[Cite as State v. Jabbar, 2021-Ohio-1191.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109642 

 v. : 

 

ALI JABBAR, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: April 8, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-19-642285-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kerry A. Sowul, Assistant Prosecuting 

Attorney, for appellee. 

Michael J. Goebl, for appellant. 

FRANK D. CELEBREZZE, JR., J.: 

Defendant-appellant Ali Jabbar brings this appeal challenging his 

conviction for unlawful sexual conduct with a minor. Appellant argues that the trial 

court erred in denying his motion to dismiss for preindictment delay without 
holding an evidentiary hearing. After a thorough review of the record and law, this 

court affirms. 

I. Factual and Procedural History 

The instant matter pertains to an incident that occurred on March 29, 

2004, during which appellant committed sex offenses against the victim, J.G. At the 

time of the incident, appellant was 19 years old and the victim was 13 years old. 

A DNA match from the victim’s rape kit identified appellant as the 

perpetrator of the sex offenses. After obtaining the DNA match, the state contacted 

the victim, and she confirmed that she did not consent to the sexual offenses 

committed by appellant. 

On August 1, 2019, in Cuyahoga C.P. No. CR-19-642285-A, appellant 

was charged in a two-count indictment with: (1) rape, a first-degree felony in 

violation of R.C. 2907.02(A)(2), with a sexually violent predator specification, and 

(2) unlawful sexual conduct with a minor, a fourth-degree felony in violation of R.C. 

2907.04(A). Appellant pled not guilty to the indictment during his August 15, 2019 

arraignment. 

On December 3, 2019, appellant filed a motion to dismiss the 

indictment based on preindictment delay. Therein, appellant argued that he 

suffered actual prejudice as a result of the 15-year delay between the March 2004 

incident and the August 2019 indictment. Appellant contends that the victim’s 

account of the events leading up to the March 2004 encounter with the victim 

“mentions several witnesses and locations which could have been investigated in 
2004, but are no longer available.” Regarding the witnesses and locations that could 

have been investigated, the victim reported that she was with her best friend when 

she first met appellant; appellant gave his number to the victim’s friend Precious; 

and the victim and appellant may have been with the victim’s friends at McDonald’s 

and a fashion show at Shaw High School before the sexual conduct occurred. 

Appellant stated that the sexual conduct occurred either inside of appellant’s 

friend’s house, or in appellant’s truck outside of appellant’s friend’s house. 

In his motion to dismiss, appellant did not demonstrate why these 

potential witnesses were no longer available, or indicate what, if any, efforts had 

been made to locate these witnesses. Appellant claims that his friend whose house 

the sexual conduct occurred at can no longer be identified, but appellant does not 

explain why his friend cannot be identified. Appellant argued that had defense 

counsel been able to speak with these witnesses, “they may have aided in the 

understanding of what had happened between [appellant] and [the victim].” 

(Emphasis added.) Finally, appellant asserted that “important witnesses are 

unavailable, unidentifiable, or unable to recall the events of a day over fifteen [years] 

in the past.” Appellant requested a hearing on his motion to dismiss. 

The state filed a brief in opposition to appellant’s motion to dismiss on 

January 8, 2020. Therein, the state argued that appellant failed to meet his burden 

of demonstrating actual prejudice, and as a result, the burden did not shift to the 

state to demonstrate that the delay in prosecution was justified. Even if appellant 

met his burden, the state argued that the delay in prosecution was justified and 
based upon new evidence — the DNA match from the victim’s rape kit identifying 

appellant as the perpetrator. The state asserted that “additional DNA testing had to 

be conducted to identify [appellant], specifically Y-STR testing had to be conducted. 

The testing was only able to be done once [appellant] was identified and a DNA swab 

was taken from [appellant] and submitted to BCI.” 

On January 14, 2020, the trial court converted the trial date, set for 

February 4, 2020, to a motion hearing “[a]t the request of [appellant].” (Emphasis 

added.) During the February 4, 2020 hearing, however, appellant’s motion to 

dismiss based on preindictment delay was not addressed by the parties or the trial 

court. As set forth in further detail below, the record reflects that appellant 

effectively or implicitly withdrew his motion to dismiss and accepted the plea 

agreement offered by the state. Furthermore, the trial court did not specifically rule 

on appellant’s motion to dismiss at this time, either on the record or in a journal 

entry.1

During the February 4, 2020 hearing, the parties presented a plea 

agreement to the trial court. Appellant pled guilty to the unlawful sexual conduct 

offense charged in Count 2. Count 1 was nolled. The trial court advised appellant 

that he would be classified as a sexual predator. 

On February 6, 2020, the trial court sentenced appellant to nine 

months in prison. The trial court ordered appellant’s nine-month sentence to run 

 1 This court presumes that the trial court denied the motion to dismiss. See State 

v. Wilson, 8th Dist. Cuyahoga No. 105876, 2018-Ohio-3666, ¶ 5. 
consecutively to appellant’s 13-year prison sentence in Cuyahoga C.P. No. CR-11-

551246-A.2 The trial court classified appellant a sexual predator and reviewed 

appellant’s reporting requirements. Although the trial court did not specifically rule 

on appellant’s motion to dismiss, the trial court’s February 6, 2020 sentencing 

journal entry provides, in relevant part, “[a]ll motions not specifically ruled on prior 

to the filing of this judgment entry are denied as moot.” 

