State v. HemingwayState v. Hemingway
William D. Mason
Cuyahoga County Prosecutor
BY: Margaret Troia
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Avery H. Fromet
30195 Chagrin Blvd.
Suite 300
Cleveland, OH 44124
KATHLEEN ANN KEOUGH, J.:
{¶ 1} In this consolidated appeal, plaintiff-appellant, the state of Ohio (“the State“), appeals the trial court‘s decision dismissing the indictments against defendant-apрellee, Ricky Hemingway (“Hemingway“), for violating his right to a speedy trial. For the reasons that follow, we reverse and remand.
{¶ 3} Hemingway was apprised of the pending case while serving a prison sentence in Belmont Correctional Institution. Pursuant to
{¶ 4} On April 14, 2010, Hemingway was arrested оn the outstanding registered warrant issued in Cleveland Municipal Court Case No. 2010 CRA 003222 and bound over to the Cuyahoga County Court of Common Pleas for disposition of the case. On April 29, Hemingway was charged by a bindover indictment filed in Cuyahoga County Common Pleas Court in Case No. CR-536518 for three counts each оf breaking and entering, theft, and vandalism, and two counts of possessing criminal tools. Three of these charges were the basis for the Cleveland Municipal felony complaint in Case No. 2010 CRA 003222.
{¶ 5} On June 23, 2010, Hemingway was charged by original indictment in Cuyahoga County Common Pleas Court in Case No. CR-538577, which was later dismissеd and
{¶ 6} On January 25, 2011, and after various pretrials were held, discovery was completed, and a competency evaluation and hearing were conducted, Hemingway moved to dismiss the indictments against him in both cases, alleging a violation of his speedy trial rights pursuant to
{¶ 7} The State appeals, contending in its sole assignment of error that the trial court erred in granting Hemingway‘s motions to dismiss based on speedy trial grounds because (1) Hemingway was not entitled to the protection оf
{¶ 8} Speedy trial issues present mixed questions of law and fact. State v. Hiatt, 120 Ohio App.3d 247, 261, 697 N.E.2d 1025 (4th Dist.1997). Therefore, we apply a de novo standard of review to the legal issues but give deference to any factual findings made by the trial court. Cleveland v. Adkins, 156 Ohio App.3d 482, 2004-Ohio-1118, 806 N.E.2d 1007, ¶ 5 (8th Dist.), citing Hiatt. In this case, the trial court made no findings of fact.
{¶ 10} After a careful review of the record, relevant cases, and statutory law, we find that Hemingway complied with
{¶ 11}
{¶ 12}
When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the
place of his imprisonment and a request for a final disposition to be made of the matter, except thаt for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested.
{¶ 13} This 180-day speedy trial time does not begin to run until the incarcerated defendant sends a request to the prоsecuting attorney and the trial court for final disposition of an “untried indictment, information, or complaint.” State v. Ramey, 8th Dist. No. 69080, 1996 WL 112420 (Mar. 14, 1996); State v. Logan, 71 Ohio App.3d 292, 296, 593 N.E.2d 395 (10th Dist.1991).
{¶ 14} In State v. Gill, 8th Dist. No. 82742, 2004-Ohio-1245, 2004 WL 528449, this court, construing
[
R.C. 2941.401 ] does not mean the inmate must personally insure the delivery of the documents to bоth the appropriate court and prosecutor, an unlikely task for a jailed inmate. Rather, the inmate must properly complete and forward all necessary information and documents to the warden for processing as prescribed by the statute. Where the inmate forwards incomplete, inaccurate, misleading or erroneous information, any subsequent errors by the warden or superintendent will be imputed to the inmate. Where, however, as here, the evidence is that the inmate fully complied with the statutory requirements ofR.C. 2941.401 , by including all the proper information, the error cannot be imputed to the inmate. Id. at ¶ 17.
