[Cite as State v. Moore,
2022-Ohio-522.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110155
v. :
JERMELL MOORE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 24, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-15-595983-A and CR-15-599401-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Jermell Moore, appeals his convictions after
guilty pleas to involuntary manslaughter and sexual battery. For the reasons set
forth below, we reverse and remand for further proceedings.
Factual and Procedural History
On May 20, 2015, the state filed a John Doe indictment for an incident
that occurred on May 28, 1995. The indictment alleged that John Doe had
committed the crimes of rape and kidnapping, both felonies of the first degree.
The events leading up to this indictment were as follows: In 1995, the
alleged victim, L.K., filed a police report alleging she was raped by her boyfriend.
L.K. submitted to a sexual assault examination and evidence was collected and
stored in a rape kit. According to the police report, L.K. refused to divulge her
boyfriend’s identity at that time.
On October 25, 2012, the rape kit was submitted to the Ohio Bureau of
Criminal Investigation (“BCI”) for examination. On August 13, 2013, BCI reported
that an unknown male DNA profile was obtained from the vaginal swabs in L.K.’s
rape kit.
On August 7, 2014, BCI generated a CODIS Match Memorandum
indicating that the male DNA profile from the vaginal swab in L.K.’s rape kit had
been linked to DNA from a gun magazine in a homicide case. At that time, the DNA
in the homicide case had not been associated with a suspect standard or a database
sample from a known individual.
Investigators contacted L.K. on April 22, 2015, to obtain more
information about the case and the alleged perpetrator. L.K. confirmed the sexual
assault, but was only able to provide the suspect’s nickname, “Larue,” to the
investigators. At that time, investigators showed L.K. a photo array. Moore’s picture
was included in the array as a suspect in the homicide investigation. L.K. did not
identify anyone in the photo array as the suspect in her sexual assault.
On April 5, 2016, Moore was indicted for involuntary manslaughter, a
felony of the third degree, and two misdemeanor alcohol violations for incidents that
occurred on March 30, 2014. One- and three-year firearm specifications were
attached to the felony. Moore’s codefendant, Brian Spencer (“Spencer”), was
charged with the same charges as well as a charge of aggravated assault, a felony of
the fourth degree. On April 19, 2016, a warrant was issued for Moore’s arrest.
On February 21, 2018, Moore was brought before the court on the
involuntary manslaughter indictment. As a result of his arrest, a sample of his DNA
was collected. On March 7, 2018, BCI generated an updated CODIS Match
Memorandum indicating that the male DNA profile from the vaginal swabs in L.K.’s
rape kit and the DNA from the gun magazine in the homicide case were linked to a
California database sample for Moore. The record does not reflect when or how the
California database sample was collected. A confirmatory test was done with
Moore’s DNA, which confirmed Moore as the source of the male DNA profile in the
vaginal swab in L.K.’s rape kit. On May 17, 2018, the state moved to amend the John
Doe indictment to reflect that the defendant was Moore.
From that point, the cases proceeded together. The cases were set for
trial on August 29, 2018. On that date, the state made a plea offer as follows: In
exchange for a guilty plea on the rape case the state offered to amend the charges
from rape to sexual battery, a felony of the third degree, and to dismiss the
kidnapping charge. In the involuntary manslaughter case, the state offered to
dismiss the firearm specifications in exchange for a plea to the involuntary
manslaughter charge. The state also offered to dismiss the associated
misdemeanors.
Moore’s counsel indicated he had discussed the plea offer in detail
with Moore and his wife that morning. The trial court explained the repercussions
of the plea deal on the record. Moore was not ready to agree to a plea deal at that
time. The court took a recess, after which, the trial court asked if the parties were
ready to proceed. At that time, Moore indicated he needed more time to talk to his
counsel. The court recessed again to allow that to happen. When the trial judge
returned, defense counsel indicated he had recommended Moore take the plea but
Moore had not decided. The trial court summarized what had occurred, reminded
the parties that they were set for trial, and they could proceed with trial if they chose.
