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State v. Phillips

Court of Appeals of Ohio, Fourth District, Hens

May 1, 2018

STATE OF OHIO, Plaintiff-Appellee,
GILBERT PHILLIPS, Defendant-Appellant.

          K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellant.

          Lisa A. Eliason, Athens City Law Director, and Tracy W. Meek, Assistant Athens City Prosecutor, Athens, Ohio, for Appellee.


          Matthew W. McFarland, Judge.

         {¶1} Gilbert Phillips appeals the judgment entry of conviction entered October 20, 2017 in the Athens Municipal Court. Appellant challenges his conviction of disorderly conduct, RC. 2917.11, on two bases: (1) that the State failed to bring him to trial within the limitations for statutory speedy trial; and (2) that his conviction was not supported by the weight of the evidence. Having reviewed the record, we find Appellant's first assignment of error is with merit. Thus, his second assignment of error has been rendered moot. Accordingly, we reverse the judgment of the trial court and vacate Appellant's conviction.


         {¶2} On July 20, 2017, Appellant was charged with obstructing official business, a misdemeanor. The charge stemmed from a disagreement between Appellant and a representative of Columbia Gas who attempted to perform work at a job site on Big Baily Road in Athens County. The parties have provided differing versions of the events which transpired on that date.

         {¶3} According to the State, Columbia Gas employees were planning to perform work at property owned by Ed Rence. Mr. Rence apparently shared a driveway with Appellant. Columbia Gas employee Ron Smith later testified at Appellant's bench trial that the Columbia Gas crew brought five vehicles and proceeded onto the shared driveway. Suddenly, Appellant drove his car at a high rate of speed toward the Columbia Gas vehicles. Appellant jumped out of his car, screaming obscenities, beating on his bare chest and kicking off his sandals. In a threatening manner, Appellant ordered the crew to leave and Rob Smith felt physically threatened. Mr. Smith called 911 and asked for assistance regarding "an irate landowner." After two Athens county deputies responded to the scene, Deputy John Morris made contact with Appellant who continued to "rant and rave." Appellant was ultimately cited for obstructing official business.

         {¶4} According to Appellant, however, the Columbia Gas convoy of vehicles suddenly drove onto his private property without notifying him. The Columbia Gas vehicles not only blocked the driveway but also ended up on Appellant's private lawn. Appellant immediately drove down the driveway, confronted the crew, and ordered them off his property. Appellant claims he reached an agreement with the crew, who left in five to ten minutes. However, an Athens County Sheriffs deputy arrived approximately ten minutes after the crew left and Appellant was arrested on a charge of obstruction.

         {¶5} Appellant spent one night in jail due to the obstruction charge. He entered a plea of not guilty at arraignment. The obstruction charge was eventually dismissed on September 26, 2017.

         {¶6} On September 27, 2017, Deputy Morris cited Appellant for a violation of disorderly conduct, R.C. 2917.11(A)(1). On September 27, 2017, counsel for Appellant filed a written denial of the charge, along with a motion to dismiss. On October 5, 2017, the State filed a response to the motion to dismiss. On October 12, 2017, the matter came on for a bench trial.

         {¶7} Prior to receiving testimony, the trial court heard the arguments of the parties with regard to the motion to dismiss. After doing so, the trial court ruled from the bench that "at this point in time, I'm going to rely on the fact that this was filed within the statute of limitations."[1] On October 20, 2017, the court filed a judgment entry finding Appellant guilty. Appellant was fined in the amount of $50.00 and court costs.

         {¶8} Appellant timely appealed. He also filed a motion for suspension of execution of sentence pending appeal.[2]




         {¶9} Appellate review of a trial court's decision on a motion to dismiss for a speedy trial violation involves a mixed question of law and fact. State v. Sheline, 4th Dist. Ross No. 15CA3511, 2016-Ohio-4794, ¶ 6; State v. Brown, 2016-Ohio- 1453, 63 N.E.3d 509 (4th Dist), at ¶ 5. State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, at ¶ 23; State v. Smith, 4th Dist. Ross No. 10CA3148, 2011-Ohio-602, at ¶ 18. Generally, an appellate court will defer to a trial court's factual findings if competent and credible evidence supports those findings. However, an appellate court will review de novo a trial court's application of the law to those facts. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, at ¶ 12; State v. Fisher, 4th Dist. Ross No. 11CA3292, 2012- Ohio-6144, at ¶ 8. We are reminded that when reviewing the legal issues presented in a speedy trial claim, we must strictly construe the relevant statutes against the State. Id.; State v. Skinner, 4th Dist. Ross No. 06CA2931, 2007-Ohio-6320, ¶ 9; 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 (11th Dist.1996); State v. Cloud, 122 Ohio App.3d 626, 702 N.E.2d 500 (2nd Dist.1997).


         {¶10} Appellant's motion to dismiss came on for hearing just prior to the beginning of his bench trial. The trial court did not journalize an entry denying Appellant's motion to dismiss. It is axiomatic that a court speaks through its journal. State v. Sydenstricker, 4th Dist. Ross No. 96CA15, 1996 WL 730501, (Dec. 11, 1996), at *2; State ex rel. Worcester v. Donnellon, 49 Ohio St.3d 117, 118, 551 N.E.2d 183 (1990). A court does not speak by oral pronouncement. In re Adoption of Gibson, 23 Ohio St.3d 170, 173, 492 N.E.2d 146 (1986), fn. 3; Schenley v. Kauth, 160 Ohio St. 109, 113, 113 N.E.2d 625 (1953), paragraph one of the syllabus. However, there is a presumption that a motion is denied when the record is silent. See Newman v. Al Castrucci Ford Sales, Inc., 54 Ohio App.3d 166, 169 (1988). Here, the trial court's pronouncement that "[A]t this point in time, I'm going to rely on the fact that this was filed within the statute of limitations, " and proceeding with the bench trial are actions consistent with the motion being denied. Accordingly, we find that the trial court denied Appellant's motion to dismiss.

         {¶11} Appellant contends the trial court erred in denying his motion to dismiss for a statutory speedy-trial violation. The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial, and this guarantee is implemented in R.C. 2945.71, which provides specific statutory time limits within which a person must be brought to trial. See Sheline, supra, at 7; State v. Hucks, 4th Dist. Ross No. 15CA3488, 2016-Ohio-323, ¶ 19; State v. Taylor, ...

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