author: WELBAUM, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Brian ROZELL, Defendant-Appellant
    No. 2017-CA-65
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on May 4, 2018
    ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor's Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502, Attorney for Plaintiff-Appellee
    JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385, Attorney for Defendant-Appellant
   WELBAUM, P.J.

{¶ 1} Defendant-appellant, Brian Rozell, appeals from his conviction in the Clark County Court of Common Pleas after he pled guilty to operating a vehicle under the influence of drugs or alcohol. In support of his appeal, Rozell contends that the trial court erred in overruling his presentence motion to withdraw guilty plea. Rozell also contends that the trial court erred by allowing Rozell's former defense counsel to testify at the hearing on his motion to withdraw guilty plea, claiming a violation of the attorney-client privilege. Lastly, Rozell contends that his defense counsel provided ineffective assistance. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On March 2, 2015, the Clark County Grand Jury returned a two-count indictment charging Rozell with operating a vehicle under the influence of drugs or alcohol ("OVI") and endangering children. The OVI charge included a specification under R.C. 2941.1413 indicating that Rozell has, within the past twenty years, been previously convicted of or pled guilty to five or more OVI offenses. The charges arose after it was alleged that an intoxicated Rozell crashed a truck into a fence while a female and a child were riding as his passengers.

{¶ 3} The OVI and endangering children charges were filed under Clark County Case No. 2015-CR-0103. At the time of his indictment, Rozell had a theft charge pending in Clark County Case No. 2014-CR-0183 and a failure to appear charge pending in Clark County Case No. 2014-CR-0377. A public defender was initially appointed to represent Rozell in all three cases. The public defender, however, withdrew shortly after his appointment due to a conflict of interest. Thereafter, the trial court appointed attorney Rebekah Sinnott to represent Rozell.

{¶ 4} While representing Rozell, Sinnott negotiated a plea agreement, whereby the State agreed to dismiss all charges in Case Nos. 2014-CR-0183 and 2014-CR-0377, as well as the endangering children charge and the OVI specification in Case No. 2015-CR-0103, in exchange for Rozell agreeing to plead guilty to the third-degree-felony OVI charge and paying $81.95 in restitution. The State also agreed to remain silent at sentencing. Rozell accepted the plea agreement and pled guilty to the OVI charge at a plea hearing held on April 24, 2015.

{¶ 5} Following the plea hearing, on May 26, 2015, Sinnott filed a motion to continue Rozell's sentencing hearing, which was scheduled for May 29, 2015. Sinnott requested the continuance due a conflict with her schedule and due to authorities taking Rozell into custody and transferring him to Tennessee to answer charges there. Over the next year, nothing happened in the case until Sinnott filed a motion to withdraw as Rozell's counsel on August 5, 2016. In the motion, Sinnott advised the trial court that she had accepted a position with the Clark County Public Defender's Office, which had a conflict with Rozell. The trial court permitted Sinnott to withdraw as Rozell's trial counsel and Rozell was thereafter represented by attorney John Juergens.

{¶ 6} Around the same time Sinnott withdrew as Rozell's trial counsel, the trial court received notice that Rozell had returned to Clark County, Ohio. Shortly thereafter, Juergens filed a motion to withdraw guilty plea on Rozell's behalf. In the motion, Rozell claimed that he did not knowingly and voluntarily plead guilty because Sinnott provided ineffective assistance of counsel.

{¶ 7} On January 6, 2017, the trial court held a hearing on Rozell's motion to withdraw guilty plea. At the hearing, Rozell testified regarding his communications with Sinnott leading up to his guilty plea and discussed Sinnott's alleged shortcomings in representing him. According to Rozell, Sinnott failed to: (1) obtain or review discovery; (2) advise him of the possible penalties he faced; (3) discuss defenses other than trial; and (4) provide him with any legal advice regarding the State's plea offer. Rozell further testified that the only reason he accepted the State's plea offer and pled guilty was because he was withdrawing from Suboxone and wanted to be released from jail. Rozell also claimed that Sinnott knew he was in withdrawal when they discussed his plea and that his guilty plea was coerced.

{¶ 8} After the January 6th hearing, the State requested the trial court to reopen the matter so that it could call Sinnott as a witness to testify regarding her representation of Rozell. The trial court granted the request and permitted Sinnott to testify over Rozell's objection. Rozell objected on grounds that Sinnott's testimony would violate the attorney-client privilege. The trial court disagreed, as it determined Rozell waived the attorney-client privilege when he raised the issue of Sinnott's alleged ineffectiveness.

{¶ 9} While testifying, Sinnott directly contradicted Rozell's allegations regarding her representation. Sinnott testified that she reviewed the discovery materials with Rozell at her office prior to his plea and that she specifically recalled discussing Rozell's defenses, one of which was that no one actually saw him driving while intoxicated. Sinnott also testified that she advised Rozell he could face over 10 years in prison if he took all three of his cases to trial and would only be exposed to 36 months in prison if he accepted the State's plea offer. Sinnott, however, claimed that she told Rozell it was ultimately his decision whether to accept the plea offer.

{¶ 10} Continuing, Sinnott testified that she met with Rozell at least twice before his plea and that she had more than one telephone conversation with him. Although there was a discrepancy as to whether Sinnott met with Rozell in jail, Sinnott reminded the trial court on multiple occasions that she represented Rozell two years ago, and that she did not remember certain details. Sinnott further testified that when she met with Rozell prior to his plea, he was aware of what was going on and that she had no reason to believe or ask if he was impaired or withdrawing from medication. Sinnott further testified that she believed Rozell's guilty plea was made knowingly and voluntarily.

{¶ 11} Following Sinnott's testimony, the trial court permitted Rozell to testify again. Rozell testified that Sinnott's testimony was not the truth and that she did not discuss the plea offer with him or any potential sentence. According to Rozell, the only thing he and Sinnott discussed was trial. Rozell further testified that he and his family attempted to contact Sinnott several times to file a motion to withdraw guilty plea, but that Sinnott could not be reached. According to Rozell, he wanted to withdraw his plea immediately after entering it.

{¶ 12} On May 9, 2017, after considering the testimony presented at the hearings and in the memorandums filed by the parties, the trial court issued a decision denying Rozell's motion to withdraw guilty plea. Rozell then filed a motion to reconsider, which the trial court also denied. The matter then proceeded to sentencing, during which the trial court imposed a 36-month prison term, $5,000 fine, 25-year license suspension, and court costs.

{¶ 13} Rozell now appeals from his conviction, raising three assignments of error for review.

First Assignment of Error

{¶ 14} Rozell's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN ORDERING TRIAL COUNSEL TO TESTIFY AT THE HEARING ON THE PLEA WITHDRAWAL IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS AND RIGHT TO PRESERVE ATTORNEY-CLIENT PRIVILEGE.

{¶ 15} Under his First Assignment of Error, Rozell contends that the trial court erred by allowing the State to call Rozell's former defense counsel, Sinnott, to testify at the hearing on his motion to withdraw guilty plea. According to Rozell, this violated the attorney-client privilege, which he claims he did not waive. We disagree.

{¶ 16} This court addressed the same argument in State v. Houck , 2d Dist. Miami No. 09-CA-08, 2010-Ohio-743, 2010 WL 703648. In Houck , the defendant, who was represented by a public defender, pled guilty and thereafter retained private counsel who moved to withdraw the defendant's guilty plea prior to sentencing. Id. at ¶ 5-6. At the hearing on the motion to withdraw guilty plea, the defendant testified on her own behalf and the State called the public defender to testify regarding his representation of the defendant. Id. at ¶ 6. The defendant objected to the testimony of the public defender on grounds of attorney-client privilege. Id. The trial court overruled the objection and the defendant appealed. Id. at ¶ 6-7.

{¶ 17} On appeal, we held that the defendant in Houck "unequivocally waived the confidential, privileged nature of her communication with [her former attorney] concerning whether she should plead guilty to the charged offense, when she testified concerning the communication, including what [her attorney] had advised her." Id. at ¶ 37. In so holding, we stated that a defendant "may not publish to the world her attorney's advice to her and expect that it will thereafter remain privileged." Id. "A ruling to the contrary would permit anyone, in either criminal or civil litigation, to claim with impunity that she was acting on advice of counsel, without permitting her former counsel to be asked, by adverse parties, whether that was, in fact, counsel's advice." Id. at ¶ 38. "The attorney-client privilege is a shield, to protect the confidentiality of a client's consultation with her attorney, not a sword to facilitate perjury concerning the substance of counsel's advice." Id.

{¶ 18} Our holding in Houck applies to the present case. Here, Rozell testified regarding his communications with Sinnott in an effort to establish ineffective assistance of counsel. By publishing their communications in such a manner, Rozell, like the defendant in Houck , waived the privileged nature of those communications. As a result, Sinnott was permitted to testify regarding her communications with Rozell without violating the attorney client privilege, which, again, had been waived.

