Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 2014 CR 1143.
Paul Gains, Prosecuting Attorney, and Attorney Ralph Rivera,
Assistant for Plaintiff-Appellee, and Atty. Attorney Edward
Czopur, DeGenova & Yarwood, Ltd., for
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Defendant-appellant, Keith Sims Jr., appeals his conviction
following a jury trial in the Mahoning County Court of Common
Pleas for one count of murder in violation of R.C.
2903.02(A), an unclassified felony, one count of murder in
violation of R.C. 2903.02(B), an unclassified felony, and one
count of felonious assault in violation of R.C.
2903.11(A)(2), a felony of the second degree.
On October 25, 2014, Julisa Harmon, Domanisha Morris, and
Shamar Harmon were visiting their friend Miguel at his home
in Youngstown, Ohio. This group heard a gunshot and went
outside Miguel's home to investigate. They saw appellant
and another group of girls across the street from
Miguel's home. Julisa's group and Miguel went across
the street to appellant's home to confront him. At some
point, appellant pulled out a gun, set it down, and began
fighting Miguel. During the fight between appellant and
Miguel, Julisa, Domanisha, and Shamar got into a verbal
altercation with the other group of girls. After the verbal
altercation, Julisa, Domanisha, and Shamar got into a car and
drove to Julisa's house.
At Julisa's house, Julisa and Domanisha told Tamra Donlow
and Clenesha Jackson about the altercations at Miguel's
home. Julisa, Domanisha, Tamra, and Clenesha decided to drive
back to Miguel's home that same night to check on him. On
the way to Miguel's home, Julisa's group picked up
another girl, Shaniece Wells.
When Julisa's group returned to Miguel's
neighborhood, they went to go check on Miguel. Once
Julisa's group was ready to leave Miguel's
neighborhood again, they encountered the other group of girls
with whom they had an altercation earlier. Another verbal
altercation ensued between the two groups. This verbal
altercation ended when Shaniece and a girl from the opposing
group realized they were related.
After the altercation, Julisa's group began walking back
to their vehicle. Before they reached the vehicle, three
gunshots were fired in their direction. Two of the gunshots
struck Shaniece: one through her abdomen and one through her
left buttock. Shaniece died as a result of the gunshot wounds
On November 6, 2014, appellant was arrested and charged with
Shaniece's murder. In addition to the murder and
felonious assault charges, appellant faced firearm
specifications pursuant to R.C. 2941.145(A) on all counts.
Numerous pretrial motions were filed by appellant pro se,
appellant's counsel, and the plaintiff-appellee, the
State of Ohio. Appellant was incarcerated for the entire
pretrial period and at no point waived his right to have a
On August 20, 2015 and September 3, 2015, appellant filed pro
se motions to dismiss the charges on the basis that his
speedy trial right was violated. On September 14, 2015, the
trial court denied these motions on the basis that
appellant's counsel moved for and was granted a previous
continuance which tolled the running of his speedy trial
On December 16, 2015, appellant filed another pro se motion
to dismiss the charges on the basis that his speedy trial
right was violated. The trial court overruled this motion on
the same day.
Appellant's trial was held on March 28, 2016. The state
called numerous witnesses. At issue in this appeal is the
testimony of the four eyewitnesses to Shaniece's death.
The four eyewitnesses who testified at trial were Julisa,
Clenesha, Tamra, and Domanisha. Julisa, Clenesha, and Tamra
all testified that they did not see who fired the shots that
hit Shaniece. But Domanisha testified that she saw appellant
fire his gun in the group's direction. Domanisha also
testified that she heard appellant yell "I shot one of
The jury returned guilty verdicts on all counts. On May 24,
2016, the trial court held a sentencing hearing. The trial
court merged appellant's three guilty verdicts for
sentencing purposes as Shaniece was the victim in all three
counts. The trial court sentenced appellant to a minimum
fifteen years of incarceration for the murder in violation of
R.C. 2903.02(A) conviction and an additional three years for
the accompanying firearm specification. The trial court
ordered these sentences to run consecutively for a minimum
total of eighteen years of incarceration. Appellant timely
filed this appeal on June 8, 2016. Appellant now raises two
assignments of error.
Appellant's first assignment of error states:
APPELLANTS RIGHT TO A SPEEDY TRIAL, PURSUANT TO THE UNITED
STATES AND OHIO CONSTITUTIONS AND THE REVISED CODE, WAS
VIOLATED AND IT WAS ERROR FOR THE TRIAL COURT TO DENY HIS
MOTIONS TO DISMISS.
Appellant argues that there was a total of 508 days between
his arrest and his trial. Including motions which tolled his
speedy trial clock, appellant argues that he was in jail
awaiting trial longer than Ohio law permits.
A review of a trial court's decision regarding a motion
to dismiss based on statutory speedy trial grounds involves a
mixed question of law and fact. State v. McCall, 152
Ohio App.3d 377, 2003-Ohio-1603, 787 N.E.2d 1241, ¶ 9
(7th Dist.). Deference is given to the trial court's
findings of fact, but the appellate court independently
reviews whether the trial court properly applied the law to
the facts of the case. Id. When reviewing the legal
issues regarding a statutory speedy trial case, the statutes
are strictly construed against the state. Brecksville v.
Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). After
the statutory time limit has expired, the defendant has
established a prima facie case for dismissal. State v.
Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368
(1986). At that point, the State has the burden to
demonstrate any extension of the time limit. Id.
Under Ohio law, when a defendant is charged with a felony,
the defendant "[s]hall be brought to trial within two
hundred seventy days after the person's arrest."
R.C. 2945.71(C)(2). "[E]ach day during which the accused
is held in jail in lieu of bail on the pending charge shall
be counted as three days." R.C. 2945.71(E).
Appellant did not post bail nor did he waive his right to a
speedy trial. Therefore, he should have been brought to trial
within ninety days after his arrest on November 6, 2014.
Appellant's trial did not begin until March 28, 2016. But
as appellant and the state point out, there are several
events that can toll the speedy trial clock.
R.C. 2945.72 provides nine events that can toll the speedy
trial clock. Three of the events in R.C. 2945.72 are
applicable to the case at bar. R.C. 2945.72(D) extends the
time for trial if a delay is caused by neglect or an improper
act of the accused. R.C. 2945.72(E) extends the trial for
motions, proceedings, or actions made or instituted by the
accused. R.C. 2945.72(H) extends the time for trial if the
accused files a motion for a continuance ...