author: DeWine, J.

text:
    The STATE of Ohio, Appellant, v. MOORE, Appellee.
    No. 2017-0483
    Supreme Court of Ohio.
    Submitted December 6, 2017 Decided August 14, 2018
    Kevin Baxter, Erie County Prosecuting Attorney, and Martha S. Schultes, Assistant Prosecuting Attorney; and Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellant.
    Timothy Young, Ohio Public Defender, and Allen Vender, Assistant Public Defender, for appellee.
   DeWine, J.

{¶ 1} An offender who has been locked up in jail prior to being sentenced to prison is entitled to a credit against his prison term for any time that the offender spent in confinement awaiting trial and sentencing. But an exception in Ohio law dictates that this "jail-time credit" does not apply to the portion of a prison sentence that is imposed for a firearm specification. The primary question presented is whether the exception as applied in this case violates equal-protection guarantees. We conclude that it does not. The court of appeals below held otherwise, so we reverse.

I. Background

{¶ 2} Following guilty pleas to four felony offenses, Gerry Moore Sr., a.k.a. Gary Moore Sr., was sentenced to an aggregate prison term of 8 years and 11 months. The aggregate sentence included two mandatory terms for firearm specifications-one a 3-year specification and the other a 1-year specification-that Moore was required to serve consecutively to each other and prior to the rest of the sentence. See R.C. 2929.14(C)(1)(a). Before sentencing, Moore moved the trial court to credit the 283 days that he had served in jail prior to sentencing toward the 4 years that he needed to serve for the firearm specifications. Moore wanted the jail-time credit applied to the prison terms for the firearm specifications because doing so would enable him to apply for judicial release sooner than if it was applied to the prison terms for the underlying felonies.

{¶ 3} Pursuant to R.C. 2929.20(B), "an eligible offender" may move the sentencing court for a reduction of his aggregated nonmandatory prison term through judicial release. The timing of an offender's application for judicial release depends upon the length of his nonmandatory prison term and whether his sentence includes a mandatory prison term. A prisoner who, like Moore, is sentenced to a nonmandatory prison term of between two and five years is eligible to apply for judicial release "not earlier than one hundred eighty days after the expiration of all mandatory prison terms." R.C. 2929.20(C)(2). Thus, crediting the jail time that Moore served prior to sentencing toward the mandatory terms imposed for the firearm specifications would allow him to apply for release three years and nine months into his sentence. On the other hand, if the jail-time credit is applied only to the terms imposed for the underlying felonies as opposed to those for the specifications, he will need to serve the four years of his prison terms for the firearm specifications and then wait six months before applying for judicial release. If judicial release is granted, an offender is placed on probation on conditions set by the trial court, and the court may reimpose the sentence that it reduced if the offender violates those conditions. R.C. 2929.20(K). {¶ 4} The trial court determined that the jail-time credit should be applied only to Moore's prison terms imposed for the underlying felonies. Moore appealed, arguing that the trial court had improperly construed the applicable statutes in refusing to apply the credit to the terms for the firearm specifications.

{¶ 5} The court of appeals reversed the trial court's judgment but did so on an issue that was neither raised nor briefed by the parties. In a two-to-one decision, the Sixth District found that the failure to apply jail-time credit to Moore's firearm-specification terms might risk an equal-protection violation at some point in the future should Moore be granted judicial release. 2017-Ohio-673, 85 N.E.3d 547, ¶ 27. The court explained that if Moore were successful in achieving judicial release, he might not be able to fully use the jail-time credit that he had earned. It reversed the trial court's judgment and remanded the case to the trial court with the instruction to credit Moore's 283 days of time served to his firearm-specification terms. Id. at ¶ 29.

{¶ 6} We accepted the state's discretionary appeal, which challenged the appellate court's conclusion on the equal-protection issue. 149 Ohio St.3d 1431, 2017-Ohio-4396, 76 N.E.3d 1207. Moore maintains that the court of appeals' judgment can be sustained on both statutory and equal-protection grounds.

II. The Plain Language of R.C. 2929.14(B)(1)(b) Does Not Allow Jail-Time Credit to be Applied to Mandatory Firearm-Specification Sentences

{¶ 7} Because this court decides constitutional issues only when absolutely necessary, we first consider Moore's statutory argument. Norandex, Inc. v. Limbach , 69 Ohio St.3d 26, 28, 630 N.E.2d 329 (1994).

{¶ 8} Ohio law allows for the additional punishment of an offender when a firearm is involved in the offense. R.C. 2929.14(B). This is accomplished through a "specification," which must be set forth in the indictment for the underlying felony. See, e.g. , R.C. 2941.141. For example, an offender who had a firearm on his person or under his control while committing the offense is subject to a one-year prison term for the specification. Id .; R.C. 2929.14(B)(1)(a)(iii). An offender who displays, brandishes, or uses the firearm to facilitate the underlying offense is subject to an additional three-year prison term. R.C. 2941.145 ; R.C. 2929.14(B)(1)(a)(ii). A sentence for a specification must be served consecutively to and prior to any sentence for the underlying felony offense. R.C. 2929.14(C)(1)(a).

{¶ 9} The prison term for the firearm specification is mandatory. R.C. 2929.14(B)(1)(a). Moreover, the term "shall not be reduced pursuant to section 2967.19 [petition for early release], section 2929.20 [petition for judicial release], section 2967.193 [earned days of credit], or any other provision of Chapter 2967 or Chapter 5120 of the Revised Code." (Emphasis added.) R.C. 2929.14(B)(1)(b) ("the specification provision").

{¶ 10} In this case, Moore seeks to have the time he spent in the county jail credited toward his sentence pursuant to R.C. 2967.191 ("the jail-time-credit provision"). According to the provision, "[t]he department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial * * * as determined by the sentencing court." R.C. 2967.191. The jail-time-credit provision plainly constitutes "any other provision of Chapter 2967." Under the terms of the specification provision, then, Moore's prison terms for the firearm specifications could not be reduced based upon the time he served in jail prior to sentencing.

{¶ 11} As he did before the court of appeals, Moore seeks to avoid this result by pointing to the definitions of "prison term" and "stated prison term" set forth in R.C. 2929.01 :

As used in this chapter:
* * *
(BB) "Prison term" includes either of the following sanctions for an offender:
(1) A stated prison term;
(2) A term in a prison shortened by, or with the approval of, the sentencing court pursuant to section 2929.143, 2929.20, 2967.26, 5120.031, 5120.032, or 5120.073 of the Revised Code.
* * *
(FF) "Stated prison term" means the prison term, mandatory prison term, or combination of all prison terms and mandatory prison terms imposed by the sentencing court pursuant to section 2929.14, 2929.142, or 2971.03 of the Revised Code or under section 2919.25 of the Revised Code. "Stated prison term" includes any credit received by the offender for time spent in jail awaiting trial, sentencing, or transfer to prison for the offense * * *.

In Moore's view, the specification provision does not prohibit reduction of a prison term for a firearm specification by the amount of time spent in jail prior to sentencing, because that reduction is already included in the definition of "stated prison term."

{¶ 12} But Moore's reading is impossible to square with the rest of the statutory scheme. Remember, the jail-time-credit provision requires that the department of rehabilitation and correction "reduce the stated prison term of the prisoner" by the amount of time that has already been served. R.C. 2967.191. To adopt Moore's reading would mean that the prisoner gets two-for-one credit for days served prior to his prison sentence: days served in jail would be subtracted once pursuant to the definition of "stated prison term." And then those same days would again be subtracted pursuant to the jail-time-credit provision.

{¶ 13} As an alternative to such a nonsensical reading, Moore proposes that we treat the jail-time-credit provision simply as "the mechanism to apply confinement credit, which is part of the prison term." But to read the provision in this manner would make it superfluous to the definitional statute. We must assume that the General Assembly does not use words unnecessarily-particularly not entire statutory provisions-and we avoid construing any statute in a manner that might render some portion of the provision "meaningless or inoperative." State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn. , 95 Ohio St. 367, 373, 116 N.E. 516 (1917).

{¶ 14} There is another problem with Moore's argument. Even if we were to buy his premise that a stated prison term by definition already includes a reduction for jail-time credit, a court would still need to decide how to apply the credit to the stated prison term. That is, should the credit be applied toward the portion imposed for firearm specifications? Moore offers no statutory reason why the credit should be applied in such a manner. And the specification provision says just the opposite.

{¶ 15} Thus, we conclude that the plain language of the specification provision requires that jail-time credit not be applied toward prison terms for firearm specifications. R.C. 2929.01(FF)'s indication that a stated prison term "includes any credit received by the offender for time spent in jail awaiting trial, sentencing, or transfer to prison" is best understood as a simple acknowledgment that R.C. 2967.191 requires application of all due jail-time credit and that a stated prison sentence must be shortened by the amount of time spent in jail before entry into the state prison system. We assume that the General Assembly meant exactly what it said in the specification provision: the prison term for a firearm specification may not be reduced based on R.C. 2967.193 or any other provision of R.C. Chapter 2967. Because the jail-time-credit provision appears in R.C. Chapter 2967, it may not serve as a basis for a reduction of Moore's prison terms for the firearm specifications.

III. No Equal-Protection Violation

{¶ 16} We turn now to the conclusion of the court of appeals that it would violate equal-protection guarantees to apply the jail-time credit in the manner dictated by the specification provision.

A. The Court of Appeals Should Not Have Considered the Equal-Protection Issue Without First Ordering Additional Briefing

{¶ 17} The question whether the trial court's refusal to apply the jail-time credit to the prison terms imposed for Moore's firearm specifications violated principles of equal protection was neither raised nor briefed in the court of appeals. Our rules require that appellate courts "[d]etermine [an] appeal on its merits on the assignments of error set forth in the briefs under App.R. 16." App.R. 12(A). We have recognized, however, that while a court of appeals "need not pass on errors which were not assigned or argued, this power is discretionary." State v. 1981 Dodge Ram Van , 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). When a court does so, it "should * * * give the parties notice of its intention and an opportunity to brief the issue." Id. See also C. Miller Chevrolet, Inc. v. Willoughby Hills , 38 Ohio St.2d 298, 301, 313 N.E.2d 400 (1974), fn. 3.

{¶ 18} The concurring-in-judgment-only opinion argues that based on the waiver doctrine, we should not consider the equal-protection question. This argument evinces a misunderstanding of the doctrine and our caselaw. In State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), a case cited in the concurring-in-judgment-only opinion, we considered whether it was proper for a court of appeals to refuse to address a constitutional issue that had not been first raised at the trial-court level. We held that "[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." Id . at syllabus. The question here is not whether a court of appeals may disregard an issue that is raised for the first time on appeal to that court, but rather what is the appropriate course when a court of appeals has grounded its decision on a constitutional issue that was not raised by the parties.

{¶ 19} To follow the suggestion of the concurring-in-judgment-only opinion would require this court to ignore the first proposition of law accepted for review by a majority of this court (including the concurring justice)-that is, whether R.C. 2929.14(B)(1)(b) violates the Equal Protection Clause of the United States Constitution or the Ohio Constitution. And where would that leave us? If we decided only that the statute's plain language prohibits applying jail-time credit to a prison term for a firearm specification, the court of appeals' judgment that the statute was unconstitutional would remain.

{¶ 20} Our caselaw makes clear that while the court of appeals had the discretion to reach the equal-protection issue, it should have given the parties an opportunity to brief the issue. And even though we have accepted the issue for review, it would be within our authority to remand to the court of appeals to order briefing on the issue. But the issue has now been fully briefed in this court. As a consequence, it is in the interest of judicial economy that we proceed to the merits.

B. There Is No Equal-Protection Violation

{¶ 21} The court of appeals premised its finding of an equal-protection violation upon its conclusion that Moore could be denied the full benefit of his jail-time credit in the event that he is granted judicial release. In doing so, the court did not explicitly state whether it was referring to guarantees set forth in the Ohio Constitution or those in the federal Constitution, but it appears to have based its decision on the federal constitutional provision. As the opinion concurring in judgment only points out, the court of appeals relied upon our opinion in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, which was premised upon caselaw interpreting the federal provision and contained only a passing reference to the Ohio provision.

{¶ 22} Moore now argues that both his Ohio and his federal rights are implicated. Article I, Section 2 of the Ohio Constitution provides: "All political power is inherent in the people. Government is instituted for their equal protection and benefit * * *." The Fourteenth Amendment to the United States Constitution declares that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." Most recently, we have considered the two guarantees to be "functionally equivalent" and employed the same analysis under both provisions. State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29. No party has suggested that we do otherwise today. Thus, we agree with the opinion concurring in judgment only that this is not an appropriate case to take up the question whether the provisions should be given different treatment.

1. Equal protection and jail-time credit

{¶ 23} The United States Supreme Court has never directly addressed the extent to which the equal-protection clause may provide a right to jail-time credit. In assuming that such a right existed, the court of appeals cited decisions from two federal district courts in Ohio. 2017-Ohio-673, 85 N.E.3d 547, citing Workman v. Cardwell , 338 F.Supp. 893 (N.D.Ohio 1972), aff'd in part and vacated in part , 471 F.2d 909 (6th Cir.1972) ; White v. Gilligan , 351 F.Supp. 1012 (S.D.Ohio 1972). In Workman , the court took up a defendant's claim that he had been wrongfully denied credit for the time that he spent in jail awaiting trial when he could not afford bail. At the time, there was no Ohio statute that required the provision of jail-time credit. Workman at 898. The court looked to United States Supreme Court decisions that applied equal-protection principles to require that an indigent defendant be provided with a free transcript for the purposes of appeal, Griffin v. Illinois , 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and to strike down rules that exposed indigent defendants to prison time for the inability to pay fines, Williams v. Illinois , 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short , 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). After discussing these cases, the district court concluded that "[t]he Equal Protection Clause requires that all time spent in any jail prior to trial and commitment by a [prisoner who is] unable to make bail because of indigency must be credited to his sentence." (Emphasis sic.) Workman at 901. After Workman and White were decided, the Ohio General Assembly amended the jail-time-credit statute, R.C. 2967.191, to require that jail-time credit be awarded.

{¶ 24} The holding of the Ohio federal district courts has not been universally adopted by federal courts. Indeed, when the Sixth Circuit Court of Appeals reviewed Workman , it vacated the judgment on other grounds and pointedly reserved consideration of the equal-protection issue. Workman , 471 F.2d at 911. The results from other circuits vary. The Fifth Circuit has declared that "there is no federal constitutional right to credit for time served prior to sentence." Gremillion v. Henderson , 425 F.2d 1293, 1294 (5th Cir.1970). But the same court recognized an exception to its rule, concluding that a defendant whose presentence incarceration would result in his being confined for longer than the maximum allowable term must be given jail-time credit. Jackson v. Alabama , 530 F.2d 1231, 1236-1237 (5th Cir.1976). See also Hook v. Arizona , 496 F.2d 1172 (9th Cir.1974). Other courts have found that the Equal Protection Clause was implicated regardless of the amount of total time a defendant was incarcerated. See King v. Wyrick , 516 F.2d 321 (8th Cir.1975).

{¶ 25} In light of the statutory provision providing for jail-time credit, our court has had little occasion to consider the constitutional dimensions of the issue. In Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, we considered whether jail-time credit under R.C. 2967.191 could be credited toward only one term that was being served concurrently to others. We looked to the statutory language and the rule promulgated to administer the statute and determined that jail-time credit must be applied to each concurrent term. Id. at ¶ 12. Although we did make clear that the practice of awarding jail-time credit had its roots in the equal-protection guarantees of the state and federal constitutions, id. at ¶ 7, and said that to deny jail-time credit to one concurrent term would violate the equal-protection clause, id. at ¶ 22, we decided that case largely on statutory grounds.

{¶ 26} Thus, our own precedent and that of the federal courts establishes that the failure to provide jail-time credit may raise equal-protection concerns in some circumstances. But under the facts before us, we find no equal-protection violation.

2. No equal-protection violation based upon the possibility that Moore might not use his full jail-time credit if he is granted judicial release

{¶ 27} The court of appeals concluded that as applied to Moore, the specification provision violated his equal-protection rights. 2017-Ohio-673, 85 N.E.3d 547, at ¶ 27. It explained that "giving full credit to an offender may require applying [jail-time] credit to a mandatory term when otherwise the potential length of the stated prison sentence is not accurately reflective of the time the offender's liberty was restrained." 2017-Ohio-673, 85 N.E.3d 547, at ¶ 26, citing Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, at ¶ 22. The court continued, "[I]f appellant is successful in seeking judicial release, there is risk the application of R.C. 2929.14(B)(1)(b) will improperly deny him credit for his [time in jail prior to sentencing]." Moore at ¶ 27. In other words, in the court of appeals' view, it was possible that Moore could be released early and not reap the entire benefit of his jail-time credit. Because of this possibility, the court concluded that "such a sentence would be contrary to law in light of equal protection and Fugate ." Id.

{¶ 28} As an initial matter, we note that when an equal-protection violation has been found in jail-time-credit cases, the violation has been premised on differential treatment between those who were able to afford bail and those who were not able to afford bail. See, e.g., Workman, 338 F.Supp. at 900 ("indigency [was] the sole reason why the petitioner was in jail"); White , 351 F.Supp. at 1013 (class comprised of inmates "who are financially unable to post bail bonds"). Moore, however, has made no showing that his presentence incarceration was the result of his inability to post bond. To the contrary, for the vast majority of the time that Moore was jailed, he was held without bond. Moore was held for completion of a mental-health-competency evaluation, and after the evaluation was completed, the court ordered him held without bond because of the threat he posed to the victim. For only 27 of his 283 days of jail time was there a bond in place. Even for these 27 days, Moore has made no showing that he was unable to afford bond. Indeed, any suggestion that Moore was discriminated against based upon his economic status is belied by the argument presented by his attorney at the hearing on jail-time credit. Counsel represented that "he was unable to make bail because the Court denied bail. So he had no choice or ability to be released on bail * * *."

{¶ 29} Even more detrimental to Moore's claim is the simple fact that he has not been denied jail-time credit. Moore received the full amount of jail-time credit; it was applied to the portion of his sentence for the underlying felonies. His complaint is not that he lost his jail-time credit but that the credit was not allocated in the manner in which he prefers. In Moore's view, he could lose his jail-time credit because he would not be able to use it if he were granted judicial release. But there is no right to judicial release; it is an act of grace by the court. State v. Coffman , 91 Ohio St.3d 125, 742 N.E.2d 644 (2001). If Moore is granted judicial release, he will suffer no injury: judicial release will give Moore exactly what he wants from jail-time credit-not being in prison. Moreover, if Moore were to obtain judicial release, he would not lose his jail-time credit. If he were to violate a condition of release, he could be sent back to prison, and any remaining credit would be applied. See R.C. 2929.20. Moore can demonstrate no harm from what he claims is unconstitutionally disparate treatment.

3. No violation based upon Moore's eligibility for judicial release

{¶ 30} In his brief, Moore presents an additional argument that his right to equal protection was violated. He contends that "to satisfy equal protection, defendants who could not make bail must not be incarcerated longer than their wealthier counterparts before becoming eligible for judicial release." If jail-time credit applies only to Moore's imprisonment for the underlying offenses, he will have served an extra 283 days-his presentence confinement-before being eligible to apply for judicial release. But to repeat a point made earlier, Moore's suggestion that he is treated differently than "wealthier counterparts" is not supported by the record. He cannot demonstrate that wealth had anything to do with the dissimilar timing of a judicial-release application.

{¶ 31} Because Moore has not alleged that he is a member of a suspect class or is subject to a classification that burdens a fundamental right, we apply rational-basis review to his claim. See State v. Thompkins , 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996) ; see also McGinnis v. Royster , 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973) (applying rational-basis review to state sentencing schemes). Here, in enacting the specification provision, the legislature rationally determined that those offenders who committed an offense with a firearm should be subject to an additional prison sentence. See, e.g. , McMillan v. Pennsylvania , 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (upholding a state law that imposed a mandatory minimum sentence on offenders who possessed a firearm during their offense). And it is quite reasonable for the legislature to say to those who might be tempted to use a firearm in an offense, "If you get caught, not only will you have to serve extra time for using the weapon, but you will have to serve every day of that extra time before you become eligible for judicial release." Because there exists a rational basis for requiring an inmate to serve the entirety of his mandatory sentence before becoming eligible for judicial release, we find no equal-protection violation.

IV. Conclusion

{¶ 32} Under the plain language of the specification provision, Moore was not entitled to have his jail-time credit applied toward the portion of his sentence that was imposed for firearm specifications. Furthermore, application of the specification provision in this case did not violate constitutional equal-protection guarantees. We reverse the court of appeals' decision and reinstate the trial court's judgment applying Moore's 283 days of jail-time credit to the prison terms imposed for the underlying felonies.

Judgment reversed.

Kennedy, French, and Laster Mays, JJ., concur.

O'Donnell, J., concurs in judgment only.

Fischer, J., concurs in judgment only, with an opinion joined by O'Connor, C.J.

Anita Laster Mays, J., of the Eighth District Court of Appeals, sitting for O'Neill, J.

{¶ 33} I agree with the majority's conclusion that pursuant to the plain language of R.C. 2929.14(B)(1)(b), jail-time credit cannot be applied toward prison terms for firearm specifications. I further agree with the majority's conclusion that because the parties did not have an opportunity to brief the issue whether that statute violates a constitutional right to equal protection, the court of appeals should not have decided that issue sua sponte. I disagree, however, with the majority's decision to address the issue of the statute's constitutionality. The parties were not given an opportunity below to establish the scope and substance of the equal-protection challenge to the statute. Instead, the court of appeals framed the challenge. Given this poor foundation for addressing a significant issue, I believe that it is not appropriate for us to consider the constitutionality of the statute at this time. I accordingly concur in judgment only in the majority's decision to reverse the judgment of the court of appeals. {¶ 34} The majority notes that the equal-protection issue has been fully briefed before this court, and it states that it is in the interest of judicial economy to address the merits of the issue rather than remand the case for additional briefing in the court of appeals. This court has stated, however, that " 'an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.' " State v. Awan , 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs , 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. While reviewing courts have discretion to review a statute's constitutionality for plain error, courts "ordinarily enforce the waiver doctrine unless there is 'some extraordinary reason to disregard it.' " State v. Flannery , 1st Dist. Hamilton No. C-140426, 2015-Ohio-1360, 2015 WL 1592898, ¶ 7, quoting Zawahiri v. Alwattar , 10th Dist. Franklin No. 07AP-925, 2008-Ohio-3473, 2008 WL 2698679, ¶ 14. In my view, judicial economy alone is not sufficient reason for this court to disregard the waiver doctrine, particularly in a case in which our consideration of the constitutional issue is hindered by the parties' failure to raise it in the first instance and by the appellate court's less-than-comprehensive framing and analysis of the issue.

{¶ 35} The majority does acknowledge that review of the issue is complicated by the fact that the court of appeals did not specify whether it based its analysis on the equal-protection guarantees set forth in the federal Constitution, the Ohio Constitution, or both. It appears that the Sixth District Court of Appeals' decision was based solely upon federal law. That court's analysis was premised on the decision in State v. Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. Fugate contains a single, passing reference to the equal-protection-rights guarantee of the Ohio Constitution: "The practice of awarding jail-time credit, although now covered by state statute, has its roots in the Equal Protection Clauses of the Ohio and United States Constitutions." Id. at ¶ 7. Notably, the Fugate court did not cite or quote any particular provision of the Ohio Constitution or any case interpreting the Ohio Constitution. In determining that denying jail-time credit when a defendant is sentenced to concurrent terms constitutes an equal-protection violation, the Fugate court relied solely on federal cases that interpreted the federal equal-protection provision. Id. at ¶ 7, 22. The court specifically stated that "[t]o deny such credit would constitute a violation of the Equal Protection Clause ." (Emphasis added.) Id. at ¶ 22. Given that the court's analysis was limited to federal law, it appears that the court based its decision on the federal Equal Protection Clause.

{¶ 36} Because the Sixth District's decision in this case was premised on Fugate 's analysis, the Sixth District's equal-protection analysis was similarly confined to whether a violation of the federal Equal Protection Clause occurred. Thus, even though the parties have set forth token arguments in this appeal related to the Ohio Constitution's equal-protection guarantee, it is inappropriate for this court to engage in any analysis of the Ohio Constitution's equal-protection rights because no consideration of that issue occurred below.