{¶ 19} In support of his claim otherwise, Rozell relies on State v. Strickland , 2d Dist. Montgomery No. 25673, 2014-Ohio-5451, 2014 WL 7004814. In Strickland , the trial court ordered defense counsel, who was actively representing the defendant, to testify at the hearing on defendant's motion to withdraw guilty plea. Defense counsel testified regarding his experience as a criminal defense attorney and the plea offers that he had conveyed to the defendant. Id. at ¶ 7. We held this violated the defendant's Sixth Amendment right to counsel because it placed defense counsel in the difficult and unexpected position of having to testify against his client rather than as an advocate. Id. at ¶ 20, 25, 30.

{¶ 20} Our decision in Strickland is distinguishable from the present case because Sinnott was no longer Rozell's attorney at the time she testified at the hearing on Rozell's motion to withdraw guilty plea. As Rozell's former attorney, Sinnott was not placed in the position of having to both advocate for and testify against Rozell. Therefore, the holding in Strickland is inapplicable to the case at bar, as Sinnott was permitted to testify once Rozell waived the attorney-client privilege.

{¶ 21} Rozell's First Assignment of Error is overruled.

Second Assignment of Error

{¶ 22} Rozell's Second Assignment of Error is as follows:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA.

{¶ 23} Under his Second Assignment of Error, Rozell contends that the trial court erred in denying his presentence motion to withdraw guilty plea. We again disagree.

{¶ 24} Pursuant to Crim.R. 32.1 : "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." A presentence motion to withdraw a guilty plea "should be freely and liberally granted." State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). The presentence standard is more lenient than the "manifest injustice" standard, which is applicable to postsentence motions. State v. Fugate , 2d Dist. Montgomery No. 21574, 2007-Ohio-26, 2007 WL 29381, ¶ 10. Nevertheless, even under the presentence standard, the right to withdraw a plea is not absolute, and a trial court retains discretion to overrule a presentence motion to withdraw a plea. Xie at 527, 584 N.E.2d 715.

{¶ 25} Appellate courts review trial court decisions on motions to withdraw pleas for abuse of discretion. State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. " 'Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary or unconscionable." (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). "It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary." Id. "A decision is unreasonable if there is no sound reasoning process that would support that decision." Id.

{¶ 26} In evaluating whether a trial court has abused its discretion in overruling a presentence motion to withdraw a plea, this court has adopted the following nine factors set forth in State v. Fish , 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995), overruled on other grounds, State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056 (1st Dist.) :

"(1) whether the accused is represented by highly competent counsel, (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the motion, (4) whether the trial court gave full and fair consideration to the motion, (5) whether the motion was made within a reasonable time, (6) whether the motion sets out specific reasons for the withdrawal, (7) whether the accused understood the nature of the charges and possible penalties, (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges, and (9) whether the state is prejudiced by withdrawal of the plea."

State v. Warrix , 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, 2015 WL 9393561, ¶ 29, quoting State v. Massey , 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, 2015 WL 7084127, ¶ 11. (Other citation omitted.)

{¶ 27} "In considering these factors, the trial court employs a balancing test; no single factor is dispositive." Id. at ¶ 30, citing State v. Preston , 2d Dist. Montgomery No. 25393, 2013-Ohio-4404, 2013 WL 5532539, ¶ 20. However, "[t]he ultimate question for the trial court is whether there is a 'reasonable and legitimate basis for the withdrawal of the plea.' " Id. , quoting Xie , 62 Ohio St.3d at 527, 584 N.E.2d 715.

{¶ 28} In this case, the trial court determined that Rozell was represented by highly competent counsel, thus indicating the trial court found Sinnott's testimony regarding her representation of Rozell more credible than Rozell's testimony. "Decisions regarding the credibility of witnesses are primarily for the trial court to make, given that the trial judge, as the finder of fact at the hearing on the motion to withdraw the plea, saw and heard the witnesses' testimony." State v. Hess , 2d Dist. Montgomery No. 24453, 2012-Ohio-961, 2012 WL 762308, ¶ 22, citing State v. Brown , 2d Dist. Miami No. 2002-CA-23, 2003-Ohio-2959, 2003 WL 21342460, ¶ 13, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Therefore, based on Sinnott's testimony, we agree that Rozell was represented by highly competent counsel. In so holding, we note that the plea agreement negotiated by Sinnott resulted in the dismissal of several charges against Rozell and reduced Rozell's maximum possible prison term from over 10 years in prison to a mere 36 months. Accordingly, Rozell's contentions with Sinnott's representation are unfounded.

{¶ 29} We also find that Rozell received a full Crim.R. 11 plea hearing prior to entering his guilty plea. At the plea hearing and in the plea form, the trial court discussed in great detail the nature of the OVI charge, the maximum possible penalty, the effect of entering a guilty plea, and the rights Rozell was waiving by pleading guilty. Rozell indicated that he understood all these items and specifically indicated that his plea was being entered voluntarily. Although Rozell claims he was not of sound mind during the plea hearing due to withdrawing from Suboxone, at the time of the hearing, Rozell advised the trial court that he was not under the influence of alcohol, drugs, or medication, and there is nothing in the record of the plea hearing to indicate otherwise. We further note that Rozell testified that he knew immediately after entering his plea that he had made a mistake and wanted to withdraw his plea. Hearing Trans. (Jan. 26, 2017), p. 55. Therefore, Rozell is asking this court to believe that his alleged withdrawal from Suboxone prevented him from knowingly and voluntarily pleading guilty, but not from knowingly and voluntarily deciding to withdraw his plea. We decline Rozell's invitation.

{¶ 30} In addition to having a full Crim.R. 11 plea hearing, during which Rozell exhibited an understanding of the nature of the OVI charge and the possible penalty, the record indicates that Rozell was given a full hearing on his motion to withdraw guilty plea. The record further indicates that the trial court gave full and fair consideration to Rozell's motion, which Rozell does not dispute on appeal.

{¶ 31} With regard to having a complete defense, Rozell argues that he has "potentially meritorious defenses," but fails to explain what those defenses are or whether any amount to a complete defense to the OVI conviction. At the hearing on his motion to withdraw guilty plea, Rozell indicated that certain witnesses could not or would not testify against him at trial. The record indicates that the sole witness who would have testified against Rozell, Kathy Huff, died in between the time Rozell pled guilty and the time he filed his motion to withdraw guilty plea. Due to the death of this witness, we find the State would be prejudiced if Rozell's guilty plea was withdrawn and the matter went to trial.

{¶ 32} As for the timeliness of Rozell's motion, we note that Rozell filed his motion to withdraw guilty plea over a year after he entered his plea. Rozell claims he was prevented from doing so any earlier because he could not make contact with Sinnott and because he was taken out of Ohio to answer charges in Tennessee. Even if we were to find that Rozell filed his motion within a reasonable time given his transfer to Tennessee and alleged inability to contact Sinnott, timeliness alone is insufficient as a matter of law to support the withdrawal of a plea. State v. Chatman , 2d Dist. Montgomery No. 25766, 2014-Ohio-134, 2014 WL 201572, ¶ 10.

{¶ 33} Based on the foregoing discussion, we find that the majority of the factors in Fish , 104 Ohio App.3d 236, 240, 661 N.E.2d 788, do not support the withdrawal of Rozell's guilty plea. In considering these factors, we further find that the record does not establish that Rozell had a reasonable, legitimate basis to withdraw his plea. Therefore, the trial court did not abuse its discretion in overruling Rozell's presentence motion to withdraw guilty plea.

{¶ 34} Rozell's Second Assignment of Error is overruled.

Third Assignment of Error

{¶ 35} Rozell's Third Assignment of Error is as follows:

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTION.

{¶ 36} Under his Third Assignment of Error, Rozell contends that both attorney Sinnott and attorney Juergens provided ineffective assistance of counsel. We again disagree.

{¶ 37} In order to succeed on an ineffective assistance claim, Rozell must establish: (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697, 104 S.Ct. 2052.

{¶ 38} To establish deficient performance, Rozell must show that his trial counsel's performance fell below an objective standard of reasonable representation. Id. at 688, 104 S.Ct. 2052 ; Bradley at 142, 538 N.E.2d 373. In evaluating counsel's performance, a reviewing court "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland at 689, 104 S.Ct. 2052.

{¶ 39} To establish prejudice, Rozell must show that there is "a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688, 104 S.Ct. 2052 ; Bradley at paragraph two of the syllabus. " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Bradley at 142, 538 N.E.2d 373, quoting Strickland at 694, 104 S.Ct. 2052.

