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State v. Duncan

Court of Appeals of Ohio, Fifth District, Licking

February 13, 2018

STATE OF OHIO Plaintiff-Appellee
v.
DERRELL L. DUNCAN Defendant-Appellant

         Appeal from the Licking County Municipal Court, Case No. 12-TRC-7283

          For Plaintiff-Appellee BRIAN M. ZETS DAVID C. MOSER Isaac Wiles Burkholder & Teetor, LLC

          For Defendant-Appellant MICHAEL S. PROBST Probst Law Office, Inc.

          Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. Judges.

          OPINION

          Hoffman, J.

         {¶1} Defendant-appellant Derrell L. Duncan appeals the March 23, 2017 Judgment Entry entered by the Licking County Municipal Court, which denied his motion to dismiss. Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On March 13, 2012, Appellant was arrested and subsequently charged with operating a motor vehicle while intoxicated, in violation of R.C. 4511.19; driving under suspension - license forfeiture, in violation of R.C. 4510.111; and a tail light and illumination of rear license plate offense, in violation of R.C. 4513.05, in Licking County Municipal Court Case No. 12 TRC 2817 ("Case No. 12 TRC 2817"). Appellant appeared for arraignment on March 20, 2012, and entered a plea of not guilty to the charge. The trial court scheduled a bench trial for April 17, 2012. On April 5, 2012, Appellant executed an Affidavit of Indigency and filed a motion requesting the appointment of counsel. The trial court granted Appellant's request and appointed Attorney Adrienne Larimer on April 9, 2012.

         {¶3} On April 12, 2012, Appellant filed a demand for discovery, a request for a bill of particulars, and a jury demand. Thereafter, on April 16, 2012, Appellant filed a motion requesting a continuance of the bench trial. The trial court granted the continuance, and scheduled a final pre-trial for June 1, 2012, and a bench trial on June 4, 2012. On May 15, 2012, the state filed a motion to continue due to the unavailability of the prosecutor. The trial court granted the continuance, and scheduled a jury trial for June 18, 2012.

         {¶4} The state responded to Appellant's request for discovery on June 7, 2012. On June 15, 2017, the state filed a motion to dismiss after realizing the citation failed to include a punishable offense due to a scrivener's error. The trial court granted the motion, and dismissed the case on June 18, 2012.

         {¶5} After an agreement with Appellant's counsel, the state filed a new citation, correctly citing Appellant with OVI, in violation of R.C. 4511.19(A)(1)(a), in Licking Municipal Court Case No. 12 TRC 7283 ("Case No. 12 TRC 7283"). Appellant requested a continuance of his June 27, 2012 arraignment. Appellant failed to appear on the rescheduled arraignment date of July 11, 2012. The trial court issued a bench warrant.

         {¶6} Appellant appeared before the trial court over four years later on August 12, 2016, and entered a plea of not guilty. The trial court scheduled the matter for trial on October 17, 2016. Appellant filed a demand for discovery and a motion to continue on October 5, 2016. Appellant filed a waiver of his right to a speedy trial on the same date. The trial court scheduled the matter for November 17, 2016. On October 24, 2016, the state filed a response to Appellant's discovery and a reciprocal demand for discovery. The trial court continued the trial until January 5, 2017.

         {¶7} Upon Appellant's motion, the trial court again continued the trial and indicated it would reschedule the matter for a change of plea hearing and sentencing at a future date. On February 10, 2017, Appellant filed a motion for work release. Appellant filed a motion to dismiss on speedy trial grounds on March 1, 2017, which the trial court denied via Judgment Entry filed March 23, 2017.

         {¶8} The trial court granted Appellant's request for work release on April 19, 2017. On the same day, the trial court scheduled a change of plea hearing for May 3, 2017. Appellant filed a motion for continuance on May 8, 2017. On June 9, 2017, Appellant appeared before the trial court and changed his original plea of not guilty to a plea of no contest. The trial court accepted Appellant's plea, found him guilty, and sentenced him to 180 days in jail with 170 days suspended. The trial court also suspended Appellant's driver's license for 2 years. Appellant requested a stay of sentence pending his appeal of the March 23, 2017 Judgment Entry. The trial court granted the request and stayed Appellant's sentence pending this Court's disposition of the instant appeal.

         {¶9} It is from the March 23, 2017 Judgment Entry Appellant appeals, raising as his sole assignment of error:

         I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS THE CHARGES AGAINST HIM FOR A VIOLATION OF HIS STATUTORY SPEEDY TRIAL RIGHTS ...


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