STATE OF OHIO, Plaintiff-Appellee, vs. GERMAINE EVANS, Defendant-Appellant.
APPEAL NO. C-170420
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 8, 2018
2018-Ohio-3129
TRIAL NOS. B-1600444, B-1700990; Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause Remanded
Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant Public Defender, for Defendant-Appellant.
O P I N I O N.
{¶1} Defendant-appellant Germaine Evans was convicted of aggravated robbery under
I. Facts and Procedure
{¶2} The record shows that on December 15, 2015, Evans was charged in juvenile court with aggravated robbery, carrying concealed weapons, and receiving stolen property. The following day, the state filed a motion asking the juvenile court to relinquish jurisdiction under
{¶3} The juvenilе court held a hearing on the motion. It found that because Evans was 17 years of age at the time of the offenses and was charged with aggravated robbery, bindover was mandatory. On January 22, 2016, the court journalized an entry relinquishing jurisdiction to the common pleas court.
{¶4} Evans was indicated on aggravated robbery, rоbbery and carrying concealed weapons on February 4, 2016. On May 23, 2016, Evans filed a motion in opposition to the juvenile court‘s relinquishment of jurisdiction in which he again challenged the constitutionality of the mandatory-bindover statutes. The court granted series of continuances at Evans‘s request. In one of the entriеs granting a
{¶5} On December 22, 2016, the Ohio Supreme Court decided State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862 (“Aalim I“). It held that “[t]he mandatory transfer of juveniles to the general division of the common pleas court violates juveniles’ right to due process as guаranteed by Article I, Section 16 of the Ohio Constitution.” Id. at paragraph one of the syllabus. But it also stated that the “transfer of juveniles amenable to adult court may still occur via the discretionary-transfer process set forth in
{¶6} That same day, Evans filed a motion in the common pleas court to dismiss the indictment. On January 9, 2017, the court remanded the cause to the juvenile court on the authority of Aalim I for proceedings under the statutes allowing discretionary bindover. Subsequently, it dismissed the indictment.
{¶7} The juvenile court held an amenability hearing. It journalized an entry on February 9, 2017, relinquishing jurisdiction and transferring the case to adult court. Evans was аgain indicted on charges of aggravated robbery, robbery and carrying concealed weapons.
{¶8} On May 1, 2017, Evans filed a motion to dismiss for speedy-trial violations. The trial court overruled the motion on June 28, 2017, following another series of continuances. On June 29, 2017, Evans entered no-contest pleas to all three counts of the indictment. The trial court found him guilty of all counts. At the sentencing hearing, the court indicated that it was going to merge the aggravated robbery and robbery counts. But in the final judgment entry, the court sentenced him to terms of incarceration on all three counts, to be served concurrently. This appеal followed.
{¶9} In his first assignment of error, Evans contends that the trial court erred in denying his motion to dismiss. He argues that the state‘s delay in bringing him to trial violated his statutory and constitutional rights to a speedy trial. This assignment of error is not well taken.
{¶10} Our review of the trial court‘s decision involves mixed questions of fact and law. We give due wеight to the inferences drawn from the facts found by the trial court as long as they are supported by competent, credible evidence. We review the trial court‘s conclusions of law de novo to determine whether the facts satisfy the applicable legal standard. State v. Gage, 2018-Ohio-480, __ N.E.3d ___, ¶ 5 (1st Dist.).
A. Statutory Right to a Speedy Trial
{¶11}
{¶12} Evans was not tried within 270 days of his arrest. Therefore, he established a prima facie violation of the speedy-trial statutes. Gage at ¶ 7; State v. Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162, ¶ 5 (1st Dist.). The state bears the burden to show that actions or events chargeable to the defendant have tolled enough time so that the defendant was tried within the speedy-trial period. Gage at ¶ 7; State v. Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060692, 2007-Ohio-4881, ¶ 28. Extensions of the time period within which the state must try the accused are permissible only for the reasons expressed in
{¶14} The time ran until February 12, 2016, when Evans filed a demand for discovery and for a bill of particulars. A total of 20 days elapsed. The February 12, 2016 discovery demand tolled the speedy-trial period under
{¶15} On February 25, 2016, before that 30-day period expired, the court issued the first of a series of entries of continuance at Evans‘s request, all of which specifically stated that he was “waiving time.” He waived time until April 11, 2016, and none of that time was chargeable to the state. See
{¶16} The time began to run again on April 11. It ran until April 26, 2016, when the court journalized another entry of continuance. During that time, 15 days passed, for a total of 35 days chargeable to the state
{¶17} The April 26, 2016 entry of continuance was the first in another series of continuances at Evans‘s rеquest, all of which specifically stated that he was “waiving time.” Many of those continuances were for the express purpose of waiting until the Ohio Supreme Court ruled on Aalim I. Those continuances continued until January 9, 2017. None of that time was chargeable to the state. On January 9, 2017,
{¶18} The juvenile court again relinquished jurisdiction on February 9, 2017, and the time began to run the following day. It continued running until an entry of continuance on March 16, 2017. 34 days passed in that time, for a total of 69 days chargeable tо the state.
{¶19} The March 16, 2017 entry stated that the continuance was at Evans‘s request, but that he was “[n]ot waiving time.” The case was continued until May 1, 2017. Evans contends that because the entry specifically stated that he was not waiving time, the time from March 16 until May 1 was chargeable to the state. We disagree.
{¶20} In State v. Fostеr, 1st Dist. Hamilton No. C-080399, 2009-Ohio-1698, this court was presented the same set of facts. We stated that “[t]olling occurs by operation of the statute, regardless of whether a waiver has been executed.” Id. at ¶ 52, citing State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 18.
{¶21} On May 1, Evans filed a “Motion to Dismiss for Speedy Trial Violations,” which would itself have tolled the time. See
{¶22} Consequently, 69 days were chargeable to the state. Multiplied by thrеe because Evans was held in jail in lieu of bail, there was a total of 207 days chargeable to the state. Therefore, Evans was tried within the 270 day speedy-trial period. The trial court did not err in overruling Evans‘s motion to dismiss based on the alleged violation of his statutory right to a speedy trial.
B. Constitutional Right to a Speedy Trial
{¶23} Evans further contends that the dеlay violated his constitutional right to a speedy trial. Both the United States and the Ohio Constitution guarantee the right to a speedy trial. State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589 (1971), paragraph one of the syllabus; State v. Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, ¶ 6. The right to a speedy trial applies to unjustifiable delays both before and after рrosecution commences. Meeker at paragraph three of the syllabus; Pierce at ¶ 6.
{¶24} In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth a balancing test for determining whether a defendant‘s constitutional speedy-trial rights have been violated. The factors to be weighed are the “[l]ength of the delay, the reason for the delay, the defendant‘s assertion of his right, аnd prejudice to the defendant.” Id. at 530. No single factor is determinative. Gage, 2018-Ohio-480, ___ N.E.3d ___, at ¶ 25. Instead, “they are related factors and must be considered together with such other circumstances as may be relevant.” Pierce at ¶ 7, quoting Barker at 533.
{¶26} As to the actual-prejudice factor, Evans does not contend that the delay hampered his defense. See Gage at ¶ 31-34; He argues that he was prejudiced because he was held in jail in lieu of bail the entire time this case was pending. Though the delay was substantial, we cannot find that the pretrial incarceration was oppressive where the length of the delay was attributable to the defendant‘s own motions and requests for continuances. See State v. Watson, 10th Dist. Franklin No. 13AP-148, 2013-Ohio-5603, ¶ 32; State v. Holmes, 8th Dist. Cuyahoga No. 91948, 2009-Ohio-3736, ¶ 32.
{¶27} With three of the Barker factors weighing against Evans, we cannot hold that Evans‘s constitutional right to a speedy trial was violated. Thеrefore, the trial court did not err in denying his motion to dismiss for the alleged violation of his constitutional speedy-trial rights. We overrule his first assignment of error.
III. Bindover
{¶28} In his second assignment of error, Evans contends that the juvenile court erred in transferring jurisdiction to the common pleas court. He argues that the evidence showed that there was sufficient time to rehabilitate him in the juvenile system. This assignment of error is not well taken.
{¶30}
{¶31} When determining if a child is amenable to treatment in the juvenile system, the juvenile court must consider the factors weighing in favor of and against transfer set forth in
{¶32} The record shows that the juvenile court considered the statutory factors. It based its decision on the circumstances of the offense, including that Evans was the principal offender and carried a firearm, the harm to the victim, and the fact that Evans was awaiting disposition on another felony charge at the time the offenses were committed. The court also noted that in the psychological report, Evans appeared to be minimizing his role, even though he had earlier taken responsibility.
{¶33} Evans mainly relies on the psychological report, which he claims shows that he was amenable to rehabilitation in the juvenile system. The record shows that the trial court read the report and considered it. But the juvenile court is entitled to disagree with the opinion of a medical expert and may take into account the severity of the offenses. Marshall at ¶ 21.
{¶34} Under the circumstances we cаnnot hold that the juvenile court‘s decision to transfer jurisdiction to the adult court was so arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130. Consequently, we overrule Evans‘s second assignment of error.
IV. Allied Offenses of Similar Import
{¶35} Finally, in his third assignment of error, Evans contends that the trial court erred in sentencing him. He argues that the trial court should have merged the
{¶36} The state concedes that these two offenses should have been merged. See State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus; State v. Murph, 1st Dist. Hamilton No. C-150263, 2015-Ohio-5076, ¶ 6. At the sentencing hearing, the trial court stated that the offenses should merge, but they were not merged in the judgment entry. Instead, the court ordered them to run concurrently, which is еrror. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26; State v. Figgs, 1st Dist. Hamilton No. C-150361, 2016-Ohio-3519, ¶ 12; Murph at ¶ 8.
{¶37} Therefore, we sustain Evans‘s third assignment of error. We vacate the sentences imposed on counts one and two, and remand the matter to the trial court to allow the state to elect which charge should proceed to a conviсtion. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 21.
V. Summary
{¶38} In sum, we affirm Evans‘s conviction for carrying concealed weapons, and the guilty findings on the aggravated-robbery and robbery counts. We vacate the sentences imposed for aggravated robbery and robbery, and we remand the cause to the trial court for resentencing on those counts.
Judgment affirmed in part, sentences vacated in part, and cause remanded.
MILLER and DETERS, JJ., concur.
Please note:
The court has recorded its own entry this date.