{¶ 40} With regard to the ineffective assistance claim against Sinnott, we note that "a guilty plea waives all appealable errors, including claims of ineffective assistance of counsel, except to the extent that the errors precluded the defendant from knowingly, intelligently, and voluntarily entering his or her guilty plea." State v. Leonard , 2d Dist. Montgomery No. 27411, 2017-Ohio-8421, 2017 WL 5054296, ¶ 13, citing State v. Frazier , 2016-Ohio-727, 60 N.E.3d 633, ¶ 81 (2d Dist.). In turn, "[i]f a defendant pleads guilty on the advice of counsel, he must demonstrate that the advice was not 'within the range of competence demanded of attorneys in criminal cases.' " Id. , quoting Frazier at ¶ 81. Therefore, "[o]nly if there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty but would have insisted on going to trial will the judgment be reversed." State v. Huddleson , 2d Dist. Montgomery No. 20653, 2005-Ohio-4029, 2005 WL 1846531, ¶ 9, citing Hill v. Lockhart , 474 U.S. 52, 52-53, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). (Other citations omitted.)

{¶ 41} In this case, the record does not indicate that Sinnott performed deficiently so as to affect the knowing, intelligent, and voluntary nature of Rozell's guilty plea. As previously discussed, Sinnott testified that she informed Rozell of the charges and possible sentences he faced if he accepted the State's plea offer versus going to trial. Sinnott also testified that Rozell displayed no signs of impairment or withdrawal from medication when she discussed the State's plea offer and Rozell's decision to plead guilty. The record also indicates that Sinnott went over the plea form with Rozell, which Rozell signed and claimed he understood at the plea hearing. There is nothing in the plea hearing transcript indicating that Sinnott engaged in any conduct that rendered Rozell's plea less than knowing, intelligent, and voluntary. Other than his self-serving testimony regarding Sinnott's representation, which the trial court did not find credible, Rozell cannot point to anything in the record that would call Sinnott's performance into question.

{¶ 42} With regard to the ineffective assistance claim against Juergens, Rozell contends that Juergens's cross-examination of Sinnott at the hearing on his motion to withdraw guilty plea was deficient. Specifically, Rozell claims that the cross-examination of Sinnott demonstrates that Juergens did not obtain or review the bill of particulars or discovery materials because Juergens "did not address specifically the issues relating to potential defenses, factual scenarios or other deficiencies in the testimony of Sinnott."

{¶ 43} Initially, we note that there is nothing in the record indicating that Juergens did not obtain or review the bill of particulars or the discovery materials in Rozell's case. Therefore, Rozell's claim to that effect is pure speculation. A review of the record also reveals that Juergens did question Sinnott about Rozell's potential defenses during Sinnott's cross-examination and that Juergens attempted to establish deficiencies in Sinnott's testimony. See Hearing Trans. (Jan. 26, 2017), p. 39-51. Regardless, it is well established that " '[t]he scope of cross-examination falls within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.' " State v. Williams , 2d Dist. Montgomery No. 24548, 2012-Ohio-4179, 2012 WL 4046778, ¶ 28, quoting State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. Accord State v. Nevins , 2d Dist. Montgomery No. 24070, 2011-Ohio-389, 2011 WL 333931, ¶ 53 ("decisions regarding cross-examination are within trial counsel's discretion and cannot form the basis for a claim of ineffective assistance of counsel"), citing State v. Shells , 2d Dist. Montgomery No. 20802, 2005-Ohio-5787, 2005 WL 2851757, ¶ 37. " '[A]n appellate court reviewing an ineffective assistance of counsel claim must not scrutinize counsel's strategic decision to engage, or not to engage, in a particular line of questioning on cross-examination.' " State v. Brodbeck , 10th Dist. Franklin No. 08AP-134, 2008-Ohio-6961, 2008 WL 5423445, ¶ 65, quoting State v. Dorsey , 10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, 2005 WL 1119613, ¶ 22. Accord State v. Arnold , 2d Dist. Montgomery No. 22785, 2009-Ohio-2773, 2009 WL 1653019, ¶ 60.

{¶ 44} For the foregoing reasons, we find that Rozell has failed to establish that either Sinnott or Juergens performed deficiently while representing him in this matter.

As a result, his ineffective assistance of counsel claim must fail.

{¶ 45} Rozell's Third Assignment of Error is overruled.

Conclusion

{¶ 46} Having overruled all assignments of error raised by Rozell, the judgment of the trial court is affirmed.

DONOVAN, J. and HALL, J., concur.

      While the record makes clear that the OVI offense was charged as a third-degree felony, the indictment does not specify the level of offense for the endangering children charge. The arrest report indicates that the charge is a felony; however, under R.C. 2919.22(E), endangering children is typically a first-degree misdemeanor when there are no aggravating factors, which are not present in this record.

      Two days before his plea hearing, Rozell was arrested pursuant to a capias order that was issued for his failure to appear at a court hearing.

      The record indicates that when the police went to the scene of the crash in question, Rozell's truck was no longer at the scene. Instead, the police found the truck in a nearby yard where Rozell and another man were arguing. The police observed that both men appeared to be highly intoxicated. After further investigation and speaking to a witness, the police learned that Rozell was the driver of the truck involved in the crash.

      The record indicates that the other witness is Rozell's friend "Larry," who Rozell indicated would not testify against him at trial. Hearing Trans. (Jan. 6, 2017), p. 18.


source: Caselaw Access Project

author: FROELICH, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Needom BENDOLPH, Defendant-Appellant
    No. 27534
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on May 4, 2018
    MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee.
    ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385 Attorney for Defendant-Appellant.
   FROELICH, J.

{¶ 1} Needom Bendolph was found guilty by a jury of two counts of rape by force and one count of felonious assault; he was sentenced to an aggregate prison term of 11 years, was designated as a Tier III sex offender, and was ordered to pay restitution. Bendolph appeals from his conviction, arguing that his trial counsel was ineffective in presenting the testimony of an expert witness without fully investigating what the content of her testimony would be and appreciating its impact on his defense.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

Facts and Procedural History

{¶ 3} On January 16, 2017, Bendolph was indicted on two counts of rape (by force) and one count of felonious assault (serious harm). The complainant was Bendolph's girlfriend, L.G. Bendolph filed a motion to suppress evidence, which was overruled. He did not waive his right to a speedy trial. He was tried by a jury on March 20 and 21, 2017, and was found guilty of all of the offenses. The court sentenced him as described above.

The State's Case

{¶ 4} The State's evidence at trial was as follows:

{¶ 5} On December 28, 2016, L.G. and Bendolph were out in the evening with some friends; L.G. was the designated driver, and she was driving someone else's car for most of the evening. Her own car was at Bendolph's mother's apartment, where the couple sometimes stayed. Later in the evening, she and Bendolph were dropped off at the apartment, got into her car, and went out a while longer. When they returned to the apartment, L.G. was driving, and Bendolph was in the passenger seat; L.G. was planning to drop Bendolph off and go to her sister's for the night.

{¶ 6} According to L.G., when she pulled into the driveway alongside Bendolph's mother's apartment, Bendolph suddenly grabbed her car keys and began hitting her with his fists. She "call[ed] his name and he wasn't responding to [her]," and she "was begging him to stop." In the struggle, their positions became reversed, such that Bendolph was on the driver's side of the car, standing outside the door, and L.G. was half in and half out of the driver's door, lying back on the passenger seat.

{¶ 7} Bendolph pulled L.G.'s legs toward the driver's side door and partially ripped her pants and underwear. L.G. testified that he then put his hand inside her vagina, removed it, smelled and licked his hand, and said, "[B]***h, I know you been f***ing." He then performed cunnilingus on L.G., spit "all over" her, "then took out his penis and shoved it in [her]." L.G. testified that she was telling him to stop, kicking, and fighting the entire time. Bendolph was choking her, calling her names, and threatening to kill her.

{¶ 8} After a few minutes, L.G. managed to lean her body up against the car's horn in an effort to draw attention. Several neighbors came outside. When Bendolph noticed that people were outside, he "drug" L.G. out of the car, closing her coat because "her pants and things was all exposed," and led her to the door of his mother's apartment by the back of her neck. After Bendolph banged on the door and window for a few minutes, his mother let them into her apartment, which was on the second floor.

{¶ 9} According to L.G., Bendolph led her up the stairs, whispering in her ear threats to kill her and telling her to be quiet, "but he was talking normal to his mother" about spending the night. Bendolph led L.G. into a back bedroom, where she sat in a chair while Bendolph went to talk with his mother in another room. Bendolph's mother also came into the bedroom and talked with L.G. "for a minute." Bendolph then closed the bedroom door, pulled L.G.'s hair, and threw her onto the bed. He "started performing oral sex on [her] again at this time," "tore [her] underwear off completely," put his penis in L.G.'s mouth while threatening to kill her if she bit him, and then put his penis in her vagina again. Bendolph did not ejaculate.

{¶ 10} L.G. testified that she and Bendolph "were interrupted" by a knock at the front door. Bendolph's mother answered the door, and Bendolph's brother, Floyd, entered the apartment. Bendolph briefly left the bedroom and talked with Floyd, who then followed him back into the bedroom. After greeting L.G., Floyd began to question her about what was wrong. Floyd learned that Bendolph had hit L.G., and an altercation between the two men ensued. L.G. saw an opportunity to get away and headed for the apartment door, although Bendolph still had her car keys and purse.

