[Cite as Cleveland v. Bermudez, 2020-Ohio-4296.]

OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CITY OF CLEVELAND, : 

 Plaintiff-Appellee, : 

 No. 109018 

 v. : 

 

DANIEL BERMUDEZ, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: September 3, 2020 

 

Criminal Appeal from the Cleveland Municipal Court 

Case No. 2014 CRB 025018 

 

Appearances: 

Barbara A. Langhenry, Cleveland Director of Law, Karrie 

Howard, Chief Prosecutor, and Nicholas Kolar, Assistant 

City Prosecutor, for appellee. 

Mark A. Stanton, Cuyahoga County Public Defender, and 

Robert McCaleb, Assistant Public Defender, for appellant. 

KATHLEEN ANN KEOUGH, P.J.: 

Defendant-appellant, Daniel Bermudez, appeals the trial court’s 

decision denying his motion to dismiss. For the reasons that follow, we reverse his 
convictions and remand to the trial court to conduct an evidentiary hearing on 

Bermudez’s motion. 

On August 28, 2014, Bermudez was charged with one count each of 

domestic violence in violation of R.C. 2919.25, and assault in violation of Cleveland 

Codified Ordinances 621.03 — both first-degree misdemeanors. A registered 

warrant was issued on the same day. 

On June 25, 2019, Bermudez was arrested on the outstanding 

warrant. On August 5, 2019, he filed a motion to dismiss contending that 

prosecution did not commence within the relevant statute of limitations pursuant to 

R.C. 2901.13(A)(1)(b). Bermudez also requested an oral hearing on his motion. On 

the same morning that the motion was scheduled to be heard, the city filed its 

opposition to Bermudez’s motion. The trial court summarily denied the motion in 

open court without taking any testimony or hearing any argument. 

On a later day, a bench trial commenced where following the close of 

testimony, the trial court found Bermudez guilty of domestic violence and assault, 

and sentenced him to 180 days in jail for each offense. The court ordered that he 

serve 30 days in jail and suspended the remaining days. Following his jail sentence, 

Bermudez was to serve three years of active probation with conditions, including 

completing domestic violence intervention and education training and performing 

100 hours of community work service. The trial court denied Bermudez’s request 

for a stay of sentence pending appeal. 
Bermudez now appeals, contending in his sole assignment of error 

that the trial court erred in denying his motion to dismiss because the city failed to 

commence prosecution of the case within the applicable two-year statute-oflimitations period. 

The standard of review for a trial court’s ruling upon a motion to 

dismiss for failure to comply with the statute of limitation “‘involves a mixed 

question of law and fact. Therefore, we accord due deference to a trial court’s 

findings of fact if supported by competent, credible evidence, but determine 

independently if the trial court correctly applied the law to the facts of the case.’” 

State v. Bess, 182 Ohio App.3d 364, 2009-Ohio-2254, 912 N.E.2d 1162, ¶ 23 (8th 

Dist.), quoting State v. Stamper, 4th Dist. Lawrence No. 05CA21, 2006-Ohio-722, 

¶ 30. 

For first-degree misdemeanors, prosecution must commence within 

two years. R.C. 2901.13(A)(1)(b). The word “commenced” is defined as: 

A prosecution is commenced on the date an indictment is returned or 

an information filed, or on the date a lawful arrest without a warrant is 

made, or on the date a warrant, summons, citation, or other process is 

issued, whichever occurs first. A prosecution is not commenced by the 

return of an indictment or the filing of an information unless 

reasonable diligence is exercised to issue and execute process on the 

same. A prosecution is not commenced upon issuance of a warrant, 

summons, citation, or other process, unless reasonable diligence is 

exercised to execute the same. 

R.C. 2901.13(F). “‘[A] prosecution is not commenced so as to toll the running of the 

statute of limitations merely by the issuance of a summons or warrant. It is 

commenced by the issuance of a summons or warrant plus the exercise of reasonable 
diligence to execute the same.’” State v. Hawkins, 8th Dist. Cuyahoga No. 107821, 

2019-Ohio-5133, ¶ 15, quoting State v. Morris, 20 Ohio App.3d 321, 322, 486 N.E.2d 

168 (10th Dist.1984); see also Crim.R. 4(D) (“A prosecution is not commenced upon 

issuance of a warrant, summons, citation, or other process unless reasonable 

diligence is exercised to execute the same.”). 

Reasonable diligence will depend on the facts and circumstances of 

each particular case. Sizemore v. Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 

(1983). The Supreme Court of Ohio, quoting Black’s Law Dictionary 412 (5th 

Ed.1979), has defined “reasonable diligence” as “‘[a] fair, proper and due degree of 

care and activity, measured with reference to the particular circumstances; such 

diligence, care, or attention as might be expected from a man of ordinary prudence 

and activity.’” Sizemore at id. In general, the prosecution exercises “reasonable 

diligence” when it can demonstrate that it made an effort to serve the summons in a 

manner provided by Crim.R. 4(D). State v. Stevens, 8th Dist. Cuyahoga No. 67400, 

1994 Ohio App. LEXIS 5772, 4 (Dec. 22, 1994), citing Morris at 323. 

Once a defendant raises the issue that the statute of limitations has 

expired, the burden shifts to the state to show that it exercised reasonable diligence 

to execute process and therefore tolling the statutory time. Hawkins at ¶ 16, citing 

Stamper, 4th Dist. Lawrence No. 05CA21, 2006-Ohio-722 at ¶ 32, citing State v. 

Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., 85 Ohio St.3d 582, 

586, 709 N.E.2d 1192 (1999). 
In this case, the charges stemmed from an incident that allegedly 

occurred “on or about August 25, 2014.” Accordingly, prosecution had to commence 

within two years, or August 25, 2016. The city filed a criminal complaint against 

Bermudez on August 28, 2014, and issued a registered warrant. Nothing in the 

record before this court indicates that the city made any attempt to execute the 

warrant or notify Bermudez of the pending charges until his arrest on June 25, 2019. 

Accordingly, Bermudez has satisfied his burden of raising the issue that the statute 

of limitations expired. The burden now shifts to the city to demonstrate that it 

exercised reasonable diligence in executing the warrant or that a tolling event 

occurred. 

The city contends on appeal, as it did in the trial court, that the case 

was commenced within the applicable two-year statute of limitations because in 

2015, the “case was placed in collections and a summons was issued via registered 

mail using his current address informing [Bermudez] of the charges and the 

corresponding date for arraignment.” Our review of the record reveals that the 

court’s docket contains an entry dated December 4, 2015, that states: “Case Placed 

[i]n Collections[.] Bermudez, Daniel was sent notice for $127.00[.] Printed on 

12/04/2015 12:33:08.76.” The record before this court does not contain any 

summons or documentation demonstrating that the city sent notice of any type to 

Bermudez by registered mail or by any other means. In fact, when this notice was 

supposedly sent, no scheduled arraignment date existed. Accordingly, the issue 

remains whether the city exercised reasonable diligence. 
Additionally, the statute of limitations period may be tolled when the 

accused purposely avoids prosecution. Pursuant to R.C. 2901.13(H), 

[t]he period of limitation shall not run during any time when the 

accused purposely avoids prosecution. Proof that the accused departed 

this state or concealed the accused’s identity or whereabouts is primafacie evidence of the accused’s purpose to avoid prosecution. 

The Ohio Supreme Court opined that the term “prosecution” should 

be read in the more general sense, and that it “is not limited to the crimes of which 

authorities are aware or for which the accused has been indicted.” State v. Bess, 126 

Ohio St.3d 350, 2010-Ohio-3292, 933 N.E.2d 1076, ¶ 31. Accordingly, the Supreme 

Court held that “the statute of limitations is tolled for all offenses committed by an 

accused during the time when the accused purposely avoids prosecution for any 

offense, regardless of whether an indictment has been returned or whether the 

underlying criminal activity has been discovered.” Id. at ¶ 32; Sate v. Mason, 8th 

Dist. Cuyahoga No. 102343, 2015-Ohio-3034. 

However, this presumption is rebuttable, however, and the accused 

may demonstrate that he had no intention or purpose of avoiding prosecution when 

he left the state. State v. Martin, 8th Dist. Cuyahoga No. 100753, 2015-Ohio-761, ¶ 

14, citing State v. Taylor, 9th Dist. Lorain No. 97CA006804, 1998 Ohio App. LEXIS 

2791 (June 24, 1998). Accordingly, the issue remains whether Bermudez rebutted 

the presumption that he “purposely” avoided prosecution for the offenses that 

allegedly occurred in 2014. 
The trial court did not conduct an evidentiary hearing on Bermudez’s 

motion despite his request for an oral hearing. When the motion was set for hearing, 

the trial court summarily, and rather abruptly, denied it without considering any 

discussion or argument from the parties. Additionally, the trial court made no 

factual findings at the time when it denied the motion for this court to consider. 

Cleveland Municipal Court Loc.R. 7.02 provides, 

[M]ost motions shall be determined without oral argument. Oral 

hearings will be permitted where: 

1. the disposition of the motion turns upon a disputed fact 

2. the disposition of the motion turns upon evidence which cannot be 

presented in documentary form 

3. for good cause shown. 

Our review of Bermudez’s motion to dismiss and the city’s opposition, 

reveals that Loc.R. 7.02 was satisfied because the disposition of Bermudez’s motion 

turns on disputed facts. Specifically, whether the city exercised reasonable diligence 

in executing the registered warrant, whether Bermudez’s relocation following the 

alleged incident was to purposely avoid prosecution, and whether Bermudez could 

present any evidence to rebut any presumption that his relocation was to purposely 

avoid prosecution. Accordingly, we find that the trial court’s summary disposition 

of the Bermudez’s motion was an abuse of discretion and deprives this court 

meaningful appellate review. The assignment of error is sustained. 

Judgment reversed and the case is remanded to the trial court to 

conduct an evidentiary hearing on Bermudez’s motion to dismiss. 
It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

Cleveland Municipal Court to carry this judgment into execution. Case remanded 

to the trial court for further proceedings consistent with this opinion. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

MICHELLE J. SHEEHAN, J., and 

MARY EILEEN KILBANE, J., CONCUR