Stаte of Ohio, Plaintiff-Appellee/[Cross-Appellant], v. Ronald E. Brown, Defendant-Appellant/[Cross-Appellee].
No. 19AP-40
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 19, 2019
[Cite as State v. Brown, 2019-Ohio-4753.]
KLATT, P.J.
(C.P.C. No. 16CR-5580) (REGULAR CALENDAR)
Rendered on November 19, 2019
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for plaintiff-appellee. Argued: Michael P. Walton.
On brief: Todd W. Barstow, for defendant-appellant. Argued: Todd W. Barstow.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Defendant-appellant/cross-appellee, Ronald E. Brown (“defendant“), appeals from the December 20, 2018 judgment of the Franklin County Court of Common Pleas. Plaintiff-appellee/cross-appellant, State of Ohio (“the state“), appeals from the same judgment. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter with instructions.
{¶ 2} Shortly before 5:00 a.m. on May 1, 2015, Columbus Police Officers Pennell and Johnson were dispatched to an apartment at 6216 Lowridge on a report of a burglary
{¶ 3} On October 7, 2016, defendant was indicted on one count of possession of cocaine in violation of
{¶ 4} On the same day, November 16, 2017, the trial court conducted a plea hearing during which defendant entered a no contest plea to possession of cocaine as charged in the indictment; the trial court found him guilty. Following a sentencing hearing on December 19, 2018, the trial court imposed a prison term of five years and determined that defendant was entitled to 199 days of jail-time credit. The trial court memorialized its judgment in an entry filed December 20, 2018.
{¶ 5} Defendant timely appeals, advancing the following three assignments of error for this court‘s review:
- The trial court erred to the prejudice of appellant by overruling his motion to suppress evidence.
- The trial court erred to the prejudice of appellant by overruling his motion to dismiss.
Appellant‘s trial counsel was ineffective, thereby depriving him of his [right] to effective assistance of counsel under the United States and Ohio Constitutions.
{¶ 6} In his first assignment of error, defendant contends the trial court erred in denying his motion to suppress. We disagree.
{¶ 7} Appellate review of a trial court‘s disposition of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court assumes the role of trier of fact and is thus in the best position to resolve factual questions and evaluate witness credibility. Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). As such, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidencе. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). “Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
{¶ 8} Defendant challenges the constitutionality of the detention and pat-down search, specifically claiming that the state failed to demonstrate that Pennell had a reasonable, articulable suspicion of criminal activity sufficient to detain him and conduct a pat-down search. Defendant maintains that because the pat-down search was constitutionally impermissible, the evidence (cocaine) discovered during that search was inadmissible. We note that defendant‘s argument does not include а challenge to the evidence establishing that during the pat-down search he spontaneously admitted to having cocaine on his person.
{¶ 9} “In general, ‘[t]he Fourth Amendment of the United States Constitution, applied to the states through the Fourteenth Amendment, protects persons against unreasonable searches and seizures.’ ” State v. Richardson, 10th Dist. No. 15AP-870, 2016-Ohio-5801, ¶ 18, quoting State v. Jones, 9th Dist. No. 12CA010270, 2013-Ohio-2375, ¶ 8. For a search or seizure to be reasonable, it must be based upon probable cause and executed pursuant to a warrant, unless an exception to the warrant requirement applies. State v. Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 26, citing State v. Moore, 90 Ohio St.3d 47, 49 (2000). “One such exception, recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to ‘stop or detain an individual
{¶ 10} “The propriety of an investigative stop [or detention] by a police officer must be viewed in light of the totality of the surrounding circumstances.” State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph one of the syllabus. “[T]he circumstances surrounding the stop [or detention] must ‘be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.’ ” Id. at 179, quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976); State v. Michael, 10th Dist. No. 12AP-508, 2013-Ohio-3889, ¶ 12.