{¶ 37} The language of the relevant constitutional provisions and recent decisions of this court indicate that treating the two equal-protection provisions as "functionally equivalent" could be incorrect. Before proceeding with the assumption that the Ohio and federal equal-protection guarantees are "functionally equivalent," we should look at the question to determine whether they really are.

{¶ 38} Pursuant to the Fourteenth Amendment to the United States Constitution, no state shall "deny to any person within its jurisdiction the equal protection of the laws." Pursuant to the Ohio Constitution, Article I, Section 2, "[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit * * *."

{¶ 39} Significantly, the equal-protection language found in the Ohio Constitution, which was adopted in 1851, was formulated before the language of the Fourteenth Amendment to the United States Constitution was proposed. Thus, it may not be entirely correct to interpret the Ohio equal-protection guarantee through the lens of its federal counterpart. Given the different language used in each provision, it is possible that the two provisions set forth unique protections that are not necessarily contained in both provisions. See Holland, McAllister, Shaman & Sutton, State Constitutional Law: The Modern Experience , 132 (2d Ed.2016) (asserting that while the history and purpose of a state constitutional provision may provide a basis for interpreting identically worded state and federal constitutional provisions differently, there is an additional basis for construing the two provisions differently when the state constitution's language differs materially from the language of its federal counterpart).

{¶ 40} This court has construed the Ohio and federal equal-protection clauses as being functionally equivalent. State v. Thompson , 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 11, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. , 87 Ohio St.3d 55, 59, 717 N.E.2d 286 (1999). This proposition, however, has been called into question by this court. In State v. Noling , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 11, this court stated that "the Equal Protection Clause of the Ohio Constitution is coextensive with, or stronger than , that of the federal Constitution." (Emphasis added.) Similarly, in State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 14, 23, a plurality of the court emphasized that the Ohio Constitution is a document of independent force and concluded that even if the federal constitution's Equal Protection Clause did not apply in the case, the equal-protection guarantees of the Ohio Constitution forbid disparate treatment of peace officers through a legislative scheme criminalizing certain conduct while removing due-process protections. And, a fourth justice joined the judgment of the three-justice plurality in Mole on the basis that the Ohio Constitution is a document of independent force. Id. at ¶ 72 (Lanzinger, J., concurring in judgment only).

{¶ 41} Given these recent decisions, which reject the conclusion that the two equal-protection provisions are "functionally equivalent," this court will eventually have to address whether we should treat those provisions identically. Because this issue has not been raised or briefed in this case, however, it is inappropriate for us to settle it at this time.

{¶ 42} For the foregoing reasons, I concur in judgment only.

O'Connor, C.J., concurs in the foregoing opinion.

      This case does not present the question whether the specification provision might violate equal-protection guarantees in another case-for example, when the length of a defendant's presentence incarceration exceeds the length of the nonspecification portion of his sentence. Accordingly, we express no opinion as to any constitutional concerns that might be raised by such a case.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DISCIPLINARY COUNSEL v. GOLD.
    No. 2017-1411
    Supreme Court of Ohio.
    Submitted January 24, 2018 Decided August 14, 2018
    Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, and Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
    Zukerman, Daiker & Lear Co., L.P.A, Larry W. Zukerman, S. Michael Lear, and Brian A. Murray, Cleveland, for respondent.
   Per Curiam.

{¶ 1} Respondent, John Walter Gold, of Hinckley, Ohio, Attorney Registration No. 0078414, was admitted to the practice of law in Ohio in 2004.

{¶ 2} In a complaint certified to the Board of Professional Conduct on December 28, 2016, relator, disciplinary counsel, charged Gold with multiple violations of the Rules of Professional Conduct. The charges arose from Gold's efforts to collect more than $51,000 in unclaimed funds on behalf of a client. The allegations in the complaint included that Gold misappropriated those funds in violation of an agreed court order requiring him to hold them in his client trust account, that he engaged in a pattern of dishonesty and misrepresentation to conceal his misappropriation, and that he failed to maintain required records regarding his client trust account.

{¶ 3} The parties entered into stipulations in which Gold admitted to some misconduct and relator agreed to withdraw the remaining alleged violations. After a hearing, a panel of the board found that Gold had engaged in the stipulated misconduct and dismissed the remaining allegations. The panel recommended that Gold be suspended from the practice of law for two years with the second year stayed on conditions and that upon reinstatement, he be required to serve a one-year period of monitored probation. The board adopted the panel's findings of fact, conclusions of law, and recommended sanction.

{¶ 4} Gold objects to the board's recommended sanction and argues that based on his misconduct, the relevant aggravating and mitigating factors, and this court's precedent, the appropriate sanction for his misconduct is a two-year suspension stayed in its entirety.

{¶ 5} For the reasons that follow, we adopt the board's findings of fact and misconduct, overrule Gold's objection, and suspend him from the practice of law for two years with the second year stayed on the conditions recommended by the board.

Misconduct

{¶ 6} In May 2012, George Daher signed a contingent-fee contract retaining Gold to assist him in recovering $51,032.37 from the Ohio Department of Commerce's Division of Unclaimed Funds.

{¶ 7} In July 2012, Gold filed a complaint in the Cuyahoga County Court of Common Pleas seeking a declaratory judgment that Daher was entitled to the unclaimed funds. Because the source of the unclaimed funds was an insurance claim that preceded Daher's 2010 discharge of his debts in bankruptcy, Gold notified the bankruptcy trustee of the claim. The trustee filed a motion to intervene in the state-court proceeding to represent the bankruptcy estate's interest. Before the state court ruled on the motion to intervene, it granted partial summary judgment to Daher, declaring that he was entitled to make a full claim to the unclaimed funds. The state court later granted the trustee's motion to intervene.

{¶ 8} Meanwhile, the trustee also filed an adversarial complaint against both Daher and the state of Ohio in the reopened bankruptcy proceeding alleging that the funds belonged to the bankruptcy estate. Gold initially contested the complaint, arguing that the state court was the proper forum to determine the bankruptcy estate's interest in the unclaimed funds. But Gold and the trustee eventually signed an agreed order in the bankruptcy court, in which Gold agreed to accept $51,032.37 from the state of Ohio, to hold those funds in his client trust account until the bankruptcy court determined whether and how much of those funds were the property of the bankruptcy estate, and to deliver any funds found to be property of the estate to the trustee. Based on that order, the trustee dismissed his adversarial complaint in the bankruptcy court and all of his claims in the state-court case.

{¶ 9} On October 3, 2013, Gold deposited $53,161.72 into his client trust account, comprised of $51,161.72 of Daher's unclaimed funds and money from another client. The next day, Gold disbursed $5,000 from that account without receiving the bankruptcy court's approval, misappropriating at least $2,869.03 of the unclaimed funds. During that month, he misappropriated and disbursed $8,869.03 of those funds without court approval. In November and December 2013, he misappropriated an additional $9,634.41. In March 2014, Gold gave Daher $2,000 of the disputed funds without receiving the court's approval and misappropriated another $6,536 of the funds.

{¶ 10} As Gold's misappropriations were occurring, the trustee filed a second adversarial complaint in the bankruptcy court, naming Gold and Daher as defendants and asking the court to determine the bankruptcy estate's interest in the funds. Despite having agreed that the bankruptcy court was the proper forum to decide that issue, Gold moved the court to close Daher's bankruptcy case and to dismiss the adversarial complaint. He also argued that the bankruptcy trustee's claims were barred because they were not raised in the state-court proceeding. And contrary to his written contingent-fee contract with Daher, he claimed that he was entitled to an hourly calculation of his legal fee. The court overruled Gold's motions, and it later found in April 2014 that all the funds were the property of the bankruptcy estate and ordered Gold to turn them over to the trustee.

{¶ 11} Gold appealed the bankruptcy court's judgment to the bankruptcy appellate panel of the United States Court of Appeals for the Sixth Circuit. He continued to withdraw additional funds from his client trust account while that appeal was pending. By the end of May 2014, he had misappropriated more than $32,000, and by the time the appellate panel affirmed the bankruptcy court's judgment in December 2014, that number had climbed to nearly $49,000.

{¶ 12} In January 2015, Daher and the trustee reached a settlement that permitted Daher to receive $18,300 of the disputed funds in exchange for his agreement to refrain from any further appeals or litigation. Gold, who had negotiated the agreement on Daher's behalf, refused to sign it because it did not address his attorney fees. He also misappropriated an additional $250 during that month.