{¶ 11} Bendolph pulled L.G. back into the apartment by her hair; she sat down "on the couch, in the living room, still exposed." The two men then went down the stairs and outside the apartment building. Bendolph returned, "screaming and yelling," threatening to kill Floyd and to "get a gun." L.G. tried to calm Bendolph down, but Bendolph said, "b***h, you're the reason," and slapped her so hard that she "fell off the couch" and "[saw] stars." When she was on the ground, Bendolph "started stomping and kicking [her] and sitting on [her]." Bendolph's mother attempted to intervene on L.G.'s behalf, telling Bendolph "don't put your hands on that girl."

{¶ 12} Bendolph again left the apartment. L.G. got back on the couch and asked Bendolph's mother to call the police. Bendolph's mother agreed and said that she was calling the police and an ambulance. However, before any help arrived, L.G. heard her car start outside the apartment. She tried to run out to the car, but fell down the steps. When she got outside, the "car [was] taking off," but she grabbed the handle and got in. She explained that her "entire life was in that car. Everything [she] had worked for, everything [she] owned. All of my music, microphones-he had my money, he had my purse. My entire life was pulling out of that driveway and my instinct was to protect it, so I got in the car."

{¶ 13} In the car, Bendolph was still "ranting" about killing his brother; L.G. tried to "appease" him and calm him down. Bendolph was driving erratically. They stopped at a night club they had visited earlier in the evening with their friends. Bendolph ordered L.G. out of the car, but she was crying and said that she could not get out because she "ha[d] no clothes on" and was "exposed." Bendolph threatened to beat her with a club (the type that keeps a steering wheel locked) that was under the seat of the car.

{¶ 14} L.G. agreed to get out and "started easing over from the passenger seat to the driver's seat"; she was attempting to pull the keys out of the car ignition. Bendolph, who had not been wearing a shirt, apparently stepped out of the car and put the club between his legs while he put on a shirt. At that point, L.G. "put that car in reverse and got the hell out of there," knocking Bendolph to the ground in the process. She drove to a nearby gas station, where a patron and a gas station employee called the police. L.G. testified that she was bleeding and "completely exposed," so she waited in her car for the police to arrive.

{¶ 15} The police took L.G. to the hospital, where a sexual assault kit was completed. L.G. testified that she had "quite a few knots" on the back of her head, four fractures of the "orbital floor" of her left eye, and a lot of cuts and bruises. She testified that the doctors were hoping the bones around her eye would heal without surgery, but that the healing was going slowly and was "a little more complicated" because she was a diabetic. She testified at trial that she still suffered blurred vision, bad headaches, and had trouble with her vision for nighttime driving.

{¶ 16} L.G. was cross-examined at length about various details of her testimony, but the cross-examination did not suggest the nature of the defense that Bendolph intended to pursue.

{¶ 17} Montgomery County Sheriff's Deputy Darren Harvey responded to the gas station across the street from the night club on December 28, 2016. He found L.G. "crying hysterically" with her pants "ripped open"; he could barely understand what she was saying. She reported that she was physically assaulted and raped by her boyfriend, who was at a nearby nightclub. Another deputy responded to the night club and arrested Bendolph. L.G.'s ripped underwear was found by sheriff's deputies in the bedroom of Bendolph's mother's apartment.

{¶ 18} The nurse who conducted the sexual assault exam testified at trial that she observed injuries to L.G.'s face and left eye. She testified that L.G. "complained of some discomfort" during the vaginal exam, but no tears, abrasions, or bruising were observed; the nurse testified that such findings were not uncommon in women of child-bearing age, because estrogen makes the woman's vagina "elastic" and "less likely to have any injuries." During the interview and examination, L.G. reported vaginal penetration with penis and fingers, contact of the assailant's mouth to the patient's genitals, that she had been "kissed, licked or bitten" on her neck, and that no ejaculation had occurred. When asked about the use of lubrication, L.G. stated that her assailant had "spit all over her." The nurse swabbed various areas of L.G.'s body, based on her description of the incident.

{¶ 19} The State also called Bendolph's mother ("Mother"), who testified about calling the police around 1:30 a.m. on December 28, 2016, about an incident between her son and L.G. She testified that they had come into her apartment and had been in the back bedroom quietly and "peaceful" while she watched television. Then Floyd arrived, and Mother told him that Bendolph was back in the bedroom. The men were "laughing and talking for a minute," then a "scuffle" began "because [Floyd] was asking [Bendolph] what-what did he do-what did he do to her or something." Mother had not "pa[id] any attention to" L.G. up to that point, in terms of noticing any injuries. After the altercation with Floyd, in the living room, Bendolph "jumped on [L.G.]," "hit her a couple times," and "us[ed] his feet." Mother became angry, told Bendolph to leave L.G. alone, and called the police. Mother testified that L.G. had been crying, but Mother had not observed any injuries; Mother did not recall telling the police that she had heard Bendolph and L.G. fighting in the bedroom.

{¶ 20} Montgomery County Sheriff's Detective Brian Conley investigated L.G.'s assault. He testified that he spoke with Mother about the incident, and Mother stated that she had heard "screaming" from the back bedroom when Bendolph and L.G. were in the apartment; this was consistent with what Mother had told officers "on the scene." She also stated that her son had left the apartment with L.G.'s purse.

The Defense Case and the Surprise Evidence

{¶ 21} The defense called two witnesses: Amy Dallaire, a forensic scientist in the "serology DNA section" of the Miami Valley Regional Crime Lab, and Bendolph.

{¶ 22} Dallaire had worked on the sexual assault kit in the Bendolph case. After providing some background about the manner in which samples are marked and tracked, Dallaire testified that she had examined the vaginal swabs in the sexual assault kit for the presence of semen. She stated that the first step is an "acid phosphatase test" for the presence of semen; if that test is positive, she does further testing. In Bendolph's case, the acid phosphatase test was negative. However, she did another "confirmatory" test, which looked for sperm cells or protein, "because sometimes vaginal fluid can kind of dilute out the [acid phosphatase] reaction"; she further testified, without objection, that she "looked for sperm cells and found them. So the vaginal swabs were positive for semen."

{¶ 23} Dallaire then explained in some detail her testing procedures for obtaining a sample of DNA from the swabs and obtaining a DNA profile. She explained that, once the profile was determined, an "unknown" DNA sample on a swab from a sexual assault kit could be compared to a "standard" (DNA obtained from a known individual, in this case, Bendolph).

{¶ 24} She was then asked by defense counsel:

Q: And I think you-did you find that there was-in your findings in regard to the presence of DNA?
A: Where I did DNA on the vaginal swabs and the standards from [L.G.] and Needom Bendolph, the result I got from the vaginal swabs is no foreign DNA was identified on the vaginal swabs.
Q: And so (indiscernible) so that means there's-you found no DNA of someone other than [L.G.]?
A: Right.
Q: Okay. And did you-in your findings there, did you-did you include that in a-in a report?
A: Yes, I did.

{¶ 25} Dallaire was then presented with her DNA report, Exhibit A. Defense counsel asked if this report included all of her findings "generated as a part of [her] examination" of the evidence in this case. She responded that the DNA report included only her DNA findings; she also had "a separate report for the serology findings."

{¶ 26} At this point, the prosecutor asked if the attorneys could approach the bench. Defense counsel responded, "yes, please." At sidebar, the court noted "complete surprise" on counsels' faces, and both attorneys indicated that they had been aware of only one report-the DNA report indicating no presence of foreign DNA-which they had received the previous week. Neither attorney had been aware of or had seen Dallaire's serology report. The court excused the jury, had additional discussions with counsel about the serology and DNA reports, and allowed the parties to question Dallaire. Defense counsel stated that he had had no notice of the serology report and "may have changed the manner of questioning Ms. Dallaire" if he had known of it. Defense counsel requested a mistrial.

{¶ 27} On further questioning outside the presence of the jury, Dallaire testified that, once a report is "released from our building, I have no control over who it gets released to." In other words, she did not know to whom her reports had been provided. She created the serology report as a matter of her usual procedures, and was not specifically requested by anyone to do so. She stated that the serology report had been released in January 2017, more than two months before trial.

{¶ 28} After a short break, the parties reconvened in chambers and the court heard arguments on Bendolph's motion for a mistrial. The court observed that "it was clear from the reaction of all counsel, that this was a complete surprise that she [Dallaire] was going to say that." Defense counsel stated that he had been assured by the State that he had received all discovery material. He had called Dallaire to the stand based on the DNA report, had talked with her briefly about the DNA report on the Friday before trial, and had "anticipated nothing else." Further, defense counsel stated, "I would not have put her on the stand to testify that there was semen in the vaginal swab. And that totally undercuts a theory of the defense case, a strategic move that defense would have made; perhaps even calling her as a witness to begin with." (Although counsel did not explain what this theory was or how it was "undercut," the defendant would later testify that he and L.G. had not had any sexual relations on the night in question.) Finally, defense counsel expressed his belief that the prejudice suffered as a result of the surprise could not be cured by any instruction to the jury.