{¶ 11} Thus, Terry permits a law enforcement officer who suspects criminal activity to lawfully stop or detain an individual аnd make a limited search of that person based on grounds less than probable cause. State v. Andrews, 57 Ohio St.3d 86, 89 (1991). The standard to perform an investigative search, like the standard for an investigatory stop or detention, is an objective one based on the totality of the circumstances. Terry at 27. The legal justification for such a search is the protection of the police officer and others nearby, and the permissible scope of the search is limited to a search reasonably designed to discover concealed “guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29. Thus, an officer must have a reasonable individualized suspicion that the subject is armed and dangerous before the officer may conduсt a pat-down for weapons. Id.
{¶ 12} Here, the testimony presented by Pennell at the suppression hearing established that the detention and subsequent pat-down search of defendant were legally justified under Terry. Pennell, a 10-year veteran of the Columbus Police Department, testified that police officers typically approach the scene of a burglary in progress “with high awareness.” (Sept. 5, 2017 Tr. at 6.) Pennell acknowledged that he was aware, via information provided in the dispatch, that the alleged burglar was the father of the woman‘s
{¶ 13} Pennell further testified that once defendant emerged from the kitchen area, Pennell immediately detained him “[b]ecause the facts that we had at the time was that he had just broken into that apartment.” Id. at 7. He then conducted a pat-down search of defendant‘s outer clothing “[f]or my protection, for the protection of other people within the residence.” Id. Pennell described his motivation for, and the mechanics of, the pat-down search, stating “[p]hysically you‘re outside of the clothing and you‘re patting and you‘re feeling for things like weapons because an offense like a burglary typically comes with some sort of weapon. And we‘re just * * * making sure that the suspect doesn‘t have any weapons readily available.” Id. at 8.
{¶ 14} Thus, under the totality of the surrounding circumstances in this case, Pennell‘s detention and subsequent pat-down search of defendant was not based on a mere suspicion or hunch but on articulable facts that would permit a reasonably prudent police officer to believe that defendant had broken into the apartment and that he could be armed and dangerous.
{¶ 15} We do not agree with defendant‘s contention that the detention and subsequent pat-down search were illegal because Pennеll testified on cross-examination that upon approaching the apartment, he heard nothing indicating a disturbance inside and did not observe any damage to the door; that the woman inside had no visible signs of injury; that defendant made no furtive or suspicious movements, was not angry or combative, made no attempt to flee or hide, and immediately complied with the officers’ orders. Defendant further argues that Pennell did not testify that he saw any suspicious bulges or other signs of a weapon on defendant‘s person prior to patting him down. Defendant also maintains that Pennell‘s testimony that he had no reason to believe that defendant “had anything illegal on him * * * other than the fact that a lot of times crimes go with weapons” is “not a specific аnd articulable fact that was present in this situation.” (Defendant‘s brief at 3.)
{¶ 17} In State v. Gilmer, 5th Dist. No. 2009 CA 00283, 2010-Ohio-4631, police officers entered a bar pursuant to a complaint alleging that a bar employee had a gun and several bags of pills in the bar the preceding night. There were eight male patrons in the bar at the time the police entered. The police asked all eight men to produce identification to prove they were over the age of twenty-one. After Gilmer was unable to produce identification, one of the officers patted him down for weapons. Pursuant to the pat-down, the officer recovered a bag of marijuana from Gilmer‘s pocket. At the suppression hearing, the officer admitted that he never saw Gilmer with a gun or any item that looked like a weapon, and that he patted Gilmer down only because he appeared to be very nervous. The appellate court concluded that the trial court erroneously denied Gilmer‘s motion to suppress, reasoning that Gilmer‘s detention was unconstitutional because the officer did nоt have a reasonable suspicion based on specific and articulable facts that criminal behavior had occurred or was imminent. Id. at ¶ 37. The court further determined that the pat-down search was unconstitutional, as the police did not have a reasonable individualized suspicion that Gilmer was armed and dangerous. Id. at ¶ 41. In so holding, the court noted that the officer who conducted the pat-down testified that he did not go to the bar to find Gilmer, that he had no reports that Gilmer was involved in any criminal
{¶ 18} Both Locklear and Gilmer were part of a large group of individuals the police detained and patted down without specific and articulable facts demonstrating that any of the individuals, including Locklear and Gilmer, were presently involved in criminal activity or that criminal activity was imminent. In addition, Locklear and GilmerLocklear and Gilmer, the totality of the surrounding circumstances in the present case demonstrated specific, articulable facts warranting the detention and subsequent pat-down search of defendant. Accordingly, the trial court did not err in denying defendant‘s motion to suppress.
{¶ 19} Appellant‘s first assignment of error is overruled.
{¶ 20} In his second assignment of error, defendant maintains the trial court erred in denying his motion to dismiss the indictment for failure to bring him to trial within 180 days of his demand for final disposition pursuant to
{¶ 21} An appellate court‘s review of a trial court‘s disposition of a motion to dismiss based upon a violation of speedy trial provisions involvеs a mixed question of law and fact. State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 12, citing State v. Fultz, 4th Dist. No. 06CA2923, 2007-Ohio-3619, ¶ 8, citing State v. Brown, 131 Ohio App.3d 387, 391 (4th Dist.1998). A reviewing court must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence, but will independently review
{¶ 22} ” ‘An accused is guaranteed the constitutional right to a speedy trial pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Ohio Constitution, Article I, Section 10.’ ” State v. Irish, 3d Dist. No. 10-18-13, 2019-Ohio-2765, ¶ 11, quoting State v. Dahms, 3d Dist. No. 13-16-16, 2017-Ohio-4221, ¶ 102. ” ‘In Ohio, the right to a speedy trial is implemented by statutes that impose a duty on the state to bring the defendant to trial within a specified time.’ ” Id. at ¶ 11, quoting State v. Melampy, 12th Dist. No. CA2007-04-008, 2008-Ohio-5838, ¶ 9.
{¶ 23} The speedy trial statute at issue in this case is
When a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance.
{¶ 24}
If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.
{¶ 25}
{¶ 26} Here, defendant was arrested on May 1, 2015. The charges were dismissed and he was not indicted until October 7, 2016. At that time, defendant was serving a prison term at the Noble Correctional Institution for a prior unrelated conviction. On October 12, 2016, defendant completed and signed a form entitled “Inmate‘s Noticе of Place of Imprisonment and Request for Disposition of Indictments, Information or Complaints” (“Notice“), indicating his desire for a disposition of the untried indictment within 180 days pursuant to
{¶ 27} In the present case, 396 days elapsed between delivery of defendant‘s Notice to the prosecuting attorney on October 21, 2016 and entry of his no contest plea on November 20, 2017.4 An accused establishes a prima facie case for dismissal based on a
{¶ 28} Two key concepts direct how a court must charge the days when calculating a potential speedy trial violation: waiver and tolling. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, at ¶ 16, citing State v. Gonzalez, 10th Dist. No. 08AP-716, 2009-Ohio-3236, ¶ 11. An аccused may waive speedy trial rights, and those days for which the accused waives the right do not count toward the state‘s deadline. Id., citing Gonzalez at ¶ 12. Tolling occurs by operation of
{¶ 29} ”
{¶ 30} As previously noted, the speedy trial time period commenced on October 21, 2016. No tolling events occurred until November 14, 2016; thus, the 24 days between October 21, 2016 and November 13, 2016 are chargeable to the state. The next day, November 14, 2016, defendant filed a demand for discovery. A defendant‘s demand for disсovery tolls the statutory speedy trial period pursuant to
{¶ 31} On the same day it provided discovery, the state filed a reciprocal demand for discovery. Defendant did not respond. A defendant‘s failure to respond to a reciprocal demand for discovery tolls the speedy trial period fоr a reasonable period of time. State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, paragraph one of the syllabus. Local rules of court may be considered in determining a reasonable amount of time to respond to a discovery request. Id. at paragraph three of the syllabus. Loc.R. 75.03 of the Franklin County Court of Common Pleas provides that “[u]pon demand for discovery, it shall be the duty of a party to promptly respond to the request. In any event, discovery should be provided in 21 days from the date of receipt of the demand, except in capital cases.” While
{¶ 32} No tolling events occurred between December 22, 2016 and January 12, 2017; thus, the state is chargeable with those 22 days. In the meantime, on December 23, 2016, the Supreme Court of Ohio, in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319 (“Gonzales I“), held that in prosecuting cocaine-possession offenses under
{¶ 33} On January 13, 2017 and March 7, 2017, the state requested cоntinuances to March 1, 2017 and March 13, 2017, respectively, pending the Supreme Court of Ohio‘s reconsideration of Gonzales I. On March 6, 2017, the court vacated its decision in Gonzales I, holding that “the entire compound, mixture, preparation, or substance, including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under
{¶ 34} No tolling events occurred between March 7, 2017 and March 13, 2017; thus, those 7 days are chargeable to the state. Defendant‘s speedy trial rights were again tolled on March 13, 2017, when defendant was granted a continuance to April 20, 2017 to file a
{¶ 35} Defendant‘s speedy trial rights were again tolled on June 8, 2017 when he sought a continuance to July 12, 2017. Pursuant to
{¶ 36} Hearing on the motion to suppress was set for July 12, 2017. However, on that day, the parties jointly moved to continue the hearing to August 23, 2017 for the stated purpose that “[defendant was] not conveyed, set for motion hearing, state to respond.” (July 12, 2017 Entry 1.) At the hearing on the motion to dismiss, defendant contended that the state should be charged with the 42 days between July 12, 2017 and August 23, 2017 because it was the state‘s fault that he was not conveyed from prison for the July 12, 2017 hearing on the motion to suppress. The state responded that the continuance tolled speedy trial time because it was made upon motion of both parties, counsel for defendant signed the entry, and the entry included language waiving defendant‘s speedy trial rights for the period of the continuance. Defendant‘s counsel argued that without defendant‘s consent, he did not effectively waive defendant‘s speеdy trial rights because the continuance was necessitated by the state‘s failure to transport defendant for the suppression hearing. In response, the state argued that it relied upon the waiver, and, even if defendant‘s counsel did not effectively waive defendant‘s speedy trial rights, the time was tolled because it was
{¶ 37} We need not resolve the controversy regarding the July 12, 2017 continuance, however, because during the period of the continuance, defendant‘s June 27, 2017 motion to suppress remained pending. As noted above, the filing of a motion to suppress tolls speedy trial time until the court rules on the motion. LaMarca at ¶ 22. The trial court did not rule on the motion to suppress until September 5, 2017. Accordingly, the July 12, 2017 continuance was essentially irrelevant. Thus, the state is not chargeable with the time between July 12, 2017 and September 5, 2017.
{¶ 38} Moreover, even if defendant‘s motion to suppress was not still pending, we conclude the continuance was reasonable for the reasons articulated by the trial court at the hearing on the motion to suppress. The request for continuance was made jointly by the parties, was signed by defendant‘s counsel, and included language waiving defendant‘s speedy trial rights for the period of the continuance. Although defendant did not sign the continuance, he was bound by the actions of his counsel in waiving his speedy trial rights by agreeing to the continuance. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, at ¶ 22.
{¶ 39} The next tolling event occurred on September 5, 2017, when, following the denial of his motion to suppress, defendant moved to continue the case to October 2, 2017. The period between September 5, 2017 and October 2, 2017 is not chargeable to the state pursuant to
{¶ 40} On October 10, 2017, defendant filed his motion to dismiss the indictment. Pursuant to
{¶ 41} Pursuant to our independent calculation, the state was only сhargeable with 62 days total: the 24 days between October 21, 2016 and November 13, 2016; the 22 days between December 22, 2016 and January 12, 2017; the 7 days between March 7, 2017 and March 13, 2017; the 4 days between April 20, 2017 and April 23, 2017; and the 5 days between November 16, 2017 and November 20, 2017. Accordingly, final disposition of the charge for which defendant was indicted occurred well within the 180-day time limit imposed by
{¶ 42} Defendant‘s second assignment of error is overruled.
{¶ 43} In his third assignment of error, defendant contends his trial counsel was ineffective based upon the manner in which he pursued the motion to dismiss. Defendant specifically contends that trial counsel miscalculated the speedy trial time.
{¶ 44} To establish ineffective assistance of counsel, an accused must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the accused. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133 (2005), citing Strickland v. Washington, 466 U.S. 668-87 (1984). The failure to make either showing is fatal to the claim. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.“).
{¶ 45} Defendant cannot demonstrate prejudice resulting from trial counsel‘s alleged deficient performance. As resolved in the second assignment of error, final disposition of the offense for which defendant was indicted occurred well within the 180-day time limit required by
{¶ 47} We turn now to the state‘s motion for leave to file a cross-appeal challenging the trial court‘s grant of jail-time credit. “[T]he state‘s authority to pursue an appeal from the decision of the trial court granting jail time credit, as well as the calculation of the number of days to be credited, is not by right under
{¶ 48} The present action does not fall under any of the categories set forth in
{¶ 49} The state assigns as error the following:
The trial court erred by granting defendant jail time credit to which he was not entitled.
{¶ 50} In the present case, the trial court granted defendant 199 days of jail-time credit. The state contends that 150 of the 199 days of jail-time credit should not have been awarded to defendаnt because he was serving a prison sentence in another case during that time. We agree.
{¶ 51} ” ‘Although
{¶ 52}
{¶ 53} Defendant was arrested on the instant offense and placed in custody on May 1, 2015. He spent 10 days in jail before the case was dismissed. On October 7, 2016, he was indicted on the instant offense. On the same day, a warrant was issued as a detainer to the Noble Correctional Institution. On October 25, 2016, defendant was conveyed to Franklin County for arraignment on November 2, 2016. Appellant entered a not guilty plea and “passed on bond.” (Nov. 2, 2016 Entry at 1.)
{¶ 54} The record includes multiple warrants to convey defendant from the Noble Correctional Institution or the Pickaway Correctional Institution tо the Franklin County Correctional Center for various proceedings associated with the instant case. These warrants to convey reflect that defendant was at times in custody in Noble or Pickaway County and was at times in custody in Franklin County while this case was proceeding.
{¶ 55} Defendant eventually returned to Franklin County for a plea hearing on November 16, 2017. Following entry of his plea, defendant sought and was granted a recognizance bond and placed on house arrest. At the bond hearing, defendant‘s counsel noted that defendant would be “on PRC [postrelease control] as of Monday,” which, in context, referred to November 20, 2017. Accordingly, at all times from indictment to plea in the present case, defendant was serving a prison term on аn unrelated matter.
{¶ 57} At the sentencing hearing, the state argued that defendant was entitled only to 49 days of jail-time credit — 10 days for his initial arrest pre-indictment and 39 days from the time the capias was served on November 11, 2018 until his sentencing on December 19, 2018. Defendant argued that he was entitled to 199 days of jail-time credit, which included “the additional 150 days he spent in the Franklin County jail with a pending case and he was unable to make bond on that.” (Dec. 19 2018 Tr. at 27-28.) After confirming that defendant did not make bond in the present case, the trial court awarded defendant 199 days of jail-time credit.
{¶ 58} It appears that defendant was serving time in Noble or Pickaway County for an offense unrelated to this Franklin County case. The defendant does not contend otherwise. Accordingly, because defendant was serving a prison sentence in an unrelated case during the entire time he was awaiting trial in the present case, he is not entitled to receive credit for the 150 days he spent in the Franklin County Correctional Center pursuant to the conveyances. Chandler, 10th Dist. No. 10AP-972, 2011-Ohio-3485. Rather, he is entitled to only the 49 days of jail-time credit related to the present offense. The trial court thus abused its discretion in awarding defendant 150 days of jail-time credit to which he was not entitled.
{¶ 59} The state‘s cross-assignment of error is sustained.
{¶ 60} Having overruled defendant‘s three assignments of error and having sustained the state‘s cross-assignment оf error, we affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas and remand the matter to that court with instructions to correct its award of jail-time credit in accordance with law and this decision.
Judgment affirmed in part and reversed in part; case remanded with instructions.
BROWN and NELSON, JJ., concur.