State of Ohio, Plaintiff-Appellee, v. Michael J. Kadunc, Defendant-Appellant.
No. 15AP-920
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 28, 2016
[Cite as State v. Kadunc, 2016-Ohio-4637.]
SADLER, J.
(C.P.C. No. 14CR-6279) (REGULAR CALENDAR)
Rendered on June 28, 2016
On brief: Ron O‘Brien, Prosecuting Attorney, and Valerie Swanson, for appellee. Argued: Valerie Swanson.
On brief: The Tyack Law Firm Co., LPA, and Jonathan T. Tyack, for appellant. Argued: Jonathan T. Tyack.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{1} Defendant-appellant, Michael J. Kadunc, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury verdict finding him guilty of one count of possession of heroin, a fourth-degree felony. Appellant now contends on appeal that the delay between his original arrest and the commencement of trial violated his constitutional and statutory right to a speedy trial.
{2} Columbus police stopped appellant, who was driving a rental vehicle, on August 5, 2013, for a minor traffic violation. After receiving his traffic citation, appellant left his vehicle parked in the street and entered a nearby home. Based on appellant‘s demeanor and the recent history of the house he had entered, the citing officers called for a canine search unit. The dog gave an alert indication on the rental vehicle. Police
{3} Police arrested appellant on August 22, 2013, and charged him with one count of possession of heroin in the amount of 5.5 grams, an amount slightly greater than the subsequent lab-determined weight. The complaint specified a violation of
{4} After the grand jury returned its no bill, more than one year passed without action from appellee. Appellant then filed a motion to dismiss case Nо. 13CR-4666 on September 23, 2014, alleging that the case had been pending since his arrest on August 22, 2013, that appellee had taken no further action, and that the delay violated appellant‘s constitutional and statutory right to a speedy trial. The trial court did not rule on this motion.
{5} Appellee re-presented the matter to the grand jury under new case No. 14CR-6279, repeating the possession charge but specifying only an amount between one and five grams and adding a second charge of trafficking under
{6} Appellant moved to consolidate case Nos. 13CR-4666 and 14CR-6279 on January 21, 2015. Appellee opposed the motion on the basis that case No. 13CR-4666 terminated on the grand jury‘s issuance of a no bill and that, as a result, the court of common pleas lacked jurisdiction to entertain motions under that case number or consolidate the terminated case with an active one. The court denied appellant‘s motion to consolidate on those grounds.
{7} On April 20, 2015, appellant again filed a motion to dismiss on speedy trial grounds, this time under the new case No. 14CR-6279. The trial court denied the motion on May 20, 2015. The matter went to trial on August 4, 2015, with a jury rendering a guilty verdict on the possession count and a not-guilty verdict on the trafficking count. The court sentenced appellant to five years of community control. Appellant brings the following assignment of error on appeal:
THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO DISMISS IN VIOLATION OF APPELLANT‘S RIGHTS UNDER
OHIO REVISED CODE § 2945.71 THROUGH§ 2945.73 ,ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION , AND THESIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION .
{8} The heart of appellant‘s assignment of error is the question of whether the period between the grand jury‘s return of a no bill under case No. 13CR-4666 and his ultimate indictment under case No. 14CR-6279 is countable for speedy trial purposes. Appellant argues that a return of a no bill by the grand jury does not qualify as a dismissal under
{9}
(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to stаnd trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused‘s lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
(D) Any period of delay occasionеd by the neglect or improper act of 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.
{10} “For purposes of calculating speedy-trial time pursuant to
{11} In arguing the statutory issue, appellant does not dispute appellee‘s position that the lapse of time between the indictment under case No. 14CR-6279 and his trial is attributable to his own motions or other tolling events and is, therefore, waived or tolled for speedy trial purposes. As a result, we approach this discussion by postulating that without the 14-month interval between no bill and indictment, no cumulation of the time between arrest and no bill, or indictment and trial, can reach the statutory limit.
{12} Appellee proposes that our decisions in State v. Woods, 10th Dist. No. 87AP-736 (June 16, 1988), and State v. Montgomery, 10th Dist. No. 89AP-1355 (Aug. 30, 1990), are guiding precedent for our treatment of the post-no-bill time. The latter is not fully on point: in Montgomery, the initial charges against the defendant appear to have been formаlly dismissed, rather than no billed by the grand jury. Woods did involve a no bill and delayed indictment but was reviewed in this court primarily under a due process challenge under the
{13} While we did not address in Woods the detailed arguments raised by appellant here regarding the relevant criminal rules, the Fourth District of Ohio has thoroughly examined and discussed the matter in State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-1401. In Alexander, a complaint charged the defendant with murder, but the grand jury returned a no bill. After a two-year delay, the state again presented the matter to the grand jury, which returned an indictment for aggravated murder, leading to a subsequent conviction. On appеal, the Fourth District concluded that the charges against the defendant were not “pending” for purposes of speedy trial time.
{14} As in the case before us, the court of common pleas did not formally dismiss the initial charge against the defendant in Alexander or explicitly release him from his bond originally set pursuant to the first complaint. The Fourth District began by noting
{15} From this, the court in Alexander concluded thаt when the state failed to obtain the initial indictment against the defendant and the grand jury issued its no bill, the trial court lost jurisdiction of the charge against the defendant. Id. at ¶ 25. Alexander noted that “if a court assumes jurisdiction over an improperly commenced felony prosecution, the trial and conviction would be a nullity.” Id. at ¶ 24, citing State ex rel. Flint v. Dinkelacker, 156 Ohio App.3d 595, 2004-Ohio-1695, ¶ 21. In the absence of an indictment, the trial court could not proceed with jurisdiction over the matter, and, therefore, the court necessarily lost jurisdiction over the charge that would bound over to the grand jury, after the grand jury issued its no bill. Id.
{16} Under this reasoning, the court in Alexander concluded that a formal dismissal under
{17} In conjunction with our earlier holding in Woods, the Fourth District‘s reasoning in Alexander is persuasive, and we apply it to the facts before us. We conclude that the time between the issuance of a no bill by the grand jury and subsequent indictment under a new case number is not chargeable to the state for speedy trial purposes, and the time computed for the other periods between arrest and trial do not exceed the 270-day requirement of
{18} Because we so hold, we do not reach appellee‘s suggestion that an additional basis exists to preclude a speedy trial violation. Appellee argues that the later indictment
{19} We now consider appellant‘s assertion that, Ohio statutory rights apart, thе two-year delay between arrest and trial presumptively violated his constitutional right to a speedy trial under the
{20} We first note that appellant meets the third prong of the Barker standard because he has repeatedly and clearly raised his speedy trial challenges through the course of proceedings in the trial court.
{21} The first Barker factor, the length of delay, requires a double inquiry: the defendant must first make a threshold showing of presumptively prejudicial delay to trigger further analysis, and a court must then сonsider the length of delay in conjunction
{22} We find that the post-no-bill period, for reasons that are congruent with our approach to the statutory speedy trial challenge, will not be counted in assessing the constitutional challenge. The United States Supreme Court has specifically addressed treatment given to a period after charges are dismissed and new charges are brought for the same crime: “Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation.” United States v. MacDonald, 456 U.S. 1, 8-9 (1982). “[U]nder the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.” United States v. Loud Hawk, 474 U.S. 302, 312 (1986).
{23} The Supreme Court of Ohio recently applied these authorities in Adams to discount speedy trial time: “Thus, for constitutional speedy-trial purposes, the only time we count is the period from Adams‘s arrest [for burglary] on December 30, 1985, to the grand jury‘s issuance of a ‘no bill’ in May 1986, plus his 24 days of incarceratiоn [following his later arrest for aggravated murder] in October 2007. We hold that this period was not ‘presumptively prejudicial,’ and we therefore do not need to reach the other elements of the Barker inquiry.” Adams at ¶ 95. Because we have concluded in the present case that appellant was not subject to a bond or other constraint on his freedom after the grand jury issued its no bill, we find that the ensuing period is not a basis for a finding of undue delаy. Moreover, appellant has failed to particularize any prejudice under the fourth
{24} In summary, we find that appellant has not demonstrated a violation of his right to speedy trial under either Ohio‘s speedy trial statute or the constitutions of Ohio and the United States. Appellant‘s sole assignment of error is overruled, аnd the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
LUPER SCHUSTER, J., concurs.
