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State v. Geseon

Court of Appeals of Ohio, Ninth District, Summit

August 21, 2019

STATE OF OHIO Appellee
v.
NICHOLAS M. GEDEON Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2017-02-0564

          APPEARANCES: MARK H. LUDWIG, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, PRESIDING JUDGE.

         {¶1} Defendant-Appellant, Nicholas Gedeon, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} Mr. Gedeon was a passenger in a vehicle that the police stopped due to a traffic violation. The officer who executed the stop and the officer who arrived as backup both detected the odor of marijuana coming from the vehicle. Additionally, Mr. Gedeon was observed making furtive movements during the stop and nervously glancing at the vehicle's glovebox as he was asked questions about the marijuana odor. As a result of the odor and their observations, the officers removed the driver and Mr. Gedeon from the vehicle and searched it. The search uncovered, among other items, a sizeable amount of marijuana in the glove box, a pill bottle containing 119 Oxycodone pills in the space behind the glove box, baggies, and a scale. Upon searching Mr. Gedeon, the police also found $2, 100 in his wallet. The cash was separated into two rubber-banded bundles; one containing twenty $100 bills and one containing $100 worth of smaller bills.

         {¶3} Following his arrest, Mr. Gedeon was taken to jail and held without bond. He spoke with officers four times before his preliminary hearing and admitted that he had purchased the Oxycodone pills to sell them for profit. He consented to a search of his cell phone, but the police also secured a warrant to search the phone. The cell phone search uncovered numerous text messages related to the purchase and sale of the Oxycodone pills.

         {¶4} A grand jury indicted Mr. Gedeon on (1) two counts of aggravated trafficking in Oxycodone, one of which included a bulk amount enhancement and one of which did not; (2) two counts of aggravated possession of Oxycodone, one of which included a bulk amount enhancement and one of which did not; (3) possession of Buprenorphine; (4) possession of marijuana; (5) illegal use or possession of drug paraphernalia; and (6) two criminal forfeiture specifications for the $2, 100. Thereafter, a wealth of motion practice ensued. Mr. Gedeon moved to dismiss his charges based on a violation of his speedy trial rights, the fact that he was unable to obtain a verbatim transcript of his preliminary hearing, misconduct that allegedly occurred during the grand jury proceedings, and several other grounds. He also moved to suppress the evidence against him. The primary basis for his motion to suppress was that the police never secured a warrant for his arrest. Mr. Gedeon argued that his unlawful detainment rendered all the evidence against him subject to the exclusionary rule.

         {¶5} The trial court held several hearings on Mr. Gedeon's motions. It denied his motions to dismiss and denied, in part, his motion to suppress. The court found that Mr. Gedeon's fourth interrogation occurred during a period of unlawful detainment. As such, it granted Mr. Gedeon's motion to suppress insofar as it pertained to the admissibility of the fourth interrogation.

         {¶6} Mr. Gedeon waived his right to a jury trial, and a bench trial ensued. The trial court found him not guilty of possessing Buprenorphine, but guilty of his remaining counts and specifications. It then sentenced him to a total of two years of community control and ordered the forfeiture of his $2, 100.

         {¶7} Mr. Gedeon now appeals and raises four assignments of error for our review. For ease of analysis, we rearrange several of his assignments of error.

         II.

         ASSIGNMENT OF ERROR ONE

         DENYING DISCHARGE FOR FAILURE TO PROVIDE SPEEDY TRIAL[] (Sic.)

         {¶8} In his first assignment of error, Mr. Gedeon argues that the trial court erred when it refused to dismiss his indictment on the basis of a speedy trial violation. We disagree.

         {¶9} "A trial court's determination of speedy trial issues presents a mixed question of law and fact." State v. Jaeger, 9th Dist. Medina No. 17CA0072-M, 2018-Ohio-2994, ¶ 5. "When reviewing an appellant's claim that he was denied his right to a speedy trial, this Court applies the de novo standard of review to questions of law and the clearly erroneous standard of review to questions of fact." State v. Fields, 9th Dist. Wayne No. 12CA0045, 2013-Ohio-4970, ¶ 8, quoting State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 36. "A de novo review requires an independent review of the trial court's decision without any deference to the trial court's determination." State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.