After further discussion with Moore, defense counsel indicated Moore would take
the plea deal. This back-and-forth deliberation between Moore and defense counsel
lasted between four and five hours.
The trial court conducted a comprehensive plea colloquy to which
Moore indicated he understood all of his rights, was satisfied with his attorney’s
representation, and did not have any questions. Moore pled guilty to the charges as
amended. Moore’s sentencing was scheduled for September 26, 2018.
On September 12, 2018, defense counsel filed a short motion to
withdraw Moore’s plea in both cases. The motion indicated that Moore, against the
advice of counsel, wished to withdraw his pleas because “he has a valid defense to
both charges and that he is not guilty of same.”
On September 26, 2018, the court convened and addressed the
motion to withdraw guilty plea prior to sentencing. Defense counsel spoke briefly
on his motion to withdraw the plea and explained to the court why he advised Moore
against it. Defense counsel stated that he based his advice on the quality of the
evidence and the fairness of the offer. Specifically, defense counsel referred to the
dismissal of the gun specifications and the reduction of the rape to sexual battery as
significantly reducing potential jail time. Defense counsel also noted that DNA
evidence identified Moore in the rape case and that the only issue was consent.
Defense counsel also reminded the court that the plea took place on the date of trial
and that the trial court permitted Moore to think about whether to plead for four to
five hours while it conducted other business. After asking to hear from the state,
which referred the court to its motion, the trial court denied the motion and
proceeded with sentencing.
The trial court heard from both sides prior to issuing its sentence. In
the involuntary manslaughter case, the state alleged that Moore was running an
after-hours club. Spencer, the codefendant, was handling security and Moore was
alleged to have provided Spencer with a gun. The state alleged that a fight broke out
and while Spencer was trying to break it up, he pulled the gun and fired one shot,
shooting and killing Akeem Tidmore (“Tidmore”). In the sexual battery case, the
state alleged that Moore and the victim, L.K., were on a date. The state alleged
Moore and L.K. had met through L.K.’s cousin and had talked on the phone
previously. May 28, 1995, the date of the alleged rape, was the first time Moore and
L.K. met in person. Moore and L.K. ended up parking in an out-of-the-way area.
The state alleged that Moore attempted to have sex with L.K.; however, she refused.
Moore then forced L.K. to have sex.
Defense counsel then addressed the court alleging that Moore was
tending bar when the homicide occurred and was not involved in the incident.
Defense counsel stated that the shooting was accidental. He submitted that Spencer
was punched by a member of Tidmore’s group. Spencer then pulled out the gun.
When Spencer was punched again, the gun went off, killing Tidmore. With respect
to the sexual assault case, defense counsel relayed that the police report indicated
the victim wanted to engage in sex but changed her mind when she realized Moore
did not have protection. Defense counsel alleged that the only issue was consent.
The trial court then asked Moore if he had anything to add. Moore
attempted to reopen his motion to withdraw guilty plea, alleging that there was
taped evidence from the rape investigation that he did not hear until after he pled.
Moore denied “forcing himself” on the victim and alleged that in the tape, the victim
“kind of said that I didn’t force myself on her.” He indicated that after reviewing
that evidence along with unspecified “other factors,” he asked his counsel to
withdraw the plea. The trial court then inquired of defense counsel whether he
reviewed the discovery with Moore. Defense counsel told the court that he had not
received the audiotaped statement until after the plea. Once he did, he arranged for
Moore to review the tape with him. Defense counsel alleged that the taped
statement agreed with the prosecution’s recitation of facts and, therefore, he stood
by his advice to his client not to withdraw his plea.
The state did not directly refute defense counsel’s statement that he
received the audiotaped statement after the plea. Rather, the state indicated that
the victim’s “purported statement” was provided to the defense on June 11, 2018.
The trial court did not revisit its decision to deny the motion to withdraw plea.
The trial court proceeded to sentence Moore to two years on the
involuntary manslaughter and two years on the sexual battery to run concurrently.
