[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
