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State v. Feister

Court of Appeals of Ohio, Fifth District, Tuscarawas

June 18, 2018

STATE OF OHIO Plaintiff-Appellant
v.
JASON K. FEISTER Defendant-Appellee

          Criminal appeal from the New Philadelphia Municipal Court, Case No. CRB 17 01103 (A-C)

          For Plaintiff-Appellee New Philadelphia Prosecuting Attorney

          For Defendant-Appellant JASON KEISTER

          JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant Jason K. Feister ["Feister] pro se appeals his conviction for one count of assault after a jury trial in the New Philadelphia Municipal Court. Appellee State of Ohio has failed to file a brief.

         Facts and Procedural History

         {¶2} Appellee, the State of Ohio did not file a brief in this matter. Pursuant to App.R. 18(C), in determining the appeal, we may accept appellant's statement of the facts and issues as correct, and reverse the judgment if appellant's brief reasonably appears to sustain such action. See State v. S.H., 5th Dist. Guernsey No. 10CA000023, 2010-Ohio-5741, ¶17; State v. McLeod, 5th Dist. Knox No. 2011-CA-22, 2012-Ohio-1797, ¶2. Therefore, we presume the validity of appellant's statement of facts and issues.

         {¶3} On September 14, 2017, the New Philadelphia Police Department received a call concerning a domestic disturbance. Upon arriving at the location, officers observed a suspect matching the description leaving the area. Officers attempted to speak to the individual who declined. The suspect, later identified by the officer as Feister, ran as police attempted to grab him. Feister was charged with obstructing official business in Case No. CRB1701103(C) as a result.

         {¶4} Upon investigation, the officers determined that Feister physically assaulted his girlfriend D.D. Feister was charged with domestic violence in Case Number CRB17101103 (A). It was further alleged that a bystander, J.C. had come to D.D.'s aid. She got between Feister and D.D. It was alleged that Feister had pulled J.C.'s hair in an attempt to get to D. D. (T. Jury Trial, Nov. 13, 2017 at 115-116). Feister was charged with assault in Case Number CRB1701103 (B).

         {¶5} Feister was arrested on September 15, 2017. He was charged with resisting arrest in Case Number CRB1701106.

         {¶6} After a hearing, Feister was permitted to discharge his court appointed attorney and to represent himself. Feister likewise discharged his court appointed counsel and has represented himself on this appeal.

         {¶7} A jury convicted Feister of all charges.[1]

         Assignments of Error

         {¶8} Feister raises two assignments of error, {¶9} "I. THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE CHARGES PENDING AGAINST THE DEFENDANT AND CAUSED TRIAL TO BE CONDUCTED PAST THE PERMISSIBLE TIME LIMITS.

         {¶10} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO ACQUIT THE DEFENDANT OF COUNT TWO OF CASE NO. CRB 17 01103; ASSAULT."

         Pro se Litigants

         {¶11} We understand that Feister has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

         {¶12} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in his brief that are outside of the record.

         {¶13} In the interests of justice, we shall attempt to consider Feister's assignments of error.

         I.

         {¶14} After reviewing Feister's brief including his contentions, we have interpreted his first assignment of error in the following manner: Whether the trial court should have granted his motion to dismiss for violation of speedy trial time limitations.

         STANDARD OF APPELLATE REVIEW.

         {¶15} Speedy trial provisions are mandatory and are encompassed within the Sixth Amendment to the United States Constitution. The availability of a speedy trial to a person accused of a crime is a fundamental right made obligatory on the states through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579 (1978). "The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational effort to enforce the constitutional right to a public speedy trial of an accused charged with the commission of a felony or a misdemeanor and shall be strictly enforced by the courts of this state." State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus.

         {¶16} Our review of a trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. State v. Larkin, 5th Dist. No.2004-CA-103, 2005-Ohio-3122, 2005 WL 1463255, ¶11. As an appellate court, we must accept as true any facts found by the trial court and supported by competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 1 7, 2016-Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin, supra. With regard to the legal issues, however, we apply a de novo standard of review and thus freely review the trial court's application of the law to the facts. Id.

         {¶17} When reviewing the legal issues presented in a speedy-trial claim, we must strictly construe the relevant statutes against appellee. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-Ohio-2326, 2010 WL 2060900, ¶ 12.

         ISSUE FOR APPEAL

         A. Whether the trial court permissibly extended the trial date beyond the R.C. 2945.71 time prescriptions.

         {¶18} The most serious offense Feister was charged with was a misdemeanor of the first degree. A person charged with a first-degree misdemeanor must be brought to trial within 90 days unless the right to a speedy trial is waived. R.C. 2945.71(B)(2). Feister did not waive time. If a person is held in jail in lieu of bond, then each day that the suspect is in custody counts as 3 days. R.C. 2945.71(E). Feister remained incarcerated throughout the proceedings. Pursuant to R.C. 2945.73, a person who is not brought to trial within the proscribed ...


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