when considering the statutory factors. State v. DelManzo , 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, 2008 WL 4877148, ¶ 23.

{¶ 21} Prior to imposing sentence, the trial court stated it had reviewed the mitigation packet provided by appellant's counsel. The trial court also heard from a representative of the Lake-Geauga Recovery Centers. The trial court heard from the prosecutor, who stated: "Your, Honor, in reviewing the history of supervision that was provided to the state * * * I'm at a loss I suppose for what else I can recommend to this Court other than a period of incarceration, more specifically prison." Finally, the trial court reviewed appellant's history of violating community control in the present case. The trial court stated:

[I]n imposing sentence I have to take into account her conduct. And, again, the overdoses are how she got caught. But since May there has been no reporting. She hasn't shown up once to contact her probation officer. And that's consistent with behavior the Court has seen with this defendant.

{¶ 22} A prison term was appropriate where appellant continually failed to comply with the reasonable conditions of intervention and community control. Appellant has failed to demonstrate that the trial court did not properly consider and weigh the statutory purposes and principles of felony sentencing or the statutory seriousness and recidivism factors.

{¶ 23} Appellant's first assignment of error is without merit.

{¶ 24} Under appellant's second assignment of error, she argues the record does not support the trial court's findings for the imposition of consecutive sentences.

{¶ 25} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part: "Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States." R.C. 2929.41(A) (emphasis added).

{¶ 26} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison terms for multiple offenses to be served consecutively only if the court finds it "necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public[.]" The trial court must also find that one of the following statutory factors applies:

(a) The offender committed one or more of the multiples offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 27} "In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry[.]" State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court's failure to incorporate its findings in the sentencing entry after making them at the sentencing hearing does not render the sentence contrary to law and can be corrected through a nunc pro tunc entry. Id. at ¶ 30. However, the failure to make the findings at the sentencing hearing renders the sentence contrary to law, and the matter must be remanded for resentencing. See id. at ¶ 36-37. The trial court has no obligation, however, to engage in a "word-for-word recitation" of the language in the statute or to set forth its reasons to support its findings, as long as they are discernible in the record. Id. at ¶ 28-29. "[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld." Id. at ¶ 29.

{¶ 28} Although the trial court made findings necessary to order appellant to serve her sentence consecutively, the finding in the sentencing entry made pursuant to R.C. 2929.14(C)(4)(a), that the offenses were committed while the appellant was awaiting trial or sentencing or was under a sanction or post-release control, was not made by the judge at the sentencing hearing. Further, our record does not support this finding.

{¶ 29} The trial court also made a finding pursuant to R.C. 2929.14(C)(4)(c) that appellant's "history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime by the offender." This finding was made at both appellant's sentencing hearing and in the trial court's judgment entry of sentence; however, we clearly and convincingly find that the record does not support the finding.

{¶ 30} At the sentencing hearing, the trial court reviewed the offenses leading to the instant case and appellant's conduct of violating court orders and overdosing on drugs. However, the judge explicitly stated: "I have to note that I am not imposing sentence for overdoses. I'm not. I'm not imposing sentences for drug use. I'm not." After a review of appellant's PSI, we find appellant's criminal history includes only the offenses charged in the instant case and four minor traffic violations. Appellant has no significant prior criminal history. We, therefore, clearly and convincingly find that the record does not support the trial court's finding under R.C. 2929.14(C)(4)(c) as stated at the sentencing hearing and included in the sentencing entry.

{¶ 31} Because we clearly and convincingly find that the trial court's findings are not supported by the record, appellant's sentence is contrary to law. The sentence must be reversed and the matter remanded for resentencing.

{¶ 32} Appellant's second assignment of error has merit.

{¶ 33} Under her third assignment of error, appellant argues the trial court abused its discretion when it overruled her motion for reconsideration.

{¶ 34} It is well established that a trial court cannot reconsider a valid final judgment in a criminal case. State ex rel. Hansen v. Reed , 63 Ohio St.3d 597, 599, 589 N.E.2d 1324 (1992), citing Brook Park v. Necak , 30 Ohio App.3d 118, 120, 506 N.E.2d 936 (8th Dist.1986). A motion for reconsideration of a final judgment in the trial court is a nullity. Pitts v. Ohio Dept. of Transp. , 67 Ohio St.2d 378, 379, 423 N.E.2d 1105 (1981). A purported judgment ruling on a motion for reconsideration is likewise a nullity. Id. at 381, 423 N.E.2d 1105. The trial court's invitation to brief the potential applicability of R.C. 2929.15 to this case does not change the fact that it had already imposed a final judgment of sentence. Accordingly, we will not consider appellant's third assignment of error as it pertains to her motion for reconsideration.

