Cleveland v. GrossCleveland v. Gross
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: January 27, 2022
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, Aqueelah Jordan, Cleveland Chief Prosecutor, and Michael J. Ferrari, Assistant Prosecuting Attorney, for appellant.
Friedman & Gilbert and Mary Catherine Corrigan, for appellee.
SEAN C. GALLAGHER, A.J.:
{¶ 1} This cause camе to be heard upon the accelerated calendar pursuant to
Background
{¶ 2} On January 23, 2021, following an alleged child-abuse incident involving Gross and her minor child, Gross was arrested and taken to Cuyahoga County Jail. An information charged Gross with felony endangering children, and the case was bound over to the common pleas court. On January 26, 2021, Gross was released from jail upon posting bond.
{¶ 3} On February 26, 2021, in Cuyahoga C.P. No. CR-21-656287, the court granted the state‘s motion to terminate charges, purportedly because the evidence indicated the offense was a misdemeanor, and the charge pending in the Cuyahoga County Court of Common Pleas was dismissed.
{¶ 4} On May 6, 2021, a complaint was filed in Cleveland M.C. No. 2021 CRB 004505 charging Gross with endangering сhildren, a misdemeanor of the first degree, in violation of
{¶ 5} The city timely filed this appeal.
{¶ 6} The city raises two assignments of error for our review. The city claims the trial court abused its discretion (1) by granting appellant‘s motion to dismiss based on
{¶ 7} Ohio‘s speedy trial statutes were implemented “to incorporate the constitutional protection of the right to a speedy trial provided for in the Sixth Amendment to the United States Constitution and in Section 10, Article I, of the Ohio Constitution.” Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706 (1996), citing State v. Broughton, 62 Ohio St.3d 253, 256, 581 N.E.2d 541 (1991). “‘The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruptiоn of life caused by arrest and the presence of unresolved criminal charges.‘” State v. Triplett, 78 Ohio St.3d 566, 568, 679 N.E.2d 290 (1997), quoting United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Ohio courts must strictly construe the speedy-trial statutes. Cook at 57. However, the prescribed times for trial set forth in
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{¶ 11} “When reviewing a speedy-trial question, an appellate court must count the number of delays chargeable to each side and then determine whether the number of days not tolled exceeded the time limits under
{¶ 12} In this matter, after the original felony child-endangerment charge was dismissed, Gross was charged with a misdemeanor based upon the same facts. The city argues that the speedy-trial timе does not include the period when no charges were pending against Gross and that the trial court erred when it granted the motion to dismiss based on
{¶ 13} As an intermediate appellate court, we are bound by and must follow and apply the decisions of the Ohio Supreme Court. Brandt v. Pompa, 2021-Ohio-845, 169 N.E.3d 285, ¶ 31 (8th Dist.), citing Gehad & Mandi, Inc. v. Ohio State Liquor Control Comm., 10th Dist. Franklin No. 05AP1181, 2006-Ohio-3081, ¶ 7.
{¶ 14} In State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, the Supreme Court of Ohio determined that when charges arise from the same underlying facts and circumstances as the charges in a previous case that was dismissed, the statutory time for a speedy trial dates back to when the defendant was originally chargеd. Blackburn at ¶ 11, citing State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989), and State v. Bonarrigo, 62 Ohio St.2d 7, 11, 402 N.E.2d 530 (1980).2 Consequently, in Blackburn, the Supreme Court held that “in calculating the time within which a criminal defendant must be brought to trial under
{¶ 15} In Broughton, 62 Ohio St.3d 253, 581 N.E.2d 541, the Supreme Court of Ohio held that
for purposes of computing how much time has run against the state under the speedy-trial statute, the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same facts as alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim.R. 12(I).
Broughton at 259-260. However, the Supreme Court recognized “any time period that has elapsed under the original indictment should be tacked on to the time period commencing with the secоnd indictment.” Id. at 261, citing Bonarrigo at 11. The Supreme Court reaffirmed the holding in Broughton in Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, 859 N.E.2d 532, at ¶ 17, and State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 36.
{¶ 16} The Tenth District, relying on Broughton, “has repeatedly declined to count days between a dismissal of charges and a subsequent indictment [or complaint] premised on the same facts unless the defendant is held in jail or released on bail pursuant to Crim.R. 12(I).” (Citations omitted.) State v. Loel, 10th Dist. Franklin No. 13AP-874, 2014-Ohio-3045, ¶ 10. “This conclusion is based on the principle that days should not be counted when there are no criminal charges pending.” Id. at ¶ 10, citing State v. Diallo, 10th Dist. Franklin No. 12AP-388, 2013-Ohio-1248, ¶ 14. In Loel, the court held that “[p]ursuant to Broughton, the days between the dismissal of the complaint in the municipal court and the filing of the indictment [in the common pleas court] based on the same facts are not counted in this speedy trial analysis.” Id. at ¶ 13; see also State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 14 (“Because we dо not count the days between the municipal court dismissal and subsequent indictment in this case, appellant‘s argument fails.“). Likewise, in State v. Crosby, 10th Dist. Franklin No. 12AP-348, 2012-Ohio-6202, the Tenth District found there was no speedy-trial violation where the running of the defendant‘s speedy-trial period, which commenced upon his initial arrest and felony charges, was tolled when the original charges were dismissed for future indictment on the same charges based on the same events. Id. at ¶ 14.
Appellant wishes to count this time against the Village. When no charges are pending and a person is not under arrest or subject to cоnditions of bond, the reasons for which the speedy trial statute was instituted, “to minimize the restrictions on freedom and the general disruption of life caused by pending and unresolved criminal charges[,]” are not implicated. [State v. Phillips, 19 Ohio App.3d 85, 86, 482 N.E.2d 1337 (10th Dist.1984).] Therefore, the speedy trial time is tolled for this period of time.
{¶ 18} Adhering to thе Supreme Court authority above, we find the statutory time for speedy trial dates back to when Gross was arrested and held pending the original felony charge, and any elapsed time for the original felony charge is tacked on to the time period commencing with the subsequent service оf the summons, or first appearance, for the misdemeanor charge premised on the same facts; however, the time between the dismissal of the original felony charge and Gross‘s first appearance on the subsequent misdemeanor charge is not counted in the speedy-trial analysis. In computing the speedy-trial time that has elapsed in this case, our review reflects Gross was arrested on January 23, 2021, and was released on bond
{¶ 19} We recognize Gross‘s motion to dismiss was based on the application of the 90-day speedy-trial limitation period under
{¶ 20} Nonetheless, we recognize the outstanding question of which statutory speedy-trial limitation applies to calculate the speedy-trial limit when an original felony charge is later reduced to a misdemeanor charge based on the same conduсt. “[T]his precise situation was not addressed by the legislature in the speedy
{¶ 22} Judgment reversed, and case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR