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City of Cleveland v. Dancy

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

CITY OF CLEVELAND, Plaintiff-Appellee,
DAMIONNE DANCY, Defendant-Appellant.

          Criminal Appeal from the Cleveland Municipal Court Case No. 2017 TRC 021373

          Barbara A. Langhenry, Cleveland Director of Law, and Bridget E. Hopp, Assistant City Prosecutor, for appellee.

          Milton A. Kramer Law Clinic Center, Carmen P. Naso, for appellant.



         {¶1} Defendant-appellant Damionne Dancy ("Dancy") appeals his conviction and asks this court to vacate his sentence. After our review, we affirm.

         {¶ 2} Dancy was found guilty of operating a vehicle under the influence, a first-degree misdemeanor, in violation of R.C. 4511.19; driving under suspension, an unclassified misdemeanor, in violation of C.C.O. 435.07; and failure to control, a minor misdemeanor, in violation of C.C.O. 431.34(A). Dancy was sentenced to 180 days in jail and a $1, 000 fine for operating a vehicle under influence. The trial court suspended $500 of the fine and 177 of the days. Dancy was ordered to complete the driver's intervention program in lieu of the three days in jail. His driver's license was suspended for nine months and Dancy was placed on probation. Dancy also received a $100 and $50 fine for driving under suspension and failure to control, respectively.

         I. Facts

         {¶ 3} On July 3, 2017, Officer Anthony Neubert ("Officer Neubert"), of the Cleveland Police Department received a radio broadcast to respond to the area of I-77 northbound at I-490 for a vehicle on fire. When Officer Neubert arrived, he observed a person laying on the ground about 100 feet from the single-car crash. The person identified himself to Officer Neubert as Dancy. Dancy had trouble moving because his hip was dislocated. Officer Neubert stated that he smelled a "pretty strong odor" of alcohol on Dancy, that Dancy's speech was slurred and that his eyes were glossy. Officer Neubert was unable to perform field sobriety tests due to Dancy's hip injury. After running Dancy's driver's license information in the law enforcement database, Officer Neubert learned that Dancy's driver's license was suspended. Dancy was subsequently arrested.

         {¶ 4} According to the Cleveland Municipal Court docket, Dancy was arrested on July 3, 2017, and he entered a not guilty plea at arraignment on July 17, 2017. At arraignment, a pretrial hearing was scheduled for August 3, 2017. At the pretrial hearing, Dancy did not have an attorney, and the trial court continued the case until August 24, 2017, for Dancy to procure an attorney. On August 24, 2017, Dancy was represented by a public defender, and his counsel requested a continuance until September 21, 2017. Dancy filed a motion to suppress and the case was continued at Dancy's request until October 19, 2017.

         {¶5} The city filed their response to Dancy's motion to suppress on October 12, 2017. The October 19, 2017 hearing was continued at the defendant's request until November 6, 2017, for a suppression hearing. On November 6, 2017, the city was without its witness and requested a continuance. The trial court granted the city's request and continued the suppression hearing until December 11, 2017. On December 11 2017, Dancy's motion to suppress was granted, and a bench trial was scheduled for December 28, 2017.

         {¶ 6} On December 28, 2017, the trial was continued at Dancy's request until February 6, 2018. In the interim, on January 24, 2018, Dancy filed a motion to withdraw and appoint new counsel. Therefore, on February 6, 2018, the trial was converted to a pretrial and was continued to February 27, 2018. At the pretrial hearing, the trial was scheduled for March 19, 2018, at Dancy's request. Then on March 19, 2018, Dancy requested another continuance and the trial court scheduled an April 13, 2018 trial date.

         {¶ 7} At trial, Officer Neubert testified from the information in the medical record without objection. When the city attempted to enter Dancy's medical reports into evidence, Dancy's trial attorney objected. The trial court sustained the objection and did not admit the medical reports. Officer Neubert then testified regarding Dancy's driver's license status. Officer Neubert's testimony was a follows:

Prosecutor: Okay. And when you ran Mr. Dancy's driver's license information in your Omni Force System on July 3rd, were you able to see whether, in fact, Mr. Dancy was still either in failure to reinstate status or under an active suspension?

Officer: Correct.

Prosecutor: Okay. And is that what's reflected on the LEADS printout you have in front of you on Plaintiffs C?

Officer: Yes.

Prosecutor: And you showed that his driver's license is under a failure to reinstate suspension?

Officer: Correct.

Prosecutor: Okay. Are there any other failure to reinstate suspensions on Mr. Dancy's driving history here that were active at the time?

Officer: Yes, I'm showing 10 suspensions total.

Prosecutor: Okay.

Officer: So, yeah, he hasn't been reinstated for a while it seems like.

(Tr. 18.)

{¶ 8} Dancy was found guilty and sentenced accordingly. Dancy filed this timely appeal assigning two errors for our review:

I. Appellant was denied a speedy trial under R.C. 2945.71; and
II. Appellant was denied effective assistance of counsel because counsel failed to file a motion to dismiss for a speedy trial violation; and counsel failed to object to inadmissible hearsay and unduly prejudicial evidence.

         II. Speedy Trial Rights

         {¶ 9} In Dancy's first assignment of error, he argues that he was denied a speedy trial under R.C. 2945.71. Under Ohio's speedy trial statutes, a trial court shall discharge a defendant if the trial court and prosecution fail to bring the defendant to trial within the time required by R.C. 2945.71 and 2945.72. See R.C. 2945.73(B). The Ohio Supreme Court has "imposed upon the prosecution and the trial courts the mandatory duty of complying with" the speedy trial statutes. State v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977). Thus, courts must strictly construe the speedy trial statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996), citing State v. Madden, 10th Dist. Franklin No. 04AP-1228, 2005-Ohio-4281, ¶ 25.

         {¶ 10} Once the statutory time limit has expired, the defendant has established a prima facie case for dismissal. State v. Howard, 79 Ohio App.3d 705, 707, 607 N.E.2d 1121 (1992). At that point, the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to RC. 2945.72. State v. Geraldo, 13 Ohio App.3d 27, 28, 468 N.E.2d 328 (1983). State v. Greene, 8th Dist. Cuyahoga No. 91104, 2009-Ohio-850, ¶ 24.

Our review of a challenge of a constitutional speedy trial violation often raises a mixed question of law and fact. State v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 19. We apply a de novo review to the legal issues, but afford great deference to any factual findings made by the trial court. Id.

State v. Cochern, 8th Dist. Cuyahoga No. 104960, 2018-Ohio-265, ¶ 47.

         {¶ 11} The appellant did not file a motion to dismiss in the trial court based upon speedy trial violations pursuant to R.C. 2945.73.

Generally, a defendant who fails to file such a motion[1] has waived his statutory right to a speedy trial and is estopped from raising this defense on appeal. State v. Talley, 5th Dist. Richland No. 06 CA 93, 2007-Ohio-2902; State v. Stoutemire 8th Dist. Cuyahoga No. 49685, 1985 Ohio App. LEXIS 9009 (Oct. 24, 1985). Nevertheless, courts have addressed the merits of such an argument despite the waiver. See, e.g., State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72; State v. Starks, 6th Dist. Lucas Nos. L-05-1417 and L-05-1419, 2007-Ohio-4897.
Some cases, however, have also addressed the failure to file such a motion under a plain error standard. See State v. Hinson, 8th Dist. Cuyahoga No. 87132, 2006-Ohio-3831; State v. Simms, 10th Dist. Franklin Nos. 05AP-806 and 05AP-807, 2006-Ohio-2960 (appellant waived all but plain error on his statutory speedy trial claims); State v. Burgess, 11th Dist. Lake No. 2003-L-069, 2004-Ohio-4395 (trial counsel's failure to object waived review of the speedy trial claim absent plain error); State v. Griffin, 9th Dist. Medina No. 2440-M, 1995 Ohio App. LEXIS 5613 (Dec. 20, 1995). Plain error involves both alleged omissions of trial counsel and alleged error on the part of the trial court or in the trial proceedings. State v. Nelson, 2d Dist. Champaign No. 00CA12, 2001 Ohio App. LEXIS 975 (Mar. 9, 2001), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).

State v. Conkright, 6th Dist. Lucas No. L-06-1107, 2007-Ohio-5315, ¶ 17-18.

         {¶12} However,

As such, a reviewing court's analysis is generally limited to reviewing issues raised on appeal solely for plain error or defects affecting a defendant's substantial rights pursuant to Crim.R. 52(B). State v. Tisdale, 8th Dist. Cuyahoga No. 74331, 1998 Ohio App. LEXIS 6143 (Dec. 17, 1988). The plain error doctrine should be invoked by an appellate court only in exceptional circumstances to prevent a miscarriage of justice. State v. Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452 (1983). ...

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