{¶ 29} The State argued that it had asked the lab "to send over all the labs that they had in regards to this case," and that the lab responded by emailing only the DNA report. The prosecutor stated that Detective Conley had also been unaware that there was a serology report separate from the DNA report. The State provided the DNA report to the defense as soon as it was available. The State also pointed out that Dallaire was called as a defense witness, not a State's witness, that defense counsel had "equal opportunity to discuss this" with Dallaire, that defense counsel acknowledged that he had discussed the DNA report with Dallaire before trial, and that defense counsel could have asked Dallaire if there were any additional reports. Since both parties were unaware of the report, the State asserted that "the fault does not lie with us." Finally, the State argued that "[w]e don't know whose [semen] it is," and that exploration of this topic would be "blocked by rape shield."

{¶ 30} The State proposed a continuance for additional DNA testing to be conducted on the semen, but the defense objected, saying that "it would totally disrupt the flow of the trial, our strategy throughout the trial. * * * [I]t's completely taken a left turn in the middle of trial and I think that would be unduly prejudicial."

{¶ 31} The trial court overruled the motion for a mistrial. It cited several factors: 1) the surprise was not clearly apparent to the jury; 2) Dallaire was called as a defense witness, and the defense had an obligation to know what its witness's testimony would be; 3) there was no prosecutorial misconduct, in that the State was also unaware of the report and did not intentionally withhold it; 4) Brady protects a defendant from the withholding of inculpatory evidence and, because additional testing of the semen "could have been inculpatory," the exclusion of the serology report arguably favored the defendant; 5) the defense could still argue that no DNA was found, which was the original basis of the defense; 6) because the contributor of the semen is unknown, any argument that it was the semen of someone else would violate the rape shield law; and 7) the undisclosed report was not "overly prejudicial" and could be cured by telling the jury to disregard the testimony of the witness in regard to the serology report.

{¶ 32} The court instructed the jury that it was "to totally disregard the testimony of [Dallaire] regarding any serology testing or report that may be generated."

{¶ 33} After Dallaire's testimony, Bendolph testified on his own behalf. He testified that he and L.G. had drifted apart because of her "addiction," but that he was giving her one more chance after they moved to Dayton from Texas. He further testified that he had a bad headache when he and L.G. returned to his mother's apartment on the night in question, and that he simply laid down in the bedroom with L.G. and tried to sleep; he denied having any physical altercation with L.G. or having sex with her that night. On cross-examination, he testified that L.G. "was trying to do a bunch of other stuff * * * [s]exually," "like pay attention to her, touch her," but that he was "totally ignoring her." He did not recall whether her clothes were on or off, because it was dark.

{¶ 34} When Floyd arrived, the men "had words" and a physical altercation; Bendolph denied that the altercation was related to his having hit L.G. Bendolph then chased Floyd out of the apartment. When Bendolph came back into the apartment a short time later, L.G. was in the living room, and he took her car keys to chase Floyd. L.G. came along voluntarily. Bendolph stated that he "never noticed anything" such as marks or scratches on L.G.'s face.

{¶ 35} According to Bendolph, when he and L.G. arrived at the night club in pursuit of Floyd, as he stood by the car door, L.G. backed the car up, hit him with the door, and pulled away.

{¶ 36} Bendolph raises one assignment of error on appeal, which challenges the effectiveness of his trial counsel, based on counsel's handling of the preparation for the testimony of the serologist and of her surprise statements at trial.

Ineffective Assistance of Counsel

{¶ 37} To establish ineffective assistance of counsel, a defendant must demonstrate both that trial counsel's conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook , 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992) ; State v. Fields , 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland , 466 U.S. at 689, 104 S.Ct. 2052.

{¶ 38} Bendolph claims that he was denied effective assistance of counsel, because his attorney failed to investigate Dallaire's testimony before trial. Specifically, he asserts that counsel should have investigated whether "the favorable conclusion of the DNA report" (that Bendolph's DNA was not found to be present on the victim) excluded the possibility that there was semen present in the vagina. Bendolph argues that "reasonable pretrial investigation" and asking "appropriate questions" would have prevented the surprise at trial, and that Dallaire's testimony might have permitted the jury to conclude that Bendolph was the source of the semen notwithstanding the lack of foreign DNA. He argues that the presence of semen undermined his theory of the case and suggested that L.G. had sex with someone around the time of the offenses, which was prejudicial to his defense.

{¶ 39} Defense counsel had briefly interviewed Dallaire in the days before trial, but their conversation did not uncover the existence of a second report or the serologist's finding that semen was present. Defense counsel acknowledged that his conversation with Dallaire before trial was brief, and both parties acknowledge that the DNA report became available to them only two or three days before trial. Defense counsel did not further elaborate on the nature or scope of his pretrial discussion with Dallaire.

{¶ 40} Without more, and given that counsel did not know that another report existed, we cannot conclude that a thorough discussion of the DNA report with Dallaire would necessarily have revealed the existence of the second report and thus led defense counsel to not call Dallaire as a witness. For strategic reasons, defense counsel may not have disclosed to Dallaire the nature of the defense he intended to pursue, such that Dallaire may have pointed out the additional evidence contained in the serology report. Under the circumstances presented on this record, and with our very limited knowledge of counsel's conversation with Dallaire, we cannot conclude that defense counsel's performance fell below an objective standard of reasonableness, was prejudicial, and was ineffective.

{¶ 41} Moreover, although we recognize that the due process clause of the Fourteenth Amendment to the United States Constitution imposes upon the State a duty to disclose to a criminal defendant evidence that is favorable to him or her and is material either to guilt or to punishment, we cannot find that Bendolph was denied due process.

{¶ 42} In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that a criminal defendant may claim denial of due process where the state fails to disclose the existence of potentially exculpatory evidence; the failure to disclose evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment. Id. , 373 U.S. at 86, 83 S.Ct. 1194. "Exculpatory evidence * * * is defined as 'evidence favorable to the accused which, if disclosed and used effectively, * * * may make the difference between conviction and an acquittal.' " State v. Whalen , 9th Dist. Lorain No. 08CA009317, 2008-Ohio-6739, 2008 WL 5329976, ¶ 8, citing State v. Rowe, 92 Ohio App.3d 652, 666, 637 N.E.2d 29 (10th Dist. 1993) and United States v. Bagley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Evidence must be both favorable and material before disclosure is required, and favorable evidence under Brady encompasses both exculpatory and impeachment evidence. State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 338, citing Brady at 87, 83 S.Ct. 1194 and Bagley at 674, 105 S.Ct. 3375.

{¶ 43} Material evidence is that which goes to "the substance of the allegations" against a defendant, i.e., evidence the defendant would have used to acquit himself of the specific charges levied against him. (Emphasis sic.) State v. Geeslin , 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 13 ; see also State v. Beavers , 2d Dist. Montgomery No. 26036, 2015-Ohio-1161, 2015 WL 1402912, ¶ 41. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. State v. Iacona , 93 Ohio St.3d 83, 89, 752 N.E.2d 937 (2001). State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus, following Bagley.

{¶ 44} Material evidence differs from "potentially useful evidence," which is "evidence of limited exculpatory value" that does not bear directly upon an accused's guilt or innocence. State v. Jackson, 9th Dist. Summit No. 28625, 2018-Ohio-19, 2018 WL 283159, ¶ 27.

{¶ 45} The question is whether, in the absence of the undisclosed evidence, the defendant received a fair trial, i.e., a trial resulting in a verdict worthy of confidence; the analysis is not based on the likelihood of a different verdict. See, e.g., State v. Bai , 12th Dist. Butler No. CA2010-05-116, 2011-Ohio-2206, 2011 WL 1782113, ¶ 67, citing State v. Goff , 12th Dist. Clinton No. CA2000-05-014, 2001 WL 208845, *4 (March 5, 2001) and Kyles v. Whitley, 514 U.S. 419, 434-435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that one does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict).

{¶ 46} The defendant bears the burden of proving that evidence was materially exculpatory. State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 102 ; Iacona at 92, 752 N.E.2d 937.

{¶ 47} It is apparent that Bendolph called Dallaire to testify believing that her testimony would be somewhat helpful to him; he believed she would testify, as she did, that there was no DNA evidence that Bendolph had engaged in sexual activity with L.G. However, she also testified that, although no foreign DNA was found, semen was present. (The trial court instructed the jury a short time later to disregard this testimony.) At the time this evidence was revealed, Bendolph had not yet testified at trial to his version of events-specifically, that he had not engaged in any sexual activity with the victim on the night in question; he testified later the same day.

{¶ 48} Without more, the undisclosed serology report and its conclusion that semen was present on the victim was neither exculpatory nor inculpatory. If this evidence had been known to the parties, Bendolph might have presented a defense that he and L.G. had engaged in consensual sexual intercourse or that L.G. had other sexual partners, while the State would likely have argued that it was further evidence of the rape. Because the trial court prohibited further questioning about the serology testing and results (due to the non-disclosure of the report), it is not apparent that additional testing would or could have produced more information about the source of the semen, especially in light of Dallaire's testimony that she found no foreign DNA.

{¶ 49} Even if we were to view the serology report as favorable or exculpatory, which we do not, the non-disclosure of this evidence did not necessarily implicate due process. The Due Process Clause may or may not be implicated, depending whether the evidence is disclosed "in time for its effective use at trial" and whether the timing of the disclosure otherwise "significantly impairs the fairness of the trial." Iacona , 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001), citing United States v. Smith Grading & Paving, Inc. , 760 F.2d 527, 532 (4th Cir.1985) ; see also State v. Wickline , 50 Ohio St.3d 114, 116, 552 N.E.2d 913 (1990).

{¶ 50} Here, Bendolph's counsel's opening statement contained general statements that the jury should "keep in mind" the presumption of innocence and the burden of proof, and should separate emotion from fact in the testimony of the witnesses. His cross-examination of L.G. sought only to confirm the details of her testimony. Neither the opening statement nor the cross-examination of the complainant or other witnesses suggested what the defense theory of the case would be or whether the defense would present an alternate version of events. In other words, Bendolph had not yet set forth or even suggested the version of events to which he subsequently testified, i.e., that he had not had sexual intercourse with the victim on the night in question because he had a headache.

{¶ 51} Moreover, the court instructed the jury to disregard Dallaire's testimony about the serology report (and therefore, the presence of the semen). We generally presume that a jury will follow the court's curative instructions concerning the evidence that may be considered, and for what purpose. State v. Ahmed , 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93 ; State v. Herring , 94 Ohio St.3d 246, 254, 762 N.E.2d 940 (2002). We have no reason not to indulge that presumption in this case.

{¶ 52} Under these circumstances, where the undisclosed evidence was not known to the prosecution and was not necessarily favorable or unfavorable to the defendant and the trial court instructed the jury to disregard the one reference to it, where there was strong evidence of guilt, and where evidence of the absence of foreign DNA was admitted, we cannot conclude that the surprise caused by the undisclosed report "significantly impair[ed] the fairness of the trial" and violated Bendolph's rights under the due process clause and Brady .

{¶ 53} The assignment of error is overruled.

{¶ 54} The judgment of the trial court will be affirmed.

DONOVAN, J. and HALL, J., concur.

      Because our opinions are widely available online, we have chosen to insert asterisks into certain offensive words that appear in the transcript of this case and in other cases.

      This argument assumes that such evidence would have been admissible under R.C. 2907.02(D) and other evidentiary rules, without so holding.


author: Delaney, J.

text:
    WATERFALL VICTORIA MASTER FUND 2008 1, Plaintiff-Appellee v. Jeffery (Jeffrey) M. RITTENHOUSE, Defendant-Appellant
    No. 17 CAE 10 0069
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT ENTRY: May 4, 2018
    SUSANA E. LYKINS, 1771 W. Diehl Rd., Suite 120, Naperville, IL 60563, for Plaintiff-Appellee.
    BRIAN D. FLICK, MARC E. DANN, WILLIAM BEHRENS, P.O. Box 6031040, Cleveland, OH 44103, for Defendant-Appellant.
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Delaney, J.

{¶ 1} Defendant-Appellant Jeffery (Jeffrey) M. Rittenhouse appeals the September 6, 2017 judgment entry of the Delaware County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 28, 2006, Defendant-Appellee Jeffery (Jeffrey) M. Rittenhouse executed an Adjustable Rate Note in favor of Sunset Mortgage Company, LP in the original principal sum of $414,000.00. The Note was secured by a Mortgage to the Mortgage Electronic Registration Systems, Inc. as nominee for Sunset Mortgage Company, LP on property located in Galena, Ohio. The Mortgage was assigned to Defendant-Appellee Waterfall Victoria Master Fund 2008-1 Grantor Trust, Series B. The Note was endorsed in blank and transferred to Waterfall Victoria Master Fund.

{¶ 3} Rittenhouse failed to make payments pursuant to the terms of the Note and Mortgage. On November 12, 2014, Waterfall Victoria Master Fund filed a complaint in foreclosure against Rittenhouse and other defendants in the Delaware County Court of Common Pleas. On January 26, 2015, Rittenhouse filed an answer, counterclaim, and third party complaint. Rittenhouse voluntarily dismissed his third party complaint. The trial court dismissed Rittenhouse's counterclaims on September 22, 2015.

{¶ 4} On November 9, 2015, Waterfall Victoria Master Fund filed a motion for summary judgment. The trial court granted the motion on December 30, 2015. The trial court granted the Decree in Foreclosure on December 30, 2015.

{¶ 5} Rittenhouse filed an appeal of the Decree in Foreclosure with the Fifth District Court of Appeals, Case No. 16 CAE 01 0004. On March 23, 2016, Rittenhouse filed a Notice of Bankruptcy Stay. The court stayed the appeal during the pendency of the bankruptcy action.

{¶ 6} The Bankruptcy Court dismissed Rittenhouse's bankruptcy petition on February 2, 2017. On February 8, 2017, Waterfall Victoria Master Fund filed a motion to reinstate the appeal. We granted the motion on February 28, 2017.

{¶ 7} We dismissed Rittenhouse's appeal on April 24, 2017 for want of prosecution pursuant to App.R. 18(C).

{¶ 8} On July 12, 2017, Rittenhouse filed a motion to vacate the December 30, 2015 judgment entry granting the motion for summary judgment and Decree in Foreclosure. Rittenhouse argued the judgment entry should be vacated pursuant to Civ.R. 60(B)(3) and 60(B)(5) because Waterfall Victoria Master Fund was not the real party in interest when the trial court granted the Decree in Foreclosure. Rittenhouse stated that on September 23, 2015, Waterfall Victoria Master Fund 2008-1 Grantor Trust, Series B assigned the Mortgage to Waterfall Victoria Depositor II, LLC. The assignment of Mortgage was recorded on December 3, 2015. On September 24, 2015, Waterfall Victoria Depositor II, LLC assigned the Mortgage to Waterfall Victoria Grantor Trust II, Series G. The assignment of the Mortgage was recorded on December 3, 2015.

{¶ 9} Waterfall Victoria Master Fund responded to the motion and argued it was permitted to proceed in the case pursuant to Civ.R. 25(C). It further argued Rittenhouse's motion was not filed in a reasonable time and failed to raise a meritorious defense to foreclosure.

{¶ 10} On September 6, 2017, the trial court denied Rittenhouse's motion to vacate.

{¶ 11} It is from this decision Rittenhouse now appeals.

ASSIGNMENT OF ERROR

{¶ 12} Rittenhouse raises one Assignment of Error:

{¶ 13} "THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B)(3) AND/OR CIV.R. 60(B)(5)."

ANALYSIS

{¶ 14} Rittenhouse contends the trial court erred in denying his Civ.R. 60(B) motion for relief from judgment. We disagree.

{¶ 15} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). In order to find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Rittenhouse bases his motion on 60(B)(3) and 60(B)(5). In GTE Automatic Electric Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus, the Supreme Court of Ohio held the following:

To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.

Civ.R. 60(B)(3)

{¶ 16} Rittenhouse contends Waterfall Victoria Master Fund acted fraudulently as to the identity of the owner of the Mortgage. On September 23, 2015, Waterfall Victoria Master Fund assigned the Mortgage to Waterfall Victoria Depositor II, LLC. On September 24, 2015, Waterfall Victoria Depositor II, LLC assigned the Mortgage to Waterfall Victoria Grantor Trust II, Series G. The assignments were recorded on December 3, 2015. On December 30, 2015, the trial court issued the Decree in Foreclosure. Rittenhouse states that Waterfall Victoria Master Fund proceeded with the action even though it was no longer the real party in interest on December 3, 2015.

{¶ 17} Civ.R. 60(B)(3) considers "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; * * *." The fraud or misconduct contemplated by Civ.R. 60(B)(3) is fraud or misconduct on the part of the adverse party in obtaining the judgment by preventing the losing party from fully and fairly presenting his defense, not fraud or misconduct which in itself would have amounted to a claim or defense in the case. PNC Bank, Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-5383, 2012 WL 5868891, ¶ 15 citing State Alarm, Inc. v. Riley Indus. Servs., 8th Dist. Cuyahoga No. 92760, 2010-Ohio-900, 2010 WL 856210, ¶ 21 ; First Merit Bank, N.A. v. Crouse, 9th Dist. Lorain No. 06CA008946, 2007-Ohio-2440, 2007 WL 1461173, ¶ 32 ; and LaSalle Natl. Bank v. Mesas, 9th Dist. Lorain No. 02CA008028, 2002-Ohio-6117, 2002 WL 31513554, ¶ 15.

{¶ 18} The Ohio Supreme Court in Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, analyzed a motion for relief from judgment based on an allegation of fraud in a foreclosure proceeding. The appellants argued they were entitled to relief from judgment pursuant to Civ.R. 60(B)(3) because the mortgagee lacked standing at the time it filed its action in foreclosure. Prosecuting the foreclosure without standing, the appellants argued, was a fraudulent act entitling the appellants to relief from the foreclosure judgment. The Court examined whether Civ.R. 60(B)(3) applied to the appellants' claims. It stated that, "fraud, misrepresentation, or other misconduct contemplated by Civ.R. 60(B)(3) refers to deceit or other unconscionable conduct committed by a party to obtain a judgment and does not refer to conduct that would have been a defense to or claim in the case itself." (Citations omitted.) Id. at ¶ 13. The Court analyzed the appellants argument:

The Kuchtas have not alleged that Bank of America committed intrinsic fraud, such as attaching a materially false affidavit to its motion for summary judgment. See Smith v. Asbell, 4th Dist. Scioto No. 03CA2897, 2005-Ohio-2310, 2005 WL 1111630 (motion to vacate judgment properly granted when plaintiff attached fraudulent affidavit to complaint to prevent statute-of-limitations defense). And there is no allegation of extrinsic fraud, such as persuading the Kuchtas not to defend their case by falsely promising to voluntarily dismiss the action. See United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878).

Id. at ¶ 14.

{¶ 19} Rittenhouse does not argue Waterfall Victoria Master Fund committed intrinsic or extrinsic fraud. Nor does Rittenhouse argue that Waterfall Victoria Master Fund lacked standing to file the foreclosure complaint. Rittenhouse claims that on December 3, 2015, Waterfall Victoria Master Fund was no longer the real party in interest pursuant to Civ.R. 17(A)

because it transferred the mortgage interest during the foreclosure proceedings. Rittenhouse argues that because Waterfall Victoria Master Fund was no longer the real party in interest, it was obligated to move for a substitution of parties and the failure of Waterfall Victoria Master Fund to substitute the real party in interest establishes his entitlement to relief due to fraud or misconduct and a meritorious defense to the underlying foreclosure.

{¶ 20} Civ.R. 17(A) states that, "every action shall be prosecuted in the name of the real party in interest." Civ.R. 17(A) provides for several methods of ensuring that the real party in interest prosecutes the case. Dater v. Charles H. Dater Found., Inc. , 166 Ohio App.3d 839, 2006-Ohio-2479, 853 N.E.2d 699 (1st Dist.), ¶¶ 10-11. It permits ratification, joinder, or substitution. Id. Civ.R. 25 governs the process of substitution, and it specifies when substitution of a party may occur. It allows substitution only in the case of death, incompetency, or "transfer of interest." Id. quoting Krischbaum v. Dillon , 58 Ohio St.3d 58, 71, 567 N.E.2d 1291 (1991) ; Boedeker v. Rogers , 140 Ohio App.3d 11, 19-20, 746 N.E.2d 625 (2000). Civ.R. 25(C) provides that "[i]n case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party." Because Civ.R. 25(C) provides that the proceedings may be continued by or against the original party, "[t]he rule does not require that a substitution of parties be made." Midwest Business Capital v. RFS Pyramid Mgt. , 11th Dist. Trumbull No. 2011-T-0030, 2011-Ohio-6214, 2011 WL 6016975, ¶ 23 quoting Krischbaum, supra . Rather, the decision to substitute a party or parties is a matter within the trial court's discretion. Id. citing Mtge. Electronic Registration Sys., Inc. v. Vascik, 6th Dist. No. L-09-1129, 2010-Ohio-4707, 2010 WL 3820494, at ¶ 35 ; see, also , Ahlrichs v. Tri-Tex Corp. , 41 Ohio App.3d 207, 210, 534 N.E.2d 1231 (1st Dist.1987). If a court determines a transfer of interest has occurred, it may substitute parties pursuant to Civ.R. 25(C). Id. citing Dater v. Charles H. Dater Found., Inc., 166 Ohio App.3d 839, 2006-Ohio-2479, 853 N.E.2d 699, ¶ 11 (1st Dist.).

{¶ 21} In this case, Waterfall Victoria Master Fund was the holder of the Note and Mortgage when it filed the foreclosure action on November 12, 2014. It had proper standing to invoke the jurisdiction of the trial court. Before the trial court granted summary judgment, Waterfall Victoria Master Fund transferred its mortgage interest. Civ.R. 25(C) provides that the proceedings may be continued by or against the original party-the rule does not require that a substitution of parties be made. Waterfall Victoria Master Fund was permitted to continue the proceedings as the original party even though it made a transfer of interests. The trial court did not abuse its discretion to find that the choice of Waterfall Victoria Master Fund to continue with the proceedings as the original party was not a fraud upon Rittenhouse or the trial court as stated in Civ.R. 60(B)(3). The failure of Waterfall Victoria Master Fund to file a motion to substitute parties did not establish Rittenhouse's entitlement to relief due to fraud or misconduct and a meritorious defense to the underlying foreclosure

Civ.R. 60(B)(5)

{¶ 22} Rittenhouse next argues the trial court should vacate the judgment pursuant to Civ.R. 60(B)(5). Civ.R. 60(B)(5) allows the trial court to relieve a party from a final judgment for "any other reason justifying relief from the judgment."

Civ.R. 60(B)(5) operates as a catch-all provision and "reflects 'the inherent power of a court to relieve a person from the unjust operation of a judgment.' " Maggiore v. Barensfeld, 5th Dist. Stark No.2011CA00180, 2012-Ohio-2909, 2012 WL 2415184, ¶ 35 citing Dutton v. Potroos, 5th Dist. Stark No.2010CA00318, 2011-Ohio-3646, 2011 WL 3057612, at ¶ 49. It is reserved for "extraordinary and unusual case [s]," Myers v. Myers, 9th Dist. Summit No. 22393, 2005-Ohio-3800, 2005 WL 1763608, at ¶ 14, and "is not a substitute for the enumerated grounds for relief from judgment [.]" Id.

{¶ 23} We do not find this case presents an extraordinary or unusual circumstance to relieve Rittenhouse of the foreclosure judgment. As stated above, the Rules of Civil Procedure permitted Waterfall Victoria Master Fund to proceed with the action after it had transferred its mortgage interests.

{¶ 24} Accordingly, the sole Assignment of Error of Rittenhouse is overruled.

CONCLUSION

{¶ 25} The judgment of the Delaware County Court of Common Pleas is affirmed.

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


author: SINGER, J.

text:
    Christine M. HOUTZ, Administratrix of the Estate of Susan Marie Clowtis, Appellee v. Christine M. HOUTZ, et al., Defendant
    [PHH Mortgage Corporation-Appellant] and Mathew T. Crane, Administrator of the Estate of Leon Anthony Clowtis, Appellee v. Christine M. Houtz, et al., Defendant
    [PHH Mortgage Corporation-Appellant]
    No. H-17-007 No. H-17-008
    Court of Appeals of Ohio, Sixth District, Huron County.
    Decided: May 4, 2018
    Jeffrey S. Ream, Shelby, and Sheree L. Studer, for appellee Christine M. Houtz, Administratrix of the Estate of Susan Marie Clowtis.
    Paul D. Dolce, for appellee Mathew T. Crane, Administrator of the Estate of Leon Anthony Clowtis.
    Adam J. Turer, Cincinnati, for appellant.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, PHH Mortgage Corporation, appeals the June 12 and July 18, 2017 judgments of the Huron County Court of Common Pleas, Probate Division, denying its motions to intervene. For the reasons that follow, we affirm.

Assignments of Error

{¶ 2} Appellant sets forth the following assignment of error:

1. Appellant argues that the trial court erred when it found Appellant PHH Mortgage Corporation was not entitled to post-judgment intervention under Civ.R 24(A).

Background

{¶ 3} Susan and Leon Clowtis died in December 2015, leaving behind real property ("the property") located at 1518 Settlement Rd., Norwalk, Ohio 44857.

{¶ 4} At that time, the property was encumbered by two mortgages. The first mortgage instrument was recorded in October 2012, and listed as lender was KeyBank National Association, with an address of 1 Mortgage Way, Mount Laurel, New Jersey 08054. Also listed in this first mortgage instrument was Mortgage Electronic Registration Systems, Inc. ("MERS"), as mortgagee.

{¶ 5} The second mortgage instrument was recorded in June 2015. This mortgage instrument was not made part of the record. However, a "judicial report," issued based on an examination of the record title by First American Title Insurance Company, reveals that the second mortgage was issued to KeyBank National Association, 4910 Tiedeman Rd., Suite C, Brooklyn, Ohio 44144.

{¶ 6} On June 22, 2016, a complaint to sell real estate was filed in case No. LS 16 00003, by Christine Houtz, the administrator of the estate of Susan Clowtis. On July 5, 2016, virtually the same complaint was filed in case No. LS 16 00005, by Mathew Crane, the administrator for the estate of Leon Clowtis. These complaints sought authorization to sell the property, as both Susan and Leon had a half-interest in the property.

