State v. Jabbar

2021 Ohio 1191

• Court: Ohio Court of Appeals
• Decided: April 8, 2021
• Docket: 109642
• Status: Published

Opinion

[Cite as State v. Jabbar, 2021-Ohio-1191.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109642 v. :

ALI JABBAR, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 8, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-642285-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kerry A. Sowul, Assistant Prosecuting Attorney, for appellee.

Michael J. Goebl, for appellant.

FRANK D. CELEBREZZE, JR., J.:

Defendant-appellant Ali Jabbar brings this appeal challenging his

conviction for unlawful sexual conduct with a minor. Appellant argues that the trial

court erred in denying his motion to dismiss for preindictment delay without holding an evidentiary hearing. After a thorough review of the record and law, this

court affirms.

I. Factual and Procedural History

The instant matter pertains to an incident that occurred on March 29,

2004, during which appellant committed sex offenses against the victim, J.G. At the

time of the incident, appellant was 19 years old and the victim was 13 years old.

A DNA match from the victim’s rape kit identified appellant as the

perpetrator of the sex offenses. After obtaining the DNA match, the state contacted

the victim, and she confirmed that she did not consent to the sexual offenses

committed by appellant.

On August 1, 2019, in Cuyahoga C.P. No. CR-19-642285-A, appellant

was charged in a two-count indictment with: (1) rape, a first-degree felony in

violation of R.C. 2907.02(A)(2), with a sexually violent predator specification, and

(2) unlawful sexual conduct with a minor, a fourth-degree felony in violation of R.C.

2907.04(A). Appellant pled not guilty to the indictment during his August 15, 2019

arraignment.

On December 3, 2019, appellant filed a motion to dismiss the

indictment based on preindictment delay. Therein, appellant argued that he

suffered actual prejudice as a result of the 15-year delay between the March 2004

incident and the August 2019 indictment. Appellant contends that the victim’s

account of the events leading up to the March 2004 encounter with the victim

“mentions several witnesses and locations which could have been investigated in 2004, but are no longer available.” Regarding the witnesses and locations that could

have been investigated, the victim reported that she was with her best friend when

she first met appellant; appellant gave his number to the victim’s friend Precious;

and the victim and appellant may have been with the victim’s friends at McDonald’s

and a fashion show at Shaw High School before the sexual conduct occurred.

Appellant stated that the sexual conduct occurred either inside of appellant’s

friend’s house, or in appellant’s truck outside of appellant’s friend’s house.

In his motion to dismiss, appellant did not demonstrate why these

potential witnesses were no longer available, or indicate what, if any, efforts had

been made to locate these witnesses. Appellant claims that his friend whose house

the sexual conduct occurred at can no longer be identified, but appellant does not

explain why his friend cannot be identified. Appellant argued that had defense

counsel been able to speak with these witnesses, “they may have aided in the

understanding of what had happened between [appellant] and [the victim].”

(Emphasis added.) Finally, appellant asserted that “important witnesses are

unavailable, unidentifiable, or unable to recall the events of a day over fifteen [years]

in the past.” Appellant requested a hearing on his motion to dismiss.

The state filed a brief in opposition to appellant’s motion to dismiss on

January 8, 2020. Therein, the state argued that appellant failed to meet his burden

of demonstrating actual prejudice, and as a result, the burden did not shift to the

state to demonstrate that the delay in prosecution was justified. Even if appellant

met his burden, the state argued that the delay in prosecution was justified and based upon new evidence — the DNA match from the victim’s rape kit identifying

appellant as the perpetrator. The state asserted that “additional DNA testing had to

be conducted to identify [appellant], specifically Y-STR testing had to be conducted.

The testing was only able to be done once [appellant] was identified and a DNA swab

was taken from [appellant] and submitted to BCI.”

On January 14, 2020, the trial court converted the trial date, set for

February 4, 2020, to a motion hearing “[a]t the request of [appellant].” (Emphasis

added.) During the February 4, 2020 hearing, however, appellant’s motion to

dismiss based on preindictment delay was not addressed by the parties or the trial

court. As set forth in further detail below, the record reflects that appellant

effectively or implicitly withdrew his motion to dismiss and accepted the plea

agreement offered by the state. Furthermore, the trial court did not specifically rule

on appellant’s motion to dismiss at this time, either on the record or in a journal

entry.1

During the February 4, 2020 hearing, the parties presented a plea

agreement to the trial court. Appellant pled guilty to the unlawful sexual conduct

offense charged in Count 2. Count 1 was nolled. The trial court advised appellant

that he would be classified as a sexual predator.

