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State of Ohio v. Jason D. Fisher

December 7, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JASON D. FISHER, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: McFarland, J.

Cite as

State v. Fisher,

DECISION AND JUDGMENT ENTRY

{¶1} Appellant, Jason D. Fisher, appeals his conviction of one count of possession of cocaine by the Ross County Court of Common Pleas. Appellant asserts the trial court erred when it overruled Appellant's motion to dismiss the charge against him on speedy trial grounds. For the reasons which follow, we agree. Accordingly, we reverse the decision of the trial court and discharge the Appellant.

FACTS

{¶2} On October 16, 2009, Appellant was indicted on one count of possession of crack cocaine, in violation of R.C. 2925.11(A). The trial court docket reflects Appellant was served the indictment on March 26, 2010, and arrested the same day. He was arraigned on March 29, 2010. Appellant was held on a $50,000.00 cash or real estate bond, which he never posted. The trial court established a jury trial date of June 8, 2010.

{¶3} During the pendency of the proceedings, Appellant's initial counsel filed a motion to withdraw. When Appellant obtained new counsel, a motion for leave to file a motion to suppress was filed. In addition, Appellant subsequently filed: (1) a request for preservation of specimen of substances for the purposes of independent analysis by a defense expert, and (2) a motion for production of laboratory data for the purposes of independent review.

{¶4} Likewise, the State of Ohio also filed various motions throughout 2010 and 2011. The State filed a motion to compel. The State also filed five motions to continue the jury trial date. Four of the motions to continue were based upon the unavailability of the State's key witnesses. The fifth motion to continue was based upon the unavailability of the assistant prosecuting attorney. Eventually, a trial date of June 15, 2011 was established by the trial court.

{¶5} On May 19, 2011, Appellant filed a motion to dismiss for the State's failure to bring him to trial within the statutory speedy trial time limits set forth in R.C. 2945.71. The trial court vacated the June trial date and set the motion to dismiss for hearing on July 5, 2011. The motion to dismiss was denied at the hearing. The court rescheduled trial for September 7 and 8, 2011.

{¶6} The jury trial commenced on September 7, 2011. On September 8, 2011, the duly empaneled jury found Appellant guilty as charged. Appellant was sentenced on September 29, 2011. This appeal ensued. ASSIGNMENT OF ERROR

I. THE TRIAL COURT ERRED IN OVERRULING FISHER'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.

LEGAL ANALYSIS

{¶7} In his sole assignment of error, Appellant asserts that he was entitled to a dismissal of the charge against him, based on failure to try him in accordance within the statutory speedy trial time limit. Specifically, Appellant argues that his right to speedy trial was violated because the State of Ohio repeatedly filed motions to continue his trial, based on unavailability of witnesses and unavailability of an assistant prosecutor. Appellant contends that the State's requests were not reasonable or supported by the record. Appellee has responded that it used due diligence in attempting to secure its witnesses for trial and that Appellant fails to recognize his own actions in causing initial delays in bringing the case to trial.

STANDARD OF REVIEW

{¶8} We begin by noting that appellate review of a trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. See, e.g., State v. Horsley, 4th Dist. No. 10CA3152, 2011-Ohio-1355, 2011 WL 1025113, at ¶9; State v. Skinner, 4th Dist. No. 06CA2931, 2007-Ohio-6320, 2007 WL 4200591, at ¶9. We accord due deference to the trial court's findings of fact if supported by competent credible evidence. However, we independently review whether the trial court properly applied the law to the facts of the case. Id. See e.g., State v. Woltz, 4th Dist. No. 93CA1980, 1994 WL655905. Furthermore, when reviewing the legal issues presented in a speedy trial claim, we must strictly construe the relevant statutes against the state. Skinner, at ¶8; Brecksville v. Cook, 75 Ohio St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706; State v. Miller, 113 Ohio App.3d 606, 608, 681 N.E.2d 90 (1996); State v. Cloud, 122 Ohio App.3d 626, 702 N.E.2d 500 (1997).

STATUTORY RIGHT TO SPEEDY TRIAL

{¶9} Ohio recognizes both a constitutional and statutory right to a speedy trial. State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-1401, 2009 WL 795212, at ¶15. See e.g. State v. King, 70 Ohio St.3d 158, 1994- Ohio-412,637 N.E.2d 903, syllabus. R.C. 2945.71 embodies the statutory right and states "a person against whom a charge of felony is pending shall be brought to trial within two hundred seventy (270) days after his arrest." R.C. 2945.71(C)(2). Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the United States Constitution embody the constitutional right to a speedy trial. Alexander, at ¶15, citing State v. Selvage, 80 Ohio St.3d 465, 466, 1997-Ohio-287, 687 N.E.2d 433. See, also, Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988 (1967) (applying the Sixth Amendment to the states through application of the Fourteenth Amendment).

{¶10} Under R.C. 2945.71(E), each day that a defendant is incarcerated in lieu of bond on the pending charge counts as three days. State v. Toler, 4th Dist. No. 09CA3 101, 2009-Ohio-6669, 2009 WL 4863350, at ¶17.

{¶11} An accused presents a prima facie case for discharge by demonstrating his case was pending for a time exceeding the statutory limits provided in R.C. 2945.71. Id.; State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d (1986). The burden then shifts to the state to produce evidence demonstrating that the accused was not entitled to be brought to trial within the two hundred seventy (270) day period. State v. Chambers, 4th Dist. No. 10CA12, 2011-Ohio-1055, 2011 WL 809571, at ¶11, citing State v. Baker, 92 Ohio App.3d 516, 525, 636 N.E.2d 363 (1993).

{¶12} R.C. 2945.72 sets forth the circumstances under which the two hundred seventy (270) day period may be extended. The running of the speedy-trial clock may be temporarily stopped, or tolled, only for reasons listed in R.C. 2945.72, which states in pertinent part:

"[the time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:***(D) Any period of delay occasioned by the neglect or improper act of the accused; (E) any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;***(H)The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion***." R.C. 2945.72 (D), (E), and (H). State v. King, 3rd Dist. No. 16-11-07, 2012-Ohio-1281, 2012 WL 1029454, at ¶33.

{¶13} These tolling events "do not unconditionally extend the time limit in which an accused must be brought to trial, but, rather, this limit is 'merely extended by the time necessary in light of the reason for the delay.'" State v. Arrizola, 79 Ohio App.3d 72, 75, 606 N.E.2d 1020, (3rd Dist.1992), quoting Committee Comment to H.B. 511. "In reviewing a speedy-trial issue, a court is required to count the days of delay chargeable to either side and determine whether the case was tried within applicable time limits." State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶8.

{¶14} When computing any period of time prescribed by an applicable statute, the date of the act or event from which the period begins to run is not included. Alexander, at ¶18, citing State v. Saffin, 4th Dist. No. 07CA2967, 2008-Ohio-338, ¶9; R.C.1.14; Crim R.45(A). Time is calculated to run the day after the date of arrest. State v. Miller, 9th Dist. Nos. 10CA009922, 10CA009915, 2012-Ohio-1263, 2012 WL 1020239, at ¶9, quoting State v. Brownard, 9th Dist. No. 06CA009053, 2007-Ohio-4342, 2007 WL 2409752, at ¶12. Additionally, we do not include the date a motion was filed when calculating speedy trial time, unless that date also was the date the court entered an order resolving the motion. See e.g., Toler, at ¶19. See also Staffin, at ¶9, fn. 1.

{¶15} Before we calculate the speedy trial time, we begin with a summary of the relevant dates and events:

October 16, 2009 Indictment by Ross County

Grand Jury.

March 26, 2010 Indictment served; Appellant arrested.

March 29, 2010 Appellant arraigned.

April 1, 2010 Court's pretrial order;

jury trial June 8, 2010.

April 2, 2010 Appellant's initial counsel files ...


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