The trial court also informed Moore that he would be designated a sexually oriented
offender. Moore did not file a timely appeal to his convictions.
On June 4, 2019, Moore, through new counsel, filed a motion
requesting judicial release. Moore argued that he had accepted responsibility for his
actions. He highlighted the programming he had completed while in prison, the
continued support of his wife and children, and his efforts to remain involved in the
lives of his children while incarcerated. The state opposed the motion arguing that
Moore did not accept responsibility for his actions, and in fact asked to withdraw his
plea prior to sentencing. Further the state pointed to the seriousness of the charges
and argued that Moore was serving two years for two separate serious offenses and
should not be granted judicial release. The trial court denied Moore’s motion
without a hearing on September 19, 2019.
On October 25, 2019, Moore filed a pro se motion for judicial release.
Moore alleged that his pleas were involuntary due to unspecified “wrong and
unlawful” conduct inside and outside the courthouse. Moore argued that he was not
a violent person and that the likelihood of recidivism was low. He also highlighted
the programming he had received in prison, his continued connection with his
family, his business, and his role as a mentor to younger prisoners.
On October 28, 2019, Moore filed a postconviction petition in the
involuntary manslaughter case only. Nevertheless, Moore sought to vacate his
convictions in both cases. Moore argued that he received ineffective assistance of
counsel at his plea and sentencing hearing. Moore denied wrong doing in the
involuntary manslaughter case, arguing that Spencer was acting in self-defense and
in defense of others. For the first time, Moore argued that defense counsel lied to
him and told him that the alleged victim in the rape case identified him from a photo
array. He also argued that the alleged victim identified someone else as the
perpetrator in her audiotaped statement. However, Moore argued in the alternative
that the alleged victim lied to the police and her parents about the sex being rape.
Furthermore, Moore alleged that he pled guilty because defense
counsel convinced him his life would be in danger if he didn’t enter a plea. Moore
alleged that when he told defense counsel that he refused to plead guilty, defense
counsel allegedly told him: “The family’s crazy and they’re going to kill you.” It is
unclear who the “family” was, however, Moore alleged that someone shot up his
house and burned it down shortly after Tidmore’s death. Defense counsel alluded
to this event at the September 26, 2018, sentencing hearing. Regardless, Moore
argued that defense counsel’s statements made him believe that if he did not enter
a plea his life would be in danger.
Finally, Moore argued that he did not disclose his concerns to the
judge during the plea because he feared doing so would place his life in danger. He
further alleged that when he asked for more time to think about the plea deal,
defense counsel told Moore that if he took the plea deal, he would be safe.
The state did not reply to Moore’s pro se motion for judicial release.
The trial court denied Moore’s motion without a hearing on March 9, 2020. The
state filed a motion in response to Moore’s postconviction petition. However, before
the trial court could rule on it, Moore filed leave to appeal his convictions. Moore’s
initial leave to file a delayed appeal was denied on October 20, 2020.
On December 14, 2020, Moore filed a second motion for leave to file
a delayed appeal that was granted. The trial court still had not ruled on Moore’s
postconviction petition at that time.
Moore presents the following errors for our review:
Assignment of Error No. 1
Appellant was denied his right to the effective assistance of counsel
under the Sixth and Fourteenth Amendments to the U.S. Constitution
and Article 1 Section 10 of the Ohio Constitution.
Assignment of Error No. 2
The trial court abused its discretion by failing to hold a substantive
hearing and denying Appellant’s pre-sentence motion to withdraw his
guilty plea.
Law and Analysis
In his first assignment of error, Moore argues that he received
ineffective assistance of counsel. Moore focuses on three ways in which his counsel
was ineffective. First, he argues that his counsel did not provide adequate
representation when he wished to withdraw his guilty plea. Second, he argues that
he received ineffective assistance because his counsel failed to file a motion to
dismiss based on the statute-of-limitations. Third, Moore argues that he received
ineffective assistance because his counsel failed to file a motion to dismiss based on
prejudicial preindictment delay. In his second assignment of error, Moore argues
the trial court erred in failing to hold a substantive hearing on his presentence
motion to withdraw guilty plea.
