State of Ohio v. Jamie Espinoza-Soriano
Court of Appeals No. E-18-067
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
January 17, 2020
[Cite as State v. Espinoza-Soriano, 2020-Ohio-139.]
Trial Court No. CRB 1800489
Emil G. Gravelle III, for appellant.
* * * * *
OSOWIK, J.
Facts and Procedural History
{¶ 1} On August 31, 2018, Trooper Brian Dale of the Ohio State Highway Patrol was conducting “air speed detail” while flying over the Ohio Turnpike in Erie County. Trooper Dale identified a silver GMC passenger car that was driving over the posted speed limit. He notified Trooper Joshua Smith, who was patrolling the turnpike in his
{¶ 2} Trooper Smith approached the passenger side window and “immediately * * * noticed the odor of burnt marijuana coming from the vehicle.” A second trooper arrived, and each trooper questioned an occupant in his respective patrol car. Trooper Smith questioned the defendant. After being Mirandized and questioned, the defendant, appellant Jamie Espinoza-Soriano, “admitted to there being a marijuana joint located in the center console of the vehicle.” Trooper Smith searched the vehicle and located the marijuana joint. No other drugs were found. Trooper Smith testified that the defendant did not appear to be impaired and that he “didnt believe [the defendant had] smoked marijuana.” The defendant was charged with knowingly possessing marijuana in a quantity less than 100 grams, in violation of
{¶ 3} The defendant retained counsel who entered a “not guilty” plea on his behalf and requested that the case be set for a pretrial. The court set a pretrial date of September 26, 2018. Prior to that date, the defendant requested that he be excused from personally attending the hearing, based upon the fact that he lived in Michigan, making his attendance burdensome. The trial court granted the request. The defendant also propounded discovery requests on the state.
{¶ 4} No record was created of the September 26, 2018 pretrial hearing, but afterwards, the court set a status hearing for November 28, 2018, according to its “Notice of Assignment” and the clerk‘s docket.
{¶ 5} On October 10, 2018, the state filed a motion to amend complaint, in which it requested that the court “correct’ the complaint to reflect that the defendant had knowingly possessed “marijuana in a quantity less than 30 grams (One (1) marijuana cigarette),” rather than the “less than 100 grams,” as was originally charged. No reason for the amendment was given, and the particular statutory provision that the defendant was alleged to have violated did not change, i.e.,
{¶ 6} On November 1, 2018, the defendant filed a motion to dismiss the case, and a hearing on the motion was held on November 16, 2018. At that time, the defendant argued that the state had failed to try him within 30 days of service of the summons, in violation of his right to a speedy trial under
{¶ 7} The state objected. It argued that the speedy-trial clock had been tolled since the September 26, 2018 hearing, when the parties agreed to resolve the case. According to the state, it agreed “to offer [the defendant] diversion in this case in order to
{¶ 8} Defense counsel agreed that the parties had engaged in “settlement negotiations” during the September 26, 2018 hearing, but she disputed that she had agreed (or could have agreed) to diversion on behalf of her client. Defense counsel further asserted that she had learned, after the hearing, that merely “rewording” the complaint was “not enough” to protect the defendant‘s immigration status.
{¶ 9} The following is an excerpt between the court and the parties’ respective counsel from that hearing:
THE COURT: [W]as this case where the charge was rewritten * * * as an accommodation and then there was diversion on top of that?
[THE STATE]: Correct, Your Honor, this is that case. * * *
THE COURT: Well, what happened with the diversion?
[THE STATE]: The State never received a completed diversion form signed by the Defendant.
THE COURT: Was an agreement with diversion reached?
[THE STATE]: There would be no reason to set it for a status hearing [on November 28, 2018] if the diversion agreement was not reached on [September 26, 2018]. * * * That‘s why the State has argued in its motion that time has been tolled since September 26th because of the fact that the Defendant was, through counsel, agreeing to the diversion at that point, agreeing to the amendment that we made in order to assist him with the immigration court issues. * * *. The status hearing wouldn‘t have been set out to November 28th if we didn‘t have an agreement as to what Defendant‘s planning to do with diversion.
