author: MARY EILEEN KILBANE, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Ronald L. PERRY, Defendant-Appellant
    No. 104751
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Allison S. Breneman, 1220 West 6th Street, Suite 303, Cleveland, Ohio, 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, Ronni Ducoff, Assistant County Prosecutor, The Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Ohio, 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, Ronald L. Perry ("Perry"), appeals from his sentence for kidnapping and gross sexual imposition. For the reasons set forth below, we affirm.

{¶ 2} In August 2015, Lakewood police arrested Perry, after his friend's daughter, M.D., reported to the Lakewood Police Department that Perry had sexually abused her on multiple occasions when he spent the night at her family's home. She alleged that this sexual abuse occurred over a five-year period-from the time she was seven until she was twelve years old.

{¶ 3} Perry was charged in a 23-count indictment as a result of these allegations. He was charged with five counts of rape; ten counts of kidnapping, each with a sexual motivation specification; and eight counts of gross sexual imposition ("GSI"). Pursuant to a plea agreement with the state of Ohio, Perry pled guilty to seven counts of kidnapping, each with a sexual motivation specification, and eight counts of GSI. As a condition of the plea agreement, Perry agreed that none of the counts to which he pled guilty were allied offenses of similar import and that there would be no merger for purposes of sentencing.

{¶ 4} At Perry's plea hearing, the trial court advised him of his rights and informed him of the maximum sentence it could impose for each of the offenses to which he intended to plea. The court also advised Perry of his sex offender classification and registration requirements as well as postrelease control.

{¶ 5} The state indicated that it would be satisfied with a maximum period of 40 years of imprisonment. Perry's defense counsel advised the trial court that Perry and the state had agreed to a 40-year maximum term of imprisonment as part of their plea negotiations in light of the possible 117-year consecutive, maximum sentence Perry faced for the kidnapping and GSI counts. The trial court, in confirming its understanding of the plea agreement, asked:

THE COURT: But is this an agreed sentence by and between?
[DEFENSE COUNSEL]: No.
[STATE]: It's agreed by the State, by the defense that that is the cap; it's 40 years.
[DEFENSE COUNSEL]: It's just a cap. It's not an agreed sentence it's just when we were negotiating-
THE COURT: Well, see that's what I misunderstood because I understood that the State was saying that it was okay, the maximum of 40 years. But as we all know, as the sentencing judge I could go beyond 40 years. That's what I need to know; is this plea being made with the understanding that the-it's expected the Court will not exceed what the [state] said is okay?
[DEFENSE COUNSEL]: My understanding is that, yes, the maximum given on however you choose. You could choose to run them all concurrently. And we're not thinking even of that number, but if you were inclined to do more you are to go no more than that; that is the cap. Because in reaching this there is a lot of exposure to a lot of-many years that could effectively exceed that, so when we _
THE COURT: But see, I see that as an agreement whereby the Court is bound by a 40-year maximum penalty.
[STATE]: That is an agreement. I believe that that is what _
[DEFENSE COUNSEL]: Yes.

The trial court further explained that it was not bound by the parties' agreement of a 40-year maximum sentence. Perry indicated that he understood the plea and made this plea knowingly, voluntarily, and intelligently. The trial court accepted his plea, ordered a presentence investigation report ("PSI"), and set the matter for sentencing.

{¶ 6} At the sentencing hearing, the trial court sentenced Perry to prison for a total of 24 years. This sentence included three years on each of the seven kidnapping counts, to be served consecutively. The trial court also sentenced him to 36 months on each of the eight GSI counts.

The trial court ordered seven of the GSI counts to run concurrent to the kidnapping counts and the remaining GSI count to run consecutively to all other counts.

{¶ 7} Perry now appeals, raising the following two assignments of error for our review:

Assignment of Error One
The trial court abused its discretion by imposing a prison sentence contrary to R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines.
Assignment of Error Two
The trial court erred in imposing consecutive sentences.

Agreed Sentence Cap

{¶ 8} As an initial matter, we note the state argues that Perry's sentence is not reviewable under R.C. 2953.08(D)(1), which provides:

A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.

See also State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 16.

{¶ 9} Therefore, Perry's sentence is not reviewable under R.C. 2953.08(D)(1) if: (1) it was authorized by law; (2) was jointly recommended by Perry and the state; and (3) was imposed by a sentencing judge. The state, relying on State v. Collini , 2d Dist. Montgomery No. 26587, 2015-Ohio-4784, 2015 WL 7429592, argues that Perry's sentence is unreviewable because "[a] sentence within a jointly recommended range is a jointly recommended sentence for purposes of R.C. 2953.08." Id. at ¶ 12. We are not persuaded that Perry's agreement with the state to cap his sentence amounted to an "agreed sentence" under R.C. 2953.08(D)(1).

{¶ 10} Here, a review of the record demonstrates that Perry and the state jointly recommended to the trial court that the maximum sentence Perry could receive was 40 years in prison.

{¶ 11} Perry's defense counsel qualified that the plea agreement did not include an agreed sentence, but merely an agreed "cap." It is clear from the record that the state did not refute this assertion.

THE COURT: But is this an agreed sentence by and between?
[DEFENSE COUNSEL]: No.
[STATE]: It's agreed by the State, by the defense that that is the cap; it's 40 years.

{¶ 12} We recognize the case law of other Ohio districts that hold that sentences imposed within an agreed sentencing range are unreviewable generally involve an agreement to a range with a definite minimum and maximum. See Collini ; State v. Dewitt , 2d Dist. Montgomery No. 24437, 2012-Ohio-635, 2012 WL 525578. Unlike the defendants in the foregoing cases, in the instant case, Perry agreed only to a maximum sentence or "cap" and not a definite range including a minimum and maximum. We find that because Perry and the state agreed only to a maximum cap or "ceiling" on his sentence, and not a specific agreed sentence or a definite agreed sentencing range, his sentence is not an "agreed sentence" under R.C. 2953.08(D)(1). Therefore, Perry's sentence is reviewable.

{¶ 13} Having found that his sentence is reviewable, we now address Perry's assigned errors.

Relevant Sentencing Factors

{¶ 14} In his first assignment of error, Perry argues that the trial court "failed to appropriately address the seriousness and recidivism factors necessary for the purposes and principles of the felony sentencing guidelines." He takes issue with the fact that the trial court did not address each individual sentencing factor listed under R.C. 2929.12.

{¶ 15} A trial court has full discretion to impose any term of imprisonment within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. State v. Hodges , 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, 2013 WL 6047189, ¶ 7. We have held that a trial court fulfills its duty under these statutes by indicating that it has considered the relevant sentencing factors. State v. Smith , 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, 2014 WL 1408284, ¶ 14. The court need not go through each factor on the record _ it is sufficient that the court acknowledges that it has complied with its statutory duty to consider the factors without further elaboration. Id.

{¶ 16} Here, the trial court stated at sentencing that it

considered the purposes and principles of sentencing under [R.C.] 2929.11 and the seriousness and recidivism factors relevant to the offense or offenses and offender pursuant to [R.C.] 2929.12 and the need for deterrence, incapacitation, rehabilitation, and restitution.

The court then went on to address the specific factors it considered relevant to Perry's conduct. The sentencing journal entry indicated that the court considered all relevant sentencing factors. Therefore, the trial court fulfilled its duty under R.C. 2929.11 and 2929.12.

{¶ 17} Accordingly, Perry's first assignment of error is overruled.

Consecutive Sentences

{¶ 18} In the second assignment of error, Perry argues that the trial court's imposition of consecutive sentences is contrary to the felony sentencing guidelines. Perry concedes "he is not arguing that [the trial court] did not legally have the ability to [impose consecutive sentences] under case law[.]" Rather, he contends that "the record does not support consecutive sentences."