On February 6, 2020, the trial court sentenced appellant to nine

months in prison. The trial court ordered appellant’s nine-month sentence to run

This court presumes that the trial court denied the motion to dismiss. See State 1

v. Wilson, 8th Dist. Cuyahoga No. 105876, 2018-Ohio-3666, ¶ 5. consecutively to appellant’s 13-year prison sentence in Cuyahoga C.P. No. CR-11-

551246-A.2 The trial court classified appellant a sexual predator and reviewed

appellant’s reporting requirements. Although the trial court did not specifically rule

on appellant’s motion to dismiss, the trial court’s February 6, 2020 sentencing

journal entry provides, in relevant part, “[a]ll motions not specifically ruled on prior

to the filing of this judgment entry are denied as moot.”

On March 25, 2020, appellant filed the instant appeal challenging the

trial court’s judgment. He assigns one error for review:

I. The trial court committed reversible error when it denied [appellant’s] motion to dismiss due to pre-indictment delay.

II. Law and Analysis

A. Preindictment Delay

In his sole assignment of error, appellant argues that the trial court

erred in denying his motion to dismiss based on preindictment delay.

An unjustifiable delay between the commission of an offense and a

defendant’s indictment for committing that offense, which results in actual

prejudice to the defendant, is a violation of the right to due process of law under

Section 16, Article I, of the Ohio Constitution and the Fifth and Fourteenth

Amendments to the United States Constitution. State v. Luck, 15 Ohio St.3d 150,

472 N.E.2d 1097 (1984), paragraph two of the syllabus.

2 In March 2012, appellant pled guilty to rape and kidnapping with a three-year firearm specification and sexual motivation specification. The trial court sentenced appellant to a prison term of 13 years. Appellant was serving this sentence when he was indicted for the March 2004 incident. The applicable statute of limitations is the “primary guarantee against

bringing overly stale criminal charges.” State v. Copeland, 8th Dist. Cuyahoga No.

89455, 2008-Ohio-234, ¶ 10, citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct.

2044, 52 L.Ed.2d 752 (1977). The statute of limitations for rape is 25 years, and the

statute of limitations for unlawful sexual conduct with a minor is 20 years. R.C.

2901.13(A)(3)(a) and (A)(4). In this case, it is undisputed that appellant was

indicted within the applicable statutes of limitations.

Nevertheless, even when the defendant is indicted within the statute

of limitations, the delay between the commission of an offense and an indictment

can, under certain circumstances, constitute a violation of due process of law

guaranteed by the federal and state constitutions. Lovasco at 789; United States v.

Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). For example, a

delay in commencing prosecution is not justified when the state uses the delay to

gain a tactical advantage or through negligence or error ceases its investigation, and

then subsequently decides to prosecute without new evidence. Marion at 324; Luck

at 158.

Courts apply a two-part test to determine whether a delay in

prosecution constitutes a due process violation. Defendants have the initial burden

to show that they were substantially and actually prejudiced by the delay. State v.

Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). However, “proof of actual

prejudice, alone, will not automatically validate a due process claim.” Luck, 15 Ohio

St.3d at 154, 472 N.E.2d 1097, citing Marion. If the defendant establishes “actual prejudice,” the burden then shifts to the state to produce evidence of a justifiable

reason for the delay. Id. Thereafter, the due process inquiry involves a balancing

test in which the court weighs the reasons for the delay against the prejudice to the

defendant in light of the length of the delay. State v. Walls, 96 Ohio St.3d 437, 2002-

Ohio-5059, 775 N.E.2d 829, ¶ 51.

In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688,

the Ohio Supreme Court explained:

A determination of actual prejudice involves “‘a delicate judgment’” and a case-by-case consideration of the particular circumstances. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting Marion, 404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. A court must “consider the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay.” Id. This court has suggested that speculative prejudice does not satisfy the defendant’s burden. Id. at ¶ 56 (noting that Walls’s claims of prejudice were speculative at best); [State v.] Adams, 144 Ohio St.3d 429, 2015- Ohio-3954, 45 N.E.3d 127, ¶ 100 (noting the difficulty for defendants claiming unconstitutional preindictment delay because “proof of prejudice is always speculative”).

Jones at ¶ 20.

“[T]he possibility that memories will fade, witnesses will become

inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.”

Adams at ¶ 105, citing Marion. “Those are ‘the real possibilit[ies] of prejudice

inherent in any extended delay,’ and statutes of limitations sufficiently protect

against them.” Jones at ¶ 21, quoting Marion at 326. “That does not mean, however,

that demonstrably faded memories and actually unavailable witnesses or lost

evidence cannot satisfy the actual-prejudice requirement.” Id. Actual prejudice exists when missing evidence or unavailable testimony, that is identified by the

defendant and relevant to the defense, would minimize or eliminate the impact of

the state’s evidence and bolster the defense. Id. at ¶ 28, citing Luck. The burden

upon a defendant seeking to prove that preindictment delay violated due process is,

however, “‘nearly insurmountable,’” particularly “because proof of prejudice is

always speculative.” Adams at ¶ 100, quoting United States v. Montgomery, 491

Fed.Appx. 683, 691 (6th Cir.2012).