Because we find the statute-of-limitations issue dispositive of this
appeal, we will address it first.
In order to establish a claim of ineffective assistance of counsel, a
defendant must demonstrate “(1) deficient performance by counsel, namely that
counsel’s performance fell below an objective standard of reasonable
representation, and (2) that counsel’s errors prejudiced the party, or a reasonable
probability that but for counsel’s errors, the outcome would have been different.”
State v. Knight, 8th Dist. Cuyahoga No. 109302, 2021-Ohio-3674, ¶ 46, citing
Strickland v. Washington,
466 U.S. 668, 687-688, 694,
104 S.Ct. 2052,
80 L.Ed.2d
674 (1984); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs
two and three of the syllabus.
When a defendant enters a plea of guilty, he “waives a claim of
ineffective assistance of counsel except to the extent that the ineffective assistance
of counsel caused the defendant’s plea to be less than knowing, intelligent, and
voluntary.” State v. Mohammad Khoshknabi, 2018-Ohio-1752,
111 N.E.3d 813, ¶ 29
(8th Dist.), citing State v. Vinson,
2016-Ohio-7604,
73 N.E.3d 1025, ¶ 30 (8th Dist.);
State v. Williams, 8th Dist. Cuyahoga No. 100459,
2014-Ohio-3415, ¶ 11. After a
guilty plea, the defendant can prevail on an ineffective assistance of counsel claim
by demonstrating (1) that counsel’s performance fell below an objective standard of
reasonable representation, “that caused the defendant’s guilty plea to be less than
knowing, intelligent and voluntary” and (2) “that there is a reasonable probability
that, but for counsel’s deficient performance, the defendant would not have plead
guilty … and would have insisted on going to trial.”
Id., citing Williams at ¶ 11,
citing State v. Xie,
62 Ohio St.3d 521, 524,
584 N.E.2d 715 (1992), and Hill v.
Lockhart,
474 U.S. 52,
106 S.Ct. 366,
88 L.Ed.2d 203 (1985). A “reasonable
probability” is one “sufficient to undermine confidence in the outcome.”
Id., quoting
Strickland at 694.
Moore argues that his counsel should have challenged the statute-of-
limitations and that his failure to do so amounted to ineffective assistance of
counsel. Moore argues that he was a known suspect in the rape case as early as
April 22, 2015, the date that the detectives reinterviewed the alleged victim. Based
on that, Moore argues that the John Doe-DNA indictment should not have tolled the
statute-of-limitations. Consequently, Moore argues he received ineffective
assistance of counsel when his lawyer failed to raise the statute-of-limitations.
The purpose of the criminal statute-of-limitations is to “‘limit
exposure to prosecution to a certain fixed period of time following the occurrence of
[the criminal acts] ….’” State v. Hawkins, 2019-Ohio-5133,
150 N.E.3d 519, ¶ 11
(8th Dist.), citing State v. Climaco,
85 Ohio St. 3d 582, 586,
709 N.E.2d 1192 (1999).
The criminal statute-of-limitations is governed by R.C. 2901.13.
Id. “R.C. 2901.13
is not designed to give offenders a chance to avoid criminal liability, but rather, ‘to
discourage inefficient or dilatory law enforcement.’”
Id., citing
Climaco at 586.
Criminal prosecution should be based on reasonably fresh and trustworthy
evidence.
Id. “When the statute-of-limitations is a defense to a criminal charge, the
state bears the burden of proving that the prosecution of the crime comes within the
appropriate statute-of-limitations.”
Id., citing
Climaco at 587.
