State v. LewisState v. Lewis
Neil P. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH 44224-4379 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Robert S. Lewis, appeals his conviction and sentence in the Court of Common Pleas of Portage County. After a bench trial, Mr. Lewis, was acquitted of one count of felonious assault involving a knife in violation of
{¶2} Statement of Facts and Procedural History
{¶3} The verbal and physical altercation between Mr. Lewis and Ms. Linna occurred very early on the morning of September 21, 2007. The fight, apparently triggered by a break-up, culminated in Mr. Lewis inflicting a serious and lasting bite wound on his former girlfriend.
{¶4} A Portage County Grand Jury indicted Mr. Lewis on September 27, 2007 for one count of felonious assault,
{¶5} On December 19, 2008, a Portage County Grand Jury again indicted Mr. Lewis on two counts of felonious assault,
{¶6} On April 3, 2009, the state requested a continuance due to the unavailability of an expert witness. The trial was reset for May 11, 2009. On May 6,
{¶7} Mr. Lewis filed a motion to dismiss the indictment based on a violation of his constitutional right to a speedy trial on May 3, 2010. In the motion, Mr. Lewis acknowledged that hе had waived his statutory right to a speedy trial in this case, as well as in the earlier case, and further supported the motion with a supplemental submission on May 12, 2010. The trial court denied his motion to dismiss on May 18, 2010. While the court‘s entry did not contain a detailed analysis of thе tolling dates and the cause or causes of the period of delay, the court did find that Mr. Lewis had “waived time and requested many of the continuances” and that Mr. Lewis had “presented no evidence of prejudice due to the delay.”
{¶8} After waiving a jury, Mr. Lewis went tо trial and was found guilty of one count of felonious assault. He was sentenced on August 16, 2010 to a two year prison term, with three years of post-release control. In the journal entry dated August 18, 2010, Mr. Lewis was also ordered to pay costs of the proceedings. Mr. Lеwis filed a timely notice of appeal on September 7, 2010.
{¶10} On appeal, Mr. Lewis raises two assignments of error:
{¶11} “[1.] The Trial Court committed reversible error when it denied Defendant‘s motion to dismiss the case pursuant to Defendant‘s right to a speedy trial under
{¶12} “[2.] The Trial Court committed reversible error when it assessed costs in its sentencing entry when it did not impose those costs in open court at the sentencing hearing.”
{¶13} Statutory Speedy Trial Violation
{¶14} In his first assignment of errоr, Mr. Lewis argues that the trial court erred in not dismissing the charges against him pursuant to a violation of his statutory right to a speedy trial. We note, however, that Mr. Lewis never moved the trial court to dismiss the charges on statutory grounds. Instead, Mr. Lewis moved the court to discharge the indictment solely based on violations of his constitutional right to a speedy trial. On appeal, Mr. Lewis now limits his assignment of error solely to a violation of his statutory right. As for his statutory right to a speedy trial, we find no violation by the state and no error was committed by thе trial court in failing to dismiss the charges against Mr. Lewis.
{¶15} Standard of Review
{¶16} “The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution. The statutory speedy trial provisions set forth at
{¶17} “The standard of review of a speedy trial issue is to count the days of delay chargeable to either side, and determine whether the case was tried within the time limits set by
{¶18} “Speedy trial issues present mixed questions of law and fact.” Id. at ¶18, citing State v. Hiatt (1997), 120 Ohio App.3d 247, 261. “We accept the facts as found by the trial court on some competent, credible evidence, but freely review the application of the law to the facts.” Id.
{¶19} Mr. Lewis was charged with a felony of the second dеgree; the state, therefore, was obligated to bring him to trial within 270 days of his arrest.
{¶20} Calculating the Days and Tolling Events
{¶21} Mr. Lewis was arrested on September 27, 2007 and was released on bond that same day. We, therefore, charge the seven (7) days between September 28, 2007 and October 5, 2007 against the state. On October 4, 2007, Mr. Lewis made requests for discovery and the speedy trial timetable was tolled from October 5 until November 9, 2007, when the state filed a motion for reciprocal discovery. We then charge against the state the 10 days between November 10, 2007 and November 19, 2007, when the trial court granted a waiver of speedy trial to Mr. Lewis. On Aрril 25, 2007, the state dismissed the indictment against Mr. Lewis and the speedy trial clock stopped. At the time of dismissal, the state had a total of 17 days charged against it, and thus 253 days remained to bring Mr. Lewis to trial on a subsequent indictment of the same nature and resulting from the same circumstances.
{¶22} On December 19, 2008, the state again indicted Mr. Lewis for two counts of felonious assault stemming from the same September 2007 incident. Mr. Lewis was arrested on December 25, 2008, and was released on bond the following day. We therefore credit Mr. Lewis with triple-time for the one night he spent incarcerated. Fourteen (14) days -- three (3) for December 26, due to incarceration and release later that day -- are therefore charged against the state between December 26, 2008 and January 6, 2009. Upon Mr. Lewis’ request for discovery on January 6, 2009, the time
{¶23} Tolling During Outstanding Discovery Request to the State
{¶24} Mr. Lewis suggests that 87 days is an unreasonable amount of time for the state to respond to his discovery requests. The question then becomes: what is a reasonable amount of time to allow the state to respond to discovery and stop the speedy trial clock?
{¶25} The Supreme Court of Ohio has held, as against a defеndant who delayed in responding to the state‘s discovery request, that 30 days is a reasonable period of time for discovery responses if the trial court has not issued a discovery order. See State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374 (upholding a trial court‘s determination to begin tolling the speеdy trial time at the 30 day mark until defendant responded to discovery requests). The concept of 30 days as a reasonable period of time for discovery responses has been applied to cases corollary to Palmer, in which it was the state who dеlayed in responding to a defendant‘s discovery request. See State v. Ford, 180 Ohio App.3d 636, 2009-Ohio-146 (holding that only 30 days of tolling would be charged against the defendant upon his discovery requests, not the 67 days the state took to respond).
{¶26} Without determining whether 87 days for the state‘s discovery response in Mr. Lewis’ case was unreasonable, for our analysis and in the vein of Palmer and Ford, we will accept the proposition that the speedy trial clock was stopped for only 30 days upon Mr. Lewis’ request for discovery, not the 87 days the state took to respond. The time thus began to run again on February 6, 2009 and continued to run for 91 days, through May 7, 2009, when Mr. Lewis executed a waiver of his statutory speedy trial
{¶27} Sentencing and the Imposition of Costs
{¶28} In his second assignment of error, Mr. Lewis argues that the trial court committed reversible еrror when it did not inform him during the sentencing hearing of the imposition of costs, but imposed costs in the sentencing journal entry. The state concedes this assignment of error and suggests the case should be remanded for the limited purpose of informing Mr. Lewis on the record оf the imposition of costs and providing the opportunity for him to seek a waiver of payment.
{¶29}
{¶30} A review of the record in the case sub judice reveals that the trial court did not in fact inform Mr. Lewis at the sentencing hearing that costs would be imposed upon
{¶31} Mr. Lewis argues that the trial court failed to comply with
{¶32} Based upon the foregoing, the judgment of the trial court is affirmed in part and reversed and remanded in part.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.