{¶ 7} Additionally, both complaints had instructions for the clerk to serve KeyBank at its Mount Laurel, New Jersey and Brooklyn, Ohio addresses. The deputy clerk certified and provided proof the complaints were served at both KeyBank locations. MERS was not served with the complaints.

{¶ 8} On September 1, 2016, Christine Houtz as administrator in case No. LS 16 00003 filed for default judgment against KeyBank. The court granted default judgment against KeyBank on September 2, 2016.

{¶ 9} Mathew Crane, as administrator in case No. LS 16 00005, also filed for default judgment against KeyBank on September 16, 2016. The court granted the default judgment on September 26, 2016.

{¶ 10} KeyBank answered both complaints on September 6, 2016. Although the trial court had already granted default judgment in case No. LS 16 00003, KeyBank and Houtz submitted a joint motion to withdraw the default judgment as to the second mortgage on October 3, 2016. The court granted the motion and withdrew the default judgment as to the second mortgage only on October 4, 2016.

{¶ 11} KeyBank assigned its interest in the first mortgage to appellant, PHH Mortgage Corporation, on October 13, 2016.

{¶ 12} Appellant filed for foreclosure on the first mortgage in the Huron County Court of Common Pleas, General Division, on December 1, 2016, but voluntarily dismissed the action on December 30, 2016. Appellant claims it dismissed the action because it "discovered that the property was within the jurisdiction of the probate court[.]"

{¶ 13} Appellant then filed motions to intervene and answers to both complaints in the probate court. More specifically, appellant filed its answer in case No. LS 16 00003 on March 7, 2017, and in case No. LS 16 00005 on June 1, 2017.

{¶ 14} In its motions to intervene and answers, appellant claimed it had an interest in the first mortgage. Attached to the motions were the mortgage and assignment.

{¶ 15} Hearings on the motions were held, and the court denied appellant's intervention in both cases. Although the judgment entry denying intervention from case No. LS 16 00003 was journalized a month prior to that of case No. LS 16 00005, both entries reflect the same ruling and rationale. Specifically, the entries both state as follows:

The Court finds that when KeyBank assigned its interest in the First Mortgage to PHH Mortgage, that interest had already been disposed of by the default judgment entered against KeyBank. Even if KeyBank effectively assigned to PHH an interest in filing a motion to vacate the default judgment, PHH's delay in filing its Motion to Intervene in this case was also inexcusable. The Court therefore finds that PHH is not entitled to intervention under either Civ.R. 24(A) or Civ.R. 24(B).

{¶ 16} The entry of case No. LS 16 00003 was journalized on June 12, 2017, and that of No. LS 16 00005 was journalized on July 18, 2017. Appellant timely appealed both cases, and the appeal was consolidated for purposes of addressing the assigned error.

Standard of Review

{¶ 17} A ruling on a motion to intervene under Civ.R. 24(A) is reviewed under an abuse of discretion standard. State ex rel. Merrill v. Ohio Dept. of Natural Resources , 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. An abuse of discretion is found only when it is determined that a trial court's attitude in reaching its judgment was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Legal Analysis

{¶ 18} In its assigned error, appellant claims the trial court acted inconsistent with Civ.R. 24(A)(2) in denying its motions to intervene. Appellee claims appellant failed to meet the elements of Civ.R. 24(A)(2), and thus that the court properly denied the intervention.

{¶ 19} Civ.R. 24(A) provides:

(A) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

See , e.g. , Velocity Dev., LLC v. Perrysburg Twp. Bd. of Trustees , 6th Dist. Wood No. WD-11-037, 2011-Ohio-6192, 2011 WL 6016907, ¶ 12-15.

{¶ 20} In order to intervene under Civ.R. 24(A)(2) the motion must be (1) timely, and the following factors must be shown: (2) the intervenor's interest relates to the subject of the action, (3) the disposition of the action will, as a practical matter, impair or impede the intervenor's ability to protect its interest, and (4) the intervenor must demonstrate that its interest is not adequately represented by the existing parties. Fairview Gen. Hosp. v. Fletcher , 69 Ohio App.3d 827, 830-831, 591 N.E.2d 1312 (10th Dist. 1990).

{¶ 21} "Failure of the party seeking to intervene to satisfy each of the requirements will result in a denial of the motion." Velocity Dev., LLC at ¶ 15, citing Fletcher at 831, 591 N.E.2d 1312.

{¶ 22} Here, we find the trial court did not err in denying appellant's intervention because appellant failed to meet the necessary elements for purposes of Civ.R. 24(A).

(1) Timeliness

{¶ 23} We first consider the following factors in determining timeliness: the point to which the suit progressed; the purpose of the intervention; the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; the prejudice to the original parties due to the proposed intervenor's failure to apply promptly for intervention; and, the existence of unusual circumstances militating against or in favor of intervention. First Natl. Bank of Bellevue v. NE Port Invests., LLC , 6th Dist. Ottawa No. OT-13-024, 2014-Ohio-1760, 2014 WL 1691348, ¶ 10, citing Triax Co. v. TRW, Inc. , 724 F.2d 1224 (6th Cir. 1984).

{¶ 24} In this case, the trial court stated appellant's delays in filing its motions to intervene were "inexcusable." We cannot say the trial court abused its discretion where appellant acquired its interest in the subject property in October 2016, which was more than six months before it filed for intervention in March and June 2017. Appellant concedes in its appellate brief that it had actual knowledge of the case as early as December 2016. Even assuming appellant moved for intervention within three months of being apprised of the case, we cannot say the trial court abused its discretion in denying appellant's motion.

{¶ 25} Although this alone is ground to affirm the trial court judgments, we proceed and address the remaining elements of Civ.R. 24(A)(2).

(2) Intervenor's Interest

{¶ 26} Default judgment rendered by the probate court against a party may extinguish the party's interest in the subject property. See , e.g. , Kormanik v. Haley , 10th Dist. Franklin No. 12AP-18, 2012-Ohio-5975, 2012 WL 6822014, ¶ 42. Consequently, the party would no longer be "in the proper position to assert a claim or seek judicial enforcement of a duty or right." Id. at ¶ 41. "The burden is on [the party] to establish it has a present interest in the subject matter of the litigation and that [it] has been prejudiced." (Inner quotations omitted.) Id.

{¶ 27} Here, the trial court found appellant did not have standing to intervene because the October 13, 2016 assignment of the first mortgage was null and void. More specifically, the trial court stated that appellant's interest "had already been disposed of by the default judgment entered against KeyBank." Thus the rationale was that KeyBank no longer had an interest to convey when appellant was assigned the first mortgage. We cannot say the trial court abused its discretion.

(3) Ability to Protect Interest and (4) Whether Adequately Represented

{¶ 28} R.C. 2127.12 provides that the following "shall be made parties defendant" in "an action by an executor or administrator to obtain authority to sell real property[:]"

(A) The surviving spouse;
(B) The heirs, devisees, or persons entitled to the next estate of inheritance from the decedent in the real property and having an interest in it, but their spouses need not be made parties defendant;
(C) All mortgagees and other lienholders whose claims affect the real property or any part of it;
(D) If the interest subject to sale is equitable, all persons holding legal title to the interest or any part of it, and those who are entitled to the purchase money for it, other than creditors;
(E) If a fraudulent transfer is sought to be set aside, all persons holding or claiming under the transfer;
(F) All other persons having an interest in the real property.

See R.C. 2127.12 (A) - (F).

{¶ 29} Here, appellant argues it was not able to protect its interest before default judgment was granted in September 2016, as it was not a party to the probate proceedings and did not acquire its interest in the first mortgage until October 2016.

{¶ 30} Although we, like the trial court, find appellant did not have a valid interest, we nevertheless address the arguments as if appellant maintained a valid interest.

{¶ 31} Appellant concedes KeyBank held the interest and was properly served as a party in the proceedings. Accordingly, because KeyBank was properly served, had ample opportunity to protect the first mortgage, and was holder of that interest before default judgment was granted, we find that any interest appellant would have, albeit through its predecessor, was adequately represented in the proceedings.

{¶ 32} Appellant further argues MERS was a necessary party and was not served and, as a result, appellant was deprived of the opportunity to protect its interest. We, nevertheless, find MERS was not a holder of an interest that would affect the real property or any part of it. MERS was nominated and appointed by KeyBank, and the record reflects KeyBank received notice and filed answers to the complaints in an effort to protect its interest. Consequently, we cannot say MERS not being served with the complaints rendered appellant unable to protect its interest.

{¶ 33} In sum, we find the trial court did not abuse its discretion, and appellant's assignment of error is not well-taken.

Conclusion

{¶ 34} The June 12 and July 18, 2017 judgments of the Huron County Court of Common Pleas, Probate Division are affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgments affirmed.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.