{¶ 35} We consider appellant's third assignment of error only to the extent she argues her sentence was not imposed in accordance with R.C. 2929.15(B).

{¶ 36} Appellant argues her community control violation was "technical" in nature and that, therefore, under newly enacted R.C. 2929.15(B), the maximum prison term that could be imposed for the violation was 180 days.

{¶ 37} R.C. 2929.15(B) provides the penalties a trial court may impose upon an offender for a violation of community control sanctions. R.C. 2929.15(B) was recently amended by 2017 H.B. 49. The amendment places limitations on the prison sentence that may be imposed for an offender who has violated community control for certain fourth- or fifth-degree felonies. R.C. 2929.15 states, in pertinent part:

(B)(1) If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose upon the violator one or more of the following penalties:
* * *
(c) A prison term on the offender pursuant to section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations, as applicable:
* * *
(ii) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented offense or for any violation of law committed while under a community control sanction imposed for such a felony that consists of a new criminal offense and that is not a felony, the prison term shall not exceed one hundred eighty days.

{¶ 38} The General Assembly has not defined "technical" under R.C. 2929.15. Other districts, however, have addressed "technical" violations as they pertain to revocation of community control sanctions and violations of parole. In Cearfoss , the Fifth Appellate District stated that the appellant's failure to follow the probation officer's order to open the front door was a "technical" violation. State v. Cearfoss , 5th Dist. Stark No. 2004CA00085, 2004-Ohio-7310, 2004 WL 3563911, ¶ 20. In Jenkins , the Second Appellate District determined that the appellant's failure to notify his parole officer before moving out of his residence where a convicted felon resided was "at best a 'technical' violation." State v. Jenkins , 2d Dist. Champaign No. 2005-CA-22, 2006-Ohio-2639, 2006 WL 1461119, ¶ 15. Additionally, the Twelfth Appellate District has explained that "technical" violations, albeit in the context of parole, are " ' "those violations of the terms and conditions of the parole agreement which are not criminal in nature[,] such as failure to report to the parole officer, association with known criminals, leaving employment, leaving the State, etc." ' " Amburgey v. Ohio Adult Parole Auth. , 12th Dist. Madison No. CA2001-07-016, 2001 WL 1256365, *3 (Oct. 22, 2001), quoting State ex rel. Taylor v. Ohio Adult Parole Auth. , 66 Ohio St.3d 121, 124, 609 N.E.2d 546 (1993), quoting Inmates' Councilmatic Voice v. Rogers , 541 F.2d 633, 635, fn.2 (6th Cir.1976).

{¶ 39} Here, appellant violated the terms of her community control when she overdosed on heroin. Although appellant was not charged or convicted for this conduct, overdosing on drugs is criminal in nature and cannot be considered a "technical" violation of the terms and conditions of community control. Accordingly, appellant's argument is not well taken.

{¶ 40} Appellant's third assignment of error is without merit.

{¶ 41} The judgment of the Geauga County Court of Common Pleas is affirmed in part and reversed in part, and the matter is remanded for resentencing. On remand, the trial court may consider applicable findings that are supported by the record under R.C. 2929.14(C)(4) for the imposition of consecutive sentences, or the trial court may impose concurrent sentences.

CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O'TOOLE, J., concurs in judgment only.

      2017 H.B. 2017 took effect on September 29, 2017. Prior to the amendment, R.C. 2929.15(B)(1) stated: "If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose upon the violator one or more of the following penalties: * * * (c) A prison term on the offender pursuant to section 2929.14 of the Revised Code.


author: HENDRICKSON, P.J.

text:
    Kristin L. BURNS n.k.a. Clendenen, Plaintiff-Appellant, v. Brian K. BURNS, Defendant-Appellee.
    NO. CA2017-08-129
    Court of Appeals of Ohio, Twelfth District, Warren County.
    June 11, 2018
    Diehl & Hubbell, LLC, Kelly M. McKoy, 304 East Warren Street, Lebanon, Ohio 45036, for plaintiff-appellant
    Michael J. Davis, 8567 Mason-Montgomery Road, P.O. Box 1025, Mason, Ohio 45040, for defendant-appellee
   HENDRICKSON, P.J.

{¶ 1} Plaintiff-appellant, Kristin L. Burns n.k.a. Clendenen ("Mother"), appeals from a decision of the Warren County Court of Common Pleas, Domestic Relations Division, dismissing her motion to hold defendant-appellee, Brian K. Burns ("Father"), in contempt. For the reasons stated below, we affirm the trial court's decision.

