author: TYACK, J.

text:
    ELECTRONIC CLASSROOM OF TOMORROW, Plaintiff-Appellant, v. OHIO STATE BOARD OF EDUCATION, Defendant-Appellee.
    No. 17AP-510
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 27, 2018
    On brief: Zeiger, Tigges & Little LLP, Marion H. Little, Jr., John W. Zeiger, and Christopher J. Hogan, Columbus, for appellant. Argued: Marion H. Little, Jr.
    On brief: Isaac Wiles Burkholder & Teetor, LLC, Mark R. Weaver, Mark Landes, Brian M. Zets, and Michael L. Close, Columbus, for appellee. Argued: Mark Landes.
    DECISION
   TYACK, J.

{¶ 1} Plaintiff-appellant, Electronic Classroom of Tomorrow ("ECOT"), appeals from the July 12, 2017 decision and entry of the Franklin County Court of Common Pleas granting defendant-appellee, Ohio State Board of Education's ("BOE") motion for judgment on the pleadings and dismissing as moot ECOT's motion for a preliminary injunction and motion for expedited discovery. For the reasons that follow, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} ECOT initiated this case on June 14, 2017 seeking to invalidate a decision made by BOE at its June 12, 2017 public meeting. ECOT alleged violations of Ohio's Open Meetings Act ("OMA"), codified at R.C. 121.22.

{¶ 3} ECOT is the largest of Ohio's community based schools, and specifically is an internet or computer based community school as defined in R.C. 3314.02(A)(7). As a public school, ECOT receives funding from the state of Ohio based on the number of full-time equivalent ("FTE") students enrolled in the school. R.C. 3314.08(C) ; Elec. Classroom of Tomorrow v. Ohio Dept. of Edn. , 10th Dist. No. 16AP-863, 2017-Ohio-5607, 2017 WL 2814002, ¶ 3.

{¶ 4} Previously, the Ohio Department of Education ("ODE") had determined that ECOT owed the state money for FTE funding overpayments for the 2015-2016 school year. A community school that disagrees with ODE's determination on funding has a right to an appeal to the BOE or its designee. R.C. 3314.08(K)(2)(a). ECOT disputed ODE's finding and appealed the determination to a BOE designee.

{¶ 5} Under R.C. 3314.08(K)(2)(b), "[t]he board or its designee shall conduct an informal hearing on the matter within thirty days of receipt of such an appeal and shall issue a decision within fifteen days of the conclusion of the hearing." After notice to the parties, a hearing officer conducted a 10-day hearing in which ECOT introduced more than 2,000 exhibits. On May 10, 2017, the hearing officer issued a 100-plus page report recommending recovery of over $60 million owed to the state of Ohio by ECOT.

{¶ 6} Under R.C. 3314.08(K)(2)(c), "[i]f the board has enlisted a designee to conduct the hearing, the designee shall certify its decision to the board. The board may accept the decision of the designee or may reject the decision of the designee and issue its own decision on the matter." Under R.C. 3314.08(K)(2)(d), any decision made by the BOE on the appeal is final. The hearing officer's recommendation was slated for a final determination by BOE at its June 12, 2017 public meeting. Notice of the meeting had been published on the BOE website on June 8, 2017. Included in the agenda for the meeting was consideration of a resolution regarding the hearing officer's recommendation.

{¶ 7} ECOT submitted 140 pages of objections to the hearing officer's report and recommendation. ODE's chief legal counsel indicated, by means of a letter, that the BOE would consider ECOT's objections at its next regularly scheduled meeting in which it would take up the hearing officer's report. BOE conducted its June 12, 2017 meeting as scheduled. BOE went into executive session to discuss personnel cases and pending or immediate legal action. After emerging from executive session, the chief legal counsel for ODE gave a presentation about BOE's consideration of a resolution to accept the decision of the hearing officer ("ECOT resolution").

{¶ 8} After further presentations on unrelated topics, the discussion returned to the ECOT resolution, and BOE spent nine minutes formally deliberating the ECOT resolution. The bulk of the discussion concerned whether the amount for recovery should be approximately $60 million or $64 million. BOE then voted to adopt the hearing officer's recommendation to recover $60,350,791 owed by ECOT. Public comment followed the vote.

{¶ 9} Two days later, on June 14, 2017, ECOT filed this action seeking declaratory and injunctive relief. The first amended complaint alleged three violations of the OMA. On June 28, 2017, BOE filed an answer and a motion for judgment on the pleadings pursuant to Civ.R. 12(C) in which it argued that ECOT's claims under the OMA were barred for two reasons. First, BOE argued that the pleadings demonstrated that it did comply with the requirements of the OMA. Second, BOE argued that the hearing process afforded to ECOT was quasi-judicial in nature, and that the requirements of R.C. 121.22 do not apply to quasi-judicial proceedings.

{¶ 10} The trial court granted the motion for judgment on the pleadings after finding ECOT had failed to state a viable claim under the OMA. The trial court concluded the procedure outlined in R.C. 3314.08(K) was quasi-judicial in nature and, therefore, its deliberations that led to the decision were quasi-judicial in nature and not within the purview of R.C. 121.22. (July 12, 2017 Decision and Entry at 14, 15.)

II. ASSIGNMENT OF ERROR

{¶ 11} ECOT filed a timely notice of appeal assigning the following as error:

The Trial Court erred in granting Defendant/Appell[ee] the Ohio State Board of Education's (the "BOE" or "Board") Motion for Judgment on the Pleadings. Such Motion should have been denied.

III. STANDARD OF REVIEW

{¶ 12} A motion for judgment on the pleadings under Civ.R. 12(C) is to be granted when, after viewing the allegations and reasonable inferences therefrom in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.

Kamnikar v. Fiorita , 10th Dist. No. 16AP-736, 2017-Ohio-5605, 2017 WL 2817467, ¶ 35 ; Easter v. Complete Gen. Constr. Co. , 10th Dist. No. 06AP-763, 2007-Ohio-1297, 2007 WL 853337, ¶ 8. "A motion for judgment on the pleadings is specifically intended for resolving questions of law." Id. at ¶ 9, citing Friends of Ferguson v. Ohio Elections Comm. , 117 Ohio App.3d 332, 334, 690 N.E.2d 601 (10th Dist.1997). In reviewing a motion for judgment on the pleadings, the courts are restricted to the allegations in the pleadings as well as any material incorporated by reference or attached as exhibits to the pleadings. Curtis v. Ohio Adult Parole Auth. , 10th Dist. No. 04AP-1214, 2006-Ohio-15, 2006 WL 23248, ¶ 24. Appellate review of motions for judgment on the pleadings is de novo. Kamnikar at ¶ 35, citing Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5, 814 N.E.2d 44.

IV. ANALYSIS

{¶ 13} ECOT has alleged that BOE violated the OMA in three ways. In Count I of the amended complaint, ECOT claims that BOE violated the OMA by unlawfully deliberating and substantively discussing the ECOT resolution in a closed executive session or in serial communications designed to avoid the need for public discussion. (Am. Compl. at ¶ 55.) In Count II of the amended complaint, ECOT alleges that BOE violated the OMA by conducting an improper executive session to discuss the ECOT resolution because none of the statutory exceptions allowing for such a discussion apply. (Am. Compl. at ¶ 58.) And in Count III of the amended complaint, ECOT claims that BOE violated the OMA by failing to provide reasonable notice of its public meeting. (Am. Compl. at ¶ 65.)

{¶ 14} BOE has countered these arguments in two ways. First, BOE contends that ECOT has failed to present a viable claim that BOE violated the OMA. Second, BOE argues that it was exempt from the purview of the OMA because the actions taken by BOE at the June 12, 2017 meeting were part of a quasi-judicial proceeding leading to a quasi-judicial determination and thus outside the purview of R.C. 121.22.

{¶ 15} It is undisputed that the June 12, 2017 meeting of the BOE was a public meeting within the meaning of the OMA. The question is whether the portion of the meeting dealing with the ECOT resolution was exempt from the requirements of the OMA. BOE argues that a hearing officer presided over a 10-day hearing, notice of the hearing was provided to all prior to the hearing, and ECOT participated and presented over 2,000 exhibits related to the matter. After submission of the 100-page report, BOE contends that it was engaging in a quasi-judicial function when it decided whether to adopt the hearing officer's report.

{¶ 16} In Bd. of Trustees of the Tobacco Use Prevention & Control Found. v. Boyce , 185 Ohio App.3d 707, 2009-Ohio-6993, 925 N.E.2d 641, ¶ 64 (10th Dist.), this court stated:

Ohio's Open Meetings Act "is to be liberally construed to require a public body at all times to take official action and conduct deliberations upon official business in meetings open to the public. R.C. 121.22(A). Its purpose is to assure accountability of elected officials by prohibiting their secret deliberations on public issues." State ex rel. Cincinnati Enquirer v. Hamilton Cty. Commrs. (2002), 2002-Ohio-2038, 2002 WL 727023, citing State ex rel. Cincinnati Post v. Cincinnati , 76 Ohio St.3d 540, 544, 1996-Ohio-372, 668 N.E.2d 903. If specific procedures are followed, public officials may discuss certain sensitive information in a private executive session from which the public is excluded. R.C. 121.22(G) lists the seven matters that a public body may consider in executive session. A public body may convene in executive session only after a motion and vote that specifically identifies the permissible topic. R.C. 121.22(G) ; State ex rel. Long v. Council of the Village of Cardington , 92 Ohio St.3d 54, 59, 2001-Ohio-130, 748 N.E.2d 58 (If a public body decides to conduct an executive session, the public body must specify in its motion those matters that it will discuss in the executive session.). The executive session may then be held "for the sole purpose of the consideration of" one of the enumerated exceptions. R.C. 121.22(G).

{¶ 17} In the Tobacco Use case, this court held that a public board violated the OMA because it conducted no public deliberation before taking action in an official meeting. Id. at ¶ 74. "Given the absence of any public discussion by the board about the specifics of the transfer resolution, it is reasonable to conclude that the board's discussion regarding the amount and potential recipients of the transferred funds occurred during the executive session." Id. at ¶ 73.

{¶ 18} In State ex rel. Ross v. Crawford Cty. Bd. of Elections , 125 Ohio St.3d 438, 2010-Ohio-2167, 928 N.E.2d 1082, the relator asserted a violation of the OMA when the board of elections failed to vote in public to hold an executive session to deliberate on a matter and then failed to vote in public after the deliberations. The Supreme Court of Ohio held that Ohio's Sunshine Law applies to meetings but not to adjudications in quasi-judicial proceedings. Id. at ¶ 25. The court cited with approval a Sixth District Court of Appeals decision in which the court held that because a certain proceeding was quasi-judicial, the board was not required to comply with the OMA even though the board appeared to conform to the exception in R.C. 121.22(G)(3) for holding an executive session. State ex rel. Eaton v. Erie Cty. Bd. of Elections, 6th Dist. No. E-05-065, 2006-Ohio-966, 2006 WL 513910 at ¶ 66-67, fn. 3.

{¶ 19} Therefore, if the BOE proceedings related to the ECOT resolution were quasi-judicial, there can be no OMA violation.

{¶ 20} In determining whether a proceeding is quasi-judicial, the Supreme Court has indicated the most common test is whether the function under consideration involves the exercise of discretion and involves notice and the right to a hearing. M.J. Kelley Co. v. Cleveland , 32 Ohio St.2d 150, 153, 290 N.E.2d 562 (1972) ; TBC Westlake v. Hamilton Cty. Bd. of Revision , 81 Ohio St.3d 58, 62, 689 N.E.2d 32 (1998). The Supreme Court has further indicated that quasi-judicial proceedings require notice, hearing, and the opportunity for introduction of evidence. Union Title Co. v. State Bd. of Edn. , 51 Ohio St.3d 189, 191, 555 N.E.2d 931 (1990). "When there is no requirement for notice, hearing, or an opportunity to present evidence, the proceedings are not quasi-judicial." State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland , 141 Ohio St.3d 113, 2014-Ohio-4364, ¶ 36, 22 N.E.3d 1040, citing M.J. Kelley Co. , at paragraph two of the syllabus ("Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence.").

{¶ 21} ECOT argues that whether a proceeding is quasi-judicial in nature depends on what the law requires a public body to do and not what the public body actually does. ECOT cites State ex rel. Zeigler v. Zumbar , 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, for the proposition that, if the statute does not expressly state notice, a hearing, and the opportunity to present evidence, then the proceeding is not quasi-judicial. In Zeigler , a board of county commissioners voted to remove a county treasurer from office. The Supreme Court first reiterated that proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing, and the opportunity for introduction of evidence. Id. at ¶ 20. The court then stated:

The mere fact that the board of commissioners gave Zeigler limited notice of the August 23 hearing and conducted the hearing in a manner resembling a jury trial does not mean that it exercised the quasi-judicial authority required to make the removal order appealable under R.C. 2506.01. The requirement of conducting a quasi-judicial hearing is the key point of exercising that authority. State ex rel. Scherach v. Lorain Cty. Bd. of Elections , 123 Ohio St.3d 245, 2009-Ohio-5349, 915 N.E.2d 647, ¶ 23 (fact that board of elections held a protest hearing resembling a judicial trial even though not required to do so did not constitute the exercise of quasi-judicial authority).

(Emphasis sic.) Id. at ¶ 21. Zeigler is distinguishable from the instant case in that in Zeigler , there was no statute that required the board of commissioners to conduct a hearing before it removed Zeigler from office, whereas here the statute expressly provides for a hearing.

{¶ 22} Here, the statute in question provides for an informal hearing before the board or its designee. R.C. 3314.08(K)(2)(b) expressly provides for a hearing, and it is undisputed that ECOT was afforded the opportunity to present evidence at the hearing. ECOT availed itself of that opportunity during a 10-day evidentiary hearing in which it introduced more than 2,000 exhibits. By issuing its final determination after providing notice, a hearing, and the opportunity to provide evidence, BOE was acting in a quasi-judicial capacity.

{¶ 23} ECOT further argues that BOE's final determination to adopt the ECOT resolution was a policy decision, not a quasi-judicial determination.

{¶ 24} Here, the statute lays out a procedure for an appeal from a determination that a community school owes money to the state. R.C. 3314.08(K) provides, in relevant part, that:

If the review results in a finding that the community school owes moneys to the state, the following procedure shall apply:
(a) Within ten business days of the receipt of the notice of findings, the community school may appeal the department's determination to the state board of education or its designee.
(b) The board or its designee shall conduct an informal hearing on the matter within thirty days of receipt of such an appeal and shall issue a decision within fifteen days of the conclusion of the hearing.
(c) If the board has enlisted a designee to conduct the hearing, the designee shall certify its decision to the board. The board may accept the decision of the designee or may reject the decision of the designee and issue its own decision on the matter.
(d) Any decision made by the board under this division is final.

{¶ 25} As can be seen from a plain reading of the statute, BOE is not required to conduct the hearing itself, but can enlist a designee. Then BOE considers the evidence and the report and recommendation of the hearing officer, much as a trial court acts on the report and recommendation of a magistrate. BOE's determination is the final step in the procedure.

As such, it is part of a quasi-judicial proceeding.

{¶ 26} Finally, ECOT argues that BOE is bound by a letter written by the chief legal counsel for the ODE in which counsel stated that the statutory provision at issue is not listed in the BOE's policies and procedures manual as one of the department's quasi-judicial determinations, is not subject to R.C. Chapter 119, and is therefore not an adjudication under R.C. Chapter 119. The chief legal counsel then stated, "Thus it is not at all clear that Board review of a decision from an 'informal hearing' under R.C. 3314.08(K) constitutes a 'quasi-judicial' determination as that term is used in those Department reference materials." (May 19, 2017 Letter at 2, Ex. A to First Am. Compl.) The letter goes on to state that even if a BOE review of the hearing officer's decision is a quasi-judicial determination as that term is used in those reference materials, ECOT would not have the right to appear in person at the BOE meeting to present additional evidence or testimony.

{¶ 27} This letter is not an admission as ECOT asserts. The legal counsel presented alternative possibilities, but the question of whether the proceeding was quasi-judicial is one of law for the court. The subject matter of the letter had to do with whether BOE's review of the hearing officer's decision was subject to R.C. Chapter 119. The letter was not an admission that the process was not quasi-judicial but, instead, dealt with what procedures would be followed at the June 12, 2017 meeting. Whether ECOT could appeal the BOE decision to the court of common pleas under R.C. Chapter 119 is not relevant to the issue of this case.

{¶ 28} Because we have determined that the proceeding before BOE was quasi-judicial, we need not address the BOE's remaining arguments that they fully complied with the OMA.

V. CONCLUSION

{¶ 29} Based on the foregoing, we overrule the assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER and BRUNNER JJ., concur.


source: Caselaw Access Project

author: Wise, P.J.

license: Public Domain

text:
    Jacob DELONG, Plaintiff-Appellant v. Matt THOMPSON, et al., Defendants-Appellees
    No. 17 CA 21
    Court of Appeals of Ohio, Fifth District, Fairfield County.
    DATE OF JUDGMENT ENTRY: March 1, 2018
    PATRICK KASSON, JACKIE JEWELL, REMINGER CO., LPA, 200 Civic Center Drive, Suite 800, Columbus, Ohio 43215, For Plaintiff-Appellant
    D. JOE GRIFFITH, DAGGER, JOHNSTON, MILLER, OGILVIE & HAMPSON, LLP, 144 East Main Street, P.O. Box 667, Lancaster, Ohio 43130, For Defendant-Appellees
    JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Craig R. Baldwin, J.
   Wise, P.J.

