STATE OF OHIO v. DEREK HARVEY
Nos. 98906, 98907, 98908, and 98909
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 6, 2013
[Cite as State v. Harvey, 2013-Ohio-2332.]
BEFORE: McCormack, J., Celebrezze, P.J., and Blackmon, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-534780, CR-533891, CR-532898, and CR-534114
JUDGMENT: AFFIRMED
Christopher R. Fortunato
13363 Madison Avenue
Lakewood, OH 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Patrick Colan
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} In this consolidated appeal, defendant-appellant, Derek Harvey (“Harvey“), appeals the trial court‘s denial of his motion to dismiss the charges against him. We find no merit to the appeal and affirm.
Substantive Facts and Procedural History
{¶2} This matter is a consolidated appeal of the following: (1) Cuyahoga C.P. No. CR-532898, indicted by information on January 19, 2010, charging Harvey with unauthorized use of a vehicle in violation of
{¶4} On or about November 9, 2011, while incarcerated in Michigan, Harvey filed a request for disposition of pending charges and notice of availability. This document was entered in the trial court‘s docket as a motion for writ of habeas corpus, and it consisted of four pages: two pages of the writ, one request for disposition, and one notice of availability. There is no page indicating service of this document upon the prosecutor, including a certificate of service or a return receipt, and the prosecutor denies ever being served a copy of Harvey‘s request. The trial court, however, acknowledges receipt of Harvey‘s request.
{¶5} On April 2, 2012, Harvey filed a pro se motion to dismiss the charges against him based upon the interstate agreement on detainers. Harvey was arraigned on May 18, 2012. He was declared indigent, and counsel was appointed. Following discovery, Harvey filed a second motion to dismiss the charges with the assistance of counsel. The state opposed Harvey‘s motion, claiming that Harvey failed to serve the proper documentation required by statute. On June 26, the trial court denied Harvey‘s motion, stating:
The defendant‘s Motion to Dismiss, filed 6/04/2012, is denied. The defendant arguably served his notice of availability on the judicial branch but there is no evidence that the notice was served on the executive branch, i.e. the prosecuting attorney, in compliance, substantial or otherwise, with
R.C. 2941.401 .
Assignments of Error
- The trial court erred when it overruled the appellant‘s various motions to dismiss holding the appellant did not serve the motion on the appellee without holding a hearing in which to make findings.
- The trial court erred when it failed to grant the defendant‘s motion to dismiss since the appellant had made himself available for transport to Ohio.
Law and Analysis
{¶7} Harvey alleges that the trial court erred in denying his motion to dismiss the charges against him. Essentially, Harvey claims that the state‘s failure to bring him to trial within 180 days of receiving his request for disposition violated the interstate agreement on detainers. Harvey also claims that the court erred in not holding a hearing on his motion to dismiss. We address the two assignments of error together.
{¶8} In reviewing the denial of Harvey‘s motion to dismiss, we are required to determine whether, as a matter of law, “‘the trial court erred in applying the substantive law to the facts of the case.‘” State v. Gill, 8th Dist. No. 82742, 2004-Ohio-1245, ¶ 8, quoting State v. Williams, 94 Ohio App.3d 538, 641 N.E.2d 239 (8th Dist.1994).
{¶9} The interstate agreement on detainers, codified in
{¶10} The agreement provides that a prisoner in another state must be brought to trial within 180 days “after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer‘s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint * * *.”
of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
Id.
Article III(b) of the statute further requires the prisoner send the written notice requesting final disposition “to the warden, commissioner of corrections, or other official having custody of him.”
{¶11} Essentially, Article III of this act defines the procedure when a defendant detainee initiates the process for trial and sets the speedy trial time at 180 days.
{¶12} In this case, Harvey contends that his request for final disposition of the charges contained in the consolidated cases substantially complied with
{¶13} The issue in this case is whether Harvey “caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer‘s jurisdiction” written notice of the place of his imprisonment and his request for disposition. “The key to determining when the 180-day period begins * * * is delivery upon the receiving state and its court.” State v. Pierce, 8th Dist. No. 79376, 2002-Ohio-652, ¶ 9 (interpreting Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993)). What is important “is there be documentary evidence of the date of delivery to the officials of the receiving state.” Id. This court has previously determined that in order to comply with the “substantial compliance” standard set forth in Mourey, a detainee must file his request for final disposition by certified mail with the prosecutor and the court. Levy at ¶ 33. Filing only with the court is insufficient. Id.
{¶14} In this matter, there is no evidence in the record to suggest that Harvey successfully filed his request for final disposition or notice of availability with the prosecutor. Harvey‘s request for disposition that is contained in the court file, rather,
{¶15} We note that the trial court incorrectly referenced
{¶16} Harvey, however, was in custody in a Michigan facility while requesting final disposition of charges against him in Ohio. As such,
{¶17} Finally, Harvey contends that the trial court erred in not holding a hearing on his motion to dismiss, stating “there is nothing stated in the record that demonstrates the trial court made the proper findings that
{¶18}
{¶19} Accordingly, Harvey‘s first and second assignments of error are overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and PATRICIA ANN BLACKMON, J., CONCUR