STATE OF OHIO, Appellee, - vs - PAUL A. LOVELESS, Appellant.
CASE NO. CA2019-03-028
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
11/25/2019
2019-Ohio-4830
S. POWELL, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2009CR00548; Vincent D. Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, for appellee; Timothy Young, Ohio Public Defender, Lauren Hammersmith, for appellant
{¶ 1} Appellant, Paul A. Loveless, appeals the decision of the Clermont County Court of Common Pleas denying his motion to vacate his 2009 conviction for one count of tampering with evidence, one count of pandering obscenity, and five counts of unauthorized use of a computer. For the reasons outlined below, we affirm.
{¶ 2} The facts of this case are generally not in dispute. At 10:44 a.m. on May 1, 2006, John Burns, the Manager of Technology Operations at the Great Oaks Institute of Technology and Career Development (“Great Oaks“), received an anonymous three-page e-mail from a Great Oaks student claiming he had discovered certain vulnerabilities in the Great Oaks’ computer network that allowed him unauthorized access to confidential information stored on the network.1 The student also claimed that he was sharing this information with Burns in order to assist Great Oaks in fixing the security issues with its network. Upon receiving this e-mail, Burns contacted the Sharonville Police Department to report the security breach. There is no dispute that the student who authored this e-mail later identified himself as Loveless. There is also no dispute that Loveless, who was then 17 years old, agreed to meet with Burns the next day to discuss how he was able to gain access to the Great Oaks’ network.
{¶ 3} At 1:37 p.m. on May 2, 2006, Burns, Detective Aaron Blasky with the Sharonville Police Department, and Officer Steve Burgess with the Miami Township Police Department, as well as two Great Oaks officials, administrator Dan Cox and counselor Robin Scallon, met with Loveless in a Great Oaks’ conference room.2 During this meeting, Detective Blasky informed Loveless that they were there “to find out what went on” and “need[ed] to talk” about his “great sleuthing” into the Great Oaks’ computer network. Loveless responded “yep” and explained that “he would fully cooperate and be honest.”3
{¶ 5} After meeting with Loveless in the Great Oaks’ conference room for approximately two hours, officials from Great Oaks contacted Loveless’ parents. Upon being contacted by Great Oaks officials, Loveless’ father agreed to meet with Detective Blasky and Officer Burgess at the Loveless residence. Shortly thereafter, at 4:23 p.m., Detective Blasky transported Loveless home in his police cruiser. Once there, Loveless showed Officer Burgess the three computers that the Loveless family kept in their home; one in Loveless’ parents’ first-floor bedroom and two in Loveless’ bedroom in the basement. During this time, Officer Burgess waited upstairs for Loveless’ father to arrive home.
{¶ 6} Upon his arrival home, Loveless’ father spoke upstairs with Detective Blasky and Officer Burgess. During this conversation, there is no dispute that Loveless was left alone downstairs in his basement bedroom with two of the family‘s three computers. After speaking with Loveless’ father, Detective Blasky went downstairs to the basement and
{¶ 7} Once Loveless was back upstairs, Loveless’ father “agreed to fully cooperate” with the investigation. To that end, Loveless’ father signed a consent form that gave Detective Blasky and Officer Burgess consent to search each of the Loveless family‘s three computers. Loveless’ father signed this consent form at 4:45 p.m., approximately three hours after Detective Blasky and Officer Burgess had first met with Loveless in the Great Oaks’ conference room. While signing this consent form, the record indicates that Loveless’ father told Detective Blasky and Officer Burgess that he “completely understood the concern of Great Oaks.”
{¶ 8} On May 4, 2006, Officer Burgess contacted Loveless’ probation officer and advised him that there was an open investigation into Loveless gaining unauthorized access to the Great Oaks’ computer network.6 Later that day, at 12:49 p.m., Officer Burgess received a telephone call from Loveless. During this call, Loveless informed Officer Burgess that his probation officer had called him and informed him that he was being placed on the “Detention Roster.”7 Loveless then asked Officer Burgess if he “could be looking at felony charges.” Officer Burgess responded that the investigation was still ongoing but that it was certainly a “possibility.”
{¶ 9} At 9:30 a.m. on May 11, 2006, Loveless came into Officer Burgess’ office “upset and crying.” Once there, Loveless told Officer Burgess that he was “just given 80 days out of school and will probably now go to jail.”8 Rather than discussing the ongoing
{¶ 10} After Loveless’ parents arrived, Officer Burgess “explained to them the case was still under investigation and may take a while” but that Loveless “could be looking at felony charges.” After explaining to Loveless the serious nature of the charges levied against him, Officer Burgess asked Loveless if he would like to write a statement. Although initially somewhat reluctant, Loveless nevertheless agreed to write a statement for Officer Burgess. While writing this statement, the record indicates that Loveless became visibly upset and told Officer Burgess that he just wanted “to be honest.” There is no dispute that Loveless wrote this statement after again signing a waiver of his Miranda rights.
{¶ 11} At 9:02 a.m. on May 19, 2006, Burns, Detective Blasky, and Officer Burgess met to discuss the progress of the ongoing investigation into Loveless’ unauthorized access onto the Great Oaks’ computer network. During this meeting, Detective Blasky advised Burns and Officer Burgess that “there is much more than he anticipated that [Loveless] accessed and did.”9 This includes Detective Blasky‘s discovery that Loveless had also gained unauthorized access to a company‘s computer network located in Michigan. Burns further advised Detective Blasky and Officer Burgess that Great Oaks was still in the process of bringing in computer consultants to check its computer network and “do the needed maintenance.”
{¶ 12} Approximately one month later, on June 16, 2006, Detective Blasky began a forensic examination of the computer taken from Loveless’ parents’ first-floor bedroom. During this examination, Detective Blasky discovered accounts belonging to both Loveless
{¶ 13} Once the search warrant was obtained, Detective Blasky met with Loveless’ parents at the Miami Township Police Department and “informed them of this development, providing them with copies of the warrants.” After speaking with Loveless’ parents, Detective Blasky continued his forensic examination of the computer taken from Loveless’ parent‘s first-floor bedroom. This examination uncovered “remnants of approximately 15 movies depicting minors engaged in sexual acts” that had been deleted “one year prior which coincides with the last login date of [Loveless‘] account.”
{¶ 14} On June 27, 2006, Detective Blasky conducted a forensic examination on one of the two computers taken from Loveless’ basement bedroom. Detective Blasky identified this computer as “Homemade Computer SCSI Hard drive from [Loveless‘] Room.” This examination resulted in Detective Blasky discovering several now deleted files containing child pornography. Detective Blasky also discovered evidence that these files had been deleted while Loveless was left alone in the basement when he and Officer Burgess were upstairs speaking to Loveless’ father on the afternoon of May 2, 2006.
{¶ 15} Due to the complex nature of this case, the record indicates that Detective Blasky did not conduct a forensic examination of the other computer taken from Loveless’ basement bedroom until nearly a year later on June 22, 2007. Detective Blasky identified this computer as “IBM Computer from [Loveless‘] Room.” Similar to the first computer taken from Loveless’ basement bedroom, the record indicates this examination also resulted in Detective Blasky discovering a number of files that related to either child pornography or computer hacking. This includes one file named “R@ygold – 12yo girl lets 11yo boy cum.”
{¶ 17} Continuing this narrative supplement, Officer Burgess described how the investigation was progressing as follows:
August 1, 2007 Det. Blasky met with Ofc. Burgess at the Miami Township Police Department with the complete investigation and reviewed same. Det. Blasky gave Ofc. Burgess (2) investigation notebooks, one for the PD and one for the Prosecutor‘s Office.
August 2, 2007 Ofc. Burgess e-mailed Great Oaks Director of Technology, John Burns and requested a detailed report and restitution request for the Loveless case.
August 3, 2007 Ofc. Burgess spoke with Clermont County Prosecutor, Jay Mathers and briefed him of the investigation findings. A meeting will be set in the future.
Officer Burgess concluded his supplemental narrative by noting that the “[c]ase remains open.”
{¶ 18} Over 18 months later, in April of 2009, the case was assigned to Detective Robert Bradford with the Miami Township Police Department. After being assigned the case, Detective Bradford met with Kevin Miles, an Assistant Prosecutor with the Clermont County Prosecutor‘s Office. During this meeting, which occurred on April 30, 2009,
{¶ 19} The following month, in May of 2009, Detective Bradford asked Detective Blasky to provide him with the files that were recovered from the Loveless family‘s three computers. This includes the two computers taken from Loveless’ basement bedroom. Detective Blasky responded that he would have the files available for Detective Bradford “as soon as he could create a disk.” Later that month, Detective Blasky provided Detective Bradford with a disk that contained the various photographs and videos of minors engaged in sexual acts that were recovered from the Loveless family‘s three computers. Upon receiving this disk, Detective Bradford reviewed the files provided to him by Detective Blasky. This review resulted in Detective Bradford locating 26 files that contained child pornography and several other files that “depicted child pornography by the file names.”
{¶ 20} After reviewing the files provided to him by Detective Blasky, Detective Bradford met with Assistant Prosecutor Miles again and advised him of his findings. Upon being so advised, Assistant Prosecutor Miles asked Detective Bradford to contact Detective Blasky to determine exactly how many times Loveless had gained access into the Great Oaks’ computer network. Assistant Prosecutor Miles also asked Detective Bradford to interview Loveless and Loveless’ parents again. Assistant Prosecutor Miles further advised Detective Bradford that, in accordance with
{¶ 21} On June 4, 2009, Loveless went to the Miami Township Police Department to obtain a copy of an unrelated crash report. While there, Detective Bradford asked Loveless if they could talk. Loveless agreed. Detective Bradford and Loveless then went into an interview room located just off of the police department‘s front lobby. Once in the interview room, Detective Bradford advised Loveless that he did not need to speak with him and that he was free to leave at any time. Upon being so advised, Detective Bradford asked Loveless about the child pornography that Detective Blasky had discovered on the three computers taken from the Loveless family‘s residence. Loveless denied all knowledge about the child pornography found on those three computers. Loveless instead advised Detective Bradford that he used to buy and sell computers so the child pornography must have belonged to someone else. Loveless also denied any knowledge about the child pornography that was deleted from one of the two computers taken from his basement bedroom while Detective Blasky and Officer Burgess were upstairs talking to his father on the afternoon of May 2, 2006.
{¶ 22} At 11:10 a.m. on July 15, 2009, Detective Bradford met with Loveless’ father to discuss the allegations against Loveless and the child pornography located on the Loveless family‘s three computers. During this meeting, Loveless’ father told Detective Bradford that Loveless had prior legal trouble relating to computer hacking and other sexually related offenses. This includes Loveless having a “problem” with child pornography. Loveless’ father also advised Detective Bradford that Loveless “has had so
{¶ 23} The record indicates Loveless’ father also showed concerns that the police might have thought the child pornography belonged to him. So, in order to distance himself from those allegations, Loveless’ father advised Detective Bradford that Loveless had vast knowledge of computers and computer systems, thereby making it relatively easy for Loveless to crack computer passwords. Loveless’ father also told Detective Bradford that he had already told Detective Blasky that it was “[Loveless] on his computers and that he was not doing this.” Loveless’ father further told Detective Bradford that he wanted to help Loveless but that he was “unaware of anything that had ever happened to [Loveless] that would cause this type of behavior.” Loveless’ father additionally advised Detective Bradford that he was unaware if Loveless had ever been abused and denied that any abuse had ever occurred in their home.
{¶ 24} Later that day, Detective Bradford drafted a narrative supplement outlining his conversations with Loveless and Loveless’ father. Detective Bradford also noted that he had prepared a discovery packet that included a disk containing the child pornography discovered on the Loveless family‘s three computers. Detective Bradford concluded this narrative statement by noting that he was recommending Loveless be indicted for 26 counts of second-degree felony pandering sexually oriented material involving a minor in violation
{¶ 25} On August 5, 2009, approximately three weeks after Detective Bradford spoke to Loveless’ father, and five days after Loveless turned 21 years old, the Clermont County Grand Jury returned a 26-count indictment against Loveless. Somewhat different than the charges recommended by Detective Bradford, the indictment charged Loveless with ten counts of second-degree felony pandering sexually oriented material involving a minor in violation of
{¶ 26} On October 21, 2009, Loveless entered a plea agreement and pled guilty to one count of third-degree felony tampering with evidence in violation of
{¶ 27} On July 13, 2018, over nine years after he entered his guilty plea, Loveless filed a motion to vacate his conviction. Loveless supported his motion based on two central arguments; (1) preindictment delay and (2) the trial court‘s alleged improper exercise of subject matter jurisdiction to convict and sentence him for crimes that he committed prior to turning 18. Taking the matter under advisement, the trial court issued a decision denying Loveless’ motion on February 26, 2019. In so holding, the trial court found that by pleading guilty Loveless had waived any argument that his conviction should be vacated due to preindictment delay. The trial court also found that it had properly exercised subject matter jurisdiction over Loveless’ conviction even though the conviction was based on crimes that Loveless committed prior to turning 18 since he was neither “taken into custody” nor “apprehended” as those terms are used in
Appeal
{¶ 28} Loveless now appeals the trial court‘s decision denying his motion to vacate his conviction, raising the following single assignment of error for review.
{¶ 29} THE CLERMONT COUNTY COURT OF COMMON PLEAS ERRED [WHEN] IT FAILED TO VACATE PAUL LOVELESS’ CONVICTIONS AS VOID BECAUSE THE COMMON PLEAS COURT LACKED JURISDICTION TO CONVICT HIM OF THAT OFFENSE IN 2009 AND BECAUSE THE STATE FAILED TO TIMELY PROSECUTE PAUL.
{¶ 30} In his single assignment of error, Loveless argues that the trial court erred by
{¶ 31} Loveless initially argues that the trial court erred by denying his motion since the trial court lacked subject-matter jurisdiction to convict him for crimes that he committed prior to turning 18. Loveless instead argues that it was the juvenile court that had exclusive subject-matter jurisdiction to punish him for those offenses. We find no merit to Loveless’ claim.
{¶ 32} Pursuant to
{¶ 33} There is an exception, however, that limits the juvenile court‘s exclusive subject-matter jurisdiction. Bear v. Buchanan, 156 Ohio St.3d 348, 2019-Ohio-931, ¶ 5. As noted above, this exception is found in
If a person under eighteen years of age allegedly commits an act that would be a felony if committed by an adult and if the person is not taken into custody or apprehended for that act until after the person attains twenty-one years of age, the juvenile court does not have jurisdiction to hear or determine any portion
of the case charging the person with committing that act. In those circumstances, divisions (A) and (B) of section 2152.12 of the Revised Code do not apply regarding the act, and the case charging the person with committing the act shall be a criminal prosecution commenced and heard in the appropriate court having jurisdiction of the offense as if the person had been eighteen years of age or older when the person committed the act. All proceedings pertaining to the act shall be within the jurisdiction of the court having jurisdiction of the offense, and that court has all the authority and duties in the case that it has in other criminal cases in that court.
{¶ 34} “By enacting
(1) The defendant must have been under eighteen years of age at the time of the offense;
(2) The alleged offense would be a felony if committed by an adult; and
(3) The defendant must not have been “taken into custody or apprehended” for the offense prior to turning twenty-one years of age.
State v. Taylor, 8th Dist. Cuyahoga No. 105322, 2017-Ohio-8066, ¶ 4.
{¶ 35} “The legislature chose to authorize prosecution of those [offenders over the age of 21] in the general division because persons who commit offenses as juveniles but who are not prosecuted until after they turn 21 are not likely to be amenable to the juvenile
{¶ 36} There is no dispute that Loveless was under the age of 18 at the time he committed the above named offenses and that the offenses, if committed by an adult, would all be charged as felonies. The only question is whether Loveless was “taken into custody or apprehended” as those terms are used in
{¶ 37} As it relates to whether an offender was “taken into custody” under
{¶ 38} On the other hand, unlike where a child has been “taken into custody,” it has been determined that an offender has been “apprehended” under
{¶ 39} Loveless claims that he was “taken into custody” as that term is used in
{¶ 40} The record further indicates that there was no reason to believe that it was necessary to physically detain Loveless by taking him into custody or place him under arrest in order to protect the public interest or public safety on the afternoon of May 2, 2006. This holds true even after Detective Blasky drove Loveless home in his police cruiser and spoke with Loveless’ father. This is because Loveless was at that time being investigated based solely on allegations that he had gained unauthorized access onto the Great Oaks’ computer network and not for possessing child pornography. Therefore, contrary to
{¶ 41} Although this court‘s analysis is based on the meaning of the phrase “taken into custody” under
{¶ 42} Loveless also claims that he was “apprehended” as that term is used in
{¶ 43} Again, as properly explained by the trial court, the term “apprehended” would “cover complaints filed and served, but not necessarily accompanied by physical seizure.” Therefore, as discussed more fully above, not only was Loveless not “taken into custody” prior to turning 21, Loveless was also not “apprehended” until after he was indicted and a warrant was issued for his arrest on August 5, 2009, five days after his 21st birthday on July 31, 2009. See State v. Steele, 146 Ohio Misc. 2d 23, 2008-Ohio-2467, ¶ 6 (C.P.) (offender was not “apprehended” as that term is used in
Preindictment Delay
{¶ 44} Loveless additionally argues that the trial court erred by denying his motion to vacate his conviction since he was subject to preindictment delay that violated his right to due process. While there may be some question as to why the investigation lasted for over three years, it is nevertheless well established that “a guilty plea waives any alleged due process violation arising from preindictment delay.” State v. Thomas, 8th Dist. Cuyahoga No. 105824, 2019-Ohio-1372, ¶ 6, citing State v. Brown, 8th Dist. Cuyahoga No. 104085, 2017-Ohio-184, ¶ 9 (“[appellant‘s] guilty plea waives any alleged due process violation arising from preindictment delay“); State v. Shivers, 8th Dist. Cuyahoga No. 105621, 2018-Ohio-99, ¶ 11 (“appellant‘s guilty plea resulted in a waiver of any alleged due process
Conclusion
{¶ 45} The trial court did not err by denying Loveless’ motion to vacate his conviction resulting from his guilty plea to one count of tampering with evidence, one count of pandering obscenity, and five counts of unauthorized use of property. Therefore, finding no merit to any of the argument raised herein, Loveless’ single assignment of error challenging the trial court‘s decision denying his motion to vacate his conviction is overruled.
{¶ 46} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.