CITY OF CONNEAUT, Plaintiff-Appellee, - v - RUDOLPH BABCOCK, Defendant-Appellant.
CASE NO. 2021-A-0045
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
Decided: June 21, 2022
2022-Ohio-2101
Criminal Appeal from the Conneaut Municipal Court, Trial Court No. 2021 CRB 00037. Judgment: Affirmed
Christopher M. Newcomb, 213 Washington Street, Conneaut, OH 44030 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
O P I N I O N
{¶1} Appellant, Rudolph Babcock, appeals from the judgment of the Conneaut Municipal Court, convicting him, after accepting his plea of no contest, for discharging a firearm or gun, in violation of
{¶2} On February 12, 2021, a City of Conneaut police officer was dispatched in response to a report that an individual had discharged a firearm within the city limits. The
{¶3} On February 18, 2021, a complaint was filed tracking the language of
{¶4} On July 27, 2021, appellant voluntarily appeared in court on the outstanding warrant and was formally served with the complaint. Appellant pleaded not guilty and issued a general waiver of his right to a speedy trial. On August 27, 2021, however, appellant filed a motion to dismiss, alleging a speedy trial violation and challenged the constitutionality of the underlying ordinance. Regarding the first point, appellant claimed he did not attempt to evade service, and, in effect, the state failed to exercise due diligence to accomplish service. Appellant claimed his speedy-trial clock commenced
{¶5} On September 20, 2021, the trial court filed its judgment entry denying appellant‘s motion. On the following day, appellant, via counsel, executed a second waiver of his speedy trial rights and, again, on October 25, 2021, a third waiver was filed. Finally, on November 21, 2021, appellant entered a plea of no contest to the charge. He was sentenced to 30 days in jail, with 30 days suspended and fined $250. This appeal follows.
{¶6} Appellant‘s first assignment of error provides:
{¶7} “The trial court committed prejudicial error by overruling appellant‘s motion to dismiss based upon
{¶8} Appellant asserts that his speedy trial timeline commenced upon the issuance of the complaint and summons on February 18, 2021 and, as a result, the city had to try him by April 5, 2021, 45 days after this date. Alternatively, he asserts that even if the issuance of the arrest warrant, on March 23, 2021, was the proper date to measure
{¶9} Appellant was charged with a misdemeanor of the fourth degree and thus, was required to be brought to trial “within forty-five days after the person‘s arrest or the service of summons * * *.”
{¶10} “Regarding the duration of a speedy-trial waiver, when such a waiver does not contain any reference to a specific time period, it will be deemed unlimited in duration.” State v. Schwentker, 11th Dist. Ashtabula No. 2015-A-0012, 2015-Ohio-5526, ¶29. “‘[F]ollowing an express written waiver of unlimited duration by an accused of his speedy trial rights the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection to any further continuances and makes a demand for trial, following which the state must bring him to trial within a reasonable time.‘” State v. Braden, 197 Ohio App.3d 534, 2011-Ohio-6691 (11th Dist.), ¶41, quoting State v. O‘Brien, 34 Ohio St.3d 7, 9 (1987). Ordinarily, speedy-trial time would start the day after service. See State v. Kist, 173 Ohio App.3d 158, 2007-Ohio-4773, ¶24. Because, however, appellant executed a general waiver of his speedy trial rights on July 27, 2021, the clock did not commence.
