State v. Jabbar , 2021 Ohio 1191 ( 2021 )

[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