{¶ 2} Mother's and Father's marriage was terminated by a decree of dissolution on January 9, 2012. At this time, a final decree of shared parenting was also filed, which incorporated and adopted an agreed upon shared parenting plan for the parties two minor children: a son, born March 5, 1994, and a daughter, born September 7, 1996. The shared parenting plan provided that, "[p]ursuant to the best interests of the minor child and Ohio Rev. Code § 3109.04, the parties hereby agree to the following Shared Parenting Plan for the care and custody of the parties' minor children * * *." The shared parenting plan further provided that with respect to tax exemptions, "[b]ased upon the evidence before the Court and the factors contained in Ohio Rev. Code § 3119.82, effective tax year 2011, and each year thereafter, Mother shall be entitled to claim [Daughter] (DOB: 9/7/96) as a tax exemption."

{¶ 3} Daughter turned 18 years old on September 7, 2014 and graduated from high school in May of that year. As a result, in October 2015, the Child Support Enforcement Agency ("CSEA") filed an administrative recommendation that Father's child support for Daughter terminate, with an effective date of September 7, 2014. The trial court adopted the CSEA's recommendation in November 2015.

{¶ 4} Mother claimed Daughter as a tax exemption on her 2015 taxes. Unbeknownst to Mother, Father also claimed Daughter as a tax exemption on his 2015 taxes. Mother learned of Father's actions after receiving a notice from the IRS that both parents had claimed Daughter as an exemption and that an audit had been triggered. Mother contacted Father and requested that he amend his 2015 tax return. Father refused and indicated his intention to claim Daughter as a tax exemption on his 2016 taxes.

{¶ 5} On February 22, 2017, Mother moved to have Father found in contempt for claiming Daughter as a tax exemption in violation of the shared parenting plan. In response, Father filed a motion to dismiss Mother's motion for contempt, arguing that with Daughter's emancipation and the termination of the child support order, the domestic relations court no longer had jurisdiction over the matter. Father also asked the court to award reasonable attorney fees related to the filing of the motion to dismiss. Mother filed a memorandum in opposition to Father's motion to dismiss.

{¶ 6} The matter was submitted to a magistrate without an evidentiary hearing. The magistrate granted Father's motion to dismiss, finding that pursuant to R.C. 3119.82, the statute governing the designation of the parent entitled to claim a child's tax dependency exemption, "the Court only has authority to designate which parent may claim a child as a dependent for income tax purposes so long as the Court has the authority to issue or modify a child support order." As Daughter had turned 18 and was emancipated, thereby terminating Father's child support order, the magistrate held that "the authority of the Court to designate who could claim [Daughter] for income tax purposes terminated. Therefore, Father claiming [Daughter] on his 2015 tax return is not under this Court's jurisdiction." Father's request for attorney fees was denied, however, as the magistrate found Mother brought her motion for contempt in good faith.

{¶ 7} Mother filed objections to the magistrate's decision, arguing that R.C. 3119.82 was not applicable to the case and that the parties had contracted for Mother to claim Daughter as a tax exemption beyond the child support order and Daughter's emancipation when the parties used the language "each year thereafter" in the shared parenting plan. The trial court overruled Mother's objections, finding that with certain inapplicable exceptions, the language used in the shared parenting plan "indicates that the terms of the * * * [p]lan were meant to remain enacted as long as the child [was] a minor child under the care and custody of the parents." As Daughter had reached the age of majority, the terms of the shared parenting plan governing tax exemptions no longer applied. The court further found that R.C. 3119.82 authorized the allocation of the tax exemption only for children subject to a child support order and, since Daughter was emancipated and no longer subject to a child support order, the court no longer had jurisdiction to determine which parent was authorized to claim Daughter as an exemption. The court therefore adopted the magistrate's decision granting Father's motion to dismiss.

{¶ 8} Mother appealed, raising the following as her sole assignment of error:

{¶ 9} THE TRIAL COURT ERRED WHEN IT DISMISSED MOTHER'S MOTION WITHOUT A HEARING.

{¶ 10} In her sole assignment of error, Mother argues the trial court erred by granting Father's motion to dismiss her motion for contempt. Mother contends the trial court retained jurisdiction to enforce the decree of shared parenting, which includes the terms of the agreed-to shared parenting plan. Mother asserts that under the express terms of this plan, she and Father "contracted the tax dependency issue beyond [Daughter's] age of majority." She further argues that R.C. 3119.82 is inapplicable to the present case and that the present case is distinguishable from Kent v. Kent , 9th Dist. Summit No. 25231, 2010-Ohio-6457, 2010 WL 5548591, a case relied upon by the magistrate in determining the court no longer had jurisdiction over the case as Daughter had reached the age of majority.

