STATE OF OHIO v. WILLIAM MARTIN, II
CASE NO. 09 CO 43
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 16, 2011
[Cite as State v. Martin, 2011-Ohio-6537.]
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 09 CR 31; JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Robert Herron Columbiana County Prosecutor Atty. Ryan Weikart Assistant Prosecuting Attorney 105 South Market Street Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44113
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 16, 2011
OPINION
WAITE, P.J.
{¶ 1} Appellant William Martin II was on trial in the Columbiana County Court of Common Pleas for seven felony counts when he filed a pro se motion to dismiss on speedy trial grounds. Appellant questioned why his trial had been postponed after his attorney withdrew and new counsel was appointed. The rеcord indicates that Appellant and his new counsel both asked for the trial to be continued, and thus, the trial court properly overruled the motion to dismiss. Two months later Appellant filed another pro se motion to dismiss on speedy trial grounds. Once again, the record indicated that various tolling events, initiated by Appellant, had extended the speedy trial time, and the court correctly overruled the motion. On appeal, Appellant raises an issue which he failed to raise with the trial court in support of his motions to dismiss. He now alleges that a different trial judge improperly prеsided over the hearing granting Appellant new counsel, and that this second trial judge filed a void judgment entry granting a continuance. Appellant contends that this substitution of judges was improper under Sup.R. 36(B). He argues that the trial was never properly continued, thereby creating a speedy trial error. Appellant is incorrect. The record is replete with evidence substantiating the reason for the continuance on June 5, 2009. Appellant asked for a continuance due to substitution of counsel, and it was granted
History of the Case
{¶ 2} Appellant was arrested on February 7, 2009, for breaking into Dale’s Laundromat in East Liverpool, Ohio. He has been continuously incarcerated since that date. He was bound over to the Columbiana County Grand Jury, and a seven-count indictment, encompassing several separate crimes, issued on February 25, 2009. The first three counts arose from the incidents occurring on February 7, 2009. Appellant was charged with breaking and entering (
{¶ 3} Attorney Charlie Kidder was appointed as counsel, and a jury trial was set for May 4, 2009. Judge David Tobin was assigned to preside over the case.
{¶ 5} A hearing was held on April 30, 2009, and Appellant’s motion for continuance was granted. Trial was postponed until June 8, 2009.
{¶ 6} On June 4, 2009, Appellant’s counsel filed a motion to withdraw, stating that Appellant was refusing to talk to counsel and had specifically requested new counsel.
{¶ 7} A hearing was held on June 5, 2009, with Judge C. Ashley Pike presiding over the hearing with the permission of Judge Tobin. Appellant requested a 60-day continuance:
{¶ 8} “THE COURT: But when you file a request like this, оr have your lawyer file a request, that extends the deadline that we have to bring your case to trial. So this could push it down the road a couple of months. And I can only estimate that at this time. Do you understand that?
{¶ 9} “MR. MARTIN: I understand that, sir, but I feel I have to * * * get a fair trial. I was going to request a 60-day continuance, if that is okay.
{¶ 10} “THE COURT: So, in other words, you’re saying to me that you understand there’s going to be a delay. It might be 60 days or more?
{¶ 11} “MR. MARTIN: Yes, sir.” (6/5/09 Tr., pp. 4-5.)
{¶ 13} “THE COURT: Okay, and just so that we’re clear, and I don’t mean to over emphasize it, but you realize then the new lawyer - it would take the new lawyer time to look at your case, interview you, investigate the matter and get fully prepared so that he could represent you in a very able manner?
{¶ 14} “MR. MARTIN: Yes, sir, I understand that.” (6/5/09 Tr., p. 5.)
{¶ 15} Judge Pike stated that Judge Tobin had given him permission to cancel the trial scheduled for June 8, 2009, to put on an order appointing new counsel, and that trial would be postponed until further order by Judge Tobin, with the understanding that it would be rescheduled in approximately 60 days. The prosecutor objected to the defendant’s motions and insisted that the state was ready to try the case on June 8, 2009, but understood that the court intended to appoint new counsel and grant a continuance. (6/5/09 Tr., p. 7.)
{¶ 16} On June 5, 2009, a judgment entry was filed, signed by Judge Tobin, appointing C. Joseph King as counsel.
{¶ 17} On June 9, 2009, another judgment entry was filed, this time signed by Judge Pike for Judge Tobin, sustaining prior counsel’s motion to withdraw and continuing the trial until further order of Judge Tobin. The judgment entry states: “For reasons stated on the record, the Court herein SUSTAINS the Defendant’s ‘MOTION TO WITHDRAW’ and continues the Jury Trial scheduled before the
{¶ 18} Judge Tobin held a hearing on June 12, 2009, to consider Appellant’s request for a continuance and to reset the trial date. Attorney King stated at the conference that he had received a few documents in the case, but that prior counsel had not yet given him the case file. (6/12/09 Tr., p. 3.) The court asked Attorney King how much time he would need to prepare for trial. (6/12/09 Tr., p. 4.) He responded by saying:
{¶ 19} “ATTORNEY KING: * * * As I understand just from talking to Mr. Martin here this morning there is some evidentiary issues that seems to need to be litigated here. So having said that, I -- it is going to take me a week or two just to get up and running on this case.
{¶ 20} “And so, I had suggested that-- to Mr. Martin that it maybe sometime in September before this case goes to trial.”
{¶ 21} “* * *
{¶ 22} “THE COURT: All right. Mr. Martin is that agreeable with you?
{¶ 23} “MR. MARTIN: Yes, Your Honor.”
{¶ 25} “But I -- I told Mr. Martin it would have to be sometime in September before this case goes to trial though.
{¶ 26} “THE COURT: Well, I’m going to set it in September, and I’ll give the bond somе consideration; but I can’t make any promises about that.
{¶ 27} “Now if you want an earlier trial date, we’ll try to--
{¶ 28} “MR. MARTIN: -- I think I have to-- I have to wait that long to make it fair, Your Honor.
{¶ 29} “THE COURT: All right. What about the 26th -- the 21st, excuse me, of September, Mr. King?
{¶ 30} “ATTORNEY KING: Judge, I am clear on that date.” (6/12/09 Tr., pp. 4-6.)
{¶ 31} On June 12, 2009, an assignment notice was filed rescheduling the trial until September 21, 2009.
{¶ 32} On August 7, 2009, Appellant filed a motion to suppress.
{¶ 33} On September 3, 2009, Appellant filed a pro se motion to dismiss on speedy trial grounds. He filed this pro se motion even though he was represented by counsel.
{¶ 34} The court heard the speedy trial motion on September 11, 2009. Appеllant argued the motion pro se and presented no theory regarding the reasons
{¶ 35} The court gave the parties until September 16, 2009, to file post-hearing memorandа. Appellant filed a memorandum on September 17, 2009. It is not clear whether the court considered the document because it was filed late. In his memorandum, Appellant argued that only one day should be tolled for the time he was without counsel because new counsel was appointed the next day. He argued that the entire delay between June 5, 2009, to the date of his motion to dismiss should be charged to the state, thus exceeding the speedy trial time. Once again, Appellant did not even mention any issue regarding the propriety of Judge Pike presiding over the June 5, 2009, hearing.
{¶ 36} On September 15, 2009, the court filed a judgment entry postponing trial (currently scheduled for September 21st) due to the delay caused by the still unresolved motion to suppress. The court stated that trial was to be reset to October 13, 2009. A subsequent assignment notice states that trial was instead reset to October 19, 2009.
{¶ 38} On October 15, 2009, the court issued a judgment entry continuing the trial to Deсember 7, 2009. The court stated that it held a hearing on October 15, 2009, with Appellant and his counsel present, and that Appellant told the court he would be filing a pro se motion the next day, October 16th, regarding his constitutional rights. The court stated that the prosecutor would not have time to respond by the date of trial, which had been moved to October 19th. The court stated that Appellant requested a continuance, and that the state did not object. The court granted the continuance.
{¶ 39} On November 20, 2009, Appellant filed a second pro se motion to dismiss on speedy trial grounds. Appellant questioned whether Judge Pike was still presiding over the case on June 9th, and whether his judgment entry of that date was valid. Appellant did not raise any issue regarding the assignment of Judge Pike to preside over the case at the June 5th hearing. Appellant did not raise any argument as to alleged error because the court further continued the trial in its judgment entry of October 15, 2009.
{¶ 40} On November 25, 2009, Appellant filed a pro se motion to vacate the June 9, 2009, judgment entry.
{¶ 42} The jury was seated on December 7, 2009. On December 8, 2009, the jury trial was discontinued because Appellant had entered into a
ASSIGNMENT OF ERROR
{¶ 43} “DEFENDANT/APPELLANT WAS DENIED HIS STATUTORY RIGHT TO A SPEEDY TRIAL PURSUANT TO
{¶ 44} Appellant is raising a statutory speedy trial error in this appeal. The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. In Ohio that right is implemented by the statutory scheme imposing specific time limits in
{¶ 45} A person charged with a felony must be tried within 270 days from arrest, pursuant to
{¶ 46} Although Appellant acknowledges that there are exceptions that may extend that statutory speedy trial time, he does not believe those exceptions were met in this case. Appellant contends that the court improperly imposed what he characterizes as a sua sponte continuance on June 9, 2009, and that further continuances granted on September 22, 2009, and October 15, 2009, were also
{¶ 47} A review of a trial court‘s decision regarding a motion to dismiss based on statutory speedy trial grounds involves a mixed question of law and fact. State v. McCall, 152 Ohio App.3d 377, 2003-Ohio-1603, 787 N.E.2d 1241, ¶9. Deference is given to the trial court‘s findings of fact, but the appellate court independently reviews whether the trial court properly applied the law to the facts of the case. Id. When reviewing the legal issues regarding a statutory speedy trial case, the statutes are strictly construed against the state. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706.
{¶ 48} A trial court may extend the time within which a defendant must be brought to trial by various events as set forth in
{¶ 49} The relevant speedy trial events in this case are as follows:
{¶ 50} 1. Appellant was arrested on February 7, 2009. He has been continuously incarcerated since that date.
{¶ 51} 2. The speedy trial clock began to run on February 8, 2009.
{¶ 52} 3. Trial was initially set for May 4, 2009.
{¶ 53} 4. April 30, 2009, Appellant filed a motion for continuance. Motion granted. Trial was postponed until June 8, 2009. (82 of 90 days have elapsed. Clock tolled from running through June 8, 2009.)
{¶ 54} 5. On June 4, 2009, Appellant’s counsel filed a motion to withdraw. (82 of 90 days have elapsed. Clock tolled until motion is resolved.)
{¶ 55} 6. June 5, 2009, Appellant requested a 60-day continuance. (82 of 90 days have elapsed. Clock tolled until motion is resolved.)
{¶ 56} 7. June 5, 2009, new counsel was appointed. (Clock continues to be tolled to resolve pending motion for continuance.)
{¶ 57} 8. June 12, 2009, scheduling hearing. Appellant’s new counsel asks for a continuance until September 21.
{¶ 59} 10. August 7, 2009, Appellant filed a motion to suppress. (Clock tolled until motion is resolved.)
{¶ 60} 11. September 3, 2009, Appellant filed a pro se motion to dismiss on speedy trial grounds. (Clock tolled until motion is resolved.)
{¶ 61} 12. September 15, 2009, the court continues trial (currently scheduled for September 21st) to October 13, 2009, due to the delay caused by the motion to suppress. (82 of 90 days have elapsed. Clock tolled from running through October 13, 2009.)
{¶ 62} 13. September 18, 2009. Trial is reset from October 13 to October 19 without explanation. (Clock is still tolled from running through October 13, 2009.)
{¶ 63} 14. September 22, 2009, the court filed its judgment entry denying the September 3, 2011, motion to dismiss. The court stated that Appellant, on the record, asked for a continuance until September in order for his new counsel to have time to prepare, and that the continuance was previously granted.
{¶ 64} 15. October 2, 2009, judgment entry grants motion to suppress in part. (Clock is still tolled from running again through October 13, 2009.)
{¶ 65} 16. October 14, 2009. Speedy trial clock begins running again.
{¶ 66} 17. (Thursday) October 15, 2009, hearing. Appellant requested a continuance to file a motion on Friday, October 16, 2009, regarding his constitutional
{¶ 67} 18. October 15, 2009, judgment entry continues the trial to December 7, 2009, on Appellant’s request for continuance. (83 of 90 days elapsed. Clock is tolled from running through December 7, 2009.)
{¶ 68} 19. November 20, 2009, Appellant filed a second pro se motion to dismiss on speedy trial grounds. Clock is tolled from running until this motion is resolved. (As of this date, there are still 7 days left of speedy trial time.)
{¶ 69} The record establishes that Appellant requested continuances on April 30, 2009, June 5, 2009, June 12, 2009, and October 15, 2009. The requests for continuancе on June 5, June 12, and October 15, 2009, were made orally in open court. Where the record shows that a defendant asked for a continuance in open court, and the continuance is granted, it will be upheld on appeal as a valid waiver of speedy trial rights. State v. King (1994), 70 Ohio St.3d 158, 637 N.E.2d 903, at syllabus. Appellant asked for a continuance on June 5, 2009, and repeated the request on June 12th, in order for new counsel to prepare for trial. This continuance was granted until September 21, 2009, and the time is charged to Appellant.
{¶ 70} The speedy trial clock was again tolled through October 13, 2009, because Apрellant filed a motion to suppress and a motion to dismiss on speedy trial grounds. Delays attributable to a defendant’s own motions are charged to the
{¶ 71} One day is charged to the state on October 14, 2009, due to an unexplained continuance of trial beyond October 13, 2009. Then, on October 15, 2009, Appellant requested another continuance, which was granted until December 7, 2009. As of Novеmber 20, 2009, the date on which Appellant filed his second motion to dismiss on speedy trial grounds, the state had seven days left on the speedy trial clock. Therefore, there was no speedy trial violation and the trial court properly overruled both motions to dismiss.
{¶ 72} Appellant does not believe that the speedy trial calculation laid out above is accurate. He submits that the speedy trial clock was altered when Judge Pike sat in for Judge Tobin at the hearing on June 5, 2009. He cites to
{¶ 74} We must first note that Appellant has waived any argument regarding
{¶ 75} Second, it is not entirely clear from the record that Judge Pike made any decision or determination in this case. If not, there can be no violation of
{¶ 76} Third, even if we accept Appellant’s argument that Judge Pike had no authority to issue a judgment entry on June 5, 2009, because he was not properly assigned to the case under
{¶ 79} In State v. King, supra, the Ohio Supreme Court held that, “[t]o be effective, an acсused‘s waiver of his or her constitutional and statutory rights to a speedy trial must be expressed in writing or made in open court on the record.” (Emphasis added.) King, 70 Ohio St.3d at 160. King is a more recent case than Mincy, and specifically mentions Mincy in its holding: “[W]e hold that a defendant‘s waiver of his or her right to a speedy trial must be either written or made on the record in open court. We also reaffirm our holding in Mincy, supra, that any sua sponte continuance must be reasonable, and must be accompanied by a journal entry which is made prior to the expiration of the statutory
{¶ 80} It could hardly be any more apparent from the record that the continuances granted on June 5 and June 12, 2009, were not sua sponte. The record shows that Appellant’s counsel filed a motion to withdraw just before trial was to begin, that the court held a hearing the next day, that Appellant requested a 60-day continuance at the hearing, that another hearing was held on June 12 to pick a trial date, that Appellant and his new counsel appeared at the hearing, and that they rеquested a new trial date in September, which the court granted. Since the law governing sua sponte continuances does not apply here, Appellant’s arguments are not well-taken.
{¶ 81} The remainder of Appellant’s argument has to do with time that was tolled after September 21, 2009. First, Appellant believes that his trial was postponed due to the court’s conflicting schedule with a civil trial. Appellant argues that a civil trial is less important than a criminal trial. The record indicates, however, that the trial was postponed because of Appellant’s second motion to dismiss, and not because of a conflict with another trial. The trial court did refer to a civil trial that
{¶ 82} Appellant next contends that the judgment entry of October 15, 2009, is wrong when it states that Appellant advised the judge, in open court during a hearing, that he would be filing a pro se motion the next day, and that Appellant asked for a continuance at the hearing. Appellant seems to imply that the hearing never actually took place, despite the court’s reference to it in the judgment entry. Appellant has waived this argument by not raising it at the trial court level as part of his second motion to dismiss on speedy trial grounds. The merits of a motion to dismiss on speedy trial grounds are determined as of the date the motion is filed, and the defendant must present all its arguments to the court at that time regarding speedy trial errors alleged in the motion to dismiss. State v. Nottingham, 7th Dist. No. 05 BE 39, 2007-Ohio-3040; State v. Williams, 2d Dist. No. 20104, 2004-Ohio-5273, ¶11; State v. Phillips, 2d Dist. No. 2003-CA-15, 2004-Ohio-4688. Failure to raise objections that must be raised before trial cоnstitutes a waiver of those objections.
Conclusion
{¶ 83} It is clear from the record that Appellant either asked for continuances оr filed motions that delayed trial in this case. He asked for a continuance on April 30, 2009, thereby postponing trial to June 8, 2009. He asked for a continuance on June 5, 2009, thereby postponing trial to September 21, 2009. He filed a motion to dismiss on September 3, 2009, thereby postponing trial until October 13, 2009. He asked for and was granted a continuance on October 15, 2009, delaying trial until December 7, 2009. Up to the date of Appellant’s second motion to dismiss the state had used 83 of 90 days of its speedy trial time. Therefore, there was no speedy trial violation and Appellant’s argument is unpersuasive. The sole assignment of error is overruled, and the judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.