HORTON, J., dissents.
HORTON, J., dissenting.
{25} Because I cannot concur with the majority‘s disposition of appellant‘s speedy trial challenges under either statute or constitution, I respectfully dissent.
{26} I would include the entire 14-month period between the grand jury‘s return of the no bill and the subsequent indictment under a new case number in my
{27} In the absence of an express dismissal of the case under
{28} The Fourth District‘s reasoning in State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-1401, explains no other mechanism by which bond or a pending criminal case can terminate “by operatiоn of law.” Id. at ¶ 2. I conclude to the contrary
{29} Likewise, I would find that State v. Woods, 10th Dist. No. 87AP-736 (June 16, 1988), in which we first held that an interval following a no bill does not count for speedy trial purposes, is flawed authority. In Woods, we relied without further explanation on the United States Supreme Court case of United States v. Marion, 404 U.S. 307 (1971). Marion is not a no bill case, nor even a case involving an initial arrest followed by release or dismissal of charges. Marion addresses only an allegedly unreasonable delay in prosecution based on the interval between commission of the crime and a delayed indictment; there was no initial arrest in Marion, only pre-indictment investigation. As such, it provides no reasonable foundation for Woods’ conclusion regarding the speedy trial effect of a no bill returned after the defendant has been arrested and arraigned in municipal court.
{30} I further emphasize that wе lack any evidence in the present case that appellant was actually freed from the restrictions and conditions of his bond after the grand jury returned its no bill. The majority‘s holding effectuates an indefinite period of time in which criminal defendants will remain subject to conditions of bond but see the time under bond tolled for speedy trial purposes unless the trial court expressly enters an order terminating the matter.
{31} With proper consideration of the 14-month period following the grand jury‘s return of a no bill, I would also find a violation of appellant‘s constitutional right to speedy trial:
” ‘We can see little, if any, difference in the dilemma which unreasonable delay creates for the suspect who was belatedly charged, the accused named in a warrant promptly issued but belatedly served, and the indicted defendant whose trial has been unduly postponed. The same considerations which impel prompt action in one situation are equally critical in the others.’ ” State v. Meeker (1971) 26 Ohio St.2d 9, 16, quoting State v. Johnson (1969), 275 N.C. 264, 271-272, 167 S.E.2d 274.
{32} Finally, because I would include the 14-month period following the no bill as countable time, I must address the state‘s contention that under State v. Mohamed, 10th Dist. No. 08AP-960, 2009-Ohio-6658, ¶ 2, and State v. Brown, 10th Dist. No. 12AP-292, 2012-Ohio-5903, the later indictment in сase No. 14CR-6279 operated under its own speedy trial clock and took no account of earlier time accruing under case No. 13CR-4666. The bedrock principle in Ohio remains that ” ‘when new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.’ ” State v. Adams, 43 Ohio St.3d 67, 68 (1989), quoting State v. Clay, 9 Ohio App.3d 216 (11th Dist. 1983). Brown and Mohamed apply only as exceptions to that rule and are predicated on the appearance of material new facts that would alter the prosecution‘s theory of the case or the charged offense.
{33} The initial arrest and complaint in this case accused appellant of possession of heroin. The laboratory report cоnfirming that the seized material was in fact heroin did not constitute a new fact but merely confirmation of the assumed facts upon which the initial arrest and complaint were based. If the laboratory report had revealed, instead, that the substance was not heroin, only then might that constitute new facts that required dismissal or modification of pending charges. Confirmation of the assumed facts, however, does not constitute new evidеnce of a different crime or “facts different from the original charges,” as required by State v. Baker, 78 Ohio St.3d 108 (1997), syllabus, to restart the speedy trial clock. “The holding in Baker is disjunctive and identifies two scenarios in which the state is not held to the speedy-trial timetable of an initial complaint or indictment: (1) when additional criminal charges arise from different facts, or (2) when the state did not know of these facts at the time of the initial indictment.” Brown at ¶ 10, citing Mohamed at ¶ 30.
{34} For these reasons, I would find that the 14-month period between no bill and indictment counts against the state for statutory speedy trial purposes, that the 2-year