{¶11} On August 27, 2021, appellant filed a motion to dismiss based upon, among other things, an alleged violation of his speedy trial rights. Pursuant to O‘Brien, supra, at paragraph two of the syllabus, this pleading could be construed as a “formal written objection and demand for trial.” However, “[a] motion to dismiss acts to toll the time in which a defendant must be brought to trial, and such a motion tolls the statutory time until the trial court issues it its decision on the motion.” State v. Evans, 11th Dist. Trumbull No. 2003-T-0132, 2005-Ohio-1787, ¶38. As such, speedy-trial time was tolled from August 27, 2021 until September 20, 2021, the date the trial court issued its judgment denying the motion. The next day, on September 21, 2021, appellant‘s counsel filed a motion for continuance of trial and another general, speedy-trial waiver of unlimited duration. Based on the continuance, trial, which was set for September 23, 2021, was reset for October 25, 2021. See
{¶12} Further, although trial did not proceed on October 25, 2021, appellant entered an additional general waiver of speedy trial on that date. It would seem that the previous waiver, filed on September 21, 2021 was sufficient; still, this final waiver conclusively demonstrates appellant‘s statutory right to a speedy trial was not violated.
{¶13} Finally, appellant claims that, in originally attempting service, the state was not reasonably diligent in its efforts. Appellant cites to
{¶14} Appellant‘s first assignment of error lacks merit.
{¶15} Appellant‘s second assignment of error provides:
{¶16} “The trial court committed prejudicial error in denying appellant‘s motion to dismiss on grounds that appellee unconstitutionally violated appellant‘s rights without proper passage of a municipal ordinance or resolution pursuant to
{¶17} Under this assignment of error, appellant argues that his charge was premised upon his possession and discharge “of what is known as a ‘spring gun’ or ‘BB gun.‘” He maintains this “gun” is not prohibited by the ordinance under which he was charged. As such, he maintains the charge and conviction are invalid.
{¶18}
{¶19} Next, appellant asserts that, to the extent the “gun” in question could be considered an “air gun” (which is prohibited by the ordinance), neither the ordinance nor the Ohio Revised Code specifically defines such a weapon for purposes of the “discharging a firearm” prohibition. As a result, he appears to maintain the ordinance is unconstitutionally vague.
{¶20} Although the ordinance at issue is captioned “Discharging Firearms,” a “firearm” is a term of art which contemplates a “gun” which expels projectiles “by the action of an explosive or combustible propellent” See
{¶21} Similarly, any argument appellant attempts to make asserting the ordinance is unconstitutional as violative of due process must fail. He pleaded no contest to shooting either a pellet gun or a rifle. As just discussed, in conceding he either shot a pellet gun or a rifle, he was reasonably aware that the action for which he was charged was prohibited under the ordinance at issue.
{¶22} Appellant next asserts the ordinance at issue, when it was amended, violates
{¶23} (A) The following procedures shall apply to the passage of ordinances and resolutions of a municipal corporation:
{¶24} (1) Each ordinance and resolution shall be read by title only, provided the legislative authority may require any reading to be in full by a majority vote of its members.
{¶25} (2) Each ordinance or resolution shall be read on three different days, provided the legislative authority may dispense with this rule by a vote of at least three-fourths of its members.
{¶26} (3) The vote on the passage of each ordinance or resolution shall be taken by yeas and nays and entered upon the journal.
{¶27} (4) Each ordinance or resolution shall be passed, except as otherwise provided by law, by a vote of at least a majority of all the members of the legislative authority.
{¶28} (B) Action by the legislative authority, not required by law to be by ordinance or resolution, may be taken by motion approved by at least a majority vote of the members present at the meeting when the action is taken.
{¶29}
{¶30} A review of the statute demonstrates that the one-subject rule is unrelated to
{¶31} Appellant‘s argument assumes that both provisions were added by Ordinance No. 70-17. The record, however, does not substantiate that these provisions first appeared in
{¶32} Finally, appellant makes various obscure arguments suggesting the amendment of
{¶33} First, appellant‘s assertion that the term “air gun” is undefined does not specifically run afoul of
{¶34} Moreover, appellant‘s contention that the amendment to
{¶35} Appellant did not produce any evidence of procedural irregularities in the ordinance‘s amendment that would suggest a statutory or constitutional violation. As a result, appellant‘s challenges are overruled.
{¶36} Appellant‘s second assignment of error lacks merit.
{¶37} For the reasons discussed above, the judgment of the Conneaut Municipal Court is affirmed.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.