The Defendant failed then to sign and send back to the Court an agreed upon diversion agreement. * * *
THE COURT: I remember you, [defense counsel], you represented to the Court that you had all these immigration issues and, and you needed the citation rewritten and you needed diversion and you needed these accommodations to assist your client, and I remember the prosecution agreeing to rewrite the case, and agreeing to diversion. * * * When the parties left the courtroom there was an agreement that had been reached.
[DEFENSE COUNSEL]: No, Your Honor, my client never wanted diversion. I‘ve always asserted to the Court that his immigration attorney said diversion would not work for immigration, and I‘ve always left the Court stating that I will talk to him and I‘ll see what I can get. I thank the
Prosecutor kindly for rewriting it * * *. [W]e‘ve always left the courtroom with me saying I will go talk to him. He has never once agreed to it. THE COURT: [T]hat is not my memory of what happened here. My memory of the case was that an agreement was reached and part and parcel of that agreement was the rewriting of the citation to assist in the wording on it and how critical that was.
[DEFENSE COUNSEL]: Yes, Your Honor, I believe the rewording [of] it was critical [but] it turned out * * * it was not enough to just have it reworded.
We understand that the Prosecutor has done a lot to get this to this point, but at the same time, I also understand my client has a right to agree or not agree to the diversion agreement, and he did not agree to it and we‘ve not submitted any time waivers. * * *
{¶ 10} At the conclusion of the hearing, the court ruled against the defendant “on the time issue” and denied his motion to dismiss. A trial was held one week later, on November 21, 2018, at which Trooper Smith testified about the circumstances of the stop. The court found the defendant guilty, as charged, and sentenced him to a fine of $100, plus court costs.
{¶ 11} The defendant appealed and assigns a single assignment of error for our review:
Assignment of Error 1 – The trial court erred when it failed to dismiss the case as the Defendant was not afforded his right to a speedy trial as guaranteed by
Section 2945.71 of the Ohio Revised Code , Article 1, Section 10 of the Ohio Constitution, and the 6th and 14th Amendments to the United States Constitution.
Law and Analysis
{¶ 12} The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The Ohio legislature adopted the provisions of
{¶ 13}
{¶ 14} “[W]hen a criminal defendant shows that he was not brought to trial within the proper period, the burden shifts to the State to demonstrate that sufficient time was tolled or extended under the statute.” Hohenberger at ¶ 35. If the state fails to do so, the trial court is required to dismiss the charges against the defendant.
{¶ 15} The reasons for charging days to the defendant (i.e., tolling speedy-trial time) are outlined in
The time within which an accused must be brought to trial * * * may be extended only by the following:
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion. (Emphasis added.)
{¶ 16} Under
{¶ 17} Under
{¶ 18} The exceptions set forth in
{¶ 19} The state argues that the defendant‘s case was subject to numerous tolling events that brought his trial date within the statutory limit.
{¶ 20} The following events are relevant to our speedy-trial determination:
| Date | Event |
|---|---|
| Aug. 31, 2018 | Defendant served with summons. |
| Sept. 20, 2018 | Pretrial conference requested by defendant. |
| Sept. 21, 2018 | Trial court grants defendant‘s request for pretrial conference and schedules same for Sept. 26, 2018. |
| Sept. 24, 2018 | Defendant serves discovery requests upon the state. |
| Sept. 26, 2018 | Pretrial held; Trial court sets “status conference” for Nov. 28, 2018. State provides discovery responses to defendant. |
| Nov. 1, 2018 | Defendant files motion to dismiss case. |
| Nov. 16, 2018 | Pretrial conference held on defendant‘s motion to dismiss. Court denies motion and sets trial date of November 21, 2018. |
| Nov. 21, 2018 | Trial held. Defendant found guilty. |
{¶ 21} First, the state argues, and the defendant agrees, that under
{¶ 22} Second, the state argues that time was tolled beginning on September 26, 2018 when the defendant, through his counsel, “initiated” the process of being “consider[ed] [for] diversion.”1 The defendant, who did not attend the hearing, insists that “the diversion agreement” was tentative in nature and that he never agreed to it.