{¶ 19} We review consecutive sentences using the standard set forth in R.C. 2953.08. State v. Wells , 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307, 2013-Ohio-3809, 2013 WL 4778578, ¶ 11, citing State v. Venes , 8th Dist. Cuyahoga No. 98682, 992 N.E.2d 453, 2013-Ohio-1891, ¶ 10. R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn the imposition of consecutive sentences: (1) the appellate court, upon its review, clearly and convincingly finds that "the record does not support the sentencing court's findings" under R.C. 2929.14(C)(4) ; or (2) the sentence is "otherwise contrary to law." Id. at ¶ 12.

{¶ 20} In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.

State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Nor is the court required to give a talismanic recantation of the words of the statute. Id. Specifically, the trial court must find that consecutive service for convictions of multiple offenses is "necessary to protect the public from future crime or to punish the offender." It must also find that the consecutive sentences are "not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." Finally, the trial court must find that one of the three statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c) applies. Id.

{¶ 21} Here, the trial court made these three requisite findings on the record and in its sentencing journal entry. The trial court specifically found under R.C. 2929.14(C)(4)(b) that

at least two of the multiple offenses were committed as part of one or more course[s] 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 course[s] of conduct adequately reflects the seriousness of the offender's conduct.

{¶ 22} Based on the foregoing, the trial court's imposition of consecutive sentences was not contrary to law. We cannot clearly and convincingly say that the record does not support the trial court's findings under R.C. 2929.14(C) in light of the seriousness of Perry's conduct and the harm he caused M.D. Accordingly, we find that the trial court did not err in imposing consecutive sentences.

{¶ 23} Perry's second assignment of error is overruled.

{¶ 24} Judgment affirmed.

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

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (SEE SEPARATE OPINION CONCURRING IN JUDGMENT ONLY.)

{¶ 25} I concur in the judgment affirming the trial court's decision. However, I find that Perry's sentence is unreviewable as the state argues. In R.C. 2953.08, the legislature outlined the scope of appellate review of felony sentences. R.C. 2953.08(D)(1) provides:

A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.

{¶ 26} The journal entry reflects that Perry pleaded guilty to seven counts of kidnapping, a felony of the first degree. Although first-degree felonies are punishable by a prison term of 3 to 11 years, R.C. 2929.14(A)(1), the court sentenced Perry to three years on each count. The journal entry also reflects that Perry pleaded guilty to eight counts of gross sexual imposition, a felony of the third degree. Third-degree felonies are punishable by a prison term of twelve and sixty months, R.C. 2929.14(A)(3)(a). The court sentenced Perry to 36 months on each count.

{¶ 27} The majority does not dispute that the sentence for each count was both authorized by law and imposed by a sentencing judge. The court imposed a total prison term of 24 years, a term below the 40-year "cap" the parties agreed to and recommended. Additionally, the 24-year sentence is well below the potential 117-year prison term Perry was exposed to if convicted of all the charges against him. Instead, the majority contends that the 40-year cap was not an "agreed sentence" and therefore not a sentence "jointly recommended" as required by R.C. 2953.08(D)(1). I disagree.

{¶ 28} The phrase, "jointly recommended," used in R.C. 2953.08(D)(1), requires an agreement between the state and the defense on a sentence that has been negotiated and deemed acceptable to both sides. The statute does not define or limit the scope of the parties' sentencing recommendation. It merely requires that there be a joint recommendation that the trial court subsequently follows. The jointly recommended sentence may be for a discrete period of time, may be within a range, or simply be limited by a maximum amount of years-a cap-like we have in this case. If agreed to by both sides, each example satisfies the "jointly recommended" requirement of the statute.

{¶ 29} The Supreme Court has recognized that the General Assembly intended to preclude review of sentences that are jointly recommended " 'precisely because the parties agreed that the sentence is appropriate.' " State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27, quoting State v. Porterfield , 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25. So, regardless of how the parties' joint recommendation of a sentence is delineated-for a definite period of time, within a range, or limited by a cap-both sides express to the court that imposing a sentence pursuant to the joint recommendation is unequivocally appropriate. To find otherwise elevates form over substance: it serves only to point out the distinct ways a jointly recommended sentence can be made, but does so without demonstrating any meaningful difference.

      This possible sentence includes imposition of the maximum sentence on each of the seven first-degree felony kidnapping counts and a maximum sentence on each of the eight third-degree felony GSI counts, with all counts running concurrently. Under R.C. 2929.14(A)(1), a first-degree felony is punishable by a prison term in yearly increments ranging from three to eleven years. Under R.C. 2929.14(A)(3)(a), a third-degree felony that is a violation of R.C. 2907.05, prohibiting gross sexual imposition, is punishable by a prison term ranging from twelve to sixty months, in six-month specified intervals.


source: Caselaw Access Project

author: FRANK D. CELEBREZZE, JR., J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Deandrew SMITH, Defendant-Appellant
    No. 105662
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Marcus S. Sidoti, Jordan & Sidoti, L.L.P., Terminal Tower, Suite 1900, 50 Public Square, Cleveland, Ohio 44113, Mary Catherine Corrigan, 4403 St. Clair Avenue, Cleveland, Ohio 44103, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Mary McGrath, Khalilah A. Lawson, Assistant Prosecuting Attorneys, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., S. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, De'Andrew Smith, appeals from his motion to preclude the state from retrying him on charges of felonious assault. Appellant claims principles of double jeopardy preclude retrial for felonious assault after a jury found him not guilty of that crime but could not reach a verdict on the inferior offense of aggravated assault. After a thorough review of the record and law, this court reverses and remands for further proceedings consistent with this opinion.

I. Factual and Procedural History

{¶ 2} Appellant, a student at Westlake High School, was involved in a fight with another student in a restroom near the cafeteria of the school. The fight was recorded by at least one other student. The video shows appellant and the student exchanging blows, and then appellant picks up the other student and drops him on his head. This other student suffered significant injuries and spent several days in the hospital. Appellant and the other student involved in the fight were suspended from school.

{¶ 3} Appellant was indicted and charged with felonious assault, a second-degree felony violation of R.C. 2903.11(A)(1) ; and abduction, a third-degree felony violation of R.C. 2905.02(A)(2). A jury trial commenced on December 5, 2016. Near the close of evidence, the state requested a jury instruction for the inferior offense of aggravated assault, which the court gave. At the close of the trial, the jury returned a not-guilty verdict for the felonious assault count. However, the jury could not reach a verdict for the inferior offense of aggravated assault or the abduction count.

{¶ 4} The court declared a mistrial and scheduled a new trial for the charge of abduction only. In February 2017, the state filed a motion seeking retrial of felonious assault and abduction, and appellant orally moved to dismiss the felonious assault count based on double jeopardy. The issue was then briefed by the parties.

{¶ 5} On April 10, 2017, the trial court granted the state's motion, finding that principles of double jeopardy did not preclude retrial. The court also found that the jury's findings regarding felonious assault and aggravated assault constituted an inconsistency that could result in retrial for felonious assault. The trial court denied appellant's motion to dismiss. Appellant filed the instant appeal from this order, assigning two errors for review:

I. The trial court erred by finding that the appellant could be re-tried on the count of felonious assault as well as on the inferior offense instruction of aggravated assault.
II. The trial court erred in instructing the jury on the inferior offense of aggravated assault.

II. Law and Analysis

A. Final Appealable Order

{¶ 6} As noted above, the jury found appellant not guilty of felonious assault as charged in Count 1 of the indictment. The jury was unable to reach a verdict on the inferior offense of aggravated assault or on the abduction offense charged in Count 2.

{¶ 7} Appellant concedes that the state can retry him on the abduction count. Accordingly, the appeal before this court is an interlocutory appeal. As an initial matter, we address whether the trial court's judgment denying appellant's motion to dismiss the felonious assault count is a final appealable order.

{¶ 8} Generally, the denial of a motion to dismiss is not a final appealable order. State v. Mitchell , 8th Dist. Cuyahoga No. 104314, 2017-Ohio-94, 2017 WL 120921, ¶ 11, citing State v. Eberhardt , 56 Ohio App.2d 193, 198, 381 N.E.2d 1357 (8th Dist.1978), and State v. Lile , 42 Ohio App.2d 89, 330 N.E.2d 452 (7th Dist.1974). However, "[t]he denial of a motion to dismiss on double jeopardy grounds is a final appealable order subject to immediate appellate review." Cleveland v. Jones , 8th Dist. Cuyahoga No. 104965, 2017-Ohio-7320, 2017 WL 3635615, ¶ 11, citing State v. Anderson , 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 26.

{¶ 9} In Anderson , the Ohio Supreme Court emphasized that "[t]he denial of an interlocutory appeal to an accused arguing that a prosecution is barred by double jeopardy vitiates one of the very protections the Constitution provides: the right not to be improperly forced to stand trial repeatedly for the same offense." Id. at ¶ 55.

"[The] protections [of the Double Jeopardy Clause] would be lost if the accused were forced to 'run the gauntlet' a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs."

(Emphasis deleted, and footnote omitted.) Anderson at ¶ 56, quoting Abney v. United States , 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The court went on to conclude that a postconviction appeal is not an adequate remedy " 'because the protection against double jeopardy is not just protection against being punished twice for the same offense, it is also the protection against being tried twice for the same offense.' " (Emphasis added.) Anderson at ¶ 58, quoting Wenzel v. Enright , 68 Ohio St.3d 63, 68, 623 N.E.2d 69 (1993) (Wright, J., dissenting).

{¶ 10} Based on the Anderson rationale, we find that the trial court's judgment denying appellant's motion to dismiss the felonious assault count on double jeopardy grounds and permitting the state to commence a second prosecution on both the felonious assault and abduction counts is a final appealable order subject to immediate appellate review.

A. Double Jeopardy

{¶ 11} In his first assignment of error, appellant argues that the trial court erred by permitting the state to proceed with a second prosecution on the felonious assault count and by determining that the second prosecution would not violate the principles of double jeopardy. We agree.

{¶ 12} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution protect a defendant from being twice put in jeopardy for the same offense. In re A.G. , 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 8. Both the Supreme Court of the United States and Supreme Court of Ohio have acknowledged,

"[t]he Double Jeopardy Clause protects against three abuses: (1) 'a second prosecution for the same offense after acquittal,' (2) 'a second prosecution for the same offense after conviction,' and (3) 'multiple punishments for the same offense.' North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds , Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)."

In re A.G. at ¶ 8, quoting State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. In Richardson v. United States , 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the United States Supreme Court explained that "the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal , which terminates the original jeopardy." (Emphasis added.) Id. at 325, 104 S.Ct. 3081, citing Justices of Boston Mun. Court v. Lydon , 466 U.S. 294, 308-310, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984), and Price v. Georgia , 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

{¶ 13} In the instant matter, in instructing the jury on the inferior offense of aggravated assault, the trial court stated that "[i]f you find that the [s]tate failed to prove beyond a reasonable doubt that the defendant knowingly caused serious physical harm to [the victim], then your verdict must be not guilty [on Count 1]." (Tr. 770.) The trial court continued by instructing the jury that it should only consider the mitigating element-that appellant was under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim-if it found that the state proved beyond a reasonable doubt that appellant knowingly caused serious harm to the victim. (Tr. 770-771.) During deliberations, the trial court received the following communication from the jury: "Question: Can [appellant] be found guilty of aggravated assault without meeting all the criteria (specifically 'knowingly') of the charge of felonious assault[?]" (Tr. 826.)

{¶ 14} Thereafter, on December 13, 2016, the jury returned its verdict. The jury found appellant not guilty of felonious assault. (Tr. 844-845.) The jury was unable, however, to reach a verdict on the inferior offense of aggravated assault or the abduction offense charged in Count 2. (Tr. 846.)

{¶ 15} After reviewing the record, it is evident that either the jury failed to follow the court's instructions regarding the offenses of felonious assault and the inferior offense of aggravated assault, or the jury was confused by the instructions. Although the jury found that the state failed to prove at least one element of felonious assault beyond a reasonable doubt, the jury proceeded to consider, but failed to reach a verdict on the inferior offense of aggravated assault.

{¶ 16} The jury's confusion is evidenced by the question that the jury submitted to the trial court during deliberations. Because the essential elements of felonious assault and aggravated assault are identical, the answer to the jury's question, of course, is no-the jury could not find appellant guilty of aggravated assault without finding that the state proved, beyond a reasonable doubt, that he knowingly caused serious physical harm to the victim. Had the jury followed the trial court's instructions, they would not have considered the aggravated assault offense after finding appellant not guilty of felonious assault.

{¶ 17} Despite the fact that the jury either failed to follow or was confused by the trial court's jury instructions, the trial court remedied this issue by accepting the jury's verdict of not guilty on the felonious assault charge and declaring a mistrial on only the abduction charge. (Tr. 848.) After excusing the jury, the trial court explained, "the [inferior offense of aggravated assault] was given by the judge so it's not part of the indictment. So the case will go back as a mistrial only on Count Two, the abduction charge." (Tr. 849.)

{¶ 18} In applying the Richardson holding to the facts of this case, we find that jeopardy attached when appellant was acquitted of the felonious assault count. Accordingly, the Double Jeopardy Clause barred the state from retrying appellant on the felonious assault count. The trial court's judgment permitting the state to proceed on the felonious assault count is reversed.

{¶ 19} The Double Jeopardy Clause does not apply, however, when the jury fails to agree on a verdict. It is well-established that a mistrial as a result of a deadlocked jury does not invoke double jeopardy implications because "a hung jury is not an event that terminates the original jeopardy to which [the defendant] was subjected." Richardson, 468 U.S. at 326, 104 S.Ct. 3081, 82 L.Ed.2d 242. "In other words, a hung jury is not the equivalent of an acquittal." Id. at 325, 104 S.Ct. 3081. Accordingly, "a retrial following a 'hung jury' does not violate the Double Jeopardy Clause." Id. at 324, 104 S.Ct. 3081.

{¶ 20} In this case, because the jury was unable to agree on a verdict on the abduction count charged in Count 2, the Double Jeopardy Clause did not bar the state from retrying appellant on this count. Accordingly, the trial court's judgment permitting the state to proceed on the abduction count is affirmed.

{¶ 21} For all of the foregoing reasons, appellant's first assignment of error is sustained.

B. Improper Jury Instructions

{¶ 22} In his second assignment of error, appellant argues that the trial court erred in instructing the jury on the inferior offense of aggravated assault.

{¶ 23} The appeal before this court is limited in nature. The order that appellant is appealing from is a finding that appellant can be retried for felonious assault and abduction after overruling his arguments regarding double jeopardy. This constitutes a final, appealable order. Anderson , 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, at ¶ 61. However, it does not mean that appellant can bootstrap other issues to this final order. See State v. Lawson , 9th Dist. Medina No. 16CA0081-M, 2018-Ohio-694, 2018 WL 1120607, ¶ 8, quoting State v. Hartman , 9th Dist. Medina No. 15CA0090-M, 2017-Ohio-1089, 2017 WL 1148609, ¶ 11 (an appellate court's review in an interlocutory appeal taken from a trial court's denial of a motion to dismiss based on double jeopardy is " 'strictly limited to the double jeopardy issue(s).' ").

