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State v. Hawkins

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MARVIN HAWKINS, Defendant-Appellant.

         Please see vacated opinion at 2019-Ohio-3889

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611578-A

         JUDGMENT: REVERSED AND REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jonathan Block, Assistant Prosecuting Attorney, for appellee.

          Milton A. Kramer Law Clinic, Carmen P. Naso, Supervising Attorney, and Sarah Lucey, Jaclyn Cole, and Alan Ellis, Certified Legal Interns, for appellant.

         ON RECONSIDERATION[1]

          JOURNAL ENTRY AND OPINION

          MICHELLE J. SHEEHAN, JUDGE.

         {¶ 1} Marvin Hawkins appeals from his convictions of several felony offenses that stemmed from a physical altercation between his girlfriend and him. Although the incident occurred in March 2011, Hawkins was not indicted until December 2016 and was not arraigned until April 2018. On appeal, Hawkins argues his trial counsel provided ineffective assistance of counsel for failing to file a motion to dismiss the indictment on grounds of the state's failure to commence the criminal action within the statute of limitations prescribed in RC. 2901.13. Having reviewed the record and applicable law, we find merit to Hawkins's claim. We reverse his convictions and remand this case to the trial court to allow Hawkins to file a motion to dismiss on grounds of the expiration of the statute of limitations for his offenses.

         Substantive and Procedural Background

         {¶ 2} In 2011, Hawkins lived with his girlfriend Toni Brown. One night Hawkins returned from a bar intoxicated and a physical altercation ensued between the two. Hawkins and Brown described the incident differently. According to Brown, Hawkins asked her for money and became upset when he was told she did not have money. He then urinated on the bedroom floor. Brown became fearful and tried to call her mother. When she reached for her cell phone, Hawkins grabbed her phone and threw it against the wall. When Brown tried to reach for her house phone, Hawkins threw it as well and tried to choke her. Hawkins then went through her purse, taking cash and her bank card. Brown grabbed Hawkins's face and banged it against the wall. Hawkins, in turn, grabbed her and choked her again. After Hawkins left with his cousin, who was in the house during the incident, Brown replaced the battery that had fallen out of the house phone and called her mother, who then called the police. The police showed up and took Brown's statement regarding the altercation. The police also took pictures of her face and neck. Brown did not have any contact with Hawkins after this incident other than receiving a few text messages from him.

         {¶ 3} According to Hawkins, the two started fighting because Brown saw names of some women in his phone and became jealous. He urinated on the bedroom floor because Brown would not let him leave to use the bathroom. He admitted grabbing her arms and pushing her out of the way, but denied choking her.

         {¶ 4} The incident occurred on March 20, 2011, and it was immediately investigated by the police, yet the state did not file charges against Hawkins for five years.[2] On December 2, 2016, several months before the expiration of the six-year statute of limitation for felony offenses, the grand jury returned an eight-count indictment against Hawkins for: (1) felonious assault, a second-degree felony, (2) aggravated robbery, a first-degree felony, (3) robbery, a second-degree felony, (4) kidnapping, a first-degree felony, (5) theft, a fifth-degree felony, (6) theft, a first-degree misdemeanor, (7) domestic violence, a first-degree misdemeanor, and (8) disrupting public services, a fourth-degree felony.

         {¶ 5} On the same day the indictment was returned by the grand jury, a summons was issued and sent by FedEx to Brown's residence on Grandview Avenue and an arraignment was scheduled for December 16, 2016. Hawkins did not appear at the arraignment, and on that day, a capias was issued for him. Apparently, Hawkins never received the summons - an entry in the docket dated December 18, 2016, states that a FedEx receipt was returned on December 9, 2016, with a notation "failure of service on party Hawkins/Marvin - unclaimed."[3]

         {¶ 6} The next entry on the docket was entered 15 months later. An entry dated April 23, 2018, states that the arraignment scheduled for December 16, 2016, was cancelled. The next entry, dated April 24, 2018, states Hawkins was arraigned. Apparently, he was arrested on the outstanding warrant sometime before April 24, 2018.

         {¶ 7} Subsequently, Hawkins waived a jury trial and the matter was tried to the bench on September 5, 2018. The trial court found him guilty of all eight counts and sentenced him to three years in prison, but credited him with 158 days of jail time served.

         {¶ 8} On appeal, Hawkins raises two assignments of error for our review:

I. The appellant received ineffective assistance of counsel when counsel failed to file a motion to dismiss the indictment for failure to commence the action in compliance with R.C. 2901.13.
II. The trial court erred when it failed to grant the appellant's Rule 29 motion at the conclusion of the ...

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