[Cite as Parma v. DeCarlo, 2014-Ohio-2401.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100479
CITY OF PARMA PLAINTIFF-APPELLEE
vs.
ANTHONY D. DECARLO DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Parma Municipal Court Case No. 12-CRB-06388
BEFORE: Celebrezze, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 5, 2014 ATTORNEY FOR APPELLANT
Terry H. Gilbert Friedman & Gilbert, Attorneys at Law 55 Public Square Suite 1055 Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Thomas E. Conway Special Prosecutor for the City of Parma 1370 Ontario Street Suite 2000 Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.: {¶1} Defendant-appellant, Anthony D. DeCarlo, appeals from his convictions
following a no contest plea to two counts of falsification in the Parma Municipal Court.
After a careful review of the record and relevant case law, we affirm the trial court’s
judgment.
I. Procedural and Factual History
{¶2} On December 2, 2009, appellant was terminated from his employment as a
Parma firefighter after a random drug test proved positive for cocaine. A grievance was
filed, and an arbitration hearing was conducted on August 20, 2010. At that hearing and
while under oath, appellant answered questions relative to his use of cocaine while
employed as a Parma firefighter. Relevant to this appeal, the following statements were
made:
COUNSEL: When did you use cocaine while you were a member of the Parma Fire Department?
DECARLO: On January of ‘09 and again in October, which was three days, roughly before the test.
COUNSEL: Did you use cocaine on both occasions on a weekend?
DECARLO: Correct.
***
COUNSEL: Did you use cocaine while you were on the TEMS unit?
DECARLO: No sir, I was off the TEMS unit. It was a year and a half prior to this incident. {¶3} At the time of the hearing, it is maintained that the city of Parma (the “City”)
had no information or evidence that the statements made by DeCarlo were anything but
truthful.
{¶4} On April 23, 2012, Greg Baeppler, the safety director for the City, received
information indicating that DeCarlo may have committed a criminal offense; namely, that
he lied while under oath during the August 20, 2010 arbitration hearing. The source of
the information was an anonymous letter that read as follows:
Director Baeppler,
As a concerned citizen, I was dismayed to read about Firefighter Anthony DeCarlo, who had successfully beaten the system, though he is an admitted liar and drug user. While a sympathetic court system may give you another chance, I cannot understand why he is given more than one chance to change. The Summit court system (DR-2007-07-2245) shows that in 2007 that drug addiction was the primary cause of his failed marriage, and in fact, a recording of the proceedings, with his spouse under oath, details the addiction and subsequent rehabilitation he had to perform.
Mr. DeCarlo’s history of addiction and rehab show a continuous and constant weakness for illegal drugs. The recording is on file with the Summit County Courts.
{¶5} On receiving this information, the safety director took steps to have the
matter investigated. Thereafter, police investigators learned that, contrary to his
testimony at the August 20, 2010 arbitration hearing, appellant testified during an August
17, 2007 domestic relations court hearing that he had used cocaine while working as a
member of the TEMS unit in March 2007.
{¶6} On July 31, 2012, a special prosecutor was hired by the City to determine
whether probable cause existed to charge DeCarlo with a criminal offense. On August 13, 2012, appellant was cited in Parma M.C. No. 12-CRB-04125 with two counts of
falsification in violation of section 606.10(a)(1) of the Parma Codified Ordinances for
allegedly making false statements during the August 20, 2010 arbitration hearing
{¶7} On August 16, 2012, appellant entered pleas of not guilty. On October 17,
2012, appellant filed a motion to dismiss arguing that the complaints were defective and
vague. The City responded by dismissing case No. 12-CRB-04125 without prejudice on
December 17, 2012, and recharging appellant with two counts of falsification in Parma
M.C. No. 12-CRB-06388 on the same day.
{¶8} On February 11, 2013, appellant argued that the amended complaints should
be dismissed because they were brought after the two-year statute of limitations period
prescribed by R.C. 2901.13(A)(1)(b). The trial court disagreed, finding that pursuant to
R.C. 2901.13(F), the two-year statute of limitations did not begin running until April 23,
2012, the date City officials were first provided with information that appellant may have
made false statements while under oath.