This court applies a de novo standard of review to a trial court’s

decision regarding legal issues in a motion to dismiss for preindictment delay. State

v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-Ohio-5519, ¶ 12, citing

State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814 (12th Dist.).

“De novo review requires an independent review of the trial court’s decision without

any deference to the trial court’s determination.” State v. Clay, 2d Dist. Miami No.

2015-CA-17, 2016-Ohio-424, ¶ 5.

However, this court has held that we afford great deference to the

findings of fact made by the trial judge pertaining to the issue of preindictment

delay. State v. Walker, 8th Dist. Cuyahoga No. 106414, 2018-Ohio-3669, ¶ 15, citing

State v. Hunter, 2017-Ohio-4180, 92 N.E.3d 137, ¶ 16 (8th Dist.). Therefore, this

court must accept the trial court’s factual findings if they are supported by

competent and credible evidence in the record. State v. Burnside, 100 Ohio St.3d

152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19,

437 N.E.2d 583 (1982). As an initial matter, we note that the record reflects that appellant

implicitly abandoned or withdrew his motion to dismiss. After appellant filed his

motion to dismiss and requested a hearing on the motion, the trial court set a motion

hearing for February 4, 2020. Appellant made no mention whatsoever during the

February 4, 2020 hearing about the motion to dismiss he previously filed. Appellant

did not seek to present an oral argument in support of his motion. Nor did appellant

indicate that the motion to dismiss was pending and request a ruling from the trial

court. Rather, appellant knowingly, intelligently, and voluntarily accepted the plea

agreement proffered by the state. Appellant made a tactical, strategical decision to

plead guilty rather than pursuing the preindictment-delay issue.

Furthermore, appellant does not argue in this appeal that his guilty

plea was not knowingly, intelligently, or voluntarily entered, or that the trial court

failed to comply with Crim.R. 11 during the change-of-plea hearing. By pleading

guilty, appellant waived all constitutional errors apart from the constitutional errors

that affected his guilty plea. See State v. Thompson, 8th Dist. Cuyahoga No. 104322,

2016-Ohio-8310, ¶ 4, citing State v. Ware, 11th Dist. Lake No. 2007-L-154, 2008-

Ohio-3992, ¶ 25, and Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36

L.Ed.2d 235 (1973) (“When a criminal defendant has solemnly admitted in open

court that he [or she] is in fact guilty of the offense with which he [or she] is charged,

he [or she] may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea.”). Even if appellant did not waive his right to raise the issue of

preindictment delay on appeal by pleading guilty, the record does not reflect that

appellant suffered actual prejudice as a result of the delay between the incident and

his subsequent indictment, and appellant has failed to meet his initial burden of

demonstrating actual prejudice. See Thompson at ¶ 6, citing Luck, 15 Ohio St.3d

150, 472 N.E.2d 1097, at paragraph two of the syllabus. As noted above, “[t]he

prejudice advanced must be more than merely speculative [and] must be balanced

against the other evidence in order to determine whether actual prejudice will

impact the defendant at trial.” (Emphasis added.) State v. August, 12th Dist.

Warren No. CA2018-12-136, 2019-Ohio-4126, ¶ 12.

In this appeal, appellant argues that there “was a great deal of

prejudice” he suffered as a result of the 15-year delay between the 2004 incident and

the 2019 indictment. Specifically, appellant claims that the preindictment delay

“made it impossible to locate additional witnesses, interview any witnesses, and also

find any physical evidence,” and that the delay “made it very difficult to investigate

and defend the charges against him.” Appellant’s brief at 3.

Appellant has failed to identify any evidence, witnesses, or testimony

that are missing or no longer available as a result of the 15-year delay in prosecution,

much less demonstrate that the evidence or testimony was relevant to his defense.

Appellant speculates that but for the 15-year delay, he would have been able to locate

witnesses and obtain physical evidence that would enable him to defend against the charges. Appellant’s general, unspecified, and speculative assertions are insufficient

to meet appellant’s burden of demonstrating actual prejudice.

Finally, appellant contends that the trial court erred by failing to hold

an evidentiary hearing on his motion, and that the trial court’s failure to do so denied

appellant his due process rights. As noted above, the trial court set a motion hearing

on the motion to dismiss at appellant’s request. During this hearing, appellant

elected to plead guilty rather than to pursue the preindictment-delay issue.

For all of the foregoing reasons, we find no basis upon which to

conclude that the trial court erred in denying appellant’s motion to dismiss based on

preindictment delay. Appellant’s sole assignment of error is overruled.

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

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending 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., JUDGE

SEAN C. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR