Timothy Young, Ohio Public Defender, Patrick T. Clark,
Assistant State Public Defender, Columbus, Ohio, for
K. Stanley, Meigs County Prosecuting Attorney's office,
Pomeroy, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
P. SMITH, PRESIDING JUDGE
Danny R. Morgan, Sr., appeals the judgment entry of the Meigs
County Common Pleas Court, entered March 28, 2018. Morgan was
convicted by a jury of one count of attempted murder and two
counts of felonious assault. On appeal, Morgan asserts the
trial court erred by failing to grant his motion to dismiss
based upon a violation of his statutory speedy trial rights.
He also asserts the court erred in imposing a maximum
sentence. Upon review, we find no merit to Morgan's
arguments. Accordingly, we overrule Morgan's assignments
of error and affirm the judgment of the trial court.
AND PROCEDURAL BACKGROUND
On May 2, 2016, the Meigs County Grand Jury returned a
three-count indictment against Danny R. Morgan, Sr.,
(hereinafter "Appellant"). Count One was attempted
murder, a violation of R.C. 2923.02(A)/2903.03(A); Count Two
was felonious assault, a violation of R.C.2903.11(A)(1); and
Count Three was felonious assault by means of a deadly
weapon, a violation of R.C. 2903.11(A)(2). The indictment,
Case No. 16CR048, stemmed from events which occurred on March
Appellant had been residing for several days with Danny
Walker, a long-time acquaintance. On March 18, 2016,
Appellant and Walker had spent part of the day drinking
heavily at Walker's home. In the early morning hours of
March 19th, Appellant made three 911 phone calls.
First, Appellant called 911 stating that Walker had just
admitted to him that he raped him a couple of months prior.
The 911 dispatcher, Twila Childs, dismissed Appellant as a
non-emergent, confused and intoxicated caller. Appellant was
advised to "sleep it off" and call the next day if
During a second call, Appellant again reported an alleged
rape and stated, "I bet you'd come if I killed a
guy." At that point, Childs immediately dispatched
officers to the residence. Appellant called a third time
stating, "the man's dead now…I killed
Deputy Jeff Perry of the Meigs County Sheriff's
Department testified that upon receiving the dispatch, he
responded to the scene. Deputy Joshua Ridenour also
responded. When the officers started to enter the residence,
Appellant came outside covered in blood, saying "I think
I killed him."
Appellant was taken into custody and transported to the Meigs
County Jail on March 19, 2016. On March 21, 2016, a criminal
complaint charging felonious assault under R.C. 2903.11(A)(2)
was filed. Appellant was arraigned and entered a not guilty
plea in the Meigs County Court. Bond was set at $25, 000, 10%
cash permitted. Appellant was assigned a preliminary hearing
date of March 24th.
On March 24th, Appellant's charge was bound
over to the grand jury. The Meigs County Clerk of Court's
website shows that Appellant's felonious assault charge
was assigned Case No. 16CR046. The clerk's website also
shows that Appellant posted a surety bond on April 15, 2016.
Appellant was subsequently indicted on the three
aforementioned counts on May 2, 2016. The prosecutor
requested an arrest warrant. Testimony in the record
indicates there were several unsuccessful attempts to locate
Appellant and serve the warrant.
On September 22, 2016, the trial court ordered that Case Nos.
16CR046 and 16CR048 should be joined and all further
pleadings filed under Case No. 16CR048. On November 1, 2016,
the court noted that the May 2, 2016 warrant had not been
served. The trial court continued the case "off the
docket" until "such time as the Sheriff serves the
warrant and brings the Defendant before the Court."
Eventually Appellant was brought before the Meigs County
Common Pleas Court and arraigned on March 27, 2017. The
arraignment entry contains an additional note: "Prior
bond posted in county court by A-1 Surety. Def. Counsel
suggests bond still good [indecipherable] Ct will get
clarification." On that date, Appellant's surety
bond was continued.
On April 13, 2017, Appellant filed a motion to dismiss
asserting that his right to constitutional speedy trial had
been violated. The State filed a response asserting that any
delay in bringing Appellant to trial was caused by
Appellant's own actions in evading service of the
indictment. On May 30, 2017, the trial court denied the
Appellant eventually proceeded to a jury trial commencing in
March 2018. On March 28, 2018, the trial court's judgment
entry was journalized. Appellant was convicted on all three
counts. As to Count One, attempted murder, a felony of the
first degree, Appellant was sentenced to a maximum prison
term of 11 years. The court found that Counts Two and Three
merged for purposes of sentencing.
This timely appeal followed. Where pertinent, additional
facts are set forth below.
ASSIGNMENTS OF ERROR
"I. THE TRIAL COURT ERRED BY FAIILNG TO GRANT DANNY
MORGAN'S MOTION TO DISMISS HIS CASE FOR LACK OF A SPEEDY
TRIAL UNDER R.C. 2945.71 AND R.C.2945.73."
"II. MR. MORGAN'S SENTENCE IS BOTH UNSUPPORTED BY
COMPETENT, CREDIBLE EVIDENCE IN THE RECORD AND CONTRARY TO
OF ERROR ONE - SPEEDY TRIAL
STANDARD OF REVIEW ON MOTION TO DISMISS
"Appellate review of a trial court's decision on a
motion to dismiss for a violation of the speedy trial
requirements presents a mixed question of law and fact."
State v. Brooks, 2018-Ohio-2210, 114 N.E. 3d 220, at
¶21, quoting, State v. Spencer,
2017-Ohio-456, 84 N.E.3d 106, ¶16 (4th Dist.); State
v. Baugh, 5th Dist. Tuscarawas No. 2017AP030007,
2018-Ohio-857, ¶71. "Thus, appellate courts will
defer to a trial court's findings of fact as long as
competent, credible evidence supports them." Brooks,
supra, quoting, Spencer at ¶16, citing
State v. Brown, 131 Ohio App.3d 387, 391, 722 N.E.2d
594 (4th Dist.1998). "Appellate courts then
independently determine whether the trial court properly
applied the law to the facts." Brooks, supra;
Spencer at ¶16. And when reviewing the legal
issues in a speedy trial claim, we must strictly construe the
statutes against the state. Brooks, supra. See
Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661
N.E.2d 706 (1996); Spencer at ¶16; State v.
Deacey, 2d Dist. Montgomery No. 27408, 2017-Ohio-8102,
The Sixth Amendment to the United States Constitution (which
is made applicable to the states through the Due Process
Clause of the Fourteenth Amendment) and Article I, Section 10
of the Ohio Constitution guarantee a criminal defendant the
right to a speedy trial. This guarantee is implemented by
R.C. 2945.71, which provides specific statutory time limits
within which a person must be brought to trial. Brooks,
supra, at ¶23; State v. Blackburn, 118
Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶10.
R.C. 2945.71(C)(2) "requires that a person against whom
a felony charge is pending shall be brought to trial within
270 days after the person's arrest." Brooks,
supra, quoting, State v. Adams, 144 Ohio St.3d
429, 2015-Ohio-3954, 45 N.E.3d 127, ¶81. Appellant has
limited his argument to an alleged deprivation of a statutory
speedy trial, so we will address his arguments solely in
light of the Ohio statute.
Appellant asserts that it is undisputed that the facts giving
rise to the indictment in Case No. 16CR48 are the same basis
underlying the complaint in Case No. 16CR46. Appellant points
out that when the indictment in this case was filed on May 2,
2016, Appellant was at liberty, having posted a bond in Case
No. 16CR046. By April 13, 2017, when Appellant filed ...