{¶ 11} In Kent , a husband and wife sought to divorce one another. At the time of trial, they had six children, three of whom were emancipated. Id. at ¶ 4. In the final decree of divorce, the trial court issued a child support order in regard to the couple's three minor children. Id. The court also ordered that "Husband shall claim two of the four older children and one of the younger children as tax exemptions." Id. Wife challenged the trial court's allocation of the tax dependency exemptions. Id. at ¶ 3. On appeal, the Ninth District Court of Appeals found that the trial court lacked jurisdiction to vest in Husband the right to claim his emancipated children as tax exemptions. Id. at ¶ 8. The court recognized the "well-settled law that a trial court lacks jurisdiction to either address in the first instance or modify parental rights and responsibilities in regard to children who are emancipated. * * * [W]hen the domestic relations court lacks jurisdiction to issue or modify a child support order due to a child's emancipation, it further lacks the authority to designate which parent may claim the emancipated child for income tax purposes." Id. at ¶ 6. In reaching this determination, the court examined R.C. 3119.82 and found that "the canon of construction expressio unius est exclusion alterius, i.e., the express inclusion of one thing implies the exclusion of the other, compels this Court to conclude that the legislature did not intend to expand the domestic relations court's jurisdiction over emancipated children simply by omitting any reference to them in the statute." Id. at ¶ 7.

{¶ 12} The present case differs from Kent , as it does not involve an initial allocation of the tax exemption for children who have already reached the age of majority. Rather, the allocation of the tax exemption for the parties' children occurred in 2012, when the children were minors and the shared parenting plan was adopted by the court. When she filed her motion for contempt, Mother sought to invoke the domestic relations court's jurisdiction to enforce the terms of the shared parenting decree, which adopted the parties' shared parenting plan-a contract which she believes provides her with the right to claim Daughter as a dependent for tax purposes for as long as Daughter is a student and under the age of 24, in accordance with 26 U.S.C. 152(c)(3)(A)(ii).

{¶ 13} "[A] court may enforce its own orders, including divorce decrees." Stocker v. Stocker , 9th Dist. Wayne No. 12CA0021, 2012-Ohio-5821, 2012 WL 6106100, ¶ 22, citing R.C. 3105.65(B) ("The court has full power to enforce its decree and retains jurisdiction to modify all matters pertaining to the allocation of parental rights and responsibilities for the care of the children, to the designation of a residential parent and legal custodian of the children, to child support, to parenting time of parents with the children, and to visitation for persons who are not the children's parents"). See also Howard v. Howard , 12th Dist. Butler No. CA99-09-158, 2000 WL 1725416, at *2 (Nov. 20, 2000) (noting that a trial court has the responsibility of interpreting and enforcing the provisions set forth in a shared parenting plan adopted by the court in a decree). "Under Civ.R. 75 ( [J] ), the continuing jurisdiction of a court that issues a domestic relations decree 'may be invoked by the filing of any motion by a party.' " State ex rel. Soukup v. Celebrezze , 83 Ohio St.3d 549, 551, 700 N.E.2d 1278 (1998), quoting Blake v. Heistan , 99 Ohio App.3d 84, 87, 649 N.E.2d 1304 (3d Dist.1994).

{¶ 14} Mother claims the shared parenting plan specifically provides that she is the parent entitled to claim Daughter as a dependent for tax purposes. "A shared parenting plan is a contract." Johnson-Wooldridge v. Wooldridge , 10th Dist. Franklin No. 00AP-1073, 2001 WL 838986, *6 (July 26, 2001) ; Pastor v. Pastor , 9th Dist. Summit No. 26789, 2013-Ohio-4174, 2013 WL 5433322, ¶ 7. As a result, in interpreting and enforcing provisions of a shared parenting plan, a court must follow the rules of contract construction and interpretation "so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." Id. , quoting Skivolocki v. East Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. If the terms in a shared parenting plan are unambiguous, then the words must be given their plain, ordinary, and common meaning. Id. ; Howard , 2000 WL 1725416, at *2.

{¶ 15} The shared parenting plan provided that "[p]ursuant to the best interests of the minor child and Ohio Rev. Code § 3109.04, the parties hereby agree to the following Shared Parenting Plan for the care and custody of the parties' minor children * * *." (Emphasis added.) With respect to the tax exemption for Daughter, the plan further provided that "[b]ased upon the evidence before the Court and the factors contained in Ohio Rev. Code § 3119.82, effective tax year 2011, and each year thereafter , Mother shall be entitled to claim [Daughter] (DOB: 9/7/96) as a tax exemption." (Emphasis added.)

{¶ 16} The phrase "each year thereafter" is predicated upon the "evidence * * * and the factors contained in Ohio Rev. Code § 3119.82." Determination of the tax exemption was therefore based on R.C. 3119.82, which provides that "[w]henever a court issues, or whenever it modifies, reviews, or otherwise reconsiders a court child support order, it shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes * * *." (Emphasis added.) The determination of which parent may claim a child as a dependent for tax purposes is therefore undeniably tied into a child support order. Thus, the phase "each year thereafter," in the shared parenting plan refers to each year after 2011 that the child support order was in effect. As Father's child support obligation terminated on September 7, 2014 when Daughter turned 18 and was emancipated, this provision of the shared parenting plan does not govern which parent may claim Daughter as a tax exemption after her emancipation.

{¶ 17} Furthermore, contrary to Mother's assertion, use of the phrase "each year thereafter" does not indicate the parties' intent that she be permitted to claim Daughter even after Daughter's emancipation. When the parties contemplated certain rights and obligations lasting beyond their children's emancipation, the parties specifically set forth their rights and obligations in the shared parenting plan. For example, the shared parenting plan required Father to pay money towards Daughter's college expenses and this obligation continued after Daughter reached the age of majority. Pursuant to the terms of the shared parenting plan, "Father shall pay up to $30,000 per year for [Daughter] to attend college * * *" and "[t]his obligation shall continue for a period of five years, or when [Daughter] obtains both a Bachelor's degree and Masters decree, whichever occurs first." The shared parenting plan also required Father to "maintain health insurance" for the children "until each child is 26 years old" and to "maintain automobile insurance for the children "until each child is 26 years old." Had the parties intended for Mother to be able to claim Daughter as a tax exemption beyond her emancipation, the parties would have included a similar statement that Mother could claim Daughter for tax purposes until she was 24 years old. They did not do this. As a result, the issue of which parent may claim Daughter as an exemption is determined by application of 26 U.S.C. 152(c) and (e).

{¶ 18} Accordingly, for the reasons expressed above, we find that the trial court did not err in granting Father's motion to dismiss Mother's motion for contempt. As the issue of which parent could claim Daughter as a tax exemption after she reached the age of majority was not agreed upon by the parties or set forth in the adopted shared parenting plan, the trial court could not find Father in contempt for allegedly violating the shared parenting plan. Moreover, as Daughter had reached the age of majority, the court no longer had jurisdiction to determine which parent should be permitted to claim her for tax year 2015. See, e.g., Miller v. Miller , 154 Ohio St. 530, 97 N.E.2d 213 (1951) (noting that in divorce and child support actions, a common pleas court does not possess general equity powers but can exercise only such power as the statutes expressly give it and that a court generally lacks jurisdiction to address in the first instance or to modify parental rights and responsibilities after children have reached the age of majority).

{¶ 19} Mother's sole assignment of error is, therefore, overruled.

{¶ 20} Judgment affirmed.

RINGLAND, J., concurs.

M. POWELL, J., concurs in judgment only.

      Pursuant to federal law, a parent is permitted to claim a "qualifying child" as a dependent for tax purposes as long as the qualifying child "is a student who has not attained the age of 24 at the close of such calendar year." 26 U.S.C. 152(c)(3)(A)(ii). The definition of "qualifying child" is set forth in 26 U.S.C. 152(c)(1)(A)-(E).

      Pursuant to 26 U.S.C. 152(c)(4)(B), where more than one parent of a "qualifying child" wishes to claim the child as a tax exemption, and the parents do not file a joint return together, "such child shall be treated as the qualifying child of (i) the parent with whom the child resided for the longest period of time during the taxable year, or (ii) if the child resides with both parents for the same amount of time during such taxable year, the parent with the highest adjusted gross income." 26 U.S.C. 152(e) also sets forth "special rules" for divorced parents in determining which parent may claim the "qualifying child."

      In reaching this determination, we decline to adopt the rationale expressed by the Sixth District Court of Appeals in Casey v. Casey , 6th Dist. Lucas No. L 89-189, 1990 WL 71587 (June 1, 1990). Casey was decided prior to the enactment of R.C. 3119.82. Mother's reliance on the case is, therefore, misplaced.