{¶ 23} In our view, the crux of the issue is not whether the parties reached a firm agreement at that September 26, 2018 hearing but instead whether, under
{¶ 24} This case is similar to State v. Long, 70 Ohio App.3d 810, 592 N.E.2d 977 (2d Dist.1990), where the defendant moved for an extension of time so that she could be considered for diversion, following her arrest for driving under the influence of alcohol, pursuant to
{¶ 25} Here too, the record establishes, and the defendant does not deny, that the sole purpose for scheduling a status conference beyond the speedy-trial timetable was to allow the parties time to position the case towards settlement, which the defendant‘s trial counsel represented she needed for the purpose of conferring with her client to “see what she could get.” Trial counsel also acknowledged that the state amended the complaint at her request (“I thank the Prosecutor kindly for rewriting it * * * [but] it turned out [that] * * * it was not enough to just have it reworded.“).
{¶ 26} Under
{¶ 27} The state argues that tolling after the September 26, 2018 pretrial was also appropriate under
{¶ 28} For reasons already expressed, we find that it was. Again, those reasons are that the parties expressed a desire to resolve the case and defense counsel needed additional time to review the diversion agreement with her client (who did not attend the hearing); for defense counsel to confer with the defendant‘s immigration lawyer as to the effect, if any, that diversion would have on defendant‘s immigration status; and for the state to prepare and file a motion to amend the complaint. Therefore, under
{¶ 29} Before that status conference occurred, the defendant filed a motion to dismiss the case—on November 1, 2018, which the trial court heard, and denied, on November 16, 2018. The state argues that time was tolled during that period of time, and
{¶ 30} In sum, we calculate the defendant‘s speedy-trial time as follows:
| Date | Event | Days Chargeable to State |
|---|---|---|
| Sept. 1-20 | 20 | |
| Sept. 20-21 | A reasonable time for the court to grant defendant‘s request to hold a pretrial conference. 1 day of tolling. | |
| Sept. 22-24 | 3 | |
| Sept. 24-26 | A reasonable time for the state to respond to defendant‘s discovery demand. 2 days of tolling. | |
| Sept. 26 - Nov. 1 | A reasonable time for the parties to act in furtherance of tentative agreement to resolve the case. 36 days of tolling | |
| Nov. 1-16 | A reasonable time for the trial court to hold a hearing following the filing of the defendant‘s motion to dismiss the case. 15 days of tolling | |
| Nov. 17-21 | 5 | |
| Total days chargeable to the state | 28 |
{¶ 31} The defendant filed his motion to dismiss on November 1, 2018. As of that date, 62 days had elapsed from the time he was served with the summons. During that period of time, we calculate 39 days of tolling. When we subtract 39 from 62, the total is
{¶ 32} Likewise, we find no statutory violation with respect to his actual trial. Following the denial of the defendant‘s motion to dismiss, on November 16, 2018, the state tried the defendant five days later, on November 21, 2018. All of those days are chargeable to the state. Taken together, 23 days (that accumulated prior to the filing of the motion) plus 5 days (following the denial of the motion) equals a total of 28 days that are chargeable to the state. As that number is less than the 30 days within which the state was required to bring the defendant to trial under
1. Constitutional Speedy-Trial Rights
{¶ 33} Although the defendant did not make any arguments related to the violation of his constitutional speedy-trial rights, he assigned violation of his constitutional rights as error. We find no error.
{¶ 34} To determine whether a defendant was deprived of these constitutional rights, we must balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant‘s assertion of his speedy-trial rights, and (4) the prejudice to the defendant. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 88, citing State v. Selvage, 80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997), and Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). But we must first
{¶ 35} At no time did the defendant object to any of the dates set by the trial court, including to the status conference which was set 60 days out. Therefore, we conclude that the defendant‘s rights to a speedy trial were not violated, since any delays in the proceedings were essentially of the defendant‘s own making and tolled his statutory and constitutional time for a speedy trial.
{¶ 36} Appellant‘s assignment of error is not well-taken, and the November 21, 2018 judgment of the Erie County Municipal Court is affirmed. Pursuant to
Judgment affirmed.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.