On March 25, 2020, appellant filed the instant appeal challenging the 

trial court’s judgment. He assigns one error for review: 

I. The trial court committed reversible error when it denied 

[appellant’s] motion to dismiss due to pre-indictment delay. 

II. Law and Analysis 

A. Preindictment Delay 

In his sole assignment of error, appellant argues that the trial court 

erred in denying his motion to dismiss based on preindictment delay. 

An unjustifiable delay between the commission of an offense and a 

defendant’s indictment for committing that offense, which results in actual 

prejudice to the defendant, is a violation of the right to due process of law under 

Section 16, Article I, of the Ohio Constitution and the Fifth and Fourteenth 

Amendments to the United States Constitution. State v. Luck, 15 Ohio St.3d 150, 

472 N.E.2d 1097 (1984), paragraph two of the syllabus. 

 2 In March 2012, appellant pled guilty to rape and kidnapping with a three-year 

firearm specification and sexual motivation specification. The trial court sentenced 

appellant to a prison term of 13 years. Appellant was serving this sentence when he was 

indicted for the March 2004 incident. 
The applicable statute of limitations is the “primary guarantee against 

bringing overly stale criminal charges.” State v. Copeland, 8th Dist. Cuyahoga No. 

89455, 2008-Ohio-234, ¶ 10, citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 

2044, 52 L.Ed.2d 752 (1977). The statute of limitations for rape is 25 years, and the 

statute of limitations for unlawful sexual conduct with a minor is 20 years. R.C. 

2901.13(A)(3)(a) and (A)(4). In this case, it is undisputed that appellant was 

indicted within the applicable statutes of limitations. 

Nevertheless, even when the defendant is indicted within the statute 

of limitations, the delay between the commission of an offense and an indictment 

can, under certain circumstances, constitute a violation of due process of law 

guaranteed by the federal and state constitutions. Lovasco at 789; United States v. 

Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). For example, a 

delay in commencing prosecution is not justified when the state uses the delay to 

gain a tactical advantage or through negligence or error ceases its investigation, and 

then subsequently decides to prosecute without new evidence. Marion at 324; Luck

at 158. 

Courts apply a two-part test to determine whether a delay in 

prosecution constitutes a due process violation. Defendants have the initial burden 

to show that they were substantially and actually prejudiced by the delay. State v. 

Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). However, “proof of actual 

prejudice, alone, will not automatically validate a due process claim.” Luck, 15 Ohio 

St.3d at 154, 472 N.E.2d 1097, citing Marion. If the defendant establishes “actual 
prejudice,” the burden then shifts to the state to produce evidence of a justifiable 

reason for the delay. Id. Thereafter, the due process inquiry involves a balancing 

test in which the court weighs the reasons for the delay against the prejudice to the 

defendant in light of the length of the delay. State v. Walls, 96 Ohio St.3d 437, 2002-

Ohio-5059, 775 N.E.2d 829, ¶ 51. 

In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, 

the Ohio Supreme Court explained: 

A determination of actual prejudice involves “‘a delicate judgment’” 

and a case-by-case consideration of the particular circumstances. State 

v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, 

quoting Marion, 404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. A court 

must “consider the evidence as it exists when the indictment is filed and 

the prejudice the defendant will suffer at trial due to the delay.” Id. 

This court has suggested that speculative prejudice does not satisfy the 

defendant’s burden. Id. at ¶ 56 (noting that Walls’s claims of prejudice 

were speculative at best); [State v.] Adams, 144 Ohio St.3d 429, 2015-

Ohio-3954, 45 N.E.3d 127, ¶ 100 (noting the difficulty for defendants 

claiming unconstitutional preindictment delay because “proof of 

prejudice is always speculative”). 

Jones at ¶ 20. 

“[T]he possibility that memories will fade, witnesses will become 

inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.” 

Adams at ¶ 105, citing Marion. “Those are ‘the real possibilit[ies] of prejudice 

inherent in any extended delay,’ and statutes of limitations sufficiently protect 

against them.” Jones at ¶ 21, quoting Marion at 326. “That does not mean, however, 

that demonstrably faded memories and actually unavailable witnesses or lost 

evidence cannot satisfy the actual-prejudice requirement.” Id. Actual prejudice 
exists when missing evidence or unavailable testimony, that is identified by the 

defendant and relevant to the defense, would minimize or eliminate the impact of 

the state’s evidence and bolster the defense. Id. at ¶ 28, citing Luck. The burden 

upon a defendant seeking to prove that preindictment delay violated due process is, 

however, “‘nearly insurmountable,’” particularly “because proof of prejudice is 

always speculative.” Adams at ¶ 100, quoting United States v. Montgomery, 491 

Fed.Appx. 683, 691 (6th Cir.2012). 

This court applies a de novo standard of review to a trial court’s 

decision regarding legal issues in a motion to dismiss for preindictment delay. State 

v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-Ohio-5519, ¶ 12, citing 

State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814 (12th Dist.). 

“De novo review requires an independent review of the trial court’s decision without 

any deference to the trial court’s determination.” State v. Clay, 2d Dist. Miami No. 

2015-CA-17, 2016-Ohio-424, ¶ 5. 

However, this court has held that we afford great deference to the 

findings of fact made by the trial judge pertaining to the issue of preindictment 

delay. State v. Walker, 8th Dist. Cuyahoga No. 106414, 2018-Ohio-3669, ¶ 15, citing 

State v. Hunter, 2017-Ohio-4180, 92 N.E.3d 137, ¶ 16 (8th Dist.). Therefore, this 

court must accept the trial court’s factual findings if they are supported by 

competent and credible evidence in the record. State v. Burnside, 100 Ohio St.3d 

152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19, 

437 N.E.2d 583 (1982). 
As an initial matter, we note that the record reflects that appellant 

implicitly abandoned or withdrew his motion to dismiss. After appellant filed his 

motion to dismiss and requested a hearing on the motion, the trial court set a motion 

hearing for February 4, 2020. Appellant made no mention whatsoever during the 

February 4, 2020 hearing about the motion to dismiss he previously filed. Appellant 

did not seek to present an oral argument in support of his motion. Nor did appellant 

indicate that the motion to dismiss was pending and request a ruling from the trial 

court. Rather, appellant knowingly, intelligently, and voluntarily accepted the plea 

agreement proffered by the state. Appellant made a tactical, strategical decision to 

plead guilty rather than pursuing the preindictment-delay issue. 

Furthermore, appellant does not argue in this appeal that his guilty 

plea was not knowingly, intelligently, or voluntarily entered, or that the trial court 

failed to comply with Crim.R. 11 during the change-of-plea hearing. By pleading 

guilty, appellant waived all constitutional errors apart from the constitutional errors 

that affected his guilty plea. See State v. Thompson, 8th Dist. Cuyahoga No. 104322, 

2016-Ohio-8310, ¶ 4, citing State v. Ware, 11th Dist. Lake No. 2007-L-154, 2008-

Ohio-3992, ¶ 25, and Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 

L.Ed.2d 235 (1973) (“When a criminal defendant has solemnly admitted in open 

court that he [or she] is in fact guilty of the offense with which he [or she] is charged, 

he [or she] may not thereafter raise independent claims relating to the deprivation 

of constitutional rights that occurred prior to the entry of the guilty plea.”). 
Even if appellant did not waive his right to raise the issue of 

preindictment delay on appeal by pleading guilty, the record does not reflect that 

appellant suffered actual prejudice as a result of the delay between the incident and 

his subsequent indictment, and appellant has failed to meet his initial burden of 

demonstrating actual prejudice. See Thompson at ¶ 6, citing Luck, 15 Ohio St.3d 

150, 472 N.E.2d 1097, at paragraph two of the syllabus. As noted above, “[t]he 

prejudice advanced must be more than merely speculative [and] must be balanced 

against the other evidence in order to determine whether actual prejudice will 

impact the defendant at trial.” (Emphasis added.) State v. August, 12th Dist. 

Warren No. CA2018-12-136, 2019-Ohio-4126, ¶ 12. 

In this appeal, appellant argues that there “was a great deal of 

prejudice” he suffered as a result of the 15-year delay between the 2004 incident and 

the 2019 indictment. Specifically, appellant claims that the preindictment delay 

“made it impossible to locate additional witnesses, interview any witnesses, and also 

find any physical evidence,” and that the delay “made it very difficult to investigate 

and defend the charges against him.” Appellant’s brief at 3. 

Appellant has failed to identify any evidence, witnesses, or testimony 

that are missing or no longer available as a result of the 15-year delay in prosecution, 

much less demonstrate that the evidence or testimony was relevant to his defense. 

Appellant speculates that but for the 15-year delay, he would have been able to locate 

witnesses and obtain physical evidence that would enable him to defend against the 
charges. Appellant’s general, unspecified, and speculative assertions are insufficient 

to meet appellant’s burden of demonstrating actual prejudice. 

Finally, appellant contends that the trial court erred by failing to hold 

an evidentiary hearing on his motion, and that the trial court’s failure to do so denied 

appellant his due process rights. As noted above, the trial court set a motion hearing 

on the motion to dismiss at appellant’s request. During this hearing, appellant 

elected to plead guilty rather than to pursue the preindictment-delay issue. 

For all of the foregoing reasons, we find no basis upon which to 

conclude that the trial court erred in denying appellant’s motion to dismiss based on 

preindictment delay. Appellant’s sole assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

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

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending is terminated. Case remanded to 

the trial court for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

_____________________________ 

FRANK D. CELEBREZZE, JR., JUDGE 

SEAN C. GALLAGHER, P.J., and 

MARY EILEEN KILBANE, J., CONCUR