{¶ 24} Accordingly, at this time, the issue regarding the jury instructions in the first prosecution is not appropriately before this court. Appellant's second assignment of error is overruled.

III. Conclusion

{¶ 25} After thoroughly reviewing the record, we find that the trial court erred by permitting the state to retry appellant on the felonious assault count. Because the jury acquitted appellant of felonious assault, retrial on this count is barred by the Double Jeopardy Clause. The trial court's judgment permitting the state to retry appellant for felonious assault is reversed. The Double Jeopardy Clause does not bar the state from retrying appellant on the abduction count.

{¶ 26} Due to the limited nature of this appeal, we are unable to consider appellant's assertion that the trial court erred in instructing the jury on the inferior offense of aggravated assault.

{¶ 27} The trial court's judgment is reversed and remanded for a new trial on only the abduction count.

SEAN C. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

      The record before this court contains two spellings of appellant's first name: De'Andrew and Deandrew.


author: TIM McCORMACK, J.:

text:
    Adria ADAMS, Plaintiff-Appellee v. RELMAX, Defendant-Appellant
    No. 106142
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Andrew K. Shibley, David M. Dvorin, Lieberman, Dvorin & Dowd, L.L.C., 30195 Chagrin Blvd., Suite 300, Pepper Pike, OH 44124, ATTORNEYS FOR APPELLANT
    Adria Adams, pro se, 4109 Hinsdale Road, South Euclid, OH 44121, FOR APPELLEE
    BEFORE: McCormack, J., E.A. Gallagher, A.J., and Kilbane, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, J.:

{¶ 1} Defendant-appellant Haven Realty, Inc. d.b.a. Re/Max Property Management (incorrectly identified as "Relmax," but henceforth in this opinion identified as "Re/Max") appeals from the trial court's judgment ordering it to return a security deposit in the amount of $625 to plaintiff-appellee Adria Adams ("Adams"). For the reasons that follow, we reverse.

Procedural and Substantive History

{¶ 2} On April 1, 2015, Adams and Re/Max entered into a 12-month lease agreement for an apartment in Cleveland Heights, Ohio. The lease term was from April 1, 2015, to March 31, 2016, and the monthly rent for the apartment was $625. The lease agreement provided for a holdover period as follows:

HOLDOVER: In the event Tenant remains in possession of the Premises for any period after the expiration of the Lease Term ("Holdover Period"), a new month-to-month tenancy shall be created subject to the same terms and conditions of this Lease at a monthly rental rate of $650 per month, unless otherwise agreed by the parties in writing. Such month-to-month tenancy shall be terminable on thirty (30) days notice by either party or on longer notice if required by law.

{¶ 3} On February 17, 2016, Re/Max sent Adams a letter offering her the opportunity to renew her lease. The letter informed Adams that her current lease was set to expire on April 1, 2016. Attached to the letter was a form with four options. The letter stated that if Re/Max did not receive the form with Adams's selection, her lease would automatically convert to a month-to-month lease, with all other terms of her original lease remaining the same. The four options were: (1) renewing the lease for an additional 12 months, with an increased monthly rent of $640 effective April 1, 2016; (2) renewing the lease for an additional six months, with an increased monthly rent of $650 effective April 1, 2016; (3) converting the lease to a month-to-month tenancy with an increased monthly rent of $660; or (4) moving out and submitting the form as written notice that she would vacate the property, surrender keys and possession of the property, and provide Re/Max with a forwarding address. Adams elected to renew the lease for another year, and the new expiration date of the lease was March 31, 2017.

{¶ 4} On March 9, 2017, Re/Max sent Adams another renewal letter, presenting her with the following four options: (1) renewing the lease for an additional 12 months, with an increased monthly rent of $650 effective May 1, 2017; (2) renewing the lease for an additional six months, with an increased monthly rent of $665 effective May 1, 2017; (3) converting the lease to a month-to-month tenancy with an increased monthly rent of $690; or (4) moving out and submitting the form as written notice that she would vacate the property, surrender keys and possession of the property, and provide Re/Max with a forwarding address. Although the letter did not specify a date by which Adams must make her selection, it included the following disclaimer:

**Please note: Should you fail to make a selection and return this document to us, your Lease will convert to a month-to-month Lease with the above stated month-to-month rent amount. Should you decide to terminate your tenancy, we will send you move-out guidelines.**

On April 26, 2017, Adams initialed the fourth option, indicating that she planned to move out, and filled in May 1, 2017 as her move-out date.

{¶ 5} On April 29, 2017, Adams returned the keys to Re/Max and provided a forwarding address. On May 1, 2017, Re/Max sent Adams a letter notifying her that it would not be returning her security deposit because she had provided insufficient notice that she would be terminating her tenancy.

{¶ 6} On May 9, 2017, Adams filed a complaint in the Cleveland Heights Municipal Court, alleging that Re/Max had failed to return her security deposit. The municipal court held a hearing on this matter on July 17, 2017. After hearing from both parties, the court entered a judgment in favor of Adams and ordered Re/Max to return her $625 security deposit, together with interest and court costs. The court reasoned that Adams's failure to provide 30 days notice of her intent to vacate the premises was the result of Re/Max's failure to include a date by which the tenant was required to respond to the renewal letter.

{¶ 7} Re/Max appealed from this judgment, presenting two assignments of error for our review.

Law and Analysis

{¶ 8} In its first assignment of error, Re/Max argues that the trial court erred in determining that Adams was not required to provide 30 days notice prior to terminating the month-to-month tenancy.

{¶ 9} In a civil appeal from a bench trial, a reviewing court applies a manifest weight standard of review, guided by a presumption that the trial court's findings are correct. 3637 Green Rd. Co. v. Specialized Component Sales Co. , 2016-Ohio-5324, 69 N.E.3d 1083, ¶ 19 (8th Dist.), citing Seasons Coal v. Cleveland , 10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273 (1984). Questions of law are reviewed de novo, and a finding of error of law is a legitimate ground for reversal. Id.

{¶ 10} A tenant who holds over, or remains in possession of leased property, after the term of his lease expires is a tenant at sufferance. Capella III L.L.C. v. Wilcox , 190 Ohio App.3d 133, 2010-Ohio-4746, 940 N.E.2d 1026, ¶ 18 (10th Dist.), citing Anderson v. Brewster , 44 Ohio St. 576, 580, 9 N.E. 683 (1886), and Craig Wrecking Co. v. S. G. Loewendick & Sons, Inc. , 38 Ohio App.3d 79, 81, 526 N.E.2d 321 (10th Dist.1987). A landlord's subsequent acceptance of rent from the tenant implies an election to treat the tenant as a holdover. Craig Wrecking Co. at 81, 526 N.E.2d 321, citing Baltimore & O. R. Co. v. West , 57 Ohio St. 161, 165, 49 N.E. 344 (1897).

{¶ 11} Here, the lease term expired on March 31, 2017. Adams remained in possession of the premises until late April and continued to pay rent. Re/Max accepted her rent. Therefore, Adams became a holdover tenant in a month-to-month periodic tenancy, pursuant to Ohio law and the holdover provision of the lease agreement.

{¶ 12} R.C. 5321.16(B) provides, in relevant part:

Upon termination of the rental agreement any property or money held by the landlord as a security deposit may be applied to the payment of past due rent and to the payment of the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with section 5321.05 of the Revised Code or the rental agreement. Any deduction from the security deposit shall be itemized and identified by the landlord in a written notice delivered to the tenant together with the amount due, within thirty days after termination of the rental agreement and delivery of possession. The tenant shall provide the landlord in writing a forwarding address or new address to which the written notice and amount due from the landlord may be sent.

