IN THE SUPREME COURT OF OHIO

BILLIE DAVIS

Appellant,

v.

OHIO DEPARTMENT OFREHABILITATION ANDCORRECTION

On Appeal from the Franklin

County Court of Appeals,

Tenth Appellate District

Court of Appeals

CASE NO. 12 AP 669

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Appellee.

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, BILLIE DAVIS

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TABLE OF CONTENTS

Explanation of Why This Case is of Public or Great General Interest ..............................1

Statement of the Case and Facts ... . ...... ... ........ ...... .............. .. .............4

Proposition of Law No. I ... .. ...... ......... .....................................................................6

When notice is sent under R.C. 5120.32 a rebuttable presumption israised when it is properly addressed, deposited in the mailing withsufficient postage and received bythe addressee or its agent.

Proposition of Law No. 2 ................................................................................... ..............7

A letter by the sentencing judge expressing her disapproval of animnate's placement in. the IPP authorized by R.C. 5120-032 sent lessthan two weeks before her completion of the program is insufficient toprevent her release from the prograan after she completed her programand met all its requirements.

Conclusion ................................................................ ....10

Certificate of Service ................................................................................................ ...11

Appendix................................. . .................... . ......... . ................... . ....................................... 12

IN. THE SUPREME COURT OF OHIO

BILLIE DAVIS

Appellant,

V.

OHIO DEPARTMENT OF:REHABILITATION ANDCORRECTION

Appellee.

On Appeal from the Franklin

County Court of Appeals,

Tenth Appellate District

Court of Appeals

CASE NO. 12 AP 669

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, BILLIE DAVIS

EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST

This case raises two critical issues, both important to future jurisdiction in Ohio: (1) when

and how a presumption of notice is raised and how it can be rebutted; and (2) whether a

presumptian of notice can be rebutted after a statute is implemented and the party meets all the

obligations required.

It could be argued that the Court should also consider whether equity and justice should require a

reversal of a lower court's decision where the law and facts support the same, but that question is

much too general. The premise however, is relevant to the issues sought by Ms. Davis to be

considered.

The central fact in this case is the Appellant spent extra time in prison after completing

the Intensive Prison Program (IPP) authorized by Ohio Revised Code Section 5120.32. Had she

not been a convicted felon or had spent more time incarcerated the case inight be considered

more important, however, it should ziot matter. Whether she spent one day, one year or ten years

1

falsely imprisoned is wrong where there was no reason to keep her. In fact, she remained locked

up and would have remained that way if not for the Ohio Public Defender's efforts on her behalf.

He contacted the Department of Corrections and threatened to file a writ of habeas corpus and

suddenly and without court order she was released.

In this case, the Court of Appeals affirmed the ruling of the Court of Claims indicating

the Appellant was not falsely imprisoned even though she spent 78 days at the Ohio Reformatory

for Women after completing the IPP as authorized by RC 5120.32. Pursuant to the law, a

prisoner is entitled to an immediate release upon successfully completing the program. In this

case the Appellant, after being sentenced to one year in prison by Cuyahoga County Common

Pleas Judge Bridgett McCafferty was found qualified to entered the IPP pursuant to R.C.

5120.32(B)(1)(a). A candidate is accepted into the program. if she meets all the qualifications

and if the sentencing court either recommends the prisoner for placenlent, or if the court does not

make a recommendation, and the sentencing court does not disapprove of her placement in a

timely manner.

Under tlie law, the Department sends notice to the sentencing judge by certified mail

telling the court the Appellant was being considered for placenlent into the IPP. It is undisputed

is notice was sent to Judge McCafferty under her name and was received by the court. The judge

did not approve or disapprove her placement. She did not respond to the notice although it states

she should, especially if she does not want the inmate to be considered. Under the law, "if the

sentencing court does not timely disapprove of the placement the Departinent [ODRC] may

proceed with its plans." Id. Having not heard froni the judge one way or the other, on July 8,

2009 the Department placed Ms. Davis in the program. Thereafter she continued the program

and on October 6, 2009 she received certification of completion of the IPP from the Departn:ient.

2

Upon completion she expected to be picked up by her family and would have, except for a note

provided by the judge dated September 21, 2009 in which she expressed disapproval of her

placement. Appellant was told of this note after she received her certificate.

The Court of Claims granted the Appellee's Motion for Summary Judgment indicating in

its order, for the Appellant to be accepted into the program, more than notice is required.

Paraphrasing Kerr2pf v. State, 1 Ohio App. 3d. 623 (8th Dist. 2009), the trial court entry stated.

"without actual receipt of the notice the statutory prerequisite for IPP placement is not fulfilled

and the offender's participation in an IPP is void ab initio." The Court of Appeals affirmed, also

relying on the Eighth District's decision in Kempf. The Court indicated that according to Kempf

Judge McCafferty would have had to receive actual notice of the veto letter for Appellant's false

imprisonment claims to be viable.

The Tenth District's decision sets a precedent which if followed would undermine an

extensive body of law which raises the presumption of service where a letter or other

communications properly addressed and deposited in the mail with sufficient postage is sent.

Under such circumstances it is presumed to have been delivered and received by the addressee.

See Akron-Canton Regional Airport Atlzority v. SwinehaYt , (1980) 62 Ohio St. 2d. 403, 406

quoting Mullane v. Centr°al Hanover Bank & Trust Co., (1950) 339 U.S. 306, 314, 70 S. Ct. 652;

Knickerbocker Properties, Inc. XLII v. Delaware City Board of Revisioaa, (2008) 119 Ohio St. 3d.

233; Wright .Rug Company, Inc. v. Wilson, 106 Ohio App. 3d. 59 (10tI' Dist. 1995). See also

cases cited in CincinnatiInsurance Company v. Emge ; (1997) 124 Ohio App. 3d. 61 (1g` Dist.

1997 footnote 9). See also L?uclukovich v. Lorain Hetro Housing (1979) 58 Ohio St. 2d. 202,

presumption that a]etter is timely delivered when an agency admitted delivery was received.

^

If the decision is allowed to stand, and the thirty day response time bypassed, the

presumption of notice could be attacked in many other situations merely by raising an objection,

stating in an affidavit that she did not receive notice "directly" as was done in this case. Judge

McCafferty did not deny receipt of the notice but said instead she did not receive it directly. An

affidavit should require more.

This ruling could allow a party to bypass Civil Rule 4.6 which allows for certified and

regular mail service. A litigant would merely need to file a self serving affidavit that she did not

receive the court papers. This has held to be insufficient to overcome the presumption. Bache,

Halsey, Stuart Shield v. Bohn, unreported 1984 WL 5460 (8{' Dist. 1984).

Is this fair? Take the situation where a complaint sent by certified mail is returned

unclaimed and the plaintiff files a written request for ordinary service, which is made and never

returned. The defendant in that case, following the First District's decision could say he never

received the complaint directly even though he resided at the particular address. Others living at

that address may have received the notice addressed to the defendant. A defendant in this

instance should not be allowed to complain that service of process was incomplete.

No laws to the undersigned require service to the named defendant. Our civil rules allow

for mail or personal service including botl-i. certified and regular mail. The law should not be

compromised to require service to be made in hand to the person identified unless the law

specifically provides.

STATEMENT OF THE CASE AND FACTS

On October 16, 2008 the Appellant Billie Davis pled guilty to four counts of theft, 12

counts of forgery and one count of misuse of a credit card in Cuyahoga County Court of

Common Pleas. At her sentencing, Judge Bridgett McCafferty imposed multiple concurrent one

4

year prison sentences. Thereafter, Ms. Davis entered the state's custody at the Ohio Reformatory

for Women.

After her incarceration, she was screened for potential placement in the IPP.1 Pursuant to

statute, on May 22, 2009 the ODRC sent a notice to Judge McCafferty indicating that Ms. Davis

was recommended for the IPP. The notice was sent by certified mail and was received on June

1, 2009 at the mail service division by the mail services manager, giving her 30 days to give her

approval or disapproval. Not hearing from the judge, the Department admitted Ms. Davis to the

prograzn on July 8, 2009 with an anticipated completion date in early October.

On September 24, 2009, while Ms. Davis was still enrolled in the IPP, Judge McCafferty

received another notice stating Ms. Davis would soon complete the 90 day IPP. Upon receipt

Judge McCafferty faxed a response to ODRC stating she had not "directly" received prior

notification of the Department's recommendation and uzider no circumstances should Ms. Davis

be released before serving her entire sentence. Ms. Davis was not told of Judge McCafferty's

letter until October 6, 2009, after she received a certificate of completion of the program. There

is no question that the Appellant met all the requirements of the prograin and completed the

sanle. If not for the note she would have been released.

After finally being released from prison without any court order authorizing the same, on

September 19, 2010 Appellant filed her complaint alleging she was falsely imprisoned by the

Ohio Department of Rehabilitation and Correction. In her complaint she alleged she should have

been released from incarceration on October 6, 2009 after having completed the IPP but instead

she remained incarcerated until December 24, 2009. She further stated that her continued

' The IPP, also known as the "second chance to change" program is a 90 day intensive,educational and rehabilitative program governed by R.C. 5120.32 and the Ohio AdministrativeCode Chapter 5120.11.

5

incarceration was in violation of the IPP law, as she successfully completed the program and met

all its requirements.

The Appellee filed a motion for summary judgment which was granted by the Court on

July 31, 2012 and a timely appeal was made. The Tenth District affirmed the judgment and

found that the sentencing judge had not received notification of her placement and Judge

McCafferty's note that she did not "directly" receive notice and tlierefore Appellant's placement

in the program was void ab initio.

PROPOSITION OF LAW NO. 1

When notice is sent under R.C. 5120.32 a rebuttable presumption is raisedwhen it is properly addressed, deposited in the mailing with sufficientpostage and received by the addressee or its agent.

R.C. 5120.032, the IPP statute, states before a candidate can be placed into the program,

the sentencing judge must either make a recommendation to the Departinent of Rehabilitation

and Correction or, if the court makes no recommendation on placernent, the prisoner is found by

the Department to be otherwise eligible. "If the sentencing court disapproves of the

placement..." the Department shall not place the prisoner into the IPP. R.C. 5120.032(B)(1)(A).

The Ohio Adzninistrative Code sets out how the sentencing court is to be notified. OAC

5120-11-03(D) requires the Department to send notice by certified mail. Judge McCafferty's

letter was sent in the proper manner but she failed to respond.

As further noted in the regulation,

"if the sentencing judge does approve Intensive Prison Program or doesnot notify the warden or contract monitor if applicable of the disap r^ ovedplacement within 30dav ofthe mail receipt. then the director mavp l acethe prisoner in the program." (emphasis added)

OAC 5120-11-03(D)

Here notice of Appellant's possible placen-ient in the IPP was sent to Judge McCafferty by

6

certified mail in care of the Cuyahoga County Common Pleas Court and was received on June 1,

2009 by the mail services manager of the Cuyahoga County Mail Service Division. The receipt

was immediately returned to the sender and subsequently the Appellant was chosen for the

program. If notice is sent by certified mail and a signed receipt is returned to the sender, a

rebuttable presumption of delivery is established. Tripodi v. Liquor Control Conafnission, 21

Ohio App. 110, 112 (7"' Dist. 1970). Valid service is presumed when the envelope containing a

notice is received by someone at the correct address. Ohio CivilKights Commission v. First Am.

1'roperties; Ilzc., 113 Ohio App. 3d. 233, 237 (2"' Dist. 1991). The receipt by an agent in the due

course of his employment is binding. State ex. rel. Nicodemus v. Znzlustrial Commission (1983) 5

Ohio St. 3d. 58.

Having received no objection by Judge McCafferty, the Department, under the law had

the right to admit the Appellant to the IPP, which was done on July 8, 2009. It wasn't until

Septenzber 24, 2009 that Judge McCafferty expressed her disapproval of the placement in the

IPP, less than two weeks before the Appellant was to complete the program. The Appellant was

not advised of the sentencing judge's objection until after she received her certificate of

conapletion.

PROPOSITION OF LAW NO. 2

A letter by the sentencing judge expressing her disapproval of an inmate'splacement in the IPP authorized by R.C. 5120-032 sent less than twoweeks before her completion of the program is insufficient to prevent herrelease from the program after she completed her program and met all itsrequirements.

It should be first etnphasized the sentencing judge in this case did not say in her note

mailed almost four months to the date the notice was sent from ODRC, that she never received

ilotice of Appellant's possible placement in the IPP. Her note, dated September 21, 2009 merely

7

stated she did not receive direct notice of the Appellant's possible placement.' The note implies

she received notice after the mail supervisor received the same, either directly or through her

bailiff, or through someone else assigned to her courtroom. It also could mean she was told

about it.

Even assuming her note was enough to end the Appellant's participation in the program

and fui-ther assuming the department could act upon it, the Judge's objection should at least

require she indicate she had no knowledge of any kind of the placement. 3 This is especially true

if the prisoner is allowed to complete the program.

R.C. 5120,032(B)(1)(b) provides upon the successful completion of a 90 day Intensive

Prison Program the Department is entitled to reduce the prison terni of the participant. The

Administrative Code Section 5120.11.10(B) is even more definite. That section reads:

'Flle Department s_hall terminate the stated prison term of the prisoner uponthe prisoner's successful completion of a 90 day program in an intensiveprogram prison. (emphasis added).

This Court's decision in State v. Roberts, (2009) 12 ' ) Ohio St. 3d. 465 is relevant to this

case. In Roberts, the sentencing court did not object to the prisoner being placed in the IPP after

being notified pursuant to law. Subsequently, after completing the prograni the inmate was

released but the Court of Appeals which was considering his case found the trial court had failed

to merge his two conviction for sentencing purposes. They remanded the case for resentencing

and Roberts moved to dismiss, arguing since he had completed the IPP he was no longer subject

2 The judge used the word "directly" in her note. She undcrlined the word.'An individual may be involuntarily terminated from the IPP at any time at the sole discretion ofthe director upon the recommendation of either the program review hearing committee or therules infraction board with the warden's approval, or contract monitor approval, if any. OAC5120-11-08(A)The administrative code section does not say an untimely letter from the judgecan cause her removal. The regulations also require a disciplinary hearing before removal tohear the issues. (OAC 5120(D).

8

to resentencing. The trial court denied his motion on the basis a notice of the proposed

placement was not received. This Court reversed and held that having completed the IPP the

prisoner was entitled to immediate release. Complicit in this Court's decision is the premise that

so long as the sentencing court received notice pursuant to law, by the court failing to object in a

timely manner the inmate was found to have completed the IPP and is entitled to release.

"I`he facts of this case are more detailed in the First Circuit's opinion in State v. Robel°ts,

180 Ohio App. 3d. 216, 229(15'Dist. 2008). Those fa.cts help to understand this Court's decision

and why Kernpf v. State, 1Ohio App. 3d. 623 (8"' Dist. 2009) relied on the courts below. Like in

Kempf; notice of placenlent in the IPP was not sent to the sentencing court but rather to a judge

who had assumed the sentencing judge's assigned cases. The judge's bailiff also testified he had

no recollection of receiving the notice. The First District held under these facts, like the Eighth

District held in Kempf under similar facts the placement was void. This court's decision in

Roberts made all this moot, stating what controls is the appellant had completed the program.

In effect, Judge Painter's dissent in State v. Roberts, id at 229 became the law. He did

not say it on the manner of this court but it is important none the less. In his comments he said:

b`This is case of broken promise by the government...." Id at 229. Because Roberts had served

his prison term througll the IPP, he felt the trial court lacked jurisdiction to resentence him. In a

section of his dissent titled "Shouldn't the government keep its proznises?" He said:

The common law long ago developed a doctrine to deal with the situationwe have here. "A pronzise which the promissor should reasonably expectto induce action or forbearance on the part of the promisee or a third partyand which does do such action or forbearance is binding ifinjustice can beavoided only by the enforcement of the promise. It is called promissoryestoppel" citing Restateinent of Law, Second Contracts, 1981, Section 90.The law developed to prevent the double cross and the double cross wasperformed by the government.

9

CGNCLUSI(3N

For the reasons set forth in this memorandum, the Appellant urges this Court to accept

jurisdiction and hear this matter. Don't allow the interpretation of this statute to prevent the

legislature's intent to lose its effect; to wit: to give a person a second chance. Clarify the law as

to what is necessary to provide notice and whether an addressee must personally receive

correspondence or for that matter, emails, and what proof is necessary to show this. The case

involves an important issue of fact regarding service and notice and to allow the Tenth District's

opinion to stand could easily undermine many statutes, not to mention the Rules of Civil

Procedure.

Respectfully submitted,

^' ^`^--^---^-^-----=Alan I. GoodmanCounsel for Appellant Billie Davis

10

Certificate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary

U.S. mail to counsel for appellee, Stephanie Pestello-Sharf and Amy S. Brown, Associate

Assistant Attorneys General, Court of Claims Defense Section, 150 East Gay Street, 18f1i Floor,

Columbus, Ohio 43215.

() tee -^^Alan I. GoodmanCounsel for Appellant, Billie Davis

11

OP,0 65 - J68

IN THE COURT OF APPEALS OF OHIO

TEN'1'II: APPEI: IATE DISTRICT

Billie Davis,

Plaintiff-Appellant,

v.

Ohio Department of Rehabilitationand Correction,

Defendant-Appellee.

No. 12AP-669(Ct. of Cl. No. 2010-10475)

(REGULAR CUENDAR)

D E C I S I O N

Rendered on September 17, 2013

Alan1. Goodman, for appellant.

.It7ichael DeWine, Attorney General, Stephanie Pestello-Sharfand Amy Brown, for appellee.

APPF_.A.L from the Court of Claims of Ohio

CONNOR, J.

a^j I} Plaintiff-a-ppellant, Billie Davis ("Davis"), appeals from a judgment of the

Court of Claims of Ohio granting the motion for summary judgment filed by defendant-

appellee, Ohio Department of Rehabilitation and Correction (°ODRC"), and denying

Davis' cross-motion for summary judgment on the issue of liability only. For the

folloAAing reasons, we affirm the judgment of the Court of Claims of Ohio.

1. FACTS AND PROCEDURAL HISTORY

J^j 2} On September 13, 2010, in the Court of Claim.s of Ohi.o, Davis filed a

complaint against ODRC for false imprisonment. ODRC answered the complaint and

denied liability. Thereafter, Davis and ODRC each moved for sumnary ju.dvment.

12

oA065 - J69

No. 12AP-669 2

{¶ 3} Earlier, on October 16, 2oo8, Davis pled guilty to four counts of theft, twelve

counts of forgery, and one count of misuse of credit cards in the Cuyahoga County Court

of Common Pleas. Davis admitted that she forged and cashed checks belonging to the

elderly couple in her care, and that she used their credit card to make purchases without

their consent. Davis took approximately $ii,ooo from the elderly couple.

z^I, 4} On April 14, 2009, the I-ionorable Bridget M. McCafferty, a judge of the

Cuyahoga County Court of Common Pleas sentenced Davis to 17 one-year terms of

imprisonment to be served concurrently. As a result, Davis entered ODRC's custody on

April 24, 2009.

1^,j 51 As set forth in R.C. 5120.032, ODRC operates an intensive program prison

("IPP") in tivhich eligible offenders in its custody rn.ay participate in a go-day period of

intense educational and rehabilitative programming, after w.hi:ch time ODRC may reduce

the stated pzison terzn and release the offender to post-release control. See Oh.io

Adn7..Code,512o-11-o1 et seq.

{T 61 At the time of sentencing, a trial court may recommend that an eligible

offender be placed in an IPP. Also at sentencing, the trial cot.irt is authorized to

disapprove IPP placement. If the sentencing court "disapproves" placement, the statute

commands that ODRC "shall not place the prisoner" in an IPP. R.C. 5120.o32(B)(z)(a).

{T 71 If the sentencing court makes no recommendation regarding IPP

placement, ODRC is authorized to place an eligible offender in an IPP, provided that

ODRC first:

[S]hall notify the sentencing court of the proposed placementof the prisoner in the intensive program prison and shallinclude ^krith the notice a brief description of the placement.The court shall have ten days from receipt of the notice todisapprove the placement. If the sentencing court disapprovesthe placement, the department shall not proceed with it. If thesentencing court does not timelv disapprove of the placement,the department may proceed with plans for it.

R.C. 512o.032(B)(1)(a)•

{^, 81 At the time of Davis' sentencing, 7udge McCaffertv neither recommended

nor disapproved Davis for IPP placement.

13

OA965 - J70

No. z2AP-669 3

1^1 9} On May 22, 2009, by certified mail return receipt requested, ODRC mailed

form 2502 to Judge McCafferty at her courthouse address. The form is captioned "Notice

to Sentencing Court of Offender's Recommended Placement Into the Intensive Program

Prison." The notice indicated that Davis wras imprisoned at the 0hio Reformatory for

IAjomen ('"tJRW, °'), located in Marysville, Ohio, and explained the proposed placement of

Davis into the IPP. The form instructed that the sentencing judge "may approve or

disapprove the placement, or you may express no opinion." It further instructed that, if

the sentencing judge wishes to disapprove, "your decision must be received bv [the ORI1T

warden's] office * * " within 3o days of the signature date of the certified-mail receipt."

{Ti lU; On June 3, 2oog, ®RNN received the certified mail return, which was

stamped as having been received by the Cuyahoga County "Mail Services Manager" on

June 1, 2009.

i^^ II} Having received no response to the May 22, 2oo9 notice, ODRC placed

Davis into the IPP beginning July 9, 2009, with an anticipated completion date of

October 6, 2009.

a^ 121 On September 21, 2oo9, by regular U.S. mail, ODRC mailed form 2390 to

Judge McCafferty at her courthouse address. The form is captioned "Notice to Sentencing

Court." Indicating Davis as the offender, the pre-printed form explained:

The offender will soon successfully complete the n.inety-dayincarceration phase of the IPP and will be released fromprison to post-release control.

In the event that previous attempts to notify the Court ofIntensive Program Prison placement have failed, and theCourt is receiving its first notice in this instai-ice, theDepartment vvill act upon the Court's decision to disapprovethe placement, if received prior to release.

1;` 13; On September 24, 2009, by facsimile, Judge McCaffcrty returned to ODRC

a copy of the September 21, 2oog notice. On the notice, above her signature, Judge

McCafferty wrote: "Be advised this court did not directlv, receive notification on 5-27-09,

sent by you to our county. Under no circumstances should Ms. Davis not serve her full

prison sentence." (Emphasis sic.)

l^ 14} The record contains the affidavit of Trevor Clark executed May i6, 2012.

Clark is employed by ODRC as staff counsel, a position he has held since August 200; .

14

oA065 - J71

No. 12AP-669 4

{TI 153 According to Clark, in light of Judge McCafferty's disapproval of Davis'

placement in the IPP, the ODRC director reviewed the matter and determined that Davis

should be removed from the IPP. Clark avers that, on October 6, 2009, he personally

informed the IPP coordinator of the director's decision and instructed that Davis was to

be removed from the IPP. According to Clark, in spite of this directive, OR`'^^ staff

awarded Davis a certificate of program completion. ORVL' did not conduct a removal

hearing to remove Davis from the IPP as directed by Ohio Adm.Code 512o-11-o8. Dav%s

was released from ODRC custody on December 23, 2oog, approxiinately four months

prior to her original release date.

{^l 16} Davis submitted her o"m affidavit in support of her motion for summary

judgment. In the affidavit, Davis avers that "[o]n the morning of October 7, 2o®g, the day

[she] was supposed to be released, [she] was asked to report to the records department

where [she] was told by a clerk that [she] was not going to be released because the

'judge would not allow it.' "

1¶ 17} ODRC answered interrogatories submitted by Davis in this action. One of

the interrogatories ask-s: "Uhy was [DaNis] released from incarceration in December

200 g." In response, ODRC states: "[Davis] was released because the due process removal

hearing required by the O.A.C. 5120-11-05 was not done."

J^, 18} On May 17, 201.2, ODRC moved for summary judgment. In support of its

motion, ODRC submitted the affidavit of Trevor Clark referenced above. On May 29,

2012, Davis moved for summary judgment on the issue of liability only. In support, Davis

submitted her own affidavit referenced above. On July 31, 2012, the trial court entered

judgment granting ODRC's motion for summary judgment and denying Da^ris' motion for

summary judgment.

M 191 In its July 31, 2012 entry, the trial court relies on Kempf v. State, 18x Ohio

App. ,d 623, 2009-Ohio-1877 (8th Dist.). In Kempf, the court held that R.C. 5720.032

"reqtiires actual receipt and knowing approval by the trial court." Id. at 11 17.

Paraphrasing Kemp f the trial court's entry states that "without actual receipt of the

notice, the statutory prerequisite for IPP placement is not fulfilled and the offender's

participation in an IPP is void ab initio." Apparently, the trial court concluded that Judge

McCafferty did not actually receive ODRC's May 22, 2oog notice that was stamped by the

15

flA065 - J72

No. z2AP-66 )9 5

"Mail Services I1!Ianager" on Juu1e 1, 20og. Thus, the court held that, the May 22, 2009

notice did not ineet the statutory requirement for Davis' participation in the IPP and her

participation was void ab initio.

II. ASSIGNNVIEN'I' OF ERROR

iT 2t?) Davis appeals, assigning the following error for our revie-w:

The Court of Claims erred in grantina Defendant's Motion forSummary Judgment and denying Plaintiffs motion for partialsummary judgment on liability only as to Plaintiff s claim shewas falsely inzprisoned.

III. STANDARD OF REVIEW

f^,l 211 Appellate review of summary judgment motions is de novo. ,Heltori v.

Sc~zoto Ctz,^. Bd. of Cornnzrs.,123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a

trial court's ruling on summaiy judgment, the court of appeals conducts an independent

review of the record and stands in the shoes of the trial court." .ti^.^ergenthal v. Star Bank

C.orp., 122 Ohio App.3d ioo, 103 (12th Dist.1997). We must affirm the trial coiart's

judgment if any of the grounds raised by the movant at the trial court are found to support

it, even if the trial court failed to consider those grounds. Couentrr-r1 Twp. v. Ecker, lor

0hio App.3d 38, 41-42 (9th Dist.1995)•

J^, 221 Summary judgment is proper only when the party moving for summary

judgment demonstrates that: (i) no genuine issue of material fact exists; (2) the moving

party is entitled to judgment as a matter of law; and (3) reasonable minds could come to

but one conclusion and that conclusion is adverse to the party against whom the motion

for summarY judgment is made, that party being entitled to have the evidence most

strongly construed in that party's favor. Civ.R. 56(C); State ea° rel. Grady v. State Emp.

Relations Bd., 78 Ohio St.3d 181,183 (1997).

IV. REVIEVA, OF ASSIGNMENT OF ERROR

23; Because we disagree with Da^& sole assignment of error, we affirm the

judgment of the Court of Claims.

M 24; As earlier noted, the trial court relied upon Kempf. We find Kempf

persuasive, as did the trial court.

M, 25f In Kempf, the petitioner, CoJ:leen Kempf, con1meneed a habeas corpus

action against ODRC to compel her release from prison. Kempf stole approximately

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OA® 65 - J73

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,S444,000 from St. Joseph Academy, an all girls high school in Cleveland, Ohio. In

October 2007, Judge Joseph D. Russo sentenced Kempf to four years in prison and

ordered restitution.

a¶ 26} Shortly after her arrival at the ORViT, Kempf was informed by OR'Va`' officials

that she might be eligible for the IPP. Judge Joseph D. Russo made no recommendation

as to Kempfs placement in an IPP at the time of sentencing.

27} Following Kempfs October 4, 2007 application for an IPP, ODRC sent the

required "veto letter" by regular U.S. mail on. November 8, 2007. The letter was

addressed to "Honorable Judge Russo" at the address of the Cuyahoga County Court of

Comrnon Pleas. It did not specitJ which Judge Russo. The Kern.pf court noted that there

are several Judge Russos on the Cuyahoga County Court of Common Pleas. The veto

letter included Kempf's name and the correct criminal case number. The parties

stipulated that the letter was sent by regular mail, instead of by certified mail, as required.

by the Ohio Adniinistrative Code.

`T1 28} The veto letter was not returned to ODRC as "undeliverable" or for any

other reason, and the sentencing court did not send a response. Accordingly, Kempf was

accepted into the IPP, and successfully completed it.

J®{( 29} On February 7, 2008, ODRC sent another notice by regular U.S. mail to the

"Honorable Judge Russo" at the common pleas court address to inform him of Kempf"s

successful completion of the IPP. The letter was not returned to ODRC. In an affidavit

attached to ODRC's motion for summary judgment, Judge Joseph D. Russo swears that

he personally opens and reviews alI mail addressed to him or his courtroom, and that he

never received. either letter. Kempf did not dispute this. Judge Joseph D. Russo stated

that he would not have approved of Kempf s participation in the IPP.

{^l 30} On February 9, 2oo8, ODRC released Kempf from custody under one year

of post-release control. Upon return to her home in Cuyahoga County, Kempf was

assigned to a parole officer.

}^l 31} By the afternoon of Februazy 20, 2008, ODRC had learned that Judge

Joseph D. Russo and the Cuyahoga County prosecutor were questioning how Kempf was

placed in the program. Specifically, ODRC learned that Judge Joseph D. Russo was

stating that he never approved of Kempf s placement in the program. ODRC concluded

17

OA065 - J74

No. 12`AP-G6g 7

that it had erroneously released Kempf. ODRC reasoned that it had no authority to place

Kempf in the IPP because it had failed to mail the veto letter according to statute and rule.

Consequently, C?DRC arranged for Kempf to be reincarcerated by having her meet with

her parole officer on February 21, 2008, on the pretext of showing her documents

regarding restitution to St. Joseph Academy. When she arrived, Kempf was immediately

arrested and reincarcerated.

tT1 321 In granting ODRC's motion for summary judgment, and denving Kempfs

motion for summary judgment, and denying the writ of habeas corpus, the Kempf court

explained:

Kempf argues that when a prisoner is released through nofault of his own, as a result of state actions that transcendsimple neglect and when reincarceration is unequivocallyinconsistent with fundamental principles of justice, then thestate should not reincarcerate. Kempf expounds that hersuccessful completion of the IPP, her release upon everyone'sgood-faith belief that she was entitled to be released onFebruary 19, 20 oa, and the department's summary revocationof her release upon learning that the judge might not haveactually received the required notification transcends simpleneglect and shocks the modern conscience.

Indeed, the court considers that the department's l:nov,ingabandonment of the certified-mail reauirement in the QhioAdministrative Code may be problematic. In an unfavorablelight to the department, the knowing disregard of theAdministrative Code "short cireuits" the process and peinaitsarbitrary enforcenient. The department justifiedreincarceratin.g Kempf because it could not document that theveto letter was sent according to statute and rule. However, bydisregarding the certified-mail requirement, it prevented itselffrom being able to document receipt. Thus, when a trial judgesays, "I didn't get the notice," "I don't know if I got the notice,"or "I d.on't remember getting the notice," the departmentcould declare the prisoner ineligible and reinearcerate becauseit cannot document what happened.

In response, the department argues that Kempf v%Tonglyconceptualizes her situation. The critical statutory language isin R.C. 5120.032(B)(1)(a): "The court shall have ten days fromreceipt of the notice Similarly, Ohio Adm.Code 5120-11-03(D) provides "within ten days of mail receipt * '" *." Theprerequisite of successful completion of the IPP is actual

18

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No. 12AP-669

receipt by the trial judge of the veto letter. The statutoryscheme requires the sentencing judge's knowing approval.Without such a receipt and 1€noiving approval, Kem.pfsparticipation in the IPP was void ab initio, and she was alwaysunder the four-year prison sentence. Thus, her release onFebruary 19, 20o8, was erroneous, and the department couldhave her suinniarily> arrested and reincarcerated pursuant toR.C. 5i20.48. The department counters Kempf's "shocks theconscience" a.rgument by arguing that neither this court northe department can or should abrogate a jcidicially imposedsentence unless it is certain that all the prerequisites havebeen fulfilled.

In analyzing and weighiiig these arguments, the courtconcludes that the statutory language "receipt of the notice" isthe critical and controlling language. The use of this languageshows that the statutory scheme requires actual receipt andknowing approval by the trial court, Without that actualreceipt, the statutory prerequisite is not fulfilled, and Kempf sparticipation in the IPP was void ab initio. Accordingly, thedepartment did not terminate her senntence upon release andhad the authority to reincarcerate her.

(Footnote omitted.) Id. at T 14-17.

8

{1( 331 Here, as in Kempf, Davis' participation in the IPP was void ab initio because

Judge McCafferty did not actually receive the veto letter sent by certified mail on May 22,

2ooy, and because she expressed her disapproval of any reduction in Davis' prison

sentence on the notice mailed to her on September 21, 2009, which she returned to tJDRC

on September 24, 2oog. Accordingly, Kempfsupports our affirmance of the judgement of

the Court of Claims at issue here.

f; 341 Davis suggests here that the Kempf decision has been eroded by the

decision of the Supreme Court of Ohio in State v. Roberts, 123 Qhio St.3d 465,. 2009-

Chio-58oo ("Roberts II"), wherein the court reversed the decision of the First District

Court of Appeals in State v. Roberts, 18o Ohio App.3d 216, 2008-Ohio-6827 ("Roberts

P'). It can be noted that Roberts II was decided after the Kempf case was decided.

a, 35; In IZobertsll, the court states "we conclude that the state has failed to prove

that the sentencing court never received notice of the intended placement of appellant in

an intensive program prison. Having received no objection from the sentencing court, the

is

QAC) 6 5 - J76

No. lo-4P-669 9

department was authorized to place appellant in an intensive program prison and

thereafter to release him." Id. at T 17.

{^i 36} Even if here we place the burden of proof on ODRC to show that the

sentencing court never received notice of ODRC's intended piacement of Davis in the IPP,

we must find that ODRC met its burden, as indicated by the undisputed facts of t11is case.

That is, on the September 21, ?aog notice that Judge McCafferty returned to ODRC, she

unequivocally states that she "did not directlv receive notification" of the previous notice.

Thus, ODRC has shown that the statutory prerequisite for participation in the IPP was

never met, and that Davis' participation was void ab initio. Therefore, we overrule

appellant's assignment of error.

V. DISPOSITION

{^ 37} Having overruled appellant's sole assignment of error, we affirm the

judgment of the Court of Claims of Ohio.

Judgment affirmed.

KiATT, P.J., and DORRI7, J., concur.

20

0A065 - 052

IN THE CUUR.T OF APPEALS OF OHIO

. TENTH APPELLATE DISTRICT

Billie Davis,

Plaintiff-Appellant,

V.

Ohio Department of Rehabilitationand Correction,

Defendant-Appellee.

No. z2AP-66g(Ct. of Cl.1Vo. 2010-10475)

(REGULAR CALENDAR)

JUDG-MENT ENTRY

For the reasons stated in the decision of this court rendered herein on

September 17, 2013, appellant's assignment of error is overruled, and it is the judgment

and order of this court that the judgment of the Court of Claims of Qhio is affirzi-ied.

CONNOR, J., KLATT, P.J., and DOR:itIAN, J.

js/Judge John A. Connor

21

OA065 - 053

Tenth District Court of Appeals

Date: 09-17-2013

Case Title: BILLIE DAVIS -VS- OI-IIODEPARTMENT OF REHABILITATIONAND CORREC

Case Nwnber: 12AP000669

Type: JEJ - JUDGMENT ENTRY

So Ordered

'•a,:;::.^^r^ ^... ..c'^^ ^

/s/ Judge John A. Connor

Eiecironically signed on 2013-Sep-17 page 2 of 2

22

U:>

Court of Claims of OhioThe Ohio Judicial Center

65 South Front Street, Third FloorColumbus, OH 43215

614.387.9800 or 1.800.824.8263wwwr.Cco.state.oh. us

SII.E_IE DAVIS

Plaintiff

V.

OHIO DEPARTMENT OFREHABILITATION AND CORRECTION

Defendant

r-g

Case No. 2010-10475^..

Judge Alan C. Travisca

ENTRY GRA.NTf[VG DEFENDANT'S-0MOTION FOR SUMMARYJUDGMENT 7.

On May 17, 2012, defendant filed a motion for summary judgment pursuant to

Civ.R. 56(B). On May 29, 2012, plaintiff filed a cross-motion for summary judgment

pursuant to Civ.R. 56(A). Defendant filed a response to plaintiff's motion on May 30, 2012,

and plaintiff filed a response to defendant's motion on June 7, 2012. The motions are now

before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).

Civ.R. 56(C) states, in part, as follows:

"Summary judgment shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact, if any, timely filed in the action, show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. No evidence or stipulation may be considered except as stated in this rule. A

summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence or stipulation

construed most strongly in the party's favor." See also Gilbert v. Summit Cty., 104 Ohio

St.3d 660, 213a4-C?hio-7108, citing Temple v. Wean United, inc., 50 Ohio St.2d 317 (1977).

Plaintiff, a former inmate, brings this action for false imprisonment, claiming that

defendant confined her beyond her lawful term of incarceration. ft is undisputed that on

chc^

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c^

^^U RUN A "^! Z E Li

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V

-,-- ,^uit

OF FilO

2012 JUL 31 PM 1: 22

Case No. 2010-10475 - 2- ENTRY

or about April 14, 2009, Judge Bridget M. McCafferty of the Cuyahoga County Court of

Common Pleas sentenced plaintiff to seventeen one-year terms of imprisonment, to be

served concurrently, on seventeen criminal counts of theft, forgery, and misuse of credit

cards. As a result, plaintiff entered defendant's custody on April 24, 2009.

As set forth in R.C. 5120.032, defendant operates an intensive program prison (IPP)

in which eligible offenders in its custody may participate in a 90-day period of intense

educational and rehabilitative programming, after which time defendant may reduce the

stated prison term and release the offender to post-release control, See also Ohio

Adm.Code 5120-11-01 et seq. A court may recommend at the time of sentencing that an

eligible offender be placed in an IPP, and the sentencing court also has the authority to

"disapprove" of such placement. R.C. 5120.032(B)(1)(a); R.C. 2929.14(1)(1);

R.C. 2929.19(D). If the sentencing court makes no recommendation concerning IPP

placement, defendant has the ability to place an eligible offender in an IPP, provided that

defendant first "shall notify the sentencing court of the proposed placement of the prisoner

in the [IPP] and shall include with the notice a brief description of the placement. The court

shall have ten days from receipt of the notice to disapprove the placement. If the

sentencing court disapproves the placement, [defendant] shall not proceed with it. If the

sentencing court does not timely disapprove of the placement, [defendant] may proceed

with plans for it." R.C. 5120.032(B)(1)(a).

At the time of plaintiff's sentencing, the sentencing court neither recommended nor

disapproved plaintiff for placement in an IPP. In late May 2009, defendant mailed a notice

to the sentencing court stating that defendant planned to place plaintiff in an IPP unless

the court timely disapproved. While the notice was addressed to "Judge Bridget

McCafferty, Cuyahoga Co. Com. Pleas Court," the certified mail return receipt was

stamped as received by the "Mail Services Manager" of the "Cuyahoga County Mail

Services Division."

After receiving no response to the notice, defendant placed plaintiff in an IPP at the

Ohio Reformatory for Women. There is no dispute that plaintiff was expected to complete

t--411411 Z

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OF 0Fi0

2012 JUL 3 I PM 1: 22

Case No. 2010-10475 - 3- ENTRY

the 90-day incarceration phase of the IPP on or about October 6, 2009, and be released

the following day. According to the affidavit of Trevor Clark, staff counsel for defendant,

defendant sent a second notice to the sentencing court on or about September 21, 2009,

pursuant to defendant's Policy Number 52-RCP-08, stating that plaintiff was nearing

completion of the incarceration phase of the IPP and would soon be released to the

supervision of the Adult Parole Authority. The notice, a copy of which is authenticated via

Clark's affidavit, goes an to state: "In the event that previous attempts to notify the Court

of Intensive Program Prison placement have failed, and the Court is receiving its first notice

in this instance, the Department will act upon the Court's decision to disapprove the

placement, if received prior to release."

According to Clark, on September 24, 2009, the notice was returned to defendant

via facsimile with a handwritten response appearing thereon. In the authenticated copy

attached to Clark's affidavit, the handwritten response states: "Be advised this court did not

directly receive notification on 5-27-09, sent by you to our county. UNDER NO

CIRCUMSTANCES SHOULD Ms. Davis not serve her full prison sentence. Bridget

McCafferty, Judge." (Emphasis original.)

Clark avers that in light of this response disapproving of plaintiff's placement in the

IPP, defendant's director reviewed the matter and determined that plaintiff should be

removed from the IPP. Clark further avers that on October 6, 2009, he personally informed

the IPP coordinator of the director's determination and instructed that plaintiff was to be

removed from the IPP. Clark goes on to state, however, that in spite of this directive, staff

at the reformatory nonetheless awarded a certificate of IPP completion to plaintiff and "did

not conduct a removal hearing to remove [plaintiffl from IPP as directed by OAC 5120-11-08.5,

Plaintiff submitted her own affidavit wherein she avers, in part, that "[o)n the morning

of October 7, 2009, the day I was supposed to be released, I was asked to report to the

records department where I was told by a clerk * * * that I was not going to be released

because the `fudge would not allow it.79 Plaintiff further avers that in the ensuing weeks,

JOURNAU7-p-

25

FlLi=•'i7COiJIQ;

OF OH110

2012 ,lUL 31 PM i- 22

Case No. 2010-10475 - 4- ENTRY

she corresponded with defendant's director and other administrators to lobby for her

release, but to no avail. According to certified copies of journal entries that defendant

submitted with its motion, plaintiff also filed a motion for judicial release on October 28,

2009, which was denied by Judge McCafferty, who had also denied previous motions for

judicial release filed by plaintiff on May 28, 2009, and July 15, 2009.

Plaintiff states in her affidavit: "I was finally released on December 24, 2009 after

I was able to contact the Ohio Public Defenders Office in Columbus." Plaintiff also

submitted answers to interrogatories wherein defendant stated that"[p]laintiff was released

because the due process removal hearing required by the O.A.C. 5120-11-05 was not

done." There is no dispute that plaintiff's release occurred prior to the expiration of her

stated prison term.

Plaintiff claims that her lawful term of imprisonment ended in October 2009 by virtue

of her participation in the IPP, and that defendant's confinement of her from that time until

her release in December 2009 constitutes false imprisonment. Defendant argues that its

confinement of plaintiff was at all times in accordance with the orders of the sentencing

court.

"False imprisonment occurs when a person confines another intentionally 'without

lawful privilege and against his consent within a limited area for any appreciable time *`°"'

Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107, 109 (1991), quoting

Feliciano v. tCreiger, 50 Ohio St.2d 69, 71 (1977).

"Pursuant to R.C. 2743.02(A)(1), the state may be held liable for the false

imprisonment of its prisoners." fd. at paragraph two of the syllabus. The elements for false

imprisonment ofan inmate beyond a lawful term of incarceration are: "(1) expiration of the

lawful term of confinement, (2) intentional confinement after the expiration, and (3)

knowledge that the privilege initially justifying the confinement no longer exists." Corder v.

Ohio l3ept, offsehab. & Corr., 94 Ohio App.3d 315, 318 (10th Dist.1994). However, "'an

action for false imprisonment cannot be maintained where the wrong complained of is

imprisonment in accordance with the judgment or order of a court, unless it appear that

J Cli R`^^AL &^^^ 0

26

FILFDCOUri-. _' r

OF OHIO

2012 JllL 3 I PM 1: 22

Case No. 2010-10475 - 5- ENTRY

such judgment or order is void."' Bennettat 111, quoting Diehi v. Friester, 37 Ohio St. 473,

475 (1882). "Thus, the state is immune from a common law claim of false imprisonment

when the plaintiff was incarcerated pursuant to a facially-valid judgment or order, even if

the facially-valid judgment or order is later determined to be void." tVlcKinney v. Ohio L7ept

of Rehab, & Corr., 10th Dist. No. 09AP-960, 2010-Ohio-2323, T 9.

In the present case, the sentencing court issued an order in April 2009 that both

conferred a privilege upon, and indeed obligated, defendant to imprison plaintiff in

accordance therewith, See Trice v. Ohio Dopt, of Rehab. & Corr., 10th Dist. No. 07AP-

828, 2008-Ohio-1371, ^ 13, citing R.C. 2949.12. Inasmuch as the sentencing court made

no recommendation regarding IPP placement at the time of sentencing, if defendant

sought to reduce plaintiff's prison term by placing her in an IPP, defendant was required

to first notify the sentencing court so that it would have an opportunity to disapprove the

placement within "ten days from receipt of the notice "*°"." R.C. 5120.032(B)(1)(a);

R.C. 2929.14(1)(1); see also R.C. 2929.01(BB); State v. Roberts, 123 Ohio St.3d 465,

2009-Ohio-5800, ¶ 2. i[T]he statutory scheme requires actual receipt and knowing

approval by the trial court." Kempf v. State, 181 Ohio App.3d 623, 2009-Ohio-1877, T 17

(8th Dist.). Without actual receipt of the notice, the statutory prerequisite for IPP placement

is not fulfilled and the offender's participation in an IPP is void ab initio. Id.

It is undisputed that whiie the initial notice was addressed to the sentencing court,

the certified mail return receipt only establishes that it was received by the Cuyahoga

County Mail Services Division. As previously stated, defendant received no response,

placed plaintiff in an IPP, and later sent a second notice to inform the sentencing court that

it was planning to release plaintiff on account of her IPP participation. The second notico

was returned to defendant via facsimile with a transmission stamp that reads "common

pleas courY' and a handwritten response at the bottom of the page instructing that the

sentencing court did not "directly receive" the initial notice, that the sentencing court

disapproved of plaintiff's IPP placement, and that plaintiff was to serve her stated prison

term. Beneath the response was the signature of "Bridget McCafferty, Judge."

^^^R NAL ^^Ef.$

27

FILEnCOUEi

OF OHIO

2012 JUL 3 I PM f: 22

Case No. 2010-10475 - 6- ENTRY

Based upon the memoranda and evidence submitted by the parties in relation to the

motions for summary judgment, reasonable minds can only conclude that the response

appears on its face to be a valid court order instructing defendant that the sentencing court

had not actually received the initial notice, and that the court was exercising its statutory

authority to disapprove of ptaintiff's IPP placement. See Moses v. Sterling CornmerceAm.,

Inc., 10th Dist. No. 02AP-161, 2002-Ohio-4327, ^ 11, quoting Black's Law Dictionary (7th

Ed.1999) ("An `order' is defined as follows: 1. A command, direction, or instruction. 2. A

written direction or command delivered by a court or judge."'). Clark's affidavit testimony

establishes that defendant relied upon that order to remove plaintiff from the IPP and

continue her confinement. Given that defendant's confinement of plaintiff was at all times

in accordance with the orders of the sentencing court, plaintiff cannot maintain a claim of

false imprisonment against defendant.

Insofar as plaintiff argues that the sentencing court erred in disapproving her IPP

placement, "the statute governing actions in the Court of Claims, R.C. 2743.02, was not

intended to confer jurisdiction for the Court of Claims to review criminal proceedings

occurring in the court of common pleas." Perry v. Ohiv Dept of Rehab. & Corr., 10th Dist.

No. 1 1AP-571, 2012-Ohio-452, ¶ 22.

Lastly, while plaintiff has presented some evidence that she was ultimately released

from defendant's custody on the ground that she did not receive due process in

conjunction with her removal from the IPP, it is well-settled that this court does not have

subject matter jurisdiction over any such alleged violations of constitutional due process

rights. Bell v. Ohio Dept: of Rehab. & Corr., 10th Dist. No. 10AP-920, 2011-Ohio-6569,

¶ 22; Bleicher v. tfnev, of Cincinnati College of Med., 78 Ohio App.3d 302 (10th Dist.1992).

Based on the foregoing, the court concludes that there are no genuine issues of

material fact and that defendant is entitled to judgment as a matter of law. Accordingly,

defendant's motion for summary judgment is GRANTED, plaintiff's motion for summary

JOURNA^.^^7ri

28

Fll_.Ft1COIJt^ . r ti';^

O>r aHio

2012 JUL 3 i PM 1 ". 22

Case No. 2010-10475 -7- ENTRY

judgment is DENIED, and judgment is rendered in favor of defendant. All previously

scheduled events are VACATED. Court costs are assessed against piaintiff. The clerk

shall serve upon all parties notice of this judgment and its date of entry upon the journaf.

^-----------^^^.o^%

ALAN C. TRAVISJudge

cc:

Alan I. Goodman55 Public Square, Suite 1300Cleveland, Ohio 44113-1971

001

Amy S. BrownStephanie D. Pestello-SharrfAssistant Attorneys General150 East Gay Street, 131" FloorColumbus, Ohio 43215-3130

^^^^RNA L iZZED

29