[Cite as State v. Purk, 2017-Ohio-7381.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      28059

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
SCOTT D. PURK                                       COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 13 12 3490

                                 DECISION AND JOURNAL ENTRY

Dated: August 30, 2017



        CARR, Presiding Judge.

        {¶1}     Defendant-Appellant, Scott Purk, appeals from his convictions in the Summit

County Court of Common Pleas. This Court reverses and remands for further proceedings.

                                               I.

        {¶2}     On the morning of March 18, 1985, Purk called for emergency assistance and

reported that his wife, who was nine months pregnant at the time, had tried to hang herself from

the railing surrounding the stairwell in their two-floor apartment. Purk greeted the police when

they arrived and directed them to his wife, who was lying on her back at the foot of the stairs.

Purk indicated that he had found his wife hanging, had used a knife to cut her down, and had

attempted CPR before calling for assistance. The paramedics responded only minutes after his

call and were able to restore the victim’s heartbeat. They then transported her to a hospital

where she received further treatment and her son was delivered via a cesarean birth. Despite
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their best efforts, both the victim and her son died. Following an autopsy, the victim’s death was

ruled a suicide, and the case was closed.

       {¶3}    In March 2009, Sergeant Ken Mifflin began investigating a house fire that

occurred at Purk’s home in Stow. During his investigation, Sergeant Mifflin learned that Purk’s

first wife had died of an apparent suicide, but that there were individuals who found the

circumstances surrounding her death suspicious. He then spent the next few years investigating

her death, requesting the original police reports and interviewing various individuals.

Eventually, he approached the Summit County Medical Examiner’s Office to ask for an opinion.

After listening to him and viewing the original autopsy photos and results, the Medical

Examiner’s Office agreed that it was appropriate to exhume the victim’s body for the purpose of

conducting a second autopsy. The second autopsy occurred in September 2011. As a result of

the second autopsy, the victim’s death was ruled a homicide.

       {¶4}    Subsequently, a grand jury indicted Purk on one count of murder and one count of

tampering with evidence. Four days before trial, Purk moved to dismiss his indictment on the

basis of unconstitutional, pre-indictment delay. The court heard arguments from the parties on

the first day of trial, and denied the motion. The matter then immediately proceeded to trial,

following which the jury found Purk guilty on both counts. The court sentenced him to a total of

18 years to life in prison to be served consecutively with a sentence Purk was already serving in

an unrelated matter.

       {¶5}    Purk now appeals from his convictions and raises four assignments of error for

our review. For ease of analysis, we consolidate several of the assignments of error.
                                                3


                                               II.

                                ASSIGNMENT OF ERROR I

       THE 28-YEAR DELAY BETWEEN MARGARET PURK’S DEATH AND
       SCOTT PURK’S INDICTMENT DEPRIVED MR. PURK OF DUE PROCESS
       OF LAW, AND REQUIRES REVERSAL OF HIS CONVICTIONS.

       {¶6}    In his first assignment of error, Purk argues that he was denied due process when

the trial court denied his motion to dismiss and allowed him to stand trial for conduct he

allegedly committed 28 years before his indictment. Because the record reflects that the trial

court failed to apply the correct legal standard when considering Purk’s motion to dismiss, we

reverse and remand this matter for the trial court to apply the correct standard in the first

instance.

       {¶7}    “‘In reviewing a decision on a motion to dismiss for pre-indictment delay, we

accord deference to the trial court’s findings of fact but engage in a de novo review of the trial

court’s application of those facts to the law.’” State v. New, 9th Dist. Lorain No. 12CA010305,

2013-Ohio-3193, ¶ 13, quoting State v. Kemp, 8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, ¶

26. Likewise, “[w]hether the trial court applied the proper law is a legal decision which this

Court reviews de novo.” Pelmar USA, L.L.C. v. Mach. Exchange Corp., 9th Dist. Summit No.

25947, 2012-Ohio-3787, ¶ 24.

       {¶8}    “When there has been an unjustifiable delay between the commission of an

offense and a defendant’s indictment for the offense that results in actual prejudice to that

defendant, a defendant’s right to due process under Section 16, Art. I of the Ohio Constitution

and the Fifth and Fourteenth Amendments to the United States Constitution [has] been violated.”

State v. Barnhardt, 9th Dist. Lorain No. 05CA008706, 2006-Ohio-4531, ¶ 16, citing State v.

Luck, 15 Ohio St.3d 150 (1984), paragraph two of the syllabus.             “Following precedent
                                                 4


established by the Supreme Court of the United States, the Supreme Court of Ohio outlined a

burden-shifting test for determining whether a charge must be dismissed due to a pre-indictment

delay.” State v. Saxon, 9th Dist. Lorain No. 09CA009560, 2009-Ohio-6905, ¶ 9. “Luck requires

first that the defendant produce evidence demonstrating that the delay has caused actual

prejudice to his defense. Then, after the defendant has established actual prejudice, the [S]tate

must produce evidence of a justifiable reason for the delay.” (Internal citations omitted.) State

v. Whiting, 84 Ohio St.3d 215, 217 (1998). “If the defendant does not produce evidence of actual

prejudice, the court’s inquiry ends and the burden does not shift to the State to justify the delay.”

Saxon at ¶ 9.

       {¶9}     “Unlike a Sixth Amendment speedy-trial claim, no presumption of prejudice

arises in the due-process context when a pre[-]indictment delay exceeds a particular length of

time.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 98.

       The determination of “actual prejudice” involves “a delicate judgment based on
       the circumstances of each case.” United States v. Marion, 404 U.S. 307, 325
       (1971). In making this assessment, courts are to consider the evidence as it exists
       when the indictment is filed and the prejudice the defendant will suffer at trial due
       to the delay.

State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, ¶ 52. “The burden upon a defendant seeking

to prove that pre[-]indictment delay violated due process is ‘nearly insurmountable,’ especially

because proof of prejudice is always speculative.” Adams at ¶ 100, quoting United States v.

Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012). “Actual prejudice exists when missing

evidence or unavailable testimony, identified by the defendant and relevant to the defense, would

minimize or eliminate the impact of the [S]tate’s evidence and bolster the defense.” State v.

Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 28.
                                                 5


       {¶10} Once a defendant establishes actual prejudice as a result of pre-indictment delay,

“the prejudice suffered by the defendant must be viewed in light of the [S]tate’s reason for the

delay.” Luck at 154.

       [A] delay in the commencement of prosecution can be found to be unjustifiable
       when the [S]tate’s reason for the delay is to intentionally gain a tactical advantage
       over the defendant * * * or when the [S]tate, through negligence or error in
       judgment, effectively ceases the active investigation of a case, but later decides to
       commence prosecution upon the same evidence that was available to it at the time
       that its active investigation was ceased.

Id. at 158. The United States Supreme Court has recognized that “prosecutors do not deviate

from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have

probable cause to believe an accused is guilty * * *.” United States v. Lovasco, 431 U.S. 783,

790-791 (1977), quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935).

       {¶11} Purk argues that the trial court erred by denying his motion to dismiss because he

suffered actual prejudice as a result of the significant pre-indictment delay that occurred here.

Specifically, he asserts that he was prejudiced because the following evidence was not available

to him at the time of trial: (1) the rope that his wife allegedly used to hang herself; (2) the knife

that he allegedly used to cut her down; (3) the original photographs that the police took at the

Purks’ apartment; (4) records from the hospital where the paramedics brought the victim for

treatment; (5) records from a psychiatric clinic at which the victim allegedly sought treatment at

some earlier point; and (6) maintenance and leasing records for the Purks’ apartment. Purk

argues that the foregoing evidence was material to his defense because it would have shown the

exact manner in which his wife hung herself and would have allowed comparisons between the

rope she used and the impressions on her neck. He further argues that the evidence would have

shown whether the rope left impressions on the wooden railing at the apartment or whether the

landlord had replaced or repaired the railing after the incident. As to the medical records, he
                                                 6


argues that they would have established whether several of his wife’s injuries were the result of

resuscitative efforts and whether she had a history of suicidal ideations. Purk contends that the

State’s delay in bringing charges against him was unjustifiable because its case rested on the

same evidence that it had available to it in 1985.

       {¶12} Before turning to the merits of Purk’s argument, we must first consider whether

the trial court applied the correct legal standard in this matter. See Saxon, 2009-Ohio-6905, at ¶

12. See also Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, at ¶ 29-30. Purk did not file his

motion to dismiss until four days before trial. Although the State challenged his motion as

untimely, the trial court did not deny it as such.1 Compare State v. Ross, 9th Dist. Lorain No.

09CA009742, 2012-Ohio-536, ¶ 13-15. Instead, the court briefly heard arguments on the motion

at the start of trial and denied the motion. Upon review, however, the court neglected to properly

apply the test from State v. Luck.

       {¶13} In denying Purk’s motion, the trial court failed to address actual prejudice. The

court spoke strictly in terms of equity and “fundamental unfairness,” noting that its review was

hampered by the fact that it had not yet heard the evidence in the case. The court then went on to

discuss unjustifiable delay. The court stated that it was denying the motion to dismiss because

the State had brought its charges based on at least some new evidence. The court stated:

       And even though that evidence may not be admissible, there was new evidence,
       where based upon Mr. Purk’s more recent convictions for the arson, it caused the
       State to take a different look at him. * * * [T]hat’s not admissible evidence, but it
       is evidence to justify the delay in the proceedings of this matter, caused the State
       to take a different look at him. And as a result, there was an investigation
       commenced. And as a result of that investigation, an indictment. And we will let
       the jury ultimately decide whether or not there’s evidence sufficient for
       conviction * * *.


1
  We would note that the State has not argued on appeal that it was improper for the court to
consider the untimely motion.
                                                 7


Following the court’s ruling, the trial commenced.

       {¶14} It is apparent from a review of the trial court’s reasoning process that it did not

determine whether Purk suffered any actual prejudice as a result of the pre-indictment delay that

occurred here. As noted, “[t]he determination of ‘actual prejudice’ involves ‘a delicate judgment

based on the circumstances of each case.’” Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, at ¶ 52,

quoting Marion, 404 U.S. at 325. Under Luck, the burden to explain pre-indictment delay only

shifts to the State once the defendant has satisfied his burden to establish actual prejudice. Saxon

at ¶ 9, citing Whiting, 84 Ohio St.3d at 217, citing Luck, 15 Ohio St.3d at 158. If the defendant

fails to do so, “the court’s inquiry ends and the burden does not shift to the State * * *.” Saxon at

¶ 9.

       {¶15} Were this Court to conduct an actual prejudice analysis, it would be doing so in

the first instance. In doing so, this Court “‘would be usurping the role of the trial court and

exceeding its authority on appeal.’” Nationstar Mtg., L.L.C. v. Young, 9th Dist. Summit No.

27499, 2015-Ohio-3868, ¶ 6, quoting Carriage Ins. Agency, Inc. v. Ohio Farmers Ins. Co., 9th

Dist. Summit No. 27259, 2015-Ohio-2617, ¶ 12. Because this Court functions as a reviewing

court, “we are not inclined to resolve this matter in the first instance.” State v. Doll, 9th Dist.

Wayne No. 13CA0041, 2015-Ohio-1875, ¶ 14. Rather, we conclude that it is appropriate to

remand this matter to the trial court for it to properly apply in the first instance the burden-

shifting test set forth in Luck. See Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, at ¶ 29-30;

Saxon at ¶ 12. Should the court determine on remand that Purk’s motion to dismiss lacks merit,

his convictions will stand without retrial. Purk’s first assignment is sustained strictly on the

foregoing basis.
                                                  8


                                 ASSIGNMENT OF ERROR II

       PURK WAS DENIED A FAIR TRIAL WHEN THE STATE WAS ALLOWED
       TO INTRODUCE EXPERT WITNESS TESTIMONY THAT HAD BEEN
       BASED ON UNRELIABLE EXPERIMENTS, MERITING REVERSAL.

                                 ASSIGNMENT OF ERROR III

       PURK’S RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE
       FEDERAL AND OHIO CONSTITUTIONS WERE VIOLATED WHEN THE
       STATE WITHHELD POTENTIALLY EXCULPATORY EVIDENCE FROM
       PURK’S COUNSEL, MERITING REVERSAL OF PURK’S CONVICTIONS.

                                 ASSIGNMENT OF ERROR IV

       PURK’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE, AND MUST BE REVERSED.

       {¶16} Based on this Court’s resolution of Purk’s first assignment of error, his remaining

assignments of error are premature, and we decline to address them. See State v. Purefoy, 9th

Dist. Summit No. 27992, 2017-Ohio-79, ¶ 20.

                                                 III.

       {¶17} Purk’s first assignment of error is sustained for the reasons outlined above, and

his remaining assignments of error are not yet ripe for review. The judgment of the Summit

County Court of Common Pleas is reversed, and the cause is remanded for the trial court to apply

the burden-shifting test from State v. Luck in the first instance.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                9


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