{¶ 13} On February 6, 2015, the bankruptcy court approved the settlement and ordered Gold to remit $32,722.37 to the trustee within five days. That day, Gold deposited $8,000 into his client trust account, issued Daher a $6,000 check from that account, and gave him approximately $6,000 in cash. Gold purported to keep $6,300 as a discounted fee under the contingent-fee agreement.

{¶ 14} Because Gold failed to timely remit $32,722.37 to comply with the bankruptcy court's order, the trustee moved the court to hold him in contempt. In response, Gold asserted for the first time that he had more than $49,000 in liens over the funds because he had performed more than 240 hours of work on the matter at $200 per hour-but at that time, the balance in his client trust account was just $50. On July 21, 2015, the bankruptcy court held that Gold was precluded from pursuing his alleged liens because he had failed to timely assert them. The court later denied Gold's motion to reconsider its decision and ordered him to turn over the funds by noon on July 28, but he failed to comply and the trustee again asked the court to hold him in contempt. The court scheduled a hearing and ordered Gold to bring "complete documentation establishing the current location of the funds."

{¶ 15} Gold filed a Fed.R.Civ.P. 60(b) motion for relief from judgment in the closed adversarial proceeding in the bankruptcy court. He also filed a notice of dismissal of all claims in the state-court proceeding and a motion to enforce a charging lien for attorney fees in that case. Although Gold appeared at the bankruptcy-court contempt hearing, he failed to comply with the court's order to provide documentation regarding the location of the funds and it became apparent that he had not maintained adequate records for his client trust account.

{¶ 16} The trustee then filed a separate motion to hold Gold in contempt, in which the trustee requested that the bankruptcy court order an accounting and impose sanctions. Although Gold appeared at the ensuing contempt hearing, he did not bring the documents he had been ordered to produce. The court instructed Gold to find a nearby location to print his bank records, but when the hearing resumed, he had printed just some of the monthly statements for his client trust account. The court questioned Gold about those statements, but he did not directly answer most of the court's questions. The court later issued an opinion admonishing Gold and ordering the contempt hearing adjourned until a later date.

{¶ 17} As these events were occurring, Gold filed a Chapter 7 bankruptcy case of his own. After the court in Gold's personal bankruptcy case ruled in the trustee's favor on several motions filed by the parties, Gold failed to appear at a scheduled hearing, and the court dismissed Gold's personal bankruptcy case based on that failure.

{¶ 18} On November 12, 2015, the bankruptcy court reconvened the contempt hearing in Daher's bankruptcy case. Later that month, the court issued a decision finding Gold in contempt of court and ordering him to pay the trustee's attorney fees. The court also ordered him to file a written accounting of the funds entrusted to him within 14 days and ordered that he was to be fined $50 for each additional day of noncompliance. Gold unsuccessfully attempted to stay the proceedings pending the outcome of his appeal to the United States District Court for the Northern District of Ohio from the contempt order, sought a protective order, and invoked his Fifth Amendment right against self-incrimination in filings in the bankruptcy court. He also renewed his motion to enforce a charging lien in the state-court case.

{¶ 19} More than a year after Gold was first ordered to remit $32,722.37 to the trustee, he had neither transmitted the funds nor submitted an accounting for them. Consequently, on March 1, 2016, the bankruptcy court ordered Gold to pay a $32,722.27 fine, an additional $1,600 for his delay, and the trustee's attorney fees. The court also increased the daily fine for noncompliance to $100. That same day, Gold filed a notice with the bankruptcy court in which he falsely claimed that he had already provided the court with a "full accounting."

{¶ 20} Gold's appeal of the bankruptcy court's contempt ruling to the federal district court was unsuccessful. He then filed a notice of appeal in the United States Court of Appeals for the Sixth Circuit, but Gold and the trustee negotiated a settlement of the contempt matter. The parties in Gold's disciplinary proceeding stipulated (and the board acknowledged) that pursuant to the settlement, Gold agreed to pay the trustee $32,722.27, but neither the agreement nor the bankruptcy court's approval of the agreement appears in the record. As of the date of Gold's disciplinary hearing, he had made an initial lump-sum payment of $16,000 and two monthly payments of $2,000 toward his agreed obligation.

{¶ 21} The parties stipulated and the board found that Gold's conduct violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds belonging to a client or third party in a client trust account separate from the lawyer's own property), 1.15(a)(2) (requiring a lawyer to maintain a record for each client on whose behalf funds are held), 1.15(a)(3) (requiring a lawyer to maintain a record for the lawyer's client trust account, setting forth the name of the account, the date, amount, and client affected by each credit and debit, and the balance in the account), 1.15(a)(4) (requiring a lawyer to maintain all bank statements, deposit slips, and canceled checks, if provided by the bank, for each bank account), 1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of the funds held in the lawyer's client trust account), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law). We agree with the board's findings of fact and misconduct, and consistently with our opinion in Disciplinary Counsel v. Bricker , 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21, we find that Gold's misconduct was sufficiently egregious to support a finding that he violated Prof.Cond.R. 8.4(h).

Recommended Sanction

{¶ 22} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

{¶ 23} As aggravating factors, the parties stipulated and the board found that Gold acted with a dishonest or selfish motive and engaged in multiple offenses. See Gov.Bar R. V(13)(B)(2) and (4). Stipulated mitigating factors include the absence of prior discipline, a timely and good-faith effort to make restitution to Daher, Gold's cooperative attitude toward the disciplinary proceedings once the complaint was filed, and his full and free disclosure to the board. See Gov.Bar R. V(13)(C)(1), (3), and (4). Gold also acknowledged the wrongful nature of the conduct, though the board expressed concerns that Gold may not have acknowledged that some of his filings were frivolous or were attempts to obstruct the bankruptcy proceedings. The board also accepted the parties' stipulation that Gold suffered from adjustment disorder with disturbance of conduct, depressive disorder, anxiety disorder, and a substance-use disorder at all relevant times between 2012 and April 2016 and that the circumstances of those disorders satisfied the criteria to qualify as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7).

{¶ 24} In considering the appropriate sanction for Gold's misconduct, the board examined Disciplinary Counsel v. Marshall , 142 Ohio St.3d 1, 2014-Ohio-4815, 27 N.E.3d 481. Marshall had agreed to represent a client in a personal-injury action pursuant to a contingent-fee contract after the client terminated another attorney's representation. The client's former attorney, who had also taken the case on a contingent-fee basis, informed Marshall that he intended to assert a lien on any settlement proceeds based on his contract or alternatively, on the basis of quantum meruit. Just one month after accepting the representation, Marshall settled the case for $150,000.

{¶ 25} Due to the fee dispute between the two attorneys, the defendants in the personal-injury case submitted the settlement check to the court. At a hearing regarding the attorneys' entitlement to the fees, former counsel argued that his firm had completed 95 percent of the work on the case and was entitled to a fee of approximately $50,000, but the court continued the hearing before Marshall had the opportunity to present her case. The court ordered Marshall to disburse no more than $85,000 to her client and to hold the remaining settlement proceeds in trust until the fee dispute was resolved. Marshall deposited the money into a separate trust account that she had established for the client's benefit and soon disbursed more than $63,000 to her client. But she also violated the court's order by reimbursing her own expenses and accepting $25,000 from the client as a portion of her fee.

{¶ 26} Marshall then engaged in a multipronged effort to avoid the enforcement of former counsel's charging lien, unsuccessfully seeking several writs of prohibition, injunctive relief, and an emergency peremptory writ. She also unsuccessfully sought to disqualify the judge presiding over the case. And before the court could resume the fee-dispute hearing, Marshall distributed the remaining settlement proceeds-more than $60,000 to her client and more than $25,000 to herself. Marshall compounded her misconduct by failing to produce her client-trust-account records for the court's inspection, failing to timely appear for a hearing, refusing to answer the judge's questions, and making false and misleading statements to the court. She was twice held in contempt of court, sought to discharge her obligation to her client's former counsel in bankruptcy, and made unfounded allegations of racial and gender bias against the trial judge.

{¶ 27} The board found that the facts of Gold's misconduct are very similar to those in Marshall . Both Gold and Marshall held tens of thousands of dollars in trust pursuant to court orders pending the judicial resolution of fee or ownership disputes. Each attorney took the funds in violation of the court's orders, failed to comply with court orders to produce required records regarding the funds, and, consequently, was held in contempt of court. There are also common aggravating and mitigating factors, including a dishonest or selfish motive, multiple offenses, the absence of prior discipline, and full and free disclosure.