{¶ 13} R.C. 5321.17(B) provides that "the landlord or the tenant may terminate or fail to renew a month-to-month tenancy by notice given at least thirty days prior to the periodic rental date." If a tenant fails to give the landlord the required 30-days notice of his intent to terminate the month-to-month tenancy, R.C. 5321.16(B) and 5321.17(B) allow a landlord to apply the security deposit to the amount due for rent. Barran v. Kinas , 8th Dist. Cuyahoga No. 85085, 2005-Ohio-2002, 2005 WL 991690, ¶ 15, citing Bowman v. Community Mgt. Corp. , 14 Ohio App.3d 31, 469 N.E.2d 1038 (1st Dist.1984), syllabus, and Fenell v. Mayflower Manor Apts. , 9th Dist. Summit No. 17224, 1995 WL 699919 (Nov. 29, 1995).

{¶ 14} Adams provided Re/Max with approximately five days notice that she would be vacating the premises. This notice was insufficient pursuant to both her lease agreement and R.C. 5321.16(B).

{¶ 15} Adams argues that because her renewal letter stated that a renewed term lease or conversion to a month-to-month tenancy would be effective May 1, 2017, her April 26, 2017 response to Re/Max was sufficient notice. We disagree.

{¶ 16} Adams's argument is based on a misinterpretation of the renewal letter. The letter did not state that a renewed lease would be effective May 1, 2017, as Adams contends. It stated that her increased rent would be effective May 1, 2017. Adams's interpretation of the renewal letter does not account for the month of April 2017. Because her lease term ended on March 31, an effective date of May 1 for a new lease omits the month of April from either agreement. Adams's argument seems to imply that she believed that her lease agreement was somehow extended through April without explaining how or when that occurred.

{¶ 17} We note that neither renewal letter Re/Max sent to Adams included a date by which she must respond. We agree with the lower court that this likely created confusion. We disagree, however, that such confusion released Adams from her obligation as a holdover tenant to provide Re/Max with 30 days notice of her intent to vacate the premises. Therefore, we find that the lower court erred in determining that Adams was not required to provide Re/Max 30 days notice and was therefore entitled to her security deposit. Re/Max's second of assignment of error is moot.

{¶ 18} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

EILEEN A. GALLAGHER, A.J., CONCURS;

MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED).

{¶ 19} I respectfully dissent. I would affirm the trial court's decision ordering Re/Max to return Adams's security deposit.

{¶ 20} I find the 30-day notice requirement under the original lease and R.C. 5321.16(B) inapplicable to the instant case because Re/Max's March 9, 2017 letter modified a material term of the existing lease agreement by demanding a rent increase. Accordingly, the letter constituted notice of Re/Max's intent to terminate the holdover tenancy as well as an offer to create a new lease as of May 2017. I agree with the trial court's reasoning that Re/Max's failure to include a date by which Adams must respond to the letter was "misleading." As the trial court aptly noted, "there is no indication in Re/Max's letter stating a date by which [Adams] should notify [Re/Max that she was] going or staying."

{¶ 21} I find Cameron v. Chateau Invest. Co. , 9th Dist. Summit No. 15634, 1992 WL 357320 (Nov. 25, 1992), instructive. In Cameron , the Ninth District Court of Appeals considered a similar letter from a landlord to the tenant, which was sent prior to the expiration of the lease term. Id. at *2. The letter requested the tenant renew the lease at an increased monthly rent. Id. The original lease included an automatic renewal provision under which the lease would be renewed for another year unless either the landlord (Chateau) or the tenant (Cameron) provided the other with written notice of termination at least 45 days prior to the end of the current lease term. Id. Chateau sent the letter to Cameron more than 45 days prior to the end of the lease term, requesting her response within 20 days. Id. The letter gave Cameron the option to renew for an additional year with a rent increase, or "in the event that [Cameron chose] not to renew * * * [she] would be considered a month-to-month tenant" at the new increased rent plus "a $20.00 per month premium." Id. The letter advised Cameron "[a]ll tenants are required to give written notice thirty (30) days before vacating. Failure on your part to sign this Lease renewal does not serve as notice to the Landlord of your intention to move at the expiration of the present Lease. " Id. at *3.

{¶ 22} Cameron never returned Chateau's letter. Instead, Cameron sent her own letter to Chateau 15 days prior to the expiration of the lease term informing Chateau of her intention to vacate the premises on the last day of the lease term. Chateau informed Cameron this was insufficient notice to terminate the lease and retained her security deposit to cover the additional month's rent, without submitting a list of deductions.

{¶ 23} The Ninth District construed this "renewal" letter as the landlord's notice that the existing lease would terminate at the end of the current rental term. The court explained "absent acceptance of these new terms, [i.e. lease renewal or holdover tenancy with rent increases,]

Cameron would not have been entitled to hold over under the terms of the original lease."

{¶ 24} Likewise, in the present case, I find that Re/Max's letter demanding Adams accept a rent increase as of May 1, 2017, was notice that it would no longer allow her to hold over after the month of April 2017 under previously agreed terms. Re/Max's letter provided Adams with four options: (1) renew her lease for a 12-month term, (2) renew her lease for a 6-month period, (3) convert her current lease to a month-to-month tenancy, or (4) move and vacate the property. The lease renewal and month-to-month tenancy options all provided for increased monthly rent, at varying rates, effective May 1, 2017.

{¶ 25} Re/Max's letter is dated March 9, 2017, only 22 days before the March 31, 2017 expiration of the second lease term. The letter did not provide a date by which Adams was to respond. Under the majority's reasoning, Adams had only a 22-day period in which to reject the rent increase effective May 1, 2017. Notably, Re/Max's letter does not reference the 30-day termination notice required by the lease.

{¶ 26} Adams chose the fourth option which specifically provided:

[I] plan to move and submit this letter as [my] written notice that [I] will vacate the property, surrender keys/possession, and provide a forwarding address no later than _________.

{¶ 27} In the blank space provided Adams filled in May 1, 2017. She initialed and signed the form April 26, 2017. Adams provided five-days notice before May 1, 2017, that she rejected Re/Max's offer. This was sufficient under the terms of the letter, which did not require Adams to respond by any specific date.

{¶ 28} Based on the foregoing, I find that Re/Max wrongfully withheld Adams's security deposit because Re/Max terminated the holdover tenancy.

{¶ 29} Accordingly, I would affirm the decision of the trial court.


author: EILEEN A. GALLAGHER, A.J.:

text:
    OHIO PLUMBING, LTD., Plaintiff-Appellee v. FIORILLI CONSTRUCTION, INC., Defendant-Appellant
    No. 106242
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Brian T. Winchester, Patrick J. Gump, McNeal, Schick, Archibald & Biro Co., L.P.A., 123 West Prospect Avenue, Suite 250, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLANT
    David J. Horvath, 7100 E. Pleasant Valley Road, Suite 110, Independence, Ohio 44131, ATTORNEY FOR APPELLEE
    BEFORE: E.A. Gallagher, A.J., Stewart, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant Fiorilli Construction, Inc. ("Fiorilli") appeals from the trial court's decision denying its motion to stay pending arbitration. For the reasons that follow, we reverse the trial court.

Factual and Procedural Background

{¶ 2} In September 2016, Fiorilli, the contractor, contracted with plaintiff-appellee Ohio Plumbing, Ltd. ("Ohio Plumbing"), the subcontractor, to provide plumbing services in connection with the construction of a SteinMart discount department store in Bainbridge, Ohio (the "contract" or the "agreement"). The contract contains a dispute resolution provision, which sets forth a multistage dispute resolution process, including discussions between project managers, discussions between party executives, premediation and mediation. After non-binding dispute resolution attempts are concluded, "any dispute not resolved" is to be decided "by either arbitration or litigation * * * at Fiorilli Construction, Inc.'s sole discretion."

{¶ 3} Section 8.04(3) provides in relevant part:

Binding Dispute Resolution: Upon the full conclusion of all good faith direct discussions, pre-mediation, and mediation attempts to resolve a dispute, any dispute not resolved shall be decided by either arbitration or litigation. Upon a failed mediation, the Subcontractor hereby expressly waives any and all rights to institute or pursue litigation, unless at the sole discretion of Fiorilli Construction, Inc., litigation is expressly determined in writing as the course of action for further dispute resolution proceedings. Both Fiorilli Construction, Inc. and Subcontractor understand and agree that any such decision as to whether to have disputes decided by arbitration or litigation is at Fiorilli Construction, Inc.'s sole discretion and is a condition precedent to any legal or equitable proceedings being initiated under this Agreement.

{¶ 4} On May 30, 2017, Ohio Plumbing filed a complaint against Fiorilli in the Cuyahoga County Court of Common Pleas, asserting claims of breach of contract and violation of the Ohio Prompt Payment Act, R.C. 4113.61, based on Fiorilli's alleged failure to pay Ohio Plumbing for work performed under the agreement. Ohio Plumbing alleged that it had fully performed under the agreement, that it had obtained a final inspection approval of its work under the agreement and that Fiorilli had confirmed that Ohio Plumbing had completed its work and was due money under the agreement but that Fiorilli refused to pay Ohio Plumbing. Ohio Plumbing sought to recover $5,337 it claimed it was due under the agreement, 18% interest per annum from the date Fiorilli received payment from the owner and attorney fees. Ohio Plumbing attached a copy of the agreement to its complaint.

{¶ 5} On July 26, 2017, Fiorilli filed a motion for change of venue, attorney fees, dismissal and/or stay of proceedings pursuant to Civ.R. 3(C), Civ.R. 12(B) and R.C. 2711.02. Fiorilli claimed that venue was improper in Cuyahoga County because the agreement included a forum selection provision that stated that any litigation relating to the contract would be filed in Medina County, Ohio. Fiorilli requested that the court transfer the case to the Medina County Court of Common Pleas and that it be awarded its attorney fees under Civ.R. 3(C)(2). It also requested that Ohio Plumbing's complaint be dismissed or the action stayed under R.C. 2711.02(B) pending arbitration of the parties' dispute.

{¶ 6} Ohio Plumbing opposed the motion. It argued that there was "nothing to arbitrate" under the agreement because-based on the allegations of its complaint-there was no "dispute" and the only issue to be litigated was "whether or not [Fiorilli] has paid [Ohio Plumbing] pursuant to the invoices that were submitted and approved by [Fiorilli]." Ohio Plumbing also argued the agreement was unconscionable and that the forum selection and dispute resolution provisions were, therefore, unenforceable.

{¶ 7} On August 17, 2017, the trial court summarily denied Fiorilli's motion. Fiorilli appealed, raising the following assignment of error for review:

The trial court erred in not enforcing a valid and irrevocable arbitration clause encompassed in a commercial contract between two commercial entities.

Law and Analysis

{¶ 8} In its sole assignment of error, Fiorilli argues that the trial court erred in denying its motion to stay pending arbitration because the parties had a valid arbitration agreement and Ohio Plumbing's claims were within the scope of the arbitration provision. Ohio Plumbing responds that the trial court properly denied Fiorilli's motion to stay because (1) Ohio Plumbing's claims involve a payment issue that is not "suitable for arbitration"; (2) Fiorilli had not served a demand for arbitration or otherwise initiated arbitration proceedings prior to filing its motion to stay and (3) the arbitration clause is "so one-sided, draconian, and confusing," it is unconscionable and unenforceable.

Standard of Review

{¶ 9} The standard of review applicable to a trial court's ruling on a motion to stay pending arbitration "depends upon 'the type of questions raised challenging the applicability of the arbitration provision.' " Wisniewski v. Marek Builders, Inc. , 2017-Ohio-1035, 87 N.E.3d 696, ¶ 5 (8th Dist.), quoting Kaminsky v. New Horizons Computer Learning Ctr. of Cleveland , 2016-Ohio-1468, 62 N.E.3d 1054, ¶ 12 (8th Dist.). Determinations as to whether a party has agreed to submit an issue to arbitration and whether an arbitration provision is unconscionable are reviewed de novo.

McCaskey v. Sanford-Brown College , 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543, 2012 WL 1142880, ¶ 7-8. Under a de novo standard of review, we give no deference to the trial court's decision. Brownlee v. Cleveland Clinic Found. , 8th Dist. Cuyahoga No. 97707, 2012-Ohio-2212, 2012 WL 1795273, ¶ 9.

{¶ 10} An abuse of discretion standard applies to a determination that a party has waived its right to arbitrate a given dispute. McCaskey at ¶ 7, citing Milling Away, L.L.C. v. UGP Properties, L.L.C. , 8th Dist. Cuyahoga No. 95751, 2011-Ohio-1103, 2011 WL 826354, ¶ 8. An abuse of discretion occurs where the trial court's decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 11} Ohio recognizes a "strong public policy" in favor of arbitration and the enforcement of arbitration provisions. Hayes v. Oakridge Home , 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15 ; Taylor Bldg. Corp. of Am. v. Benfield , 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 24 ; R.C. 2711.01(A). A presumption favoring arbitration arises when the claim in dispute falls within the scope of the arbitration provision and courts must resolve any doubts in favor of arbitrability. See, e.g., Williams v. Aetna Fin. Co. , 83 Ohio St.3d 464, 471, 700 N.E.2d 859 (1998) ; Taylor Bldg. at ¶ 26 ; see also Council of Smaller Ents. v. Gates, McDonald & Co. , 80 Ohio St.3d 661, 669, 687 N.E.2d 1352 (1998) (arbitration provision should not be denied effect " 'unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute' "), quoting Independence Bank v. Erin Mechanical , 49 Ohio App.3d 17, 18, 550 N.E.2d 198 (8th Dist.1988).

{¶ 12} R.C. 2711.02(B) provides:

If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.

{¶ 13} Thus, R.C. 2711.02 requires a court to stay the trial of an action on application of one of the parties if (1) the action involves an issue referable to arbitration under a written arbitration agreement, (2) the court is satisfied the issue is referable to arbitration under the agreement and (3) the party seeking the stay is not in default in proceeding with arbitration. Eaton Corp. v. Allstate Ins. Co. , 8th Dist. Cuyahoga No. 101654, 2015-Ohio-2034, 2015 WL 3421990, ¶ 17.

Arbitrability of Ohio Plumbing's Claims

{¶ 14} In this case, it is undisputed that the parties' agreement contains a dispute resolution provision and that the dispute resolution provision includes an agreement to arbitrate, at Fiorilli's discretion, "disputes under the Agreement." Nevertheless, Ohio Plumbing contends that the claims raised in its complaint are not arbitrable because they involve only a single, "simple issue to be reconciled"-i.e., "payment for services rendered"-that is not "suitable for arbitration."

{¶ 15} Despite the presumption in favor of arbitration, a party cannot be compelled to arbitrate a dispute the party has not agreed to submit to arbitration. Council of Smaller Ents. , 80 Ohio St.3d at 665, 687 N.E.2d 1352. In deciding whether a dispute falls within the scope of an arbitration agreement, " '[a] proper method of analysis * * * is to ask if an action could be maintained without reference to the contract or relationship at issue. If it could, it is likely outside the scope of the arbitration agreement.' " Alexander v. Wells Fargo Fin. Ohio 1, Inc. , 122 Ohio St.3d 341, 2009-Ohio-2962, 911 N.E.2d 286, ¶ 24, quoting Fazio v. Lehman Bros., Inc. , 340 F.3d 386, 395 (6th Cir.2003) ; see also Park Bldg. Condominium Assn. v. Howells & Howells Ents., L.L.C. , 2017-Ohio-1561, 90 N.E.3d 131, ¶ 16 (8th Dist.).

