State v. DunningState v. Dunning
{¶ 1} Appellant, Terrence Dunning ("Dunning"), appeals from his convictions in the Medina County Court of Common Pleas. This Court affirms.
{¶ 3} On April 25, 2006, Dunning filed a motion to dismiss the indictment due to structural error in the grand jury drawing and the petit jury venire drawing. He simultaneоusly filed a motion to dismiss based on an alleged violation of his right to a speedy trial. On April 26, 2006, the trial court denied the motion to dismiss for defect in the drawing of the grand jury and petit jury as untimely and denied the motion to dismiss for lack of a speedy trial on its merits. On April 27, 2006, Dunning filed a request for findings of fact and conclusions of law concerning the trial court's denial of his motion to dismiss for lack of a speedy trial. Also on April 27, 2006, Dunning filеd a motion for leave to file a motion to reconsider his motion to dismiss the indictment due to structural error in the grand jury drawing and petit jury drawing. On April 28, 2006, before the trial court ruled on his motion for leave, Dunning filed a motion to reconsider his motion to dismiss. On April 28, 2006, the trial court dismissed this motion as untimely. On April 28, 2006, Dunning again sought a writ of prohibition from the Supreme Court of Ohio. The Court dismissed this motion and awarded sanctions against Dunning's counsel referring to the writ as a "frivolous prohibition action." On August 7, 2006, Dunning filed a motion to dismiss the petit jury venire array for wholesale violation of the Ohio Jury Code, R.C.
"THE TRIAL COURT ERRED BY DENYING [DUNNING'S] MOTION TO DISMISS THE INDICTMENT, FILED ON APRIL 25, 2006, FOR WHOLESALE VIOLATION OF THE JURY CODE, [R.C.] 2313.01 THROUGH [R.C.] 2313.47 AND [R.C.] 2939.02 ET SEQ., WITHOUT HOLDING A HEARING THEREON, WHERE SAID WHOLESALE VIOLATION OF THE JURY CODE UNDERMINED THE STRUCTURAL INTEGRITY OF THE CRIMINAL TRIBUNAL AND RENDERED THE INDICTMENT VOID."
"THE TRIAL COURT ERRED BY DENYING [DUNNING'S] MOTION TO DISMISS THE PETIT JURY VENIRE, FILED ON AUGUST 7, 2006, FOR WHOLESALE VIOLATION OF THE JURY CODE [R.C.] 2313.01 THROUGH [R.C.] 2313.47 AND [R.C.] 2939.02 ET SEQ., WITHOUT HOLDING A HEARING THEREON, WHERE SAID WHOLESALE VIOLATION OF THE JURY CODE UNDERMINED THE STRUCTURAL INTEGRITY OF THE CRIMINAL TRIBUNAL AND RENDERED THE INDICTMENT VOID."*4
{¶ 4} In his first and second assignments of error, Dunning contends that the trial court erred by denying his motion to dismiss the indictment filed on April 25, 2006, and on August 7, 2006, for wholesale violation of the jury codе without holding a hearing. He contends that the violation undermined the structural integrity of the criminal tribunal and rendered the indictment void. We do not agree.
{¶ 5} In the instant case, Dunning was provided a copy of the trial court's criminal scheduling order. This order states that "[a]ll pretrial motions shall be filed in accordance with
{¶ 6} The denial of a pretrial motion pursuant to
{¶ 7} Under
{¶ 8} On April 28, 2006, Dunning filed a motion to reconsider his motion to dismiss. Again, the trial court denied this motion on the basis that it was untimely. On May 4, 2006, the trial court continued thе jury trial. On August 7, 2006, the morning of his trial, Dunning filed a motion to dismiss the petit jury venire array for the wholesale violation of the Ohio Jury Code. Again, the trial court denied the motion, but allowed Dunning's counsel to proffer the evidence *7
that he would have shown had he been afforded a hearing. As above, this motion was untimely filed. Dunning did not file a motion for leave to file until after 35 days had lapsed, as required by
{¶ 9} Dunning contends that this denial withоut a hearing was unreasonable. We do not agree. Dunning simply argues to this Court that because his April 25 motion was filed seven days before the scheduled trial, his motion was timely. He makes no argument regarding the timing of his August 7 motion. Dunning's argument regarding his April 25 motion is incorrect.
{¶ 10} Further, the Ohio Supreme Court has explained that
"the failure to follow the procedure set forth in R.C.
2313.01 et seq. for the selection of grand jury venires does not ipso facto reverse an otherwise valid conviction of a defendant. If the actual grand jurors that are impaneled possess the requisite qualifications to be grand jurors, then any irregularities will be viewed as non-prejudicial unless the defendant cаn make a showing that he was prejudiced by *8 the selection process." State v. Fulton (1991),, 57 Ohio St.3d 120 124 , citing State v. Puente (1982),, 69 Ohio St.2d 136 138 .
Dunning does not allege that the grand jury members were not qualified to be grand jurors. Rather, he only argues that the procedures set forth in R.C.
{¶ 11} Further, the Ohio Supreme Court has stated that "R.C.
{¶ 12} Accordingly, Dunning's first and second assignments of error are overruled. *9
"THE TRIAL COURT ERRED BY DENYING [DUNNING'S] MOTION TO DISMISS THE INDICTMENT FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL, WHERE [DUNNING] ESTABLISHED A PRIMA FACIE CASE FOR DISCHARGE UNDER [R.C.] 2945.71 ET SEQ., DUE TO THE LAPSE OF FOUR HUNDRED THIRTY-THREE (433) DAYS TIME FROM THE DATE OF HIS ARREST IN THE ORIGINAL CASE ON FEBRUARY 10, 2005, WITHOUT HOLDING A HEARING THEREON AND WITHOUT ISSUING FINDINGS OF FACT AND CONCLUSIONS OF LAW AS FORMALLY REQUESTED BY [DUNNING] ."
{¶ 13} In his third assignment of error, Dunning contends that the trial court erred by denying his motion to dismiss the indictment for violation of his right to a speedy trial. Dunning further argues that he established a prima facie case for discharge due to the lapse of 433 days from the date of his arrest in the original case. We do not agree.
{¶ 14} Both the United States Constitution and Section
{¶ 15} R.C.
{¶ 16} We agree with Dunning's contention that the time period relevant for speedy trial issues began to run when he was arrested under the original indictment. Id. However, we find that we are precluded from reaching the merits of this assigned error. Dunning explains to this Court that only 90 days had elapsed from the time of his second indictment to the filing of his motion to dismiss on speedy trial grounds. Therefore, evidence as to the remaining 180 days is crucial to this Court's determination on the speedy trial issue. However, Dunning has failed to provide us with a copy of the docket arising from this original indictment. We are left with only Dunning's broad assertions and interpretations of the incidеnts that occurred prior to the record we have before us. Accordingly, Dunning has failed to substantiate his assertions below or to this Court that more than 270 days have lapsed since his arrest.
{¶ 17} An appеllant bears the burden of affirmatively demonstrating the error on appeal, and substantiating his or her arguments in support.Angle v. Western Res. Mut. Ins. Co. (Sept. 16, 1998), 9th Dist. No. 2729-M, at *1; Frecska v. Frecska (Oct. 1, 1997), 9th Dist. No. 96CA0086, at *2. See, also, App.R. *11 16(A)(7) and Loc.R. 7(A)(6). Therefore, we find that we are unablе to reach the merits of this argument as Dunning has failed to satisfy his burden on appeal. As such, Dunning's third assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohiо, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
SLABY, P. J. CARR, J. CONCUR