Court of Appeals of Ohio, Fifth District, Licking
from the Court of Common Pleas, Case No. 16-CR-673
Plaintiff-Appellee CLIFFORD J. MURPHY.
Defendant-Appellant JUSTIN M. FOX.
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J.
Hon. Earle E. Wise, Jr., J.
1} Defendant-Appellant, David Joseph, Sr., appeals his April
26, 2017 conviction and sentence of the Court of Common Pleas
of Licking County, Ohio. Plaintiff-Appellee is the state of
AND PROCEDURAL HISTORY
2} After being released from prison after having served five
years for passing bad checks, appellant was arrested on March
14, 2016, for passing a bad check. On March 24, 2016, the
Licking County Grand Jury indicted appellant on one count of
passing a bad check in violation of R.C. 2913.11 (Case No.
2016CR00149). The victim was Pugh Jewelers. A trial was held
in July 2016 wherein appellant was found guilty. He was
sentenced to twelve months in prison.
3} On November 3, 2016, the Licking County Grand Jury
indicted appellant on two counts of passing bad checks in
violation of R.C. 2913.11 and one count of attempted theft in
violation of R.C. 2923.02 and 2913.02, the underlying case
sub judice. The victims were Granville Market, Bowman Tire
and Repair Center, Washington Hardware, Dunkin's
Diamonds, Granville Milling & Feed, Plaza Pizza, and Ohio
4} On January 19, 2017, appellant filed a pro se motion to
amend the November indictment, claiming the two counts for
passing bad checks should be merged under R.C. 2913.11(E)
because they alleged the same course of conduct between the
5} On January 20, 2017, appellant's appointed counsel
filed a motion to dismiss the November indictment, claiming
police investigators were aware in early March 2016 of the
victims of the November 2016 indictment, but the state chose
to first indict appellant on the bad check involving Pugh
Jewelers; therefore appellant's speedy trial rights began
in March and were violated.
6} On April 25, 2017, a change of plea hearing was held.
Prior to taking appellant's plea, the trial court
entertained arguments on the motion to dismiss for a
violation of speedy trial rights. The trial court denied the
motion. Appellant then pled no contest to the three counts in
the indictment. The plea agreement indicated all three counts
merge for sentencing. Defense counsel argued the sentence
imposed should be merged with the sentence imposed out of the
March indictment because all the counts stemmed from the same
common conduct during the same time period. Defense counsel
had also submitted this argument to the trial court via a
sentencing memorandum filed the morning of the plea hearing.
By judgment of conviction and sentence filed April 26, 2017,
the trial court found appellant guilty, merged the three
counts for sentencing, and sentenced appellant to ten months
incarceration with jail time credit of 47 days.
7} Appellant filed an appeal and this matter is now before
this court for consideration. ...