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In re Grand Jury Subpoena for Byrd

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

IN RE: GRAND JURY SUBPOENA FOR DAUNTE BYRD Appeal by Daunte Byrd

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-614867-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender By: Paul Kuzmins Jeffrey Gamso Assistant Public Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Mary M. Frey Assistant County Prosecutor

          BEFORE: Laster Mays, J., McCormack, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, J.

         {¶1} Defendant-appellant Daunte Byrd ("Byrd") appeals the trial court's declaration that Byrd's motion to quash a grand jury subpoena is moot. We affirm the trial court's judgment.

         I. Background and Facts

         {¶2} On January 12, 2017, the Cuyahoga County Grand Jury issued a subpoena to have Byrd transported to the Cuyahoga County jail from the Trumbull Correctional Institution ("TCI") where he was serving a term of incarceration. Byrd was transferred to Cuyahoga County jail on February 9, 2017. In spite of confirmation by the sheriffs office that Byrd's return was recorded under a grand jury subpoena number, Byrd's counsel was unable to obtain information regarding the grounds for the subpoena from the court or the prosecutor.

         {¶3} The state asserts that Byrd's return to TCI was ordered several days after his arrival to Cuyahoga County jail but, due to a change in personnel, the transfer did not take place. On March 1, 2017, Byrd filed a motion to quash the grand jury subpoena and requested his return to TCI. The state responded that the subpoena was issued in error, and Byrd was returned to TCI on March 3, 2017. Byrd elected to proceed with the case. On April 5, 2017, the trial court held a hearing on the motion to quash and declared that the motion was moot due to Byrd's return and because the subpoena had already been executed.

         A. Timeliness of Appeal

         {¶4} The trial court's journal entry declaring that the case was moot is dated June 19, 2017. Byrd's counsel attached an affidavit to the notice of appeal filed by Byrd on August 31, 2017. Counsel explained that he had not been served with a copy of the trial court's entry and first learned that a decision had been issued in the case during an "informal" conversation with the trial court. As a result of that conversation, the trial court issued a judgment entry on July 25, 2017, directing the clerk of courts to serve copies on counsel for the parties.

         {¶5} App.R. 5(A) provides that upon the expiration of the 30-day time period set forth in App.R. 4(A) for criminal appeals, a defendant may seek leave of court to file an appeal under App.R. 5(A). An appellate court is vested with broad discretion to allow the filing of a late appeal in criminal proceedings. State v. Ronny, 8th Dist. Cuyahoga No. 102968, 2016-Ohio-3448, ¶ 19. In Ronny, this court exercised that discretion to waive strict compliance with App.R. 5(A) and sua sponte granted leave for Ronny to file a delayed appeal after discovering the appeal was filed untimely. Id. at ¶ 19. In light of Byrd's counsel's provision of the affidavit, coupled with the trial court's issuance of the July 25, 2017 entry directing proper service, we elect to exercise our discretion in this case and sua sponte grant leave to appeal to address the merits. Id. . at ¶ 22.[1]

         II. Assignment of Error and Discussion

         {¶6} Byrd's single assigned error contends that the trial court erred in dismissing Byrd's motion to quash an unlawfully issued grand jury subpoena ...


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