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State v. Kilis

Court of Appeals of Ohio, Sixth District

July 12, 2013

State of Ohio Appellant
v.
Mark Kilis Appellee

Trial Court No. 09CR186

Mark E. Mulligan, Ottawa County Prosecuting Attorney, Andrew M. Bigler and David R. Boldt, Assistant Prosecuting Attorneys, for appellant.

Michael W. Sandwisch, for appellee.

DECISION AND JUDGMENT

OSOWIK, J.

{¶ 1} This is an appeal by the state from a judgment of the Ottawa County Court of Common Pleas, which dismissed all counts in a criminal indictment based upon a determination of speedy trial violations. For the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} On December 18, 2009, appellee, Mark M. Kilis, was indicted by the Ottawa County Grand Jury on twelve felony offenses. Appellee was indicted on one count of rape, in violation of R.C. 2907.02(A)(1)(b), six counts of rape, in violation of R.C. 2901.02(A)(2), one count of gross sexual imposition, in violation of R.C. 2907.05(A)(4), three counts of gross sexual imposition, in violation of 2907.05(A)(1), and one count of improper discharge of a firearm, in violation of R.C. 2923.161(A)(1).

{¶ 3} The record clearly reflects that an extraordinary volume of motions have been filed in connection to this long contested case. Of most relevance to the primary issue before us, on January 4, 2011, appellee filed a written time waiver which specified a termination of the time waiver to occur on April 26, 2011.

{¶ 4} In February 2011, the trial court dismissed three counts of the indictment. That decision was appealed to this court. In September 2011, we reversed that decision. In addition, in December 2011, the trial court granted a motion filed by appellee for relief from prejudicial joinder.

{¶ 5} Based upon the motion contesting joinder being granted, the twelve counts pending against appellee were severed into three separate trials, with the first set of cases set for trial scheduled to commence on June 19, 2012. On June 18, 2012, the day before trial, appellee filed a motion to dismiss based on a violation of the right to a speedy trial. The motion was granted. This appeal ensued.

{¶ 6} Appellant, the state of Ohio, sets forth the following two assignments of error:

I. THE STATE DID NOT VIOLATE APPELLEE'S RIGHT TO A SPEEDY TRIAL.
II. THE TRIAL COURT ERRED WHEN IT FOUND APPELLEE HAD MET HIS BURDEN ESTABLISHING PREJUDICIAL JOINDER.

{¶ 7} In the first assignment of error, appellant asserts that it did not violate appellee's right to a speedy trial. The United States Constitution, through the Sixth and Fourteenth Amendments, protects a criminal defendant's right to a speedy prosecution by the state. Ohio has codified this right in R.C. 2945.71.

{¶ 8} R.C. 2945.71(C) establishes that when a person has a felony charge pending against them, they "[s]hall be brought to trial within two hundred seventy days after the person's arrest." The burden is placed upon the defendant to establish a prima facie case that the 270-day time limit has passed. State v. Daley, 4th Dist. No. 11CA3240, 2012-Ohi ...


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