         {¶10} A person charged with a felony must be brought to trial within 270 days of his arrest. R.C. 2945.71(C)(2). "Time is calculated to run the day after the date of arrest," State v. Browand, 9th Dist. Lorain No. 06CA009053, 2007-Ohio-4342, ¶ 12, and "each 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). An exception to the triple-count provision lies if "the accused is also being held in jail on other charges." State v. Stephens, 9th Dist. Summit No. 26516, 2013-Ohio-2223, ¶ 12. "In those instances, 'the 270-day time limit * * * applies.'" State v. Phillips, 9th Dist. Summit No. 27661, 2016-Ohio-4687, ¶ 7, quoting Stephens at ¶ 12. Nevertheless, time may be tolled due to various tolling events. See R.C. 2945.72.

         {¶11} Mr. Gedeon was arrested on February 2, 2017, and remained incarcerated until May 16, 2017, when he posted bond. In his motion to dismiss, he argued that each day he spent in jail should be counted as three, see R.C. 2945.71, but the trial court rejected his argument. The court found that, between February 10th and April 5th, Mr. Gedeon was subject to a holder in a different case. Mr. Gedeon argues that the trial court erred when it found that he was subject to a holder. According to Mr. Gedeon, the triple-count provision applied to the entirety of his jail stay because the State failed to set forth any record evidence of the holder.

         {¶12} Upon review, we need not determine whether the trial court erred when it found that Mr. Gedeon was subject to a holder. That is because, even if the court erred in that regard, Mr. Gedeon's speedy trial rights were not violated. See Crim.R. 52(A) (errors that do not affect substantial rights "shall be disregarded").

         {¶13} Mr. Gedeon was arrested on February 2, 2017, so his speedy trial time began to run the following day. See Browand at ¶ 12. He was incarcerated until May 16, 2017, but requested a two-week continuance on April 6, 2017. Thus, his continuance tolled time, see R.C. 2945.72(H), and, at most, 189 days elapsed between February 3, 2017, and April 20, 2017. See R.C. 2945.71(E).

         {¶14} On April 20, 2017, when Mr. Gedeon's continuance was set to expire, the trial court continued the matter for another three weeks due to pending issues with discovery. Mr. Gedeon indicated that he had no objection to that continuance, and he has not taken issue with its reasonableness on appeal. Accordingly, the second continuance also constituted a tolling event, and time was tolled between April 20, 2017, and May 11, 2017. See R.C. 2945.72(H) (including, as a tolling event, "the period of any reasonable continuance granted other than upon the accused's own motion").

         {¶15} From May 11, 2017, until May 16, 2017, 15 days elapsed for purposes of Mr. Gedeon's speedy trial calculations, bringing his total calculation to 204 days. See R.C. 2945.71(E). Mr. Gedeon posted bond on May 16th, so, at that point, R.C. 2945.71(E)'s triple-count provision ceased to apply to him. Moreover, on May 30, 2017, and June 1, 2017, he filed more than ten pretrial motions. Those motions further tolled his speedy trial time. See R.C. 2945.72(E). As such, from May 16, 2017, to May 30, 2017, only 14 days elapsed for purposes of his speedy trial time. Combined with the 204 days that had already elapsed, the total amount of speedy trial time that elapsed was 218 days.

         {¶16} The trial court disposed of Mr. Gedeon's speedy trial motion on June 12, 2017, following a hearing on all of his pending motions. Because the delay that occurred between May 30th and June 12th was attributable to Mr. Gedeon having filed numerous motions, that time was chargeable to him. See, e.g., State v. Burroughs, 9th Dist. Lorain No. 14CA010595, 2016-Ohio-1139, ¶ 8. Thus, for purposes of his speedy trial calculation, a total of 218 days elapsed between his arrest and the day the court denied his motion to dismiss. Because that number fell far short of R.C. 2945.71(C)(2)'s 270-day time limit, the trial court did not err when it denied his motion to dismiss. See State v. Calise, 9th Dist. ...


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