{¶ 1} Appellant Jacob DeLong appeals from the decision of the Court of Common Pleas, Fairfield County, ruling in favor of Appellees Matt Thompson and Fence Solutions, Inc. following a bench trial.

STATEMENT OF THE FACTS AND CASE

{¶ 2} The relevant facts are as follows:

{¶ 3} On December 30, 2015, Appellant Jacob DeLong filed a Complaint in the Fairfield County Court of Common Pleas against Matt Thompson and Fence Solutions, Inc. alleging claims of Worker's Compensation Retaliation, Disability Discrimination, Violation of the Ohio Prompt Payment Act, and Failure to pay overtime wages under the Ohio Minimum Fair Wage Standards Act. Appellant also made a claim for punitive damages.

{¶ 4} By Opinion and Entry filed March 7, 2017, Appellant's causes of action for Disability Discrimination and punitive damages were dismissed pursuant to summary judgment.

{¶ 5} On March 28, 2017, a bench trial commenced in this matter on the remaining causes of action. At trial, the court heard testimony from Appellant, Appellee Matt Thompson and Rob Nixon, an independent contractor who worked with Appellant for Appellees.

{¶ 6} Based on the testimony and evidence presented at trial, the court found that while Appellant was an employee of Fence Solutions prior to September, 2015, his status changed to that of an independent contractor on or around September 14, 2015. The court further found that Appellant was an independent contractor when his employment was terminated from Fence Solutions. The court made additional findings that while employed by Fence Solutions, Appellant was paid at least minimum wage and that he received all overtime pay owed to him. The court found that Appellee Matt Thompson did not breach any duty owed to Appellant.

{¶ 7} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶ 8} "I. THE TRIAL COURT ABUSED ITS DISCRETION, AND OTHERWISE MADE A CLEARLY ERRONEOUS FINDING, BY RULING THAT APPELLANT WAS AN INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE WHEN APPELLANT SATISFIED MOST OF THE BOSTIC FACTORS AND THE INDUSTRIAL

COMMISSION FOUND HE WAS AN EMPLOYEE.

{¶ 9} "II. A FURTHER ASSIGNMENT OF ERROR AND ABUSE OF DISCRETION WAS COMMITTED WHEN THE TRIAL COURT HELD THERE WAS NO WORKERS' COMPENSATION RETALIATION DESPITE THE EXISTENCE OF AN AUDIO RECORDING CORROBORATING THIS CLAIM AND APPELLEE THOMPSON TESTIFIED IN HIS DEPOSITION AND OPEN COURT THAT APPELLANT WAS FIRED FOR FILING A WORKERS' COMPENSATION CLAIM.

{¶ 10} "III. THE TRIAL COURT FURTHER ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY FINDING THAT THE PROMPT PAY ACT WAS NOT VIOLATED WHEN APPELLANT DID NOT RECEIVE HIS FINAL PAYCHECK UNTIL FOUR MONTHS AFTER HE RETAINED A LAWYER.

{¶ 11} "IV. A FINAL ERROR AND ABUSE OF DISCRETION WAS COMMITTED WHEN THE TRIAL COURT FOUND THAT THE APPELLANT WAS NOT ENTITLED TO OVERTIME PAY WHEN APPELLEES FAILED TO PAY HIM FOR OVERTIME HOURS WORKED ON TWO SEPARATE OCCASIONS AND WERE AWARE OF THE DISCREPANCY."

I.

{¶ 12} In his First Assignment of Error, Appellant argues that the trial court erred in determining that Appellant was an independent contractor.

{¶ 13} "Whether someone is an employee or an independent contractor is ordinarily an issue to be decided by the trier of fact." Bostic v. Connor , 37 Ohio St.3d 144, 524 N.E.2d 881 (1988), paragraph one of the syllabus. However, "where the evidence is not in conflict or the facts are admitted, the question of whether a person is an employee or an independent contractor is a matter of law to be determined by the court." Brown-Spurgeon v. Paul Davis Sys. of Tri-State Area , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, 2013 WL 1883214, ¶ 19.

{¶ 14} Whether one is an employee or an independent contractor depends on the facts of each case. Grange Mutual Cas. Co. v. Laughlin , 5th Dist. Licking No. 12-CA-0089, 2013-Ohio-4447, 2013 WL 5569201. The key factual determination in making such a finding "is who had the right to control the manner or means of doing the work." Bostic , 37 Ohio St.3d at paragraph one of the syllabus, 524 N.E.2d 881. This inquiry is fact-intensive and requires the consideration of a number of factors, none of which are dispositive by themselves. Id. at 146, 524 N.E.2d 881. As noted by the Ohio Supreme Court, in making such a determination, "the factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes traveled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts." Id.

{¶ 15} If the employer reserves the right to control the manner and means of doing the work, as well as the result, then an employer-employee relationship is created. State ex rel. Nese v. State Teachers Retirement Bd., 136 Ohio St.3d 103, 2013-Ohio-1777, ¶ 33, 991 N.E.2d 218. On the other hand, if the employer only specifies the result and the worker determines the manner and means of doing the job, then an independent contractor relationship is created. Id. In determining what kind of relationship exists, multiple factors must be considered, including who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools, and personnel used; who selects the routes travelled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts. Bostic at 146, 524 N.E.2d 881.

{¶ 16} Due to the fact-intensive nature of the employee/independent contractor analysis, a trier of fact ordinarily ends up deciding whether a person is an employee or independent contractor. Id. at 145-46, 524 N.E.2d 881. In the case sub judice , this matter was tried to the bench so the trial court was the trier of fact.

{¶ 17} Here, Appellant signed an independent contractor agreement which stated that he was responsible for furnishing his own labor, equipment and/or tools; that Fence Solutions was not responsible for any accidents, stolen tools, or materials or other liabilities of Appellant; Appellant was responsible for his own damages and repairs; Appellant was responsible for his own taxes; Appellant was responsible for any personal injury; Appellant was responsible for his employees, subcontractors, materials, equipment, and all applicable taxes, benefits, and insurance, including Workers' Compensation. Additionally, the agreement stated that while Fence Solutions can control the quality of the work, the subcontractor is an independent contractor in all respects. The contract also provided that payment was to be given after completion of the job and satisfaction of the contractor and owner.

{¶ 18} At trial, Appellant admitted that he was responsible for his own equipment and that he provided his own labor and equipment (T. at 145-146). Testimony was presented that Appellant was responsible for lost or damaged tools, the quality of his work, any accidents and all materials on the job site. (T. at 180-185). Testimony was also presented that Appellant could control the hours he worked at a job site and could hire other subcontractors. (T. at 186-190). Rob Nixon, a fellow independent contractor employed by Fence Solutions, stated that Appellant would often borrow/use Nixon's equipment. (T. at 243). The court also heard testimony that all of the independent contractors who worked for Fence Solutions, including Appellant were responsible for obtaining their own Workers' Compensation insurance and that all except Appellant had in fact done so. (T. at 186-187).

{¶ 19} While Appellant argues that Fence Solutions use of a W-2 rather than a 1099 supports the position that he was an employee, we do not find same to be determinative of his employment status. Matt Thompson testified that he did not know why the accountant continued to issue a W-2 to Appellant rather than a 1099 after Appellant signed the independent contractor agreement. (T. at 182, 213-214). Evidence was also presented that Fence Solutions did not withhold Federal, State or Local income taxes from Appellant's check, but rather paid said taxes for him, in addition to his paid wages. (T. 182, 214-216).

{¶ 20} Appellant also argues that the trial court abused its discretion in excluding the Industrial Commission's ruling wherein it found Appellant to be an employee of Appellee.

{¶ 21} The Industrial Commission is the exclusive evaluator of the weight and credibility of the evidence. State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287, 725 N.E.2d 639 (2000). When an order is adequately explained and based on some evidence, even if other evidence of record may contradict it, there is no abuse of discretion, and a reviewing court must not disturb the order. State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584, 679 N.E.2d 300 (1997). Thus, the issue before us is whether the bureau's order was supported by evidence in the record.

{¶ 22} In the instant case, the trial court, in its March 7, 2017, Judgment Entry, characterized the Industrial Commission's ruling as a default judgment because Appellee did not participate in the proceeding. The trial court further found that the sole evidence before the Industrial Commission was a medical record from Fairfield Medical Center dated 11/4/15, and that such evidence did not allow for a conclusive determination that Appellant was an employee.

{¶ 23} Upon review, we find that the trial court was in a better position as the trier of fact to make the determination as to Appellant's status. At trial, both parties had an opportunity to present evidence in support of their positions.

{¶ 24} Based on the foregoing, we do not find that the trial court abused its discretion in excluding the findings of the Industrial Commission and making a determination finding that Appellant was an independent contractor. We find the trial court had sufficient evidence before it to support its determination Appellee was an independent contractor, rather than an employee.

{¶ 25} Appellant's First Assignment of Error is overruled.

II.

{¶ 26} In his Second Assignment of Error, Appellant argues that the trial court erred in finding that Appellant was terminated for breach of his independent contractor agreement. We disagree.

{¶ 27} Appellant herein argues that his termination was the result of retaliation for filing a Workers' Compensation claim in violation of R.C. § 4123.90, which prohibits employers from taking an adverse employment action against an employee because he filed, or pursued, a workers' compensation claim for an injury which arose and occurred in the course of his employment with the employer.

{¶ 28} R.C. § 4123.90 provides, in pertinent part:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.

{¶ 29} "The scope of the statute is nevertheless narrow, and R.C. § 4123.90 does not prevent an employer from [taking an adverse employment action against] an employee who is unable to perform his or her duties * * * [or] for just and lawful reasons. The statute protects only against [adverse employment actions] in direct response to the filing or pursuit of a workers' compensation claim." White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d 316, 780 N.E.2d 1054, 2002-Ohio-6446, ¶ 36, quoting Sidenstricker v. Miller Pavement Maintenance, Inc., Franklin App. Nos. 00AP-1146 and 00AP-1460, 2001-Ohio-4111, 2001 WL 1286419, ¶ 55. "An employee may assert a claim under this statute only if he alleges and proves that he was demoted or dismissed, not because of his job-related injury, but rather because of his pursuit of a workers' compensation claim." Blair v. Milford Exempted Village School Dist. Bd. of Edn. (1989), 62 Ohio App.3d 424, 431, 575 N.E.2d 1190, abrogated on other grounds by Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 797 N.E.2d 61, 2003-Ohio-5357.

{¶ 30} Courts in Ohio have addressed claims filed pursuant to R.C. § 4123.90 under a burden-shifting framework. See, e.g., Young v. Stelter & Brinck, Ltd., 174 Ohio App.3d 221, 881 N.E.2d 874, 2007-Ohio-6510, ¶ 20-21 ; Wysong v. Jo Ann Stores, Inc., Montgomery App. No. 21412, 2006-Ohio-4644, 2006 WL 2578867, ¶ 10 ; Rollison v. Ball, Marion App. No. 9-05-48, 2006-Ohio-5153, 2006 WL 2795597, ¶ 19 ; Stone v. Martin Marietta Energy Sys., Inc. (Oct. 5, 1998), Washington App. No. 97CA602, 1999 WL 1796 ; Kilbarger v. Anchor Hocking Glass Co. (1997), 120 Ohio App.3d 332, 337-40, 697 N.E.2d 1080 ; Napier v. Roadway Freight, Inc., Lucas App. No. L-06-1181, 2007-Ohio-1326, 2007 WL 867000, ¶ 12 ; Cunningham v. Steubenville Orthopedics & Sports Medicine, Inc., 175 Ohio App.3d 627, 888 N.E.2d 499, 2008-Ohio-1172, ¶ 56 ; Markham v. Earle M. Jorgensen Co. (2000), 138 Ohio App.3d 484, 492, 741 N.E.2d 618 ; Herron v. DTJ Ents., Inc., Summit App. No. 22796, 2006-Ohio-1040, 2006 WL 544499, ¶ 16 ; White at ¶ 37 ; Prox v. Cleveland Steel Container Corp., Trumball App. No.2005-T-0045, 2006-Ohio-2770, 2006 WL 1519608, ¶ 24-26 ; McDannald v. Fry & Assoc., Inc., Madison App. No. CA2007-08-027, 2008-Ohio-4169, 2008 WL 3823696, ¶ 17. This burden-shifting analysis is applied in the absence of direct evidence of retaliation. Wysong v. Jo Ann Stores, Inc., at ¶ 10 ; Cf. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439.

{¶ 31} Under the burden-shifting scheme, the employee must first set forth a prima facie case of retaliation, then the burden shifts to the employer to set forth a legitimate non-retaliatory reason for the adverse employment action and, finally, the burden shifts back to the employee to establish that the employer used that non-retaliatory reason as a pretext for the adverse employment action. Markham at 492, 138 Ohio App.3d 484, 741 N.E.2d 618. "The burden of proving that the employer had a retaliatory motive remains at all times on the employee." Id.

{¶ 32} In establishing a prima facie case of retaliation, an employee must show that he: (1) was injured on the job, (2) filed a workers' compensation claim, and (3) suffered an adverse employment action in contravention of R.C. § 4123.90. Kilbarger at 337-338, 697 N.E.2d 1080.

{¶ 33} " 'The burden of establishing a prima facie case of retaliation is not onerous and is easily met." Wysong at ¶ 12, quoting Greer-Burger v. Temesi, Cuyahoga App. No. 87104, 2006-Ohio-3690, 2006 WL 2023571, ¶ 15 ; Meyer v. United Parcel Serv., Inc., 174 Ohio App.3d 339, 882 N.E.2d 31, 2007-Ohio-7063, ¶ 53, reversed on other grounds by Slip Opinion No. 2009-Ohio-2463, 122 Ohio St.3d 104, 909 N.E.2d 106. The activity protected by R.C. § 4123.90 is triggered when an "employee file[s] a claim or institute[s], pursue[s] or testifie[s] in any proceedings under the workers' compensation act." While a discharge, demotion, reassignment, or any punitive action taken by the employer constitutes an adverse employment action under R.C. § 4123.90.

{¶ 34} "If the plaintiff establishes his or her prima facie case, then the burden of production shifts to the employer to articulate a legitimate non-retaliatory reason for its action." Sidenstricker at ¶ 59. "[T]he burden does not require the employer to prove the absence of a retaliatory discharge. It merely requires the employer to set forth a legitimate, non-retaliatory reason for the employee's discharge." Kilbarger at 338, 120 Ohio App.3d 332, 697 N.E.2d 1080. "When considering whether an employer has a legitimate non-retaliatory reason for discharging an employee, the court must keep in mind the fact that an employee who files a workers' compensation claim is not insulated from discharge." Markham, 138 Ohio App.3d at 492, 741 N.E.2d 618. " R.C. 4123.90 does not operate to suspend the rights of an employer nor does it insulate an employee from otherwise lawful actions taken by the employer. To hold otherwise would render employers virtually powerless to combat fraud and/or blatant inefficaciousness on the part of any employee who happened to have a pending workers' compensation claim." Id. at 494, 741 N.E.2d 618.

{¶ 35} "[I]f the employer sets forth a legitimate, non-retaliatory reason, the burden once again shifts to the employee * * * [who] must then establish that the reason articulated by the employer is pre-textual and that the real reason for the discharge was the employee's filing of a claim under the Ohio Workers' Compensation Act." Kilbarger at 338, 120 Ohio App.3d 332, 697 N.E.2d 1080. Pre-text may be shown in a variety of different manners. The employee may show that the employer's proffered reason: (1) had no basis in fact, (2) did not actually motivate the adverse employment action, or (3) was insufficient to motivate the adverse employment action. Wysong at ¶ 13 ; King v. Jewish Home, 178 Ohio App.3d 387, 2008-Ohio-4724, 898 N.E.2d 56, ¶ 9.

{¶ 36} As this Court has found that the trial court's determination that Appellant was an independent contractor and not an employee as contemplated by R.C. § 4123.90, we find no violation of said statute.

{¶ 37} Appellant's Second Assignment of Error is overruled.

III.

{¶ 38} In his Third Assignment of Error, Appellant argues that the trial court erred in finding that Appellee did not violate the Prompt Pay Act. We disagree.

{¶ 39} Ohio's Prompt Pay Statute is codified in R.C. § 4113,15, which reads, in pertinent part:

(A) Every individual, firm, partnership, association, or corporation doing business in this state shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and shall, on or before the fifteenth day of each month, pay such employees the wages earned by them during the last half of the preceding calendar month. If at any time of payment an employee is absent from his regular place of labor and does not receive his wages through an authorized representative, such person shall be entitled to said payment at any time thereafter upon demand upon the proper paymaster at the place where such wages are usually paid and where such pay is due. This section does not prohibit the daily or weekly payment of wages, the use of a longer time lapse that is customary to a given trade, profession or occupation, or establishment of a different time lapse by written contract or by operation of law.

{¶ 40} When wages are 30 days past due, the employer is liable for the amount due plus 6% or $200, whichever is greater. R.C. § 4113.15(B).

{¶ 41} Appellant argues that Appellee failed to provide him with his last paycheck until four months after termination.

{¶ 42} At trial, Appellee Thompson testified that Appellant's final paycheck, in the amount of $348.00, was issued on November 12, 2015. (T. at 204). Appellee Thompson provided the court with text messages between himself and Appellant verifying Appellant's address on or about November 14, 2015. (T. at 150).

{¶ 43} Based on the testimony of Appellee Thompson, we find the trial court had sufficient evidence before it to support its determination that payment was issued timely pursuant to R.C. § 4113.15.

{¶ 44} Appellant's Third Assignment of Error is overruled.

IV.

{¶ 45} In his Fourth Assignment of Error, Appellant argues that the trial court erred in finding that Appellant was not entitled to back overtime pay. We disagree.

{¶ 46} The Ohio's Minimum Fair Wage Standards Act requires all employers to pay a minimum wage and overtime to certain types of employees. See R.C. § 4111.02 (duty to pay minimum wage), R.C. § 4111.03 (overtime; compensatory time), and R.C. § 4111.14 (purposes of fair minimum wage constitutional provision; implementation). Additionally, the Ohio Constitution was amended under Article II, Section 34a to ensure minimum wages for Ohio workers. Article II, Section 34a, Ohio Constitution specifically states that "[t]his section shall be liberally construed in favor of its purposes."

{¶ 47} In Ohio, claims for overtime pay are generally governed by R.C. § 4111.03(A), which stated in pertinent part:

(A) An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's wage rate for hours worked in excess of forty hours in one workweek, in the manner and methods provided in and subject to the exemptions of section 7 and section 13 of the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as amended.

{¶ 48} Appellant herein argues that he was not paid for overtime on two separate occasions: $17.00 in overtime for the week of June 22-26 when he worked 43.5 hours, and for the week of September 14-16 when he worked 47.75 hours. (T. at 104-110).

{¶ 49} Based on the testimony and evidence presented at trial, the trial court found that Appellant received all overtime time to which he was entitled. (Judgment Entry at 2, Findings of Fact ¶ 6). The trial court found that on the occasions when Appellant communicated to Appellee that he felt his paychecks were less than they should be, Appellee always paid Appellant what was owed to him. Id. The trial court further found that because Appellee paid Appellant's Federal, State and Local income taxes in addition to his agreed upon wages, Appellant actually received a wage benefit in excess of any alleged de minimis overtime wage discrepancy. Id.

{¶ 50} It is accepted that de minimis errors and admissions in complying with the prevailing wage laws are not intentional. R.C. § 4115.13(C) ; State ex rel. Associated Builders & Contractors of Central Ohio v. Franklin County Board of Commissioners, 125 Ohio St.3d 112, 2010-Ohio-1199, 926 N.E.2d 600 ; Ohio Valley Associated Builders & Contractors v. Rapier Electric, Inc., 12th Dist. Butler Nos. CA2013-07-110 and CA2013-07-121, 2014-Ohio-1477, 2014 WL 1384605.

{¶ 51} We find no error in the trial court's determination that the actions of Appellee sub judice were de minimis or the result of clerical errors, and that Appellant had in fact received adequate compensation for his work.

{¶ 52} Appellant's Fourth Assignment of Error is overruled.

{¶ 53} For the forgoing reasons, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.

Hoffman, J., and Baldwin, J., concur.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Chad A. HUNT, Jr., Defendant-Appellant.
    NO. 17 JE 0012
    Court of Appeals of Ohio, Seventh District, Jefferson County.
    Dated: March 1, 2018
    Attorney Hanlin, Jefferson County Justice Center, 16001 State Route 7, Steubenville, Ohio 43952, For Plaintiff-Appellee.
    Attorney Eric Reszke, Suite 810, Sinclair Building, 100 North 4th Street, Steubenville, Ohio 43952, For Defendant-Appellant.
   JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb

OPINION

DONOFRIO, J.

{¶ 1} Defendant-appellant, Chad Hunt, appeals from a Jefferson County Common Pleas Court judgment convicting him of trafficking in drugs and two counts of possession of drugs, following a guilty plea, and the resulting sentence.

{¶ 2} On September 7, 2016, a Jefferson County Grand Jury indicted appellant on one count of trafficking in drugs, a fifth-degree felony in violation of R.C. 2925.03(A)(1), (C)(4)(a) ; one count of possession of drugs (cocaine) in an amount greater than 27 grams but less than 100 grams, a first-degree felony in violation of R.C. 2925.11(A), (C)(4)(e) ; and one count of possession of drugs (heroin) in an amount greater than one gram but less than five grams, a fourth-degree felony in violation of R.C. 2925.11(A), (C)(6)(c). The indictment also included forfeiture specifications for $2,180 in cash and numerous firearms. Appellant initially entered a not guilty plea to the charges.

{¶ 3} Appellant eventually changed his plea. He pleaded guilty to all three charges and the trial court convicted him of those charges.

{¶ 4} The trial court subsequently held a sentencing hearing. It sentenced appellant to ten months for trafficking in drugs, eight years for possession of drugs (cocaine), and twelve months for possession of drugs (heroin). The court ordered appellant to serve his sentences consecutively for a total prison sentence of nine years and ten months. The court also ordered the $2,180 seized from appellant's home to be forfeited to the Jefferson County Drug Task Force, along with other contraband listed in the indictment.

{¶ 5} Appellant filed a timely notice of appeal on May 26, 2017. He now raises a single assignment of error.

{¶ 6} Appellant's sole assignment of error states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SENTENCING THE DEFENDANT TO A PRISON TERM OF NINE YEARS AND TEN MONTHS.

{¶ 7} Appellant argues the trial court's sentence was in error. In support, appellant points to several factors he claims weigh against his sentence. Appellant states that he expressed genuine remorse. He points out he is a young individual (age 25) who has started up his own lawn care business. He has not served a prior prison term or ever previously been convicted of a felony. He was not on postrelease control or probation at the time of the offense. He admitted to a substance abuse problem. The firearms recovered from his house were legally purchased and he was not under a firearm disability. He is a high school graduate with some college and vocational training. And no great or unusual harm occurred as a result of his actions.

{¶ 8} Additionally, appellant argues that cocaine and heroin were jointly seized by police at the time of their search. Therefore, he contends this was the same conduct and same animus, which would require the sentences for these two possession offenses to run concurrently because the offenses were allied offenses.

{¶ 9} When reviewing a felony sentence, an appellate court must uphold the sentence unless the evidence clearly and convincingly does not support the trial court's findings under the applicable sentencing statutes or the sentence is otherwise contrary to law. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

{¶ 10} Appellant was convicted of a first-degree felony, a fourth-degree felony, and a fifth-degree felony. The first-degree possession conviction carried a mandatory prison term. R.C. 2925.11(C)(4)(e). The possible prison terms for a first-degree felony are three, four, five, six, seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1). The trial court sentenced appellant to eight years on the first-degree felony. The possible prison terms for a fourth-degree felony are six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. R.C. 2929.14(A)(4). The trial court sentenced appellant to twelve months on the fourth-degree felony. The possible prison terms for a fifth-degree felony are six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). The trial court sentenced appellant to ten months on the fifth-degree felony. Thus, all of appellant's sentences are within the applicable statutory ranges.

{¶ 11} In sentencing a felony offender, the court must consider the overriding principles and purposes set out in R.C. 2929.11, which are to protect the public from future crime by the offender and others and to punish the offender. The trial court shall also consider various seriousness and recidivism factors as set out in R.C. 2929.12.

{¶ 12} Appellant contends the court failed to properly consider the seriousness and recidivism factors. But the record reveals that the court properly considered these factors.

{¶ 13} At the sentencing hearing, the trial court stated that it considered the purposes and principles of sentencing and the seriousness and recidivism factors relevant to the offense and the offender. (Tr. 49). The court found as to the seriousness factors that appellant's criminal activity was very organized and methodical. (Tr. 49). It found that none of the less serious factors applied. (Tr. 49-50). As to the recidivism factors, the trial court found appellant was not out on bail or under postrelease control at the time of the offense, however, the court noted appellant does have a history of misdemeanor criminal convictions. (Tr. 50-51). The court also found that appellant has not responded favorably to past sanctions and instead has demonstrated a pattern of drug abuse. (Tr. 52). Moreover, the court found appellant failed to show genuine remorse finding that appellant was sorry only that he got caught. (Tr. 52). The trial court reiterated each of these findings in its sentencing judgment entry. Thus, the trial court considered the applicable factors both at the sentencing hearing and in its judgment entry.

{¶ 14} Moreover, "explanations regarding the trial court's consideration of R.C. 2929.11 and R.C. 2929.12 are not required at the sentencing hearing or in the sentencing entry." State v. Burch , 7th Dist. No. 12 JE 28, 2013-Ohio-4256, 2013 WL 5437357, ¶ 31, citing State v. McGowan , 7th Dist. No. 09 JE 24, 2010-Ohio-1309, 2010 WL 1204273, ¶ 69.

{¶ 15} Appellant also takes issue with the consecutive nature of his sentences. He asserts the possession of cocaine conviction and the possession of heroin conviction should have merged for sentencing purposes because they shared a single animus.

R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 16} The Ohio Supreme Court addressed the issue of offenses of similar import requiring merger in State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. The Court held that if a defendant's conduct supports multiple offenses, the defendant can be convicted of all of the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows the offenses were committed separately, or (3) the conduct shows the offenses were committed with separate animus. Id. at paragraph three of the syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within the meaning of R.C. 2941.25(B)"when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at paragraph two of the syllabus.

{¶ 17} Pursuant to R.C. 2925.11, the drug possession statute, cocaine and heroin are classified and penalized differently based upon the type and quantity involved. "It would thus defeat the legislature's intent to merge the drug possession offenses into a single offense for purposes of sentencing." State v. Hughes , 2016-Ohio-880, 60 N.E.3d 765, ¶ 24. The Ohio Supreme Court has held, "[t]he simultaneous possession of different types of controlled substances can constitute multiple offenses under R.C. 2925.11." State v. Delfino , 22 Ohio St.3d 270, 490 N.E.2d 884 (1986), syllabus.

{¶ 18} Thus, the trial court was correct in not merging appellant's convictions for possession of cocaine and possession of heroin.

{¶ 19} Finally, appellant suggests the court erred in ordering his sentences to be served consecutively.

{¶ 20} R.C. 2929.14(C)(4) requires a trial court to make specific findings when imposing consecutive sentences:

(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is 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, and if the court also finds any of the following:
(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 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.

{¶ 21} It has been held that although the trial court is not required to recite the statute verbatim or utter "magic" or "talismanic" words, there must be an indication that the court found (1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger posed to the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v. Bellard , 7th Dist. No. 12-MA-97, 2013-Ohio-2956, 2013 WL 3462485, ¶ 17. However, the court need not give its reasons for making those findings.

State v. Power , 7th Dist. No. 12 CO 14, 2013-Ohio-4254, 2013 WL 5437346, ¶ 38.

{¶ 22} The Ohio Supreme Court has held that the trial court must make its findings at the sentencing hearing and not simply in the sentencing judgment entry. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial court should also incorporate its statutory findings into the sentencing entry. Id. at ¶ 30.

{¶ 23} In this case, the trial court made all of the required findings at the sentencing hearing.

{¶ 24} First, the court found that consecutive sentences were necessary to punish the offender and to protect the public from future crime. (Tr. 56). Second, the court found that consecutive sentences were not disproportionate to the seriousness of the conduct and the danger posed by the defendant. (Tr. 56-57). Third, the court found that two or more of the offenses were part of one or more courses of conduct and the harm caused was so great that any single prison term would not adequately reflect the seriousness of the defendant's conduct. (Tr. 57). Additionally, the court found that the offender's criminal history demonstrated that consecutive sentences were necessary to protect the public. (Tr. 57). And the trial court reiterated these findings in its sentencing judgment entry.

{¶ 25} Accordingly, appellant's sole assignment of error is without merit and is overruled.

{¶ 26} For the reasons stated above, the trial court's judgment is hereby affirmed.

Waite, J., concurs

Robb, P., J., concurs


author: PIETRYKOWSKI, J.

text:
    STATE of Ohio, Appellee v. Toddy Ray POUPARD, Appellant
    Court of Appeals No. WD-17-003 WD-17-004
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: March 2, 2018
    Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
    Lawrence A. Gold, Chicago, IL, for appellant.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} This is a consolidated appeal from the judgments of the Wood County Court of Common Pleas, following a bench trial, which convicted appellant, Toddy Ray Poupard, of two counts of tampering with records in violation of R.C. 2913.42(A)(1) and (B)(4), felonies of the third degree, and one count of failure to appear in violation of R.C. 2937.99(A) and (B), a felony of the fourth degree. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} The facts taken from the bench trial are as follows. On January 30, 2014, Ohio State Highway Patrol Trooper Dennis Spangler pulled appellant over for following too closely to the vehicle in front of him. Appellant informed Spangler that he did not have his driver's license on him, but gave his name as "Timothy Robert Poupard." Spangler escorted appellant to his patrol car, and asked for appellant's consent to pat him down. Appellant agreed and handed Spangler a molded pocket knife and four prescription bottles from his pocket. Three of the bottles had appellant's passenger's name on them. The fourth bottle had the name "Toddy Poupard" on it. Spangler asked appellant who Toddy Poupard was, and appellant responded that it was his son. Spangler then asked appellant for his birth date, and entered the information into the L.E.A.D.S. system, which returned a record match for "Timothy Poupard."

{¶ 3} At the time, Spangler suspected appellant was impaired based on appellant's slow, mumbled speech and the results of the horizontal gaze nystagmus test. Spangler transported appellant back to the State Highway Patrol post, where he was arrested for operating a vehicle while intoxicated. A search incident to the arrest revealed that appellant was carrying $8,000 in cash as well as several prepaid credit cards that had the name "Toddy Poupard" on them. When asked about the cash and credit cards, appellant stated that he was holding onto them for his brother who had gotten drunk at his house one night. Appellant told Spangler that he was going to give the money, credit cards, and prescription pills back to his brother the next time he saw him.

{¶ 4} At the patrol post, appellant was given BMV Form 2255, which explained the consequences of refusing to submit to a test for controlled substances. The form, which was read to appellant, included the biographical information for "Timothy Robert Poupard." Appellant then signed the form, but his signature was illegible.

{¶ 5} While still at the patrol post, appellant was interviewed by Ohio State Highway Patrol Trooper Kent Stambaugh. At the beginning of the interview, appellant acknowledged that he was "Timothy." Stambaugh then read appellant his rights and presented appellant with Highway Patrol Form HP-70G, which is a waiver of rights. Appellant printed his name as "Timothy Poupard," and also printed Timothy's address and birthdate. Appellant then signed the form with an illegible signature.

{¶ 6} Appellant was at the patrol post for approximately four hours. For the first three and one-half hours, appellant held himself out as "Timothy Poupard." However, appellant eventually confessed that he was in fact "Toddy Ray Poupard."

{¶ 7} Ultimately, appellant was indicted on two counts of tampering with records. On May 20, 2014, appellant entered an initial plea of not guilty, and bond was established on appellant's own recognizance. On April 20, 2015, appellant filed a notice of incarceration, which stated that he was convicted in Michigan of domestic violence, and was sentenced to one year in prison commencing April 20, 2015.

{¶ 8} On February 1, 2016, notice was sent to appellant's home address regarding a pretrial hearing to be held on March 22, 2016. The notice was not returned as undeliverable. On March 22, 2016, appellant failed to appear for the pretrial hearing, which led to the separate charge of failure to appear in violation of R.C. 2937.99(A) and (B), a felony of the fourth degree.

{¶ 9} Following the state's presentation of evidence, appellant moved for acquittal pursuant to Crim.R. 29, which the trial court denied. Appellant then rested without presenting any evidence in his own defense.

{¶ 10} Following the bench trial, the trial court found appellant guilty of the two counts of tampering with records, and the one count of failure to appear. The trial court continued the matter for preparation of a presentence investigation report. At sentencing, the trial court ordered appellant to serve two years in prison on each count of tampering with records, with those sentences to be served concurrently with each other, and concurrently with a one-year prison sentence on the count of failure to appear, for a total prison term of two years.

II. Assignments of Error

{¶ 11} Appellant has timely appealed his judgments of conviction, and now asserts four assignments of error for our review:

I. The trial court erred to the prejudice of Appellant in denying his Crim.R. 29 motion.
II. The court's verdict was against the manifest weight of the evidence presented at trial.
III. The trial court committed error to the prejudice of Appellant by imposing the costs of prosecution without consideration of Appellant's present or future ability to pay.
IV. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Constitution of the State of Ohio.

III. Analysis

{¶ 12} For ease of discussion, we will address appellant's assignments of error out of order, beginning with his fourth assignment of error in which appellant argues that his trial counsel was ineffective for failing to properly investigate his case and develop a defense.

{¶ 13} To prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's error, the result of the proceedings would have been different. Id. at 687-688, 694. "The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697.

{¶ 14} Appellant contends that trial counsel had three potential theories as it relates to the count of failure to appear: (1) appellant never received notification to appear for the hearing on March 22, 2016, (2) appellant was in custody in Michigan at the time of the hearing, and (3) appellant was hospitalized at the time of the hearing. Appellant argues that trial counsel's failure to further investigate those theories prejudiced his defense.

{¶ 15} However, we find that appellant has failed to demonstrate a reasonable probability that the result of the proceedings would have been different had counsel investigated those theories. As to whether appellant received notice, the testimony and record reflect that notice was mailed to appellant's residence and was not returned undeliverable. As to appellant's incarceration, it was discussed at trial that appellant was released in September 2015. Finally, as to appellant's hospitalization, while counsel admitted to misplacing a document from appellant showing that he was hospitalized, counsel stated that the document was not in reference to the March 22, 2016 hearing date, but instead was for a time after appellant had been arrested. On appeal, appellant has not pointed to any evidence in the record contradicting those assertions. Therefore, we hold that any argument that further investigation would have aided his defense is pure speculation, and is not sufficient to demonstrate prejudice. See State v. Kennard , 10th Dist. Franklin No. 15AP-766, 2016-Ohio-2811, 2016 WL 2348330, ¶ 26 (claim for ineffective assistance based on counsel's failure to conduct a better investigation is without merit where the record does not indicate that any additional evidence exists, and thus it is pure speculation that the results of the proceedings would have been different).

{¶ 16} Accordingly, appellant's fourth assignment of error is not well-taken.

{¶ 17} In his first assignment of error, appellant argues that the trial court erred when it denied his Crim.R. 29 motion for acquittal relative to the two counts of tampering with records.

{¶ 18} The denial of a motion for acquittal under Crim.R. 29(A)"is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. In reviewing a conviction 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. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 19} R.C. 2913.42 provides,

(A) No person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the following:
(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record;
* * *
(B)(4) If the writing, data, computer software, or record is kept by or belongs to a local, state, or federal governmental entity, a felony of the third degree.

{¶ 20} In arguing that his conviction is based on insufficient evidence, appellant first maintains that the forms he signed were not government records. Notably, "record" is not defined in R.C. 2913.01. However, "writing" is defined as "any computer software, document, letter, memorandum, note, paper, plate, data, film, or other thing having in or upon it any written, typewritten, or printed matter, and any token, stamp, seal, credit card, badge, trademark, label, or other symbol of value, right, privilege, license, or identification." R.C. 2913.01(F). Appellant makes no argument why the forms he signed were not government records or writings.

{¶ 21} We find that the evidence, when viewed in a light most favorable to the prosecution, is sufficient to support a rational trier of fact's conclusion that BMV Form 2255 and Highway Patrol Form HP-70G were writings or records kept by or belonging to a governmental entity. Here, the forms were documents containing written and printed matter, and the testimony from the trial revealed that the forms were kept in the case file maintained by the Ohio State Highway Patrol. Thus, the forms constituted government writings or records.

{¶ 22} Appellant next argues that Highway Patrol Form HP-70G is not a record or writing because it is not necessary to effectuate a waiver of Miranda rights. However, the fact that a form is not necessary does not negate its existence as a form kept by a governmental entity.

{¶ 23} Finally, appellant argues that because his signature was illegible, the state failed to prove that his purpose in signing the documents was to commit a fraud. We find this argument unpersuasive because appellant's act of signing the forms containing "Timothy's" information demonstrated his intent to pass himself off as "Timothy." The fact that his signature was illegible is immaterial.

{¶ 24} Accordingly, we hold that appellant's convictions for tampering with records are not based on insufficient evidence. Appellant's first assignment of error is not well-taken.

{¶ 25} In his second assignment of error, appellant argues that his convictions are against the manifest weight of the evidence. Notably, concerning the counts of tampering with records, although appellant styles his argument as a manifest weight challenge, appellant actually contests the trial court's failure to consider the alternative offenses of falsification of records in violation of R.C. 2921.13 and obstructing official business in violation of R.C. 2921.31.

{¶ 26} Appellant relies on R.C. 1.51, which provides, "If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail." " R.C. 1.51 comes into play only when a general and a special provision constitute allied offenses of similar import and additionally do not constitute crimes committed separately or with a separate animus for each crime." State v. Chippendale , 52 Ohio St.3d 118, 120, 556 N.E.2d 1134 (1990).

Where it is clear that a general provision of the Criminal Code applies coextensively with a special provision, R.C. 1.51 allows a prosecutor to charge on both. Conversely, where it is clear that a special provision prevails over a general provision or the Criminal Code is silent or ambiguous on the matter, under R.C. 1.51, a prosecutor may charge only on the special provision. The only exception in the statute is where "* * * the general provision is the later provision and the manifest intent is that the general provision prevail." Id. at 120-121, 556 N.E.2d 1134.

"The common meaning of 'general' is that which is 'universal, not particularized, as opposed to special.' " State v. Conyers , 87 Ohio St.3d 246, 250, 719 N.E.2d 535 (1999), quoting Black's Law Dictionary 682 (6th Ed. 1990). Here, we will assume for the purposes of our analysis that tampering with records, falsification of records, and obstruction of official business are allied offenses.

{¶ 27} Appellant argues that the tampering with records statute, R.C. 2913.42(A)(1) and (B)(4), is the general provision, and falsification of records, R.C. 2921.13(A)(1), (2), and (3), and obstructing official business, R.C. 2921.31(A), are the specific statutes. We find the opposite to be true.

{¶ 28} R.C. 2921.13 provides,

(A) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:
(1) The statement is made in any official proceeding.
(2) The statement is made with purpose to incriminate another.
(3) The statement is made with purpose to mislead a public official in performing the public official's official function.

Likewise, R.C. 2921.31(A) provides, "No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties."

{¶ 29} In the case of R.C. 2921.13(A)(1), (2), and (3), the statute proscribes making a false statement or affirming the truth of a previously made false statement for certain purposes. However, "[t]he broad range of conduct that could constitute Falsification * * * is significantly narrowed for the purposes of third-degree Tampering by restricting the type of statements proscribed to writings, computer software, data, or records which are kept by a government entity." State v. Chandler , 11th Dist. Trumbull, No. 2015-T-0033, 2016-Ohio-1017, 2016 WL 962461, ¶ 20, citing State v. Hall , 6th Dist. Lucas No. L-01-1374, 2004-Ohio-1654, 2004 WL 628650. Even more so, R.C. 2921.31(A) broadly proscribes "any act" that hampers or impedes a public official, as compared to the specific act of tampering with a record. Therefore, we hold that appellant's argument that R.C. 2921.13(A)(1), (2), and (3), and R.C. 2921.31(A) are specific statutes that must be applied over the general statute in R.C. 2913.42(A)(1) and (B)(4) is without merit.

{¶ 30} Turning to appellant's argument that his conviction for failure to appear is against the manifest weight of the evidence, we note that when reviewing for manifest weight,

The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 31} Here, the record contains evidence that a notice of the March 22, 2016 hearing was sent to appellant's address on February 1, 2016, and was not returned undeliverable. Appellant contends that the court received a notice that he was incarcerated in Michigan on a one-year sentence beginning on April 20, 2015. Thus, he concludes that there is no evidence that he ever received the notice to appear. However, there was also discussion during the trial that the hearing would not have been set unless the court had been notified that appellant had been released. Further, there was no evidence that appellant was still in prison on February 1, 2016, or March 22, 2016. Therefore, we hold that the trial court judge did not clearly lose his way, and this is not the exceptional case in which the evidence weighs heavily against the conviction.

{¶ 32} Accordingly, appellant's second assignment of error is not well-taken.

{¶ 33} Finally, in his third assignment of error, appellant argues that the trial court erred when it imposed costs without determining his ability to pay. At the sentencing hearing, the court advised appellant that it was imposing costs. In the subsequent judgment entries, the court stated, "The Defendant shall pay the outstanding costs of this prosecution. Judgment is granted for all court costs due and owing Wood County and execution awarded."

{¶ 34} Pursuant to R.C. 2947.23(A)(1)(a), "In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution * * *, and render a judgment against the defendant for such costs." " R.C. 2947.23 requires a trial court to assess costs against all criminal defendants, even if the defendant is indigent."

State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 231, citing State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Thus, the trial court was not required to consider appellant's ability to pay before ordering him to pay court costs. Id.

{¶ 35} Appellant additionally argues that the trial court erred in imposing the cost of attorney fees under R.C. 2941.51(D) and the costs of confinement under R.C. 2929.18(A)(5) without determining his ability to pay. The state, in opposition, argues that the court had evidence before it in the form of appellant's presentence investigation report, which would support the court's finding that appellant had the ability to pay those costs. However, the trial court did not impose the costs of appointed counsel or confinement at the sentencing hearing or in its journal entry. Therefore, we find no merit to appellant's argument regarding his ability to pay.

{¶ 36} Accordingly, appellant's third assignment of error is not well-taken.

IV. Conclusion

{¶ 37} For the foregoing reasons, we find that substantial justice has been done the party complaining and the judgments of the Wood County Court of Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Thomas J. Osowik, J.

Christine E. Mayle, P.J.

CONCUR.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellant v. Patrick SHAFFER, Defendant-Appellee
    No. 27503
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on March 2, 2018
    EBONY N. WREH, Atty. Reg. No. 0080629, City of Dayton Prosecutor's Office, 335 W. Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant
    ANGELINA N. JACKSON, Atty. Reg. No. 0077937, 117 S. Main Street, Suite 400, Dayton, Ohio 45422, Attorney for Defendant-Appellee
   HALL, J.

{¶ 1} The State of Ohio appeals the trial court's dismissal of this case on speedy-trial grounds. We conclude that the trial court erred by finding a speedy-trial violation. So we reverse.

I. Background

{¶ 2} On October 5, 2016, Patrick Shaffer was arrested and charged with domestic violence and assault, both first degree misdemeanors. He was held on bond, and trial was scheduled for October 20. On October 19, Shaffer filed a motion to modify his bond and a motion for continuance. The trial court sustained both motions and modified Shaffer's bond to electronic home detention and scheduled a pretrial on November 7. At the pretrial, the trial was rescheduled for November 23. On November 15, the state filed a motion to continue the trial "due to the number of witnesses and the trial date's proximity to Thanksgiving." The court granted the continuance, and the trial was rescheduled for November 30. But later the parties and the court agreed to hold a competency hearing on that day for a prospective child witness. The trial was rescheduled for January 4, 2017 at the conclusion of the competency examination. By entry filed on December 5, 2016, (Doc. #60), the trial court found the child incompetent to testify.

{¶ 3} On December 22, 2016, the state filed a notice that it intended to present statements of the child under Evid.R. 807. (Doc. #72-73). Shaffer responded on December 29, 2016 with a motion in limine to exclude the child's statements, arguing that the state's notice was deficient. (Doc. #74-77). On January 3, 2017, the day before trial, the parties discussed the matter in chambers and it was decided that the state would move for a continuance to supplement its Evid.R. 807 notice with additional information. The following day, January 4, the state filed a motion for continuance and the parties put their arguments on the record as to the sufficiency of the 807 notice. The trial court sustained the state's motion to continue, and the parties selected February 9th as the date for an Evid.R. 807 hearing and for the new trial date. The state filed its supplemental Evid.R. 807 notice at the end of January.

{¶ 4} On February 6, Shaffer filed a motion to dismiss on speedy-trial grounds. He argued that his right to a speedy trial had been violated because the state failed to bring him to trial within the 90-day time limit under R.C. 2945.71. A dismissal hearing was held, after which the state filed a supplemental response and Shaffer filed a post-hearing brief in support of dismissal. On February 28, the court granted the motion to dismiss.

{¶ 5} The state appealed.

II. Analysis

{¶ 6} In its sole assignment of error, the state argues that the trial court erred by sustaining Shaffer's motion to dismiss on speedy-trial grounds. The state contends that the court incorrectly found a statutory speedy-trial violation. We review a trial court's decision on a defendant's motion to dismiss based on speedy-trial grounds for abuse of discretion. See State v. Cassell , 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 12, 2011 WL 96183 ("The trial court's decision overruling Defendant's motion to dismiss based upon constitutional speedy trial grounds is reviewed under an abuse of discretion standard.").

{¶ 7} A criminal defendant's right to a speedy trial by the state is guaranteed by both the United States Constitution and the Ohio Constitution. State v. Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 6. The time limits for bringing a defendant to trial are found in R.C. 2945.71 to 2945.73. "Speedy-trial provisions are mandatory, and, pursuant to R.C. 2945.73(B), a person not brought to trial within the relevant time constraints 'shall be discharged,' and further criminal proceedings based on the same conduct are barred. R.C. 2945.7[3](D)." Id. at ¶ 7.

{¶ 8} A person charged with a first-degree misdemeanor must be brought to trial within 90 days of the arrest date. R.C. 2945.71(B)(2). "The running of the speedy-trial clock may be temporarily stopped, that is, tolled, only for reasons listed in R.C. 2945.72." Sanchez at ¶ 8. One of those reasons is a "reasonable continuance granted other than upon the accused's own motion." R.C. 2945.72(H).

{¶ 9} When reviewing a speedy-trial issue, "a court is required to count the days of delay chargeable to either side and determine whether the case was tried within applicable time limits." Sanchez at ¶ 8. The trial court here found that from the date of Shaffer's arrest to the date that he filed the dismissal motion, 109 days were chargeable to the state:

10/5/2016-10/19/2016 42 days (triple count) 10/19/2016-11/7/2016 Shaffer's continuance 11/8/2016-11/15/2016 State's continuance 11/15/2016-11/30/2016 State's continuance 11/30/2016-1/3/2017 35 days 1/3/2017-2/6/2017 32 days

But the state argued in its supplemental response to the hearing on the motion to dismiss that it should be charged with only 85 days:

10/5/2016-10/19/2016 42 days (triple count) 10/19/2016-11/7/2016 Shaffer's continuance 11/7/2016-11/15/2016 8 days 11/15/2016-11/30/2016 State's continuance 11/30/2016-1/3/2017 35 days 1/3/2017-1/4/2017 Shaffer's pending motion in limine 1/4/2017-2/9/2017 State's continuance

{¶ 10} By our calculations, both the trial court's and the state's speedy-trial calculations are off by a day or two. (We note that in its supplemental response the state mistakenly says that the chargeable days total 84.) But all that matters for our purposes is the last time period, no matter if it is a few days longer or shorter. The last period is the key difference between the state's calculations and those of the trial court. The state says that it should not be charged with 32 days in that period because it had been granted a "reasonable continuance." If the state is correct, there is no speedy-trial problem.

{¶ 11} The state filed its final motion for continuance on January 4, 2017, stating as the reason: "To supplement notice of intention under 807 because defense * * * wants additional evidence/facts re: circumstances of statements." At the hearing on the matter, the trial court stated that it was granting the continuance for the reason given in the motion. (Jan. 4, 2017 Tr. 14) (saying that it was granting the motion so that the state could "supplement the motion with * * * the circumstances of the out-of-court statement"). Indeed, the transcript of the hearing indicates that the parties and the trial court all agreed that the continuance would be granted for this reason.

{¶ 12} The trial court did not specifically make a reasonableness finding nor did the court explain, in its written decision or elsewhere, why it charged the state with the days in that final period. There was little discussion of these days at the February 8, 2017 dismissal hearing. This may be because the trial court, at that time, thought that the speedy-trial time had already expired by the time the state filed its last continuance motion. (Feb. 8, 2017 Tr. 26) ("I'm-here's where I am. I think on the January fourth, this is where I was until you objected and said it was thirty-nine. I came in here on the fourth. Time was up. January fourth the time was up."). But the entry granting the motion indicates that the court did find that the continuance was reasonable for speedy-trial purposes. The combined "MOTION and ENTRY," filed by the state and signed by the judge, states: "Time extended pursuant to O.R.C. § 2945.72(H)."

{¶ 13} "The rationale supporting speedy-trial legislation is to prevent inexcusable delays caused by indolence within the judicial system." (Citation omitted.) Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 8. We can see no good reason to find that the state's last continuance was not reasonable. Accordingly we must conclude that the trial court incorrectly charged the state with 32 days during that last period. This means that when Shaffer filed his motion to dismiss, only 77 days were chargeable to the state with the trial date just three days away. That means there was no violation of the 90-day speedy-trial time limit. Finally, that means the trial court erred by sustaining Shaffer's motion to dismiss.

III. Conclusion

{¶ 14} The sole assignment of error is sustained. The trial court's judgment is reversed, and this case is remanded for further proceedings.

FROELICH, J. and TUCKER, J., concur.

      For his part, Shaffer disagrees with the calculations of both the trial court and the state. By his calculation, the state should be charged with 130 days.

      Alternatively, we note that the defense December 29, 2016 "Motion in Limine," filed contrary to the State's Evid.R. 807 notice, had yet to be ruled upon further extending speedy trial time. Sanchez , at ¶ 23-27.