{¶ 28} The board recognized that Gold established the existence of additional mitigating factors beyond the two that were also present in Marshall -including his timely payment of restitution to Daher and his qualifying mental and substance-use disorders. While the board found that the mitigating evidence warranted a deviation from the presumptive sanction of disbarment, it rejected Gold's proposed sanction of a fully stayed suspension. See, e.g., Disciplinary Counsel v. Bubna , 116 Ohio St.3d 294, 2007-Ohio-6436, 878 N.E.2d 632, ¶ 27 (recognizing that although disbarment is the presumptive sanction for misappropriation, that sanction may be tempered with sufficient evidence of mitigating or extenuating circumstances).

{¶ 29} Instead, the board recommends that we impose a two-year suspension with the second year stayed on conditions, the same sanction imposed in Marshall . Among the recommended conditions are that Gold comply with the contract that he has entered into with the Ohio Lawyers Assistance Program ("OLAP") and comply with any extension of that contract, make full restitution to the trustee in Daher's bankruptcy proceeding, pay all other monetary sanctions imposed on him by the bankruptcy court pursuant to its contempt finding against him, and commit no further misconduct. In addition, the board recommends that upon reinstatement, Gold be required to serve a one-year period of monitored probation focused on a lawyer's proper use of a client trust account.

Objection to Recommended Sanction

{¶ 30} Although Gold acknowledges in his brief that the facts of Marshall are "remarkably similar" to the facts of this case, he objects to the board's recommendation that we impose a sanction comparable to the one we imposed in that case. Based on Gold's perception that his own misconduct is less egregious and that the mitigating factors in his case are more compelling than those in Marshall's case, Gold argues that a fully stayed two-year suspension is the appropriate sanction for his misconduct. But we are not convinced that Gold's misconduct is, in fact, less egregious than Marshall's. Nor are we persuaded that the mitigating factors found by the board or the additional mitigating factors advanced by Gold in support of his objection warrant the imposition of a fully stayed suspension in this case.

{¶ 31} Gold attempts to minimize the severity of his own misconduct by claiming that he was "forthcoming and honest" with the bankruptcy court while noting that Marshall not only made false and misleading statements to a judge but also made false or unsupported allegations of racial and gender bias against a judge. The record, however, demonstrates that in at least one bankruptcy-court filing, Gold falsely claimed that the disputed funds remained in his client trust account-even though bank records clearly show that his client-trust-account balance had dropped to just $50 by the time of that filing-and that in at least one other bankruptcy-court filing, Gold falsely claimed that the disputed funds were in his possession. The record also shows that he failed to comply with the bankruptcy court's orders to bring his complete client-trust-account records to hearings, resisted being placed under oath, and was evasive when answering the court's questions.

{¶ 32} We acknowledge that Gold answered in the affirmative when the bankruptcy-court judge at the August 17, 2015 contempt hearing asked whether he had ever removed the disputed funds from his client trust account. However, the transcript from that hearing also shows that on further questioning, Gold claimed to have no recollection of when he had removed the money, how many times he had made disbursements, or how much of the approximately $51,000 he had disbursed. And although Gold admitted taking more than $10,000, he did not respond when the judge asked whether he had withdrawn more than $15,000. When the judge then asked whether any of the money remained in his account, the transcript shows that there was a "47 second pause" before Gold stated, "I think I need an attorney," and the hearing was continued to a later date.

{¶ 33} On these facts, we cannot find that Gold's conduct before the bankruptcy court was forthcoming and honest. Nor can we agree with his assertion that his misconduct is less egregious than Marshall's because he did not knowingly or recklessly impugn the integrity of a judge with unfounded allegations of bias as Marshall did. Indeed, we find that at least one aspect of Gold's misconduct is more egregious than Marshall's because, despite Gold's arguments to the contrary, the evidence plainly demonstrates that Gold misappropriated funds from the very client he was duty-bound to protect.

{¶ 34} Gold also argues that the balance of the aggravating and mitigating factors in his case weigh more heavily in favor of a fully stayed suspension. He points to the fact that an equal number of aggravating and mitigating factors (four each) were present in Marshall while at least five mitigating factors and just two aggravating factors are present in this case. But Gov.Bar R. V(13)(A) recognizes that each disciplinary case "involves unique facts and circumstances" and Gov.Bar R. V(13)(B) and (C) go on to state that the aggravating and mitigating factors enumerated in the rule "may be considered" in recommending a more or less severe sanction but "shall not control" the discretion of the board. Thus, the board's analysis of the aggravating and mitigating factors-and, in turn, our own-have never come down to a strict mathematical equation. On the contrary, these analyses have always involved a careful balancing of the relative weight of the relevant factors.

{¶ 35} Here, the board found that Gold has no prior disciplinary record in his 13-year legal career, made a timely and good-faith effort to make restitution to Daher, made a full and free disclosure to the board, exhibited a cooperative attitude toward the disciplinary proceedings, and established the existence of qualifying mental and substance-use disorders. Gold's timely restitution to Daher, however, is tempered by the fact that Gold made numerous frivolous filings in multiple courts in an effort to conceal his misconduct and to delay making restitution to the trustee in Daher's bankruptcy proceeding.

{¶ 36} The evidence of Gold's qualifying mental and substance-use disorders is likewise overshadowed by his testimony at his disciplinary hearing, during which he admitted his noncompliance with the five-year OLAP contract he had entered into more than 14 months earlier. Specifically, Gold acknowledged that he was not checking in with OLAP as frequently as required, had not found an Alcoholics Anonymous ("AA") home group, and was not attending AA meetings even though his contract required him to attend at least three per week. His claims that he was "very uncomfortable with AA for a number of reasons" and that he hoped to alter the terms of his OLAP contract so that he could spend more time with his family do not excuse this failure. Moreover, his failure to comply with that contract raises significant concerns about his ability to abide by the terms of other agreements and court orders and, consequently, his ability to practice law in a competent, ethical, and professional manner going forward.

{¶ 37} Gold's misconduct centers around the misappropriation of client funds, for which the presumptive sanction is disbarment, Bubna , 116 Ohio St.3d 294, 2007-Ohio-6436, 878 N.E.2d 632, at ¶ 27, and a course of conduct involving dishonesty, for which we typically impose an actual suspension from the practice of law for an appropriate period of time, Disciplinary Counsel v. Fowerbaugh , 74 Ohio St.3d 187, 191, 658 N.E.2d 237 (1995). We agree that the mitigating factors found by the board warrant a deviation from the presumptive sanction of disbarment. However, they are not sufficient to warrant the imposition of a fully stayed suspension in this case. Therefore, we overrule Gold's objection and adopt the board's findings of fact, conclusions of law, and recommended sanction.

{¶ 38} Accordingly, John Walter Gold is suspended from the practice of law in Ohio for two years with the second year stayed on the conditions that he comply with his OLAP contract and any extension of that contract, make full restitution to the bankruptcy trustee and pay any monetary sanctions imposed by the bankruptcy court in conjunction with his contempt, and engage in no further misconduct. Upon reinstatement to the practice of law, Gold shall serve a one-year period of monitored probation in accordance with Gov.Bar R. V(21) with a focus on the proper use of his client trust account. If Gold fails to comply with a condition of the stay, the stay will be lifted and he will serve the full two-year suspension. Costs are taxed to Gold.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Sadler, Fischer, and DeWine, JJ., concur.

Lisa L. Sadler, J., of the Tenth District Court of Appeals, sitting for O'Neill, J.

      This amount apparently includes interest on the money held by the Division of Unclaimed Funds. See Sogg v. Zurz , 121 Ohio St.3d 449, 2009-Ohio-1526, 905 N.E.2d 187 ; R.C. 169.08(D).

      Gov.Bar R. V(13)(C)(7) provides that a mental-health disorder qualifies as a mitigating factor when all the following factors exist: a diagnosis of a disorder by a qualified healthcare professional, a determination that the disorder contributed to the respondent's misconduct, a sustained period of successful treatment, and a prognosis from a qualified healthcare professional that the attorney will be able to return to the competent, ethical practice of law under specified conditions. The rule also provides that a substance-abuse disorder qualifies as a mitigating factor when all the following factors exist: a diagnosis of a disorder by a qualified chemical-dependency professional, a determination that the disorder contributed to the respondent's misconduct, a certification of successful completion of an approved treatment program, and a prognosis from a qualified chemical-dependency professional that the attorney will be able to return to the competent, ethical practice of law under specified conditions.

      On March 23, 2018, Gold filed a notice of supplemental authority stating that on March 21, 2018, the United States Bankruptcy Court for the Northern District of Ohio, Eastern Division issued an order in In re Daher , case No. 10-17252. In that order, the bankruptcy court recognized that Gold had paid $32,722.37 to the bankruptcy trustee in full settlement of all claims and vacated the two judgments of contempt previously issued against Gold. We deny relator's motion to strike Gold's supplemental authority, as it was permitted under S.Ct.Prac.R. 17.09(B). Although we acknowledge that those judgments have been vacated, the bankruptcy court's order does not affect our analysis.


text:
    CLEVELAND METROPOLITAN BAR ASSOCIATION v. ROSETT.
    No. 2018-0251
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided September 26, 2018
    Jordan D. Lebovitz and Brenda M. Johnson and Heather M. Zirke, Bar Counsel, Cleveland, and Kari L. Burns, Assistant Bar Counsel, for relator.
    Law Office of Philip A. King, L.L.C., and Philip A. King, Worthington, for respondent.
   Per Curiam.

{¶ 1} Respondent, Wendy Sue Rosett, of Shaker Heights, Ohio, Attorney Registration No. 0055870, was admitted to the practice of law in Ohio in 1991.

{¶ 2} We suspended Rosett's license to practice law for one week in November 2015 for her failure to register as an attorney for the 2015-2017 biennium. In re Attorney Registration Suspension of Rosett , 143 Ohio St.3d 1509, 2015-Ohio-4567, 39 N.E.3d 1277 ; In re Reinstatement of Rosett , 144 Ohio St.3d 1432, 2015-Ohio-5363, 42 N.E.3d 766.

{¶ 3} Rosett serves as a part-time magistrate for the Shaker Heights Municipal Court and also runs a solo practice out of her home. Relator, Cleveland Metropolitan Bar Association, charged Rosett with multiple acts of misconduct in a five-count complaint certified to the Board of Professional Conduct on June 2, 2017. The parties stipulated that Rosett neglected five separate client matters, failed to maintain required trust-account records, and failed to adequately protect client funds held in her client trust account. A panel of the board conducted a hearing, adopted the parties' stipulations of fact and misconduct, unanimously dismissed several other alleged rule violations, and recommended that we suspend Rosett from the practice of law for one year, with the entire suspension stayed on conditions. The board adopted the panel's report and recommendation in its entirety, and no objections have been filed. {¶ 4} Having independently reviewed the record and the sanctions imposed for comparable conduct, we adopt the board's findings of fact and conclusions of law and suspend Rosett from the practice of law for one year, with the entire suspension stayed on the conditions recommended by the board.

Misconduct

Count I: Neglect and Client-Trust-Account Violations

{¶ 5} Richard Krahn retained Rosett in November 2013 to refile a complaint to collect unpaid commissions against his former employer. Mediation failed, and neither Rosett nor Krahn appeared for a scheduled arbitration hearing-Rosett claimed that she had not received notice. The arbitrator ruled in the employer's favor and denied Rosett's motion for reconsideration.

{¶ 6} Rosett claimed that on July 30, 2014, approximately one week after receiving the denial of the motion for reconsideration, she sent a letter to Krahn informing him of the missed arbitration hearing and the adverse decision in his case. The letter also allegedly instructed Krahn to contact Rosett immediately regarding a possible appeal. Krahn, however, denied having received any such correspondence. He had no further contact with Rosett until he arranged to meet with her in July 2015.

{¶ 7} Rosett stipulated that during her representation of Krahn, she not only failed to maintain a client ledger but also failed to perform monthly reconciliations of her client trust account. She acknowledged that when Krahn demanded a refund of his attorney fees, she told him that he owed her additional fees for services rendered but that she elected not to pursue recovery. After Krahn obtained a $1,750 default judgment against Rosett, she satisfied the judgment and also reimbursed him for his attorney fees and litigation expenses.

{¶ 8} The parties stipulated and the board found that Rosett's conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.15(a)(2) (requiring a lawyer to maintain a record for each client on whose behalf funds are held), and 1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of the funds held in the lawyer's client trust account).

Counts II, III, and V: Neglect of Additional Client Matters

{¶ 9} While investigating Krahn's grievance, relator discovered that Rosett had neglected the legal matters of two additional clients. In a foreclosure action against client Larry Sims, she failed to timely file an answer, failed to appear at a default-judgment hearing, and failed to timely appeal the default judgment. She also failed to attend a scheduled mediation session and failed to timely file an answer on behalf of foreclosure client Lynn Tezak. Rosett also reported that she had missed two filing deadlines in other client matters. Based on these facts, the parties stipulated and the board found that Rosett committed three additional violations of Prof.Cond.R. 1.3. Count IV: Failure to Safeguard Client Funds

{¶ 10} Rosett represented Shayna Brooks in an eviction matter. In September 2015, Rosett allowed Brooks to direct a $700 payday-loan deposit to her client trust account because Brooks did not have a checking account. The lender made a $700 wire transfer to Rosett's client trust account on September 11, 2015, and Rosett issued a $700 check from her client trust account to Brooks that same day. Rosett consented to a second deposit of $700 the following week and issued three checks to Brooks in anticipation of the deposit-one from Rosett's personal account and two from her client trust account. But the lender never made the second deposit, and Rosett's client trust account became overdrawn. A second overdraft occurred several weeks later when the lender attempted to withdraw $885.06 from Rosett's client trust account. Rosett reimbursed all bank fees from her personal funds, and no client funds were harmed.

{¶ 11} The parties stipulated and the board found that this conduct violated Prof.Cond.R. 1.15(a) (requiring client funds to be properly safeguarded in a client trust account).

Sanction

{¶ 12} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. Because each disciplinary case is unique, however, we may take all the relevant factors into account when determining which sanction to impose in any particular case. Columbus Bar Assn. v. Watson , 144 Ohio St.3d 317, 2015-Ohio-4613, 42 N.E.3d 752, ¶ 7.

{¶ 13} As aggravating factors, the parties stipulated and the board found that Rosett has prior discipline and committed multiple offenses. See Gov.Bar R. V(13)(B)(1) and (4). The board adopted the parties' stipulated mitigating factors, which include the absence of a dishonest or selfish motive and Rosett's good character. See Gov.Bar R. V(13)(C)(2) and (5). The board also found that Rosett's timely, good-faith effort to rectify the consequences of her misconduct was a mitigating factor. See Gov.Bar R. V(13)(C)(3).

{¶ 14} While the board recognized that Rosett had struggled for 18 years to balance the demands of her private practice with her duties as a part-time magistrate for the Shaker Heights Municipal Court, it also determined that she had taken active steps to rectify her inattentiveness and poor office management in the wake of this disciplinary action. For example, she reduced her private caseload and revised her magistrate schedule, which was once three days per week, to two ten-hour days. She also arranged to employ a part-time assistant to work with her on an as-needed basis and has adopted written policies and procedures to improve her ability to manage her practice. Rosett also testified that she would welcome the assistance of a monitoring attorney as one of the sanction conditions.

{¶ 15} The board recommends that Rosett be suspended from the practice of law for one year, with the entire suspension stayed on conditions that would require her to complete additional continuing-legal-education ("CLE") courses that are focused on law-office management, serve a period of monitored probation, and commit no further misconduct. In support of this sanction, the board cites three cases in which we imposed one-year suspensions stayed on similar conditions for comparable misconduct. See Toledo Bar Assn. v. Crosser , 147 Ohio St.3d 499, 2016-Ohio-8257, 67 N.E.3d 789 (attorney neglected a client's legal matter and attempted to conceal that neglect); Trumbull Cty. Bar Assn. v. Yakubek , 142 Ohio St.3d 455, 2015-Ohio-1570, 32 N.E.3d 440 (attorney neglected a client's bankruptcy matter and failed to reasonably communicate with the client); Allen Cty. Bar Assn. v. Brown , 124 Ohio St.3d 530, 2010-Ohio-580, 925 N.E.2d 112 (attorney accepted retainer but failed to perform any of the contracted work and neglected a second client's legal matter).

{¶ 16} Having independently reviewed the record and the sanctions imposed for comparable conduct, we adopt the board's findings of fact and conclusions of law, and we suspend Rosett from the practice of law for one year, with the entire suspension stayed on the conditions recommended by the board.

{¶ 17} Accordingly, Wendy Sue Rosett is suspended from the practice of law in Ohio for one year, with the suspension stayed in its entirety on the conditions that, in addition to the CLE requirements of Gov.Bar R. X, she complete six hours of CLE during her suspension to be focused on law-office management, serve a one-year period of monitored probation in accordance with Gov.Bar R. V(21), and engage in no further misconduct. If Rosett fails to comply with any condition of the stay, the stay will be lifted, and she will serve the entire one-year suspension. Costs are taxed to Rosett.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.

      We also suspended Rosett's license for one week in December 2017 for her failure to complete the requisite hours of continuing legal education ("CLE"), to timely file three final reporting transcripts, and to comply with prior sanctions issued by the CLE commission. In re Continuing Legal Edn. Suspension of Rosett , 151 Ohio St.3d 1464, 2017-Ohio-9035, 87 N.E.3d 1264. Because this suspension occurred after the panel hearing, the Board of Professional Conduct did not consider it as an aggravating factor in this case.


text:
    GC NET LEASE @ (3) (WESTERVILLE) INVESTORS, L.L.C., Appellant, v. FRANKLIN COUNTY BOARD OF REVISION et al., Appellees.
    No. 2017-0792
    Supreme Court of Ohio.
    Submitted June 12, 2018 Decided September 26, 2018
    Sleggs, Danzinger & Gill, Co., L.P.A., and Todd W. Sleggs, Cleveland, for appellant.
    Rich & Gillis Law Group, L.L.C., and Kimberly G. Allison, Dublin, for appellee Westerville City Schools Board of Education.
   Per Curiam.

{¶ 1} At issue in this real-property tax case is the tax-year-2014 value of a single-tenant office building occupied by J.P. Morgan Chase under a net lease. Under R.C. 5713.03, the fee-simple estate must be valued as if unencumbered. The question presented is whether the Board of Tax Appeals ("BTA") acted reasonably and lawfully by adopting the property's sale price without giving full consideration to the appraisal offered by the property owner.

{¶ 2} In Westerville City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , --- Ohio St.3d ----, 2018-Ohio-3855, --- N.E.3d ----, we considered the same issue with regard to the valuation of the same property for tax year 2013. In that case, we applied Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, held that the BTA had not properly performed its fact-finding duties, vacated the BTA's decision, and remanded the cause for further proceedings. Because we draw the same conclusion here, we vacate the BTA's decision in this case and remand the cause for further proceedings.

I. Background

{¶ 3} On March 31, 2015, appellant, GC Net Lease @ (3) (Westerville) Investors, L.L.C., the property owner, filed a complaint challenging the auditor's value of $35,500,000 and seeking a reduction to a value of $28,000,000 for tax year 2014.

{¶ 4} Appellee Franklin County Board of Revision ("BOR") held a hearing at which GC Net Lease presented the appraisal report and testimony of Samuel D. Koon, a member of the Appraisal Institute. By reconciling his valuations under an income approach and a sales-comparison approach, Koon arrived at an opinion of value of $28,500,000 as of January 1, 2014. At the hearing, appellee Westerville City Schools Board of Education ("BOE") presented the deed, conveyance-fee statement, and purchase agreement relating to a November 2013 sale of the property for $44,500,000. The BOR noted the appraisal but adopted the sale price of $44,500,000 as the property value for 2014 and 2015.

{¶ 5} GC Net Lease appealed, and at the BTA hearing, the property owner again presented Koon's testimony and introduced his appraisal report and the BOE again introduced the conveyance-fee statement and deed for the November 2013 sale. In support of its decision, the BTA cited Berea -era caselaw. See Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision , 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782. In particular, it quoted the pronouncement that " 'it would never be proper to adjust a recent arm's-length sale price because of an encumbrance.' " BTA No. 2016-540, 2017 WL 2269667, *4 (May 17, 2017), quoting HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 138 Ohio St.3d 223, 2014-Ohio-523, 5 N.E.3d 637, ¶ 24, citing Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision , 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶ 25-26. Later in its decision, the BTA said that because the sale price is the best evidence of value, it would not consider Koon's appraisal report. As it had in Westerville City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , BTA Nos. 2015-828 and 2015-1165, 2016 WL 3401901 (May 19, 2016), the BTA cited Pingue v. Franklin Cty. Bd. of Revision , 87 Ohio St.3d 62, 64, 717 N.E.2d 293 (1999), in support of this statement.

{¶ 6} But as the BOE points out, there is a notable difference between the BTA decision on appeal in this case and the BTA decision on appeal in Westerville City Schools , --- Ohio St.3d ----, 2018-Ohio-3855, --- N.E.3d ----. In the decision on appeal in this case, the BTA indicated that it took the appraisal evidence into account when it stated, "[I]t would be improper to adjust the $44,500,000 sale price because of the lease, particularly in this instance when the evidence suggested that the underlying lease was at, or below, market rents." 2017 WL 2269667 at *4.

{¶ 7} GC Net Lease appeals from the BTA's adoption of the $44,500,000 sale price as the tax-year-2014 value of the property.

II. Analysis

{¶ 8} The issue in the present appeal was also presented in Westerville City Schools , --- Ohio St.3d ----, 2018-Ohio-3855, --- N.E.3d ----, and we rely on the reasoning in that opinion in vacating the BTA's decision in this case and remanding the cause to the BTA.

{¶ 9} The BOE contends that, unlike its decision in Westerville City Schools , the BTA's decision in this case complied with Terraza 8 by considering the appraisal evidence. We disagree. The BTA's finding that the "lease was at, or below, market rents," 2017 WL 2269667 at *4, in no way constitutes a full consideration of the appraisal evidence as contemplated by Terraza 8 . For one thing, the brief statement appears between pronouncements that indicate that the appraisal was not relevant and would not be considered.

{¶ 10} More importantly, the difference between actual rent and market rent is only one factor that might make an existing lease affect the sale price. To be sure, the amount a building tenant pays in rent generally affects what a potential purchaser would pay to own the building. But the amount of rent charged under a lease has to be considered in the context of at least two other factors: the creditworthiness of the tenant and whether the lease at issue is a net lease, under which the tenant defrays the expenses relating to the real estate. Here, the appraisal indicates that the November 2013 purchase price of $44,500,000 relates to a property occupied by J.P. Morgan Chase, as tenant under a 15-year net lease, paying rent that is at or below a market rate. The convergence of these circumstances could affect the price a buyer would pay for the property, possibly elevating it above what the same buyer would pay for the unencumbered fee-simple estate.

{¶ 11} Finally, in Westerville City Schools , --- Ohio St.3d ----, 2018-Ohio-3855, --- N.E.3d ----, we held that the 2012 Am.Sub.H.B. No. 487 amendments to R.C. 5713.03 made appraisal evidence admissible and competent alongside sale-price evidence in determining a property's value. A cursory mention of one aspect of the appraisal does not constitute a full consideration of the evidentiary value of the appraisal.

III. Conclusion

{¶ 12} For the foregoing reasons, we vacate the decision of the BTA and remand the cause for further proceedings. On remand, the BTA must consider the appraisal evidence alongside the sale price as evidence of the property's value and give due consideration to whether the sale price reflects the value of the unencumbered fee-simple estate. The BTA must decide the cause on the existing record, Bronx Park S. III Lancaster, L.L.C. v. Fairfield Cty. Bd. of Revision , 153 Ohio St.3d 550, 2018-Ohio-1589, 108 N.E.3d 1079 ¶ 13, but must consider any timely objections that were previously advanced by the BOE against the appraisal evidence.

Decision vacated and cause remanded.

O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.

Kennedy, J., concurs in judgment only.

      In its decision, the BTA vacated the BOR's determination of value for 2015, given that that determination was issued on March 9, 2016, before the period for filing a complaint against the valuation for 2015 had expired. BTA No. 2016-540, 2017 WL 2269667 (May 17, 2017). That ruling has not been challenged on appeal.