{¶9} On September 9, 2013, appellant pled no contest to the falsification charges
and was found guilty by the trial court. At sentencing, the trial court imposed a $200 fine
and sentenced appellant to 180 days in jail for each falsification charge. However, the
court suspended his jail time and placed appellant on community control for one year.
{¶10} Appellant now brings this timely appeal, raising one assignment of error for
review.
II. Law and Analysis {¶11} In his sole assignment of error, appellant argues that “the trial court erred by
denying [his] motion to dismiss based on the expiration of the statute of limitations.”
{¶12} “Generally, statutes of limitations begin to run when the crime is complete.”
State v. Swartz, 88 Ohio St.3d 131, 133, 723 N.E.2d 1084 (2000), citing Toussie v.
United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). Therefore,
unless charges are commenced against the accused prior to the expiration of the limitation
period, the state is barred from prosecuting the accused. R.C. 2901.13(A)(1).
{¶13} In the instant matter, appellant was charged with two misdemeanor counts
of falsification. Pursuant to R.C. 2901.13(A)(1)(b), a prosecution on misdemeanor
charges is barred unless it is commenced within two years after the offense was
committed. Thus, appellant contends that because the alleged acts of falsification
occurred on August 20, 2010, the applicable statute of limitations period expired on
August 20, 2012, well before the City filed its amended complaints on December 17,
2012.
{¶14} However, “the General Assembly has afforded the state certain statutory
exceptions to the absolute bar, and has done so in the form of specialized rules and tolling
provisions.” State v. Hensley, 59 Ohio St.3d 136, 137, 571 N.E.2d 711 (1991). One of
these exceptions is the tolling provision found in R.C. 2901.13(F), which provides that
the “period of limitation shall not run during any time when the corpus delicti remains
undiscovered.” The language in R.C. 2901.13(F) is unequivocal and contains no exception, qualification, or limitation regarding the offense to which it applies. See
Hensley at 137.
{¶15} The Supreme Court of Ohio has stated that the “corpus delicti” of a crime is
“the body or substance of the crime and usually [has] two elements: (1) the act itself and
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Parma v. DeCarlo, 2014-Ohio-2401.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100479
CITY OF PARMA PLAINTIFF-APPELLEE
vs.
ANTHONY D. DECARLO DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Parma Municipal Court Case No. 12-CRB-06388
BEFORE: Celebrezze, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 5, 2014 ATTORNEY FOR APPELLANT
Terry H. Gilbert Friedman & Gilbert, Attorneys at Law 55 Public Square Suite 1055 Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Thomas E. Conway Special Prosecutor for the City of Parma 1370 Ontario Street Suite 2000 Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.: {¶1} Defendant-appellant, Anthony D. DeCarlo, appeals from his convictions
following a no contest plea to two counts of falsification in the Parma Municipal Court.
After a careful review of the record and relevant case law, we affirm the trial court’s
judgment.
I. Procedural and Factual History
{¶2} On December 2, 2009, appellant was terminated from his employment as a
Parma firefighter after a random drug test proved positive for cocaine. A grievance was
filed, and an arbitration hearing was conducted on August 20, 2010. At that hearing and
while under oath, appellant answered questions relative to his use of cocaine while
employed as a Parma firefighter. Relevant to this appeal, the following statements were
made:
COUNSEL: When did you use cocaine while you were a member of the Parma Fire Department?
DECARLO: On January of ‘09 and again in October, which was three days, roughly before the test.
COUNSEL: Did you use cocaine on both occasions on a weekend?
DECARLO: Correct.
***
COUNSEL: Did you use cocaine while you were on the TEMS unit?
DECARLO: No sir, I was off the TEMS unit. It was a year and a half prior to this incident. {¶3} At the time of the hearing, it is maintained that the city of Parma (the “City”)
had no information or evidence that the statements made by DeCarlo were anything but
truthful.
{¶4} On April 23, 2012, Greg Baeppler, the safety director for the City, received
information indicating that DeCarlo may have committed a criminal offense; namely, that
he lied while under oath during the August 20, 2010 arbitration hearing. The source of
the information was an anonymous letter that read as follows:
Director Baeppler,
As a concerned citizen, I was dismayed to read about Firefighter Anthony DeCarlo, who had successfully beaten the system, though he is an admitted liar and drug user. While a sympathetic court system may give you another chance, I cannot understand why he is given more than one chance to change. The Summit court system (DR-2007-07-2245) shows that in 2007 that drug addiction was the primary cause of his failed marriage, and in fact, a recording of the proceedings, with his spouse under oath, details the addiction and subsequent rehabilitation he had to perform.