{¶ 16} We also find that the notice was sent to the proper prosecuting attorney‘s office. Although the case was pending in the Cleveland Municipal Court, the case was pending under a felony complaint. This court addressed a similar situation in State v. Doane, 8th Dist. No. 60097, 1992 WL 161142 (July 9, 1992), where a defendant was charged in the city of Lakewood under a felony complaint prior to the defendant entеring a period of incarceration on a county probation violation. In Doane, the defendant forwarded the proper documentation and information to the warden, who then sent the notice to the Cuyahoga County Clerk of Courts, the Lakewood Police Department, and to thе municipal prosecuting attorney. This court found that the inmate substantially complied with
{¶ 17} As in Doane, the charges were pending against Hemingway at the municipal level. A city prosecutor can certainly pursue and sign felony charges and then transfer the case to the common pleas court for further proceedings, but “a city prosecutor does not have authority to handle the final dispositiоn of felony cases.” State v. Sims, 9th Dist. No. 22677, 2006-Ohio-2415, 2006 WL 1329655, ¶ 24. Moreover, it is the customary practice within this court‘s reviewing jurisdiction that any felony complaint pending in the Cleveland Municipal Court is managed and controlled by the county prosecuting attorney‘s office. Finally, the State has never maintained or argued that it did not have knowledge of or receive Hemingway‘s Notice.
{¶ 18} Accordingly, we find that Hemingway complied with the requirements of
{¶ 19} However, the speedy trial protections and provisions of
When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complаint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter * * * .” (Emphasis added.)
{¶ 21} In State v. Ramey, 8th Dist. No. 69080, 1996 WL 112420 (Mar. 14, 1996), appeal not allowed 77 Ohio St.3d 1419, 670 N.E.2d 1006 (1996), this court held that although the incarcerated defendant properly filed his notice of disposition invoking the speedy trial provisions of
{¶ 22} Like the defendant in Ramey, Hemingway was released from prison while the charges remained pending. Therefore, and although Hemingway properly invoked his speedy trial rights pursuant to
{¶ 23} Pursuant to
{¶ 24} In Case No. CR-536518, Hemingway sent his Notice on March 1, 2010; therefore, time began to run for speedy trial purposes on March 2, 2010. He moved to dismiss the indictment on speedy trial grounds on January 25, 2011, at which time over 330 days had elapsed.
{¶ 26} Hemingway argued in his motions to dismiss that, excluding any applicable tolling time periods, approximately 297 days had elapsed in both cases. Accordingly, Hemingway made a prima facie showing that he was not brought to trial within the rеquisite 270 days. Therefore, the burden shifted to the State to show that time had been tolled. The State argues that Hemingway‘s time was tolled where the record reflects that the continuances were at the defendant‘s request.
{¶ 27} During the pendency of the cases, various pretrials were held and a competency evaluation and hearing was conducted. A thorough review of the case files and dockets reveal that the majority of the trial court‘s journal entries provide that the continuances were “at the defendant‘s request,” thereby tolling any time for speedy triаl purposes.
{¶ 28} The record before us is insufficient to calсulate the exact number of days the State has remaining to bring Hemingway to trial on these cases. Specifically, it is unclear when Hemingway was released from prison in correlation to when he was arrested on the outstanding warrant and also if he was being held in jail on other pending cаses. Nevertheless, we find that the trial court erred in dismissing the indictments against Hemingway on speedy trial grounds.
{¶ 29} In Case No. CR-536518, the case was tolled from May 19, 2010 until Hemingway filed his motion to dismiss in January 2011. And in Case No. CR-539583, the case was tolled from July 20, 2010 until the motion to dismiss was filed.
{¶ 30} Deducting those tolled days from Hemingway‘s own calculations, we find that the time for speedy trial has not expired in violation of
Judgment reversed and case remanded for further proceedings consistent with this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into еxecution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, P.J., and PATRICIA ANN BLACKMON, A.J., CONCUR