State v. MillerState v. Miller
Christopher W. Thompson, 130 West Second Street, Suite 2050, Dayton, Ohio 45402, for defendant-appellant
BRESSLER, P.J.
{¶1} Defendant-appellant, Michelle Miller, appeals her convictions in the Mason Municipal Court for operating a vehicle while under the influence of alcohol (“OVI“), driving under suspension (“DUS“), and failure to maintain assured clear distance (“ACD“).
{¶2} On January 22, 2008, appellant was arrested for OVI, DUS, and ACD in the city of Mason. Appellant was detained in the Warren County Jail until the next day, and was then
{¶3} On January 31, 2008, all of the misdemeanor charges against appellant were dismissed, and the felony charge was bound over to the grand jury for consideration. On February 25, 2008, the grand jury returned an indictment for OVI, a felony of the fourth degree. On February 27, 2008, appellant was arraigned on the felony OVI charge and appellant filed a request for discovery on that date.
{¶4} On March 28, 2008 at a pretrial hearing, appellant‘s counsel notified the state that appellant did not have five prior OVI convictions within 20 years and that the pending OVI charge should not have been charged as a felony. On April 3, 2008, appellant withdrew all pending motions and requests for discovery. On April 16, 2008, instead of amending the indictment from a felony OVI to a misdemeanor OVI, the state dismissed the indictment and appellant was released.
{¶5} On April 19, 2008, appellant was re-charged with the January 25, 2008 misdemeanor charges when she was served with a summons. Appellant moved to dismiss these charges on April 21, 2008, and the court denied the motion on June 12, 2008. On January 13, 2009, appellant entered pleas of no contest to each charge, and the trial court sentenced appellant to serve 180 days in jail with 84 days credit for time served, two years of probation, and a five-year driver‘s license suspension. Appellant appeals her conviction and sentence, raising the following assignment of error:
{¶6} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT‘S MOTION TO DISMISS.”
{¶7} In her assignment of error, appellant argues the trial court should have granted her motion to dismiss the charges, as she was denied her right to a speedy trial. Appellant
{¶8} “The right to a speedy trial is guaranteed to all state criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution * * * and by Section 10, Article I of the Ohio Constitution.” State v. Gellenbeck, Fayette App. No. CA2008-08-030, 2009-Ohio-1731, ¶8, citing State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, ¶16. Additionally, the General Assembly has enacted Ohio‘s speedy-trial statutes to preserve this right. See
{¶9} Once a defendant demonstrates she was not brought to trial within the permissible period, the accused presