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State v. Morgan

Court of Appeals of Ohio, Fourth District, Meigs

June 13, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DANNY R. MORGAN, SR., Defendant-Appellant.

          Timothy Young, Ohio Public Defender, Patrick T. Clark, Assistant State Public Defender, Columbus, Ohio, for Appellant.

          James K. Stanley, Meigs County Prosecuting Attorney's office, Pomeroy, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          JASON P. SMITH, PRESIDING JUDGE

         {¶1} 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         {¶2} 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 19, 2016.

         {¶3} 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 necessary.[1]

         {¶4} 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 him."

         {¶5} 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."

         {¶6} 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.

         {¶7} 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.[2] The clerk's website also shows that Appellant posted a surety bond on April 15, 2016.

         {¶8} 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.

         {¶9} 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."

         {¶10} 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.

         {¶11} 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 motion.

         {¶12} 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.

         {¶13} 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 LAW."

         ASSIGNMENT OF ERROR ONE - SPEEDY TRIAL

         A. STANDARD OF REVIEW ON MOTION TO DISMISS

         {¶14} "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, at ¶75.

         B. LEGAL ANALYSIS

         {¶15} 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.

         {¶16} 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 ...


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