{¶ 16} In this case, the arbitration clause is broad, applying to any "disputes under the Agreement." Ohio Plumbing's claims for breach of contract and violation of the Ohio Prompt Payment Act are based on the services Ohio Plumbing provided under the agreement and could not be maintained " 'without reference to the contract or relationship at issue.' " Alexander at ¶ 24, quoting Fazio at 395,. Ohio Plumbing's right to the $5,337 it seeks to recover in this action arises out of the agreement. Simply because Ohio Plumbing has alleged in its complaint that "[d]efendant agrees it owes this money," does not mean, as Ohio Plumbing contends, that there is "nothing to arbitrate." Fiorilli's failure to pay Ohio Plumbing the sums it claims are due is a "dispute" Because Ohio Plumbing's claims involve a "dispute under the [a]greement," they are within the scope of the arbitration provision.

Default in Proceeding with Arbitration

{¶ 17} Ohio Plumbing also contends that its claims are not referable to arbitration under R.C. 2711.02(B) because Fiorilli did not serve Ohio Plumbing with a formal demand for arbitration or initiate arbitration proceedings prior to filing its motion to stay and, therefore, is "in default in proceeding with arbitration" under R.C. 2711.02(B).

{¶ 18} "Default" is " 'the omission or failure to perform a legal or contractual duty.' " PS Commercial Play, LLC v. Harp Contrs., Inc. , 2d Dist. Montgomery No. 27253, 2017-Ohio-4011, 2017 WL 2303649, ¶ 17, quoting Black's Law Dictionary 376 (5th Ed.1979). A party who waives its right to arbitrate is "in default in proceeding with arbitration." 84 Lumber Co. v. O.C.H. Constr., LLC , 2015-Ohio-4149, 44 N.E.3d 961, ¶ 16 ; see also Ponyicki v. Monterey Homes , 8th Dist. Cuyahoga No. 65549, 1994 WL 197226, at *3-4 (May 19, 1994), citing Mills v. Jaguar-Cleveland Motors, Inc. , 69 Ohio App.2d 111, 113, 430 N.E.2d 965 (8th Dist.1980). In order to waive the right to arbitrate, a party must know they have the right to arbitrate and act inconsistently with that right. See, e.g., 84 Lumber at ¶ 16 ; Am. Gen. Fin. v. Griffin , 8th Dist. Cuyahoga No. 99088, 2013-Ohio-2909, 2013 WL 3422900, ¶ 17. For example, where a party does not promptly raise an arbitration provision before the trial court, the party may waive its right to arbitrate a dispute. See, e.g., Cantie v. Hillside Plaza , 8th Dist. Cuyahoga No. 99850, 2014-Ohio-822, 2014 WL 888426, ¶ 11-16.

{¶ 19} As this court explained in Capital One Bank (USA), N.A. v. Rotman , 8th Dist. Cuyahoga No. 96891, 2012-Ohio-480, 2012 WL 952216, there is no requirement under R.C. 2711.02(B) that a defendant must initiate arbitration proceedings before it can seek a stay of litigation pending arbitration:

Nothing in [ R.C. 2711.02(B) ] imposes a requirement that a party must initiate arbitration before seeking a stay. * * * [T]he statute clearly reflects that a party need only file a motion to have the proceedings stayed when "the action is referable to arbitration under an agreement in writing for arbitration." R.C. 2711.02(B).
* * * Case law instructs that where a matter is subject to arbitration, "[t]he burden is on the plaintiff to commence the arbitration action, and the parties are obliged to cooperate and respond in a timely manner." Sexton v. Kidder, Peabody & Co., Inc. , 8th Dist. Cuyahoga No. 74833, 1999 WL 652028, 1999 Ohio App. LEXIS 3972 (Aug. 24, 1999). See also Kessinger v. SR83 Hotel Partners, LLC , 5th Dist. Ashland No. 04-CA-83, 2005-Ohio-4110 [2005 WL 1897376], ¶ 17 ; Johnson v. E. Bay Kia, Inc. , S.D.Ala. No. 08-00656-CG-B, 2009 WL 928674, at *1, 2009 U.S. Dist. LEXIS 30906, *1 (Apr. 2, 2009). Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted.

Id. at ¶ 8-9 ; see also Featherstone v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 159 Ohio App.3d 27, 2004-Ohio-5953, 822 N.E.2d 841, ¶ 8 (9th Dist.) ("[A] party cannot be in default in proceeding with arbitration where it has no duty to commence arbitration. Only an aggrieved party may demand arbitration. It defies logic to insist that an uninjured party, who may or may not know that another party believes it has been wronged, must institute arbitration proceedings against that allegedly aggrieved party in order to preserve its right to arbitrate.").

{¶ 20} Additionally, there is no such requirement in the parties' agreement. Under the terms of the parties' agreement, Ohio Plumbing waived its right to litigate any dispute unless Fiorilli agreed in writing to resolve the dispute by litigation. Further, binding dispute resolution, be it litigation or arbitration, was to occur only after efforts at nonbinding dispute resolution failed. There is nothing in the record to suggest that the parties participated in any of the "direct discussions, pre-mediation, and mediation attempts" that were to precede "binding dispute resolution" under the terms of the agreement.

{¶ 21} In this case, it cannot be said that Fiorilli acted inconsistently with its right to arbitrate. Fiorilli's "opportunity to either waive or invoke its right arbitration" occurred after Ohio Plumbing filed its complaint. Harsco Corp. v. Crane Carrier Co. , 122 Ohio App.3d 406, 412-413, 701 N.E.2d 1040 (3d Dist.1997). To invoke its right to arbitration, Fiorilli needed to file a motion to stay the litigation until the parties' dispute was arbitrated in accordance with the agreement. R.C. 2711.02(B). That is precisely what Fiorilli did. Prior to filing its answer, Fiorilli promptly filed a motion to stay the proceedings pending arbitration. Based on the record before us, there is no reasonable basis upon which the trial court could have determined that Fiorilli was in default in proceeding with arbitration at the time it filed its motion for stay pending arbitration.

Unconscionability

{¶ 22} Ohio Plumbing also contends that the arbitration provision is unconscionable and that the trial court, therefore, properly denied Fiorilli's motion to stay pending arbitration, because the arbitration provision is unenforceable.

{¶ 23} An arbitration provision is not enforceable if it is unconscionable. See, e.g., Hedeen v. Autos Direct Online, Inc. , 2014-Ohio-4200, 19 N.E.3d 957, ¶ 26 (8th Dist.) ("[A]n arbitration provision may be held unenforceable on grounds that exist at law or in equity for the revocation of any contract. * * * Unconscionability is such a reason."), citing Hayes , 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, at ¶ 15, 19 ; Handler v. Southerland Custom Builders, Inc. , 8th Dist. Cuyahoga No. 86956, 2006-Ohio-4371, 2006 WL 2441673, ¶ 11 ("An arbitration clause that is deemed unconscionable is unenforceable as a matter of law."). Whether an arbitration provision is unconscionable is a question of law. Id. at ¶ 8 ; Ins. Co. of N. Am. v. Automatic Sprinkler Corp. , 67 Ohio St.2d 91, 98, 423 N.E.2d 151 (1981).

{¶ 24} Unconscionability embodies two separate concepts: (1) substantive unconscionability, i.e., unfair and unreasonable contract terms and (2) procedural unconscionability, i.e., an absence of meaningful choice on the part of one of the parties. Taylor Bldg. , 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 33. The party asserting the unconscionability of a contract must prove that the agreement is both procedurally and substantively unconscionable. Hayes at ¶ 30 ("A party challenging an arbitration agreement must prove a quantum of both procedural and substantive unconscionability."); Taylor Bldg. at ¶ 33 ; see also Murea v. Pulte Group, Inc. , 8th Dist. Cuyahoga No. 100127, 2014-Ohio-398, 2014 WL 504848, ¶ 11 ("[T]hese two concepts create a two-prong conjunctive test for unconscionability [that] * * * is not satisfied if one of the requirements is not met."). Ohio Plumbing has not met its burden in this case.

{¶ 25} "Substantive unconscionability pertains to the contract itself, without any consideration of the individual contracting parties, and requires a determination of whether the contract terms are commercially reasonable in the context of the transaction involved.' " Vasil v. Pulte Homes of Ohio, L.L.C. , 8th Dist. Cuyahoga No. 102212, 2015-Ohio-2407, 2015 WL 3823196, ¶ 17, quoting Wallace v. Ganley Auto Group , 8th Dist. Cuyahoga No. 95081, 2011-Ohio-2909, 2011 WL 2434093, ¶ 21. Procedural unconscionability involves factors bearing on the relative bargaining position of the contracting parties, such as age, education, intelligence, business acumen and experience, bargaining power, who drafted the contract, whether the terms were explained to the weaker party and whether alterations in the printed terms were possible. See, e.g., Vasil at ¶ 17 ; Taylor Bldg. at ¶ 43 ; Hayes at ¶ 23. No single factor, in and of itself, determines whether a contract is procedurally unconscionable; the totality of the circumstances must be considered. Murea at ¶ 12, citing Hayes at ¶ 29-30. The "crucial question" is whether each party to the contract had a reasonable opportunity to understand the terms of the contract. Lake Ridge Academy v. Carney , 66 Ohio St.3d 376, 383, 613 N.E.2d 183 (1993).

{¶ 26} Ohio Plumbing asserts that the arbitration clause is substantively unconscionable because it requires Ohio Plumbing to "waive[ ] [its] rights to litigation" and is part of a "confusing," "lengthy," "costly" and "oppressive" multi-stage dispute resolution "labryinth" that has a "chilling effect" on small claims. Ohio Plumbing also asserts that the arbitration provision is procedurally unconscionable because the agreement was an "adhesion contract," there was an "utter lack of bargaining power or ability to negotiate" on its part and the contract was not subject to review by Ohio Plumbing's counsel.

{¶ 27} The potential cost or burden of arbitration, in and of itself, is not sufficient to render an arbitration provision commercially unreasonable or otherwise unenforceable. See, e.g., English v. Cornell Quality Tools, Co. , 9th Dist. Summit No. 22578, 2005-Ohio-6983, 2005 WL 3556281, ¶ 18 ; McCaskey , 2012-Ohio-1543, 2012 WL 1142880, at ¶ 32, 34 (observing that unconscionability requires "specific and individualized evidence that arbitration costs were unduly burdensome to the party opposing [arbitration]" and that "[w]ithout some evidence that a party would be precluded from bringing a claim, the cost of arbitration, standing alone, is not a justifiable reason to find unconscionability"). Likewise, inequality of bargaining power or that a contract is preprinted and the arbitration clause is a required term, without more, "fails to demonstrate the unconscionability of the arbitration clause." Taylor Bldg. at ¶ 44-45.

{¶ 28} This case involves a contract between two commercial parties. Here, a commercial transaction took place in which Ohio Plumbing agreed to perform certain plumbing services as a subcontractor for Fiorilli on the SteinMart project. The cases upon which Ohio Plumbing relies in support of its claim that the arbitration provision is unenforceable on unconscionability grounds involve the enforcement of arbitration provisions against consumers who purchased needed goods or services from a commercial entity, see, e.g. , Eagle v. Fred Martin Motor Co. , 157 Ohio App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161 (9th Dist.), and Williams v. Aetna Fin. Co. , 83 Ohio St.3d 464, 700 N.E.2d 859 (1998), or employees asserting discrimination claims, see, e.g., Post v. ProCare Auto Serv. Solutions, 8th Dist. Cuyahoga No. 87646, 2007-Ohio-2106, 2007 WL 1290091. As such they are distinguishable.

{¶ 29} There is no evidence in the record supporting Ohio Plumbing's allegations of procedural unconscionability or regarding any other facts and circumstances relevant to the issue. Ohio Plumbing did not submit any evidence (by way of affidavit or otherwise) to support its allegations of unconscionability and did not request that the trial court conduct a hearing on the issue. The only evidence in the record is the agreement itself. Pursuant to the agreement, the total amount Ohio Plumbing was to receive for the work it performed under the agreement was $36,000, of which Ohio Plumbing contends $5,337 has not been paid. The provision at issue appears in section VIII of the agreement, which is titled in bold capital letters, "DISPUTE RESOLUTION." Although the agreement appears to have been drafted by Fiorilli, each page of the agreement, including the pages setting forth the dispute resolution procedure, was initialed by a representative of Ohio Plumbing. Accordingly, the dispute resolution procedure and arbitration provision could have hardly been a surprise to Ohio Plumbing. "Anyone entering into a commercial contract has the burden of assuring themselves of what they are taking part in." English at ¶ 28. Certainly, Ohio Plumbing could have sought legal advice before entering into the agreement with Fiorilli.

{¶ 30} Because Ohio Plumbing did not offer any evidence of procedural unconscionability (or allege any specific facts that, if proven, could establish procedural unconscionability under the totality of the circumstances here), it "cannot establish both prongs of the conjunctive two-part unconscionability test" and the trial court could not have properly denied Fiorilli's motion to stay pending arbitration on grounds of unconscionability. See, e.g., Murea , 2014-Ohio-398, 2014 WL 504848, ¶ 12-14.

{¶ 31} Based on the record before us, the trial court erred in denying Fiorilli's motion to stay proceedings pending arbitration. Fiorilli's assignment of error is sustained. We reverse the trial court's judgment and remand the case to the trial court with instructions to stay litigation pending arbitration.

{¶ 32} Judgment reversed; remanded.

MELODY J. STEWART, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      At this juncture, only the trial court's denial of Fiorilli's motion to stay pending arbitration is subject to appellate review, not the denial of its motion to dismiss or for change of venue. See R.C. 2711.02(D) ; Helbling v. Lloyd Ward, P.C. , 8th Dist. Cuyahoga No. 99991, 2014-Ohio-1513, 2014 WL 1408133, ¶ 15-19 (order denying motion to transfer venue was not a final, appealable order subject to immediate appeal).

      Whether any conditions precedent to arbitration have been satisfied or waived is a matter for the arbitrator. See, e.g., Council of Smaller Ents. at 665, 687 N.E.2d 1352 (" 'Once it is determined * * * that the parties are obligated to submit the subject matter of a dispute to arbitration, "procedural" questions which grow out of the dispute and bear on its final disposition would be left to the arbitrator.' "), quoting John Wiley & Sons, Inc. v. Livingston , 376 U.S. 543, 556-557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) ; see also Bd. of Library Trustees v. Ozanne Constr. Co. , 100 Ohio App.3d 26, 30, 651 N.E.2d 1356 (8th Dist. 1995) ; Blanchard Valley Health Sys. v. Canterbury Holdings, Inc. , 3d Dist. Hancock No. 5-12-08, 2012-Ohio-5134, 2012 WL 5397598, ¶ 22-25.