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State v. Joseph

Court of Appeals of Ohio, Fifth District, Licking

August 18, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DAVID A. JOSEPH, SR. Defendant-Appellant

         Appeal from the Court of Common Pleas, Case No. 16-CR-673

          For Plaintiff-Appellee CLIFFORD J. MURPHY.

          For Defendant-Appellant JUSTIN M. FOX.

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, EARLE, 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 Ohio.

         FACTS 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 Tire Sales.

         {¶ 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 same dates.

         {¶ 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. ...


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