Under former R.C. 2901.13(A)(3), which was in effect at the time of
the May 20, 2015 indictment, a prosecution for rape or kidnapping is barred unless
it is “commenced” within 20 years. Former R.C. 2901.13(E) defines “commenced”
as follows:
A prosecution is commenced on the date an indictment is returned or
an information filed, or on the date a lawful arrest without a warrant is
made, or on the date a warrant, summons, citation, or other process is
issued, whichever occurs first. A prosecution is not commenced by the
return of an indictment or the filing of an information unless
reasonable diligence is exercised to issue and execute process on the
same. A prosecution is not commenced upon issuance of a warrant,
summons, citation, or other process, unless reasonable diligence is
exercised to execute the same.
The statute-of-limitations, however, may be tolled in certain
situations. We have found that “if reasonable diligence was used by law enforcement
in its attempts to identify the defendant, and all attempts have failed, a John Doe-
DNA indictment or warrant can toll the statute-of-limitations.” State v. Gulley, 8th
Dist. Cuyahoga No. 101527, 2015-Ohio-3582, ¶ 15, citing State v. Danley,
138 Ohio
Misc.2d 1,
2006-Ohio-3585,
853 N.E.2d 1224 (C.P.); State v. Younge,
2013 UT 71,
321 P.3d 1127; Commonwealth v. Dixon,
458 Mass. 446,
938 N.E.2d 878 (2010);
People v. Robinson,
47 Cal.4th 1104,
104 Cal.Rptr.3d 727,
224 P.3d 55 (2010); State
v. Burdick,
395 S.W.3d 120 (Tenn.2010); People v. Martinez,
52 A.D.3d 68,
855
N.Y.S.2d 522 (2008); State v. Davis, 2005 WI App. 98,
281 Wis. 2d 118,
698 N.W.2d
823; State v. Dabney, 2003 WI App. 108,
264 Wis.2d 843,
663 N.W.2d 366 (2003).
Black’s Law Dictionary, (5[th] Ed.1979), at 412, defines “reasonable
diligence” as ‘[a] fair, proper and due degree of care and activity,
measured with reference to the particular circumstances; such
diligence, care, or attention as might be expected from a [person] of
ordinary prudence and activity.’ Sizemore v. Smith, 6 Ohio St.3d 330,
332,
453 N.E.2d 632 (1983). “[W]hat constitutes reasonable diligence
will depend on the facts and circumstances of each particular case.” Id.
Young v. Harris, N.D.Ohio No. 1:18-cv-01398,
2019 U.S. Dist. LEXIS 151410, at ¶ 30
(Aug. 12, 2019).
In the instant case, the state filed a John Doe-DNA indictment on
May 20, 2015, eight days prior to the expiration of the statute-of-limitations. This
indictment would have tolled the statute-of-limitations beyond its expiration of
May 28, 2015, under Gully, if the state used reasonable diligence in ascertaining
Moore’s identity at the time of filing. A review of the record in this case does not
support the state using such reasonable diligence.
According to its May 17, 2018 motion to amend the indictment, the
state averred that the alleged victim knew Moore; however, according to the police
report, she refused to give the police his identity. Further evidence of the victim’s
knowledge of Moore was referenced at sentencing. When asked for a statement
during sentencing, the state averred that the alleged victim met Moore through a
cousin. Further, Moore and the alleged victim had spoken on the phone multiple
times prior to the date of the alleged assault. The trial court also noted while
reviewing the presentence investigation report that the alleged victim described
Moore as her boyfriend. Finally, the trial court noted that, according to the police
report, L.K. drove Moore home after the alleged assault.
Despite all of these potential leads, which could have led to the
identity of the suspect, the case remained dormant until the state submitted the rape
kit to BCI for analysis in 2012. BCI determined that the rape kit contained an
identifiable sample of male DNA in 2013. That sample was linked to the homicide
in 2014. The record reflects that L.K. was shown Moore’s picture in a photo array in
April 2015. While the victim was unable or unwilling to identify Moore, other than
this photo array, the record does not reflect what other steps, if any, the state took
to identify Moore beyond DNA comparison.
As we noted in Gully, 2015-Ohio-3582, a John Doe-DNA indictment
tolls the statute-of-limitations when the suspect is unknown, or where the only way
to ascertain the identity of the suspect is DNA comparison. In the Gully case, the
court addressed a situation when the state sought a John Doe indictment even
though the identity of the suspect was known to the state. The Gully Court found
that
to indict a known defendant as “John Doe” is completely contradictory
to the intent behind the statute-of-limitations …. As we previously
stated, the statute-of-limitations is intended “to discourage inefficient
or dilatory law enforcement.” (citation omitted) Here, where law
enforcement had Gulley’s name but simply failed to investigate the
matter further when the victim failed to appear for her interview,
reasonable diligence does not support the use of a John Doe-DNA
indictment. In fact, … one of the factors in determining whether the
use of the DNA profile tolled the statute-of-limitations, is “the reason
for the delay was that the only way to locate and identify the defendant
was the DNA profile, which could be matched only as the information
became available from the incarcerated defendant.” [State v. ]Danley,
[138 Ohio Misc.2d 1,
2006-Ohio-3585,
853 N.E.2d 1224 (C.P.) at] ¶ 16
Gulley at ¶ 16 (emphasis sic).
In the record before us, the state had enough information on Moore
to include him in the April 22, 2015 photo array shown to L.K. And yet, there is
nothing in the record to show the state did any further investigation to determine
whether Moore was the suspect in the rape between the date of the incident, May 28,
1995, and May 28, 2015, the date the statute-of-limitations expired. Ultimately,
three years after the statute-of-limitations expired, Moore was identified as a named
suspect, when BCI was able to match his DNA to the DNA in the rape kit.
The state has the burden of showing it behaved with reasonable
diligence when, as here, a defendant is not identified until after the statute of
limitation has expired. Hawkins, 2019-Ohio-5133 at ¶ 11. There is nothing in the
record to suggest that the state used reasonable diligence to ascertain Moore’s
identity before the expiration of the statute-of-limitations. Further, after the John
Doe-DNA indictment was filed, the state waited for a DNA match to identify Moore
in 2018. Given the foregoing, a motion to dismiss highlighting the lack of
investigation and the 23-year delay in identifying Moore should have been filed.
Given the facts before us, we find there was a reasonable probability such a motion
would have been granted.
Where … a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice “was
within the range of competence demanded of attorneys in criminal
cases.”
State v. Wise, 5th Dist. Coshocton No. 2021CA0001, 2021-Ohio-3190, ¶ 43, citing
Hill v. Lockhart,
474 U.S. 52,
106 S.Ct. 366,
88 L.Ed.2d 203 (1985) quoting Mann
v. Richardson,
397 U.S. 759, 771,
90 S.Ct. 1441, 1449,
25 L.Ed.2d 763 (1970).
Since the lack of reasonable diligence on the part of the state in
ascertaining Moore’s identity called into question whether the John Doe-DNA
indictment tolled the statute-of-limitation a motion to dismiss should have been
filed. Defense counsel’s failure to do so caused his advice to be outside the range of
competency that is demanded in criminal cases. For this reason, we find that
Moore’s plea was not voluntarily made.
Nevertheless, ineffective assistance of counsel only exists in this
context if a counsel’s error rendered the plea infirm and the defendant would not
have pled guilty and would have insisted on taking his case to trial. Khoshknabi,
2018-Ohio-1752 at ¶ 29. In the instant case, the record is clear that Moore was
reluctant to plead and would in fact have withdrawn his plea, had the trial court
permitted it, and proceeded to trial. Undeniably with Moore’s reluctance to plea,
had defense counsel raised the issue of the statute-of-limitations with Moore prior
to the plea hearing, Moore would not have pled guilty and instead insisted that his
lawyer pursue that defense.
Consequently, Moore received ineffective assistance of counsel when
counsel failed to file a motion to dismiss based on the statute-of-limitations.
Accordingly, we sustain Moore’s first assignment of error. Based on that finding,
Moore’s second assignment of error is rendered moot.
Judgment reversed and case remanded for further proceedings.
It is ordered that appellant recover from appellee 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
Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
