State v. BakerState v. Baker
Rose & Dobyns Co., LPA, Justin T. Gray, 97 North South Street, Wilmington, OH 45177, for defendant-appellant
YOUNG, J.
{¶1} Defendant-appellant, Raymond Baker, appeals his conviction and sentence in the Fayette County Court of Common Pleas for trafficking in cocaine in violation of
{¶2} On March 1, 2006, appellant was arrested in Washington Court House; a complaint was filed in the Washington Court House Municipal Court charging him with trafficking in cocaine. Appellant posted bond and was released on March 7, 2006. On March
{¶3} More than a year later, on May 22, 2007, the state moved to amend the subsection of the statute charged in the indictment for the crime of trafficking in cocaine. Under the amended indictment, appellant was charged with one count of trafficking in cocaine in violation of
{¶4} On August 23, 2007, appellant moved for discovery. On October 16, 2007, he filed a motion to dismiss on the grounds that his constitutional and statutory rights to a speedy trial were violatеd. Appellant also argued that the state did not exercise reasonable diligence in securing his availability. A hearing on the motion revealed that when appellant posted bond, he listed his address in Dayton, Montgomery County; once the original indictment was issued, the Fayette County Sheriff s Office entered the warrant for appellant s arrest “into the NCIC services in an attempt to try to locate him;” in fact, it is the sheriff s office policy “just to enter thеm into the computer;” no further action was taken to find appellant or arrest him on the warrant; and the sheriff s office did not know the whereabouts of appellant until August 2007 when he was apprehended in Montgomery County on separate charges and the sheriff s office put a holder on him.
{¶5} At the conclusion of the hearing on appellant s motion to dismiss, the trial court asked the prosecutor and defense attorney to base their argumеnts on the factors outlined in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182. The prosecutor argued that “the reason for the delay was simply that [appellant] was not picked up in Montgomery County, it s not our practice to send deputies across the State. *** Wе issued a warrant, forwarded it to Montgomery County, forwarded the information that was available on that. *** [W]e needed
{¶6} By entry filed January 15, 2008, the trial court overruled appellant s motion to dismiss as follоws: “The dismissal of the Municipal Court case as opposed to a bindover tolled the statutory speedy trial. [Appellant] was arrested on March 1, 2006 and bonded out of jail on March 7, 2006. [He] was indicted on March 10, 2006 and a dismissal оf the Municipal Court case was entered on March 10, 2006 [sic]. This dismissal is the tolling event.” On March 12, 2008, a jury found appellant guilty of trafficking in cocaine. This appeal follows in which appellant raises two assignments of error.
Assignment of Error No. 1:
{¶7} “THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO DISMISS ON STATUTORY SPEEDY TRIAL GROUNDS.”
{¶9} Appellant argues that his statutory right to a speedy trial was violated under
{¶10} We note at the outset that on appeal, appellant does not argue that his constitutional right to a speedy trial was violated. Yet in its brief, the state only addresses whether appellant s constitutional right to a speedy trial was violated under Wingo and ignores appellant s statutory violation argument. In its entry, the trial court overruled appellant s motion to dismiss solely on the ground that the dismissal of the complaint in the municiрal court was the tolling event. The trial court s determination that appellant s speedy trial rights were not violated was made without reference to federal or state constitutional law. Rather,
{¶11} “The right to a speedy trial is guaranteed to all state criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution *** and by Section 10, Article I of the Ohio Constitution.” State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, ¶16. The Ohio Legislature enacted the provisions in
{¶12} Under
{¶13} Appellant was arrested on March 1, 2006 and released on March 7, 2006. The first cоunted day was March 2, 2006. Appellant was in jail for six days on the trafficking charge during the course of the proceedings. When the triple-count procedure is applied, 552 days elapsed between the time of appellant s arrest and the filing of his motion for discovery (a tolling event under
{¶14} The trial court, however, held that the “March 10, 2006” dismissal of the complaint in the municipal court was the tolling event. We find that the trial court s holding is erroneous. First, the trial сourt incorrectly found that the complaint in the municipal court was dismissed on March 10, 2006, the same day the original indictment was issued. The record before us shows that while the original indictment was issued on March 10, 2006, the complaint in the municipal court was not dismissed until several days later, on March 16, 2006.
{¶15} Further, the Ohio Supreme Court has stated that “the speedy trial statute shall run against the state only during the time in which an indictment or charge of felony is pending.” State v. Broughton (1991), 62 Ohio St.3d 253, 258. In State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, the supreme сourt held that “[f]or purposes of calculating speedy trial time pursuant to
{¶16} In the case at bar, appellant was arrested on March 1, 2006, released on March
{¶17} As noted earlier, 552 days elapsed between the time of appellant s arrest and the filing of his motion for discovery. Of the tolling provisions in
{¶18} In the case at bar, the record does not demonstrate whether appellant changed residence after he was released on March 7, 2006. There is no evidence that appellant attempted to аvoid prosecution or that he avoided the execution of the warrant. On the other hand, the record shows that once the original indictment was issued, the sheriff s office simply entered the arrest warrant into the NCIC database and took no further action to locate appellant or arrest him on that warrant.
{¶19} In light of all of the foregoing, we find that appellant s statutory right to a speedy trial was violated. Consequently, the trial court erred by overruling appellant s motion to dismiss on grounds his statutory right to a speedy trial had been violated. Appellant was entitled to a discharge pursuant to
Assignment of Error No. 2:
{¶21} “THE TRIAL COURT ERRED BY OVERRULING APPELLANT‘S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29(A) OF THE OHIO RULES OF CRIMINAL PROCEDURE.”
{¶22} Appellant s second assignment of error has been rendered moot as a result of our disposition of his first assignment of error. Therefore, we need not decide it. See
{¶23} The trial court s judgment is reversed, and appellant is ordered discharged pursuant to
WALSH, P.J., and POWELL, J., concur.