State v. DialloState v. Diallo
Rendered on March 29, 2013
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellant.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas granting a motion to dismiss filed by defendant-appellee, Mamadou Diallo, because of a violation of appellee‘s right to a speedy trial. For the following reasons, we reverse that judgment and remand the matter for further proceedings.
I. Factual and Procedural Background
{¶ 2} The parties have largely stipulated to the relevant facts of this case. On December 2, 2010, appellee was arrested and charged by a criminal complaint with one count of trademark counterfeiting in violation of
{¶ 3} On June 22, 2011, a Franklin County Grand Jury indicted appellee with seven counts of trademark counterfeiting. On July 1, 2011, appellee was brought back to the Franklin County Corrections Center from the Butler County jail. On July 8, 2011, the trial court arraigned appellee and imposed a recognizance bond. He was returned to the Butler County jail, but shortly thereafter came back to Franklin County, and on August 1, 2011, the trial court imposed a $25,000 cash/surety bond. He was then released from his immigration detainer and from ICE custody. On August 19, 2011, appellee posted bond and was also released from the Franklin County Corrections Center. The trial court scheduled a September 29, 2011 trial date, which the trial court sua sponte continued until October 3, 2011 due to its unavailability.
{¶ 4} On October 31, 2011, appellee filed the instant motion to dismiss, claiming that his speedy trial rights had been violated. Specifically, appellee claimed that the time between the filing of the 2010 complaint on December 2, 2010 until his October 3, 2011 trial date far exceeded the allowable time for a speedy trial.
{¶ 5} After a hearing, the trial court granted appellee‘s motion. The trial court noted that the 2011 indictment arose from the same facts as did the 2010 complaint and that the state had all the necessary information to proceed against appellee in 2010. The trial court also noted that the appellee was available for prosecution the entire time, despite being held by ICE during this time. The trial court concluded that the days between the dismissal of the 2010 complaint and the filing of the 2011 indictment counted against the state for purposes of a speedy trial analysis and, therefore, dismissed the indictment against appellee.
The trial court erred when it granted the Defendant‘s Motion to Dismiss.
II. The Statutory Right to a Speedy Trial—R.C. 2945.71
{¶ 7} The state argues in its assignment of error that the trial court erred by granting appellee‘s motion because it included days in its speedy trial analysis during which no criminal charges were pending against appellee. We agree.
A. Standard of Review
{¶ 8} An accused is guaranteed the constitutional right to a speedy trial pursuant to the
{¶ 9} The proper standard of review in speedy trial cases is to simply count the number of days passed, while determining to which party the time is chargeable, as directed in
{¶ 10} Upon demonstrating that more than 270 days elapsed before trial, a defendant establishes a prima facie case for dismissal based on a speedy trial violation. State v. Miller, 10th Dist. No. 06AP-36, 2006-Ohio-4988, ¶ 9. Once a defendant
B. Counting Days Between Charges
{¶ 11} Appellee acknowledges that he cannot establish a prima facie violation of his speedy trial rights by counting only the days after his arraignment for the 2011 indictment. However, appellee argues that the 202 days between the dismissal of his 2010 complaint and his arraignment for the 2011 indictment should be counted as part of the speedy trial analysis because he remained in custody during that entire time. The basis for appellee‘s argument is the Supreme Court of Ohio‘s decision in State v. Broughton, 62 Ohio St.3d 253 (1991).
{¶ 12} In Broughton, the court considered whether the time period between the dismissal of a criminal complaint and the subsequent filing of an indictment premised on the same facts counted for speedy trial purposes. The court began its analysis “cognizant that the speedy trial statute shall run against the state only during the time in which an indictment or charge of felony is pending.” Id. at 258. The court, however, reasoned that such proposition did not directly address a situation in which an indictment is dismissed and the same underlying facts provide the basis for a new indictment. Id. After reviewing different approaches other courts have taken to address this situation, the court concluded that the time period between indictments do not count for speedy trial purposes unless the defendant is held in jail or released on bail pursuant to Crim.R. 12(I). Id. at paragraph one of the syllabus.1 See also Bayless at ¶ 20. Crim.R.(I), now (J), provides in pertinent part, that “[i]f the court grants a motion to dismiss based on a defect in the institution of the prosecution or in the indictment, information, or complaint, it may also order that the defendant be held in custody or that the defendant‘s bail be continued for a specified time not exceeding fourteen days, pending the filing of a new indictment, information, or complaint.”
{¶ 14} There were no charges pending against appellee in Franklin County during the time he remained in custody after the dismissal of his 2010 complaint. As noted, the speedy trial statute,
{¶ 15} Appellee argues that he was held in custody after the 2010 dismissal pending the filing of charges because he remained in custody pursuant to the ICE detainer. He also alleges that the ICE detainer was based solely on the Franklin County counterfeiting charges. This allegation is based on pure speculation. The detainer is not in the record. There is no evidence that the ICE detainer was based on the dismissed counterfeiting charges. See State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658 (noting that time between indictments did not count for speedy trial purposes where defendant, although in custody, was in custody for “wholly unrelated charges“); State v. Tatum, 3d Dist. No. 13-10-18, 2011-Ohio-3005, ¶ 26-27 (not counting days between dismissal and re-indictment, even though defendant was held in custody for some of that time, because custody was for unrelated charges and a federal detainer); State v. Moore, 5th Dist. No. 93-CA-3 (Sept. 3, 1993) (not counting days between dismissal and re-indictment, even though defendant was held in custody for that time, because custody was due to a holder for an alleged probation violation, not any pending charges).
{¶ 17} The time between the dismissal of the 2010 complaint and the arraignment for the 2011 indictment does not count for purposes of a speedy trial analysis. Broughton. Accordingly, appellee has failed to make a prima facie showing of a speedy trial violation, and the trial court erred by concluding otherwise.
III. Conclusion
{¶ 18} Because appellee‘s right to a speedy trial has not been violated, the trial court erred in granting appellee‘s motion to dismiss. Accordingly, we sustain the state‘s assignment of error, reverse the judgment of the Franklin County Court of Common Pleas and remand the matter for further proceedings.
Judgment reversed; cause remanded.
BROWN and McCORMAC, JJ., concur.
McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Ohio Constitution, Article IV, Section 3(B).