Mr. DeCarlo’s history of addiction and rehab show a continuous and constant weakness for illegal drugs. The recording is on file with the Summit County Courts.
{¶5} On receiving this information, the safety director took steps to have the
matter investigated. Thereafter, police investigators learned that, contrary to his
testimony at the August 20, 2010 arbitration hearing, appellant testified during an August
17, 2007 domestic relations court hearing that he had used cocaine while working as a
member of the TEMS unit in March 2007.
{¶6} On July 31, 2012, a special prosecutor was hired by the City to determine
whether probable cause existed to charge DeCarlo with a criminal offense. On August 13, 2012, appellant was cited in Parma M.C. No. 12-CRB-04125 with two counts of
falsification in violation of section 606.10(a)(1) of the Parma Codified Ordinances for
allegedly making false statements during the August 20, 2010 arbitration hearing
{¶7} On August 16, 2012, appellant entered pleas of not guilty. On October 17,
2012, appellant filed a motion to dismiss arguing that the complaints were defective and
vague. The City responded by dismissing case No. 12-CRB-04125 without prejudice on
December 17, 2012, and recharging appellant with two counts of falsification in Parma
M.C. No. 12-CRB-06388 on the same day.
{¶8} On February 11, 2013, appellant argued that the amended complaints should
be dismissed because they were brought after the two-year statute of limitations period
prescribed by R.C. 2901.13(A)(1)(b). The trial court disagreed, finding that pursuant to
R.C. 2901.13(F), the two-year statute of limitations did not begin running until April 23,
2012, the date City officials were first provided with information that appellant may have
made false statements while under oath.
{¶9} On September 9, 2013, appellant pled no contest to the falsification charges
and was found guilty by the trial court. At sentencing, the trial court imposed a $200 fine
and sentenced appellant to 180 days in jail for each falsification charge. However, the
court suspended his jail time and placed appellant on community control for one year.
{¶10} Appellant now brings this timely appeal, raising one assignment of error for
review.
II. Law and Analysis {¶11} In his sole assignment of error, appellant argues that “the trial court erred by
denying [his] motion to dismiss based on the expiration of the statute of limitations.”
{¶12} “Generally, statutes of limitations begin to run when the crime is complete.”
State v. Swartz, 88 Ohio St.3d 131, 133, 723 N.E.2d 1084 (2000), citing Toussie v.
United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). Therefore,
unless charges are commenced against the accused prior to the expiration of the limitation
period, the state is barred from prosecuting the accused. R.C. 2901.13(A)(1).
{¶13} In the instant matter, appellant was charged with two misdemeanor counts
of falsification. Pursuant to R.C. 2901.13(A)(1)(b), a prosecution on misdemeanor
charges is barred unless it is commenced within two years after the offense was
committed. Thus, appellant contends that because the alleged acts of falsification
occurred on August 20, 2010, the applicable statute of limitations period expired on
August 20, 2012, well before the City filed its amended complaints on December 17,
2012.
{¶14} However, “the General Assembly has afforded the state certain statutory
exceptions to the absolute bar, and has done so in the form of specialized rules and tolling
provisions.” State v. Hensley, 59 Ohio St.3d 136, 137, 571 N.E.2d 711 (1991). One of
these exceptions is the tolling provision found in R.C. 2901.13(F), which provides that
the “period of limitation shall not run during any time when the corpus delicti remains
undiscovered.” The language in R.C. 2901.13(F) is unequivocal and contains no exception, qualification, or limitation regarding the offense to which it applies. See
Hensley at 137.
{¶15} The Supreme Court of Ohio has stated that the “corpus delicti” of a crime is
“the body or substance of the crime and usually [has] two elements: (1) the act itself and
(2) the criminal agency of the act.” Hensley at 138, citing State v. Black, 54 Ohio St.2d
304, 307, 376 N.E.2d 948 (1978).
{¶16} In the case at hand, the trial court determined that because the criminal
nature, or the corpus delicti, of appellant’s testimony at the arbitration hearing was not
discovered until April 23, 2012, the tolling provision of subsection (F) applied, and
therefore the City had until April 23, 2014, to bring a valid complaint.
{¶17} In challenging the trial court’s application of R.C. 2901.13(F), appellant
relies on the Ohio Supreme Court’s decision in State v. Climaco, Climaco, Seminatore,
Lefkowitz & Garofoli Co., L.P.A., 85 Ohio St.3d 582, 709 N.E.2d 1192 (1999). In
Climaco, the state charged a law firm with falsification (R.C. 2921.13(A)(7)) on February
1, 1996, for improperly reporting honoraria in 1993. Id. at 584. The law firm argued
that the two-year statute of limitations for a misdemeanor offense found in R.C.
2901.13(A)(2) had expired. The state argued that R.C. 2901.13(F) applied to toll the
running of the two-year statute of limitations because the criminal agency of the
falsification did not surface until February 1994, and therefore the February 1, 1996
indictment was timely filed. Ultimately, the trial court denied the motion, and the
appellate court affirmed. {¶18} Citing Hensley, supra, the Climaco court noted that the primary purpose of
criminal statutes of limitations is to limit exposure to criminal prosecution to a fixed
period of time. Id. at 586. Additionally, it encourages law enforcement to expeditiously
investigate suspected criminal activity. Id.
{¶19} The court declined to find that the tolling provision in R.C. 2901.13(F)
applied, in part, because the alleged crime was reported in the newspapers in February
1994, prior to the expiration of the limitations period. Id. at 587. The court explained
that the state had, at the latest, “everything it needed to indict” on March 22, 1994. The
court generally noted that subsection (F) would render the applicable statute of limitations
meaningless if it controlled in all circumstances. Notably, the court did not explain when
R.C. 2901.13(F) would be applicable.1
{¶20} After due consideration, we find Climaco to be distinguishable from the
case at hand. Unlike Climaco, there was no media spotlight or report to alert the
authorities or parties to investigate the truthfulness of appellant’s August 20, 2010
testimony. See State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶
37. Instead, the “criminal agency” of the falsification charges, i.e. the false nature of
appellant’s testimony, was not known until, at the earliest, April 23, 2012, when the
City’s safety director received an anonymous letter indicating that appellant had lied
1 The dissent in Climaco disagreed with the court’s holding in regard to R.C. 2901.13(F), stating that the majority read the governing two-year statute of limitations for misdemeanors “in isolation” and “in doing so, disregarded the clear statutory language employed by the General Assembly in R.C. 2901.13(F).” Climaco at 589 (Moyer, C.J., dissenting; Cook, J., concurring in dissenting opinion). under oath about his drug use. Until the safety director received incriminating
information, the City had no basis or reason to believe that appellant had made false
statements under oath. Accordingly, the policy reasons supporting Climaco do not exist
here.
{¶21} Moreover, there is no evidence in this case that the City delayed
investigating the false nature of appellant’s testimony. Once the anonymous letter was
received, the matter was immediately investigated by police investigators and a special
prosecutor. In turn, the police investigators and the special prosecutor discovered
corroborating evidence of appellant’s false testimony. In light of this information,
complaints were filed against appellant on August 13, 2012, and subsequently amended
complaints were filed on December 17, 2012. Under these circumstances, we hold that
Climaco is not controlling. See Cook at ¶ 37 (limiting Climaco to its particular set of
facts).
III. Conclusion
{¶22} Based on the foregoing, we find that the trial court properly denied
appellant’s February 11, 2013 motion to dismiss. In our view, the statute of limitations
did not begin to run until, at the earliest, April 23, 2012, on the discovery of the corpus
delicti of the falsification charges. See, e.g., State v. Caver, 8th Dist. Cuyahoga No.
91443, 2009-Ohio-1272, ¶ 28. Accordingly, the City timely commenced its prosecution
within the two-year statute of limitations period by filing its complaints against appellant
on December 17, 2012. {¶23} Appellant’s sole assignment of error is overruled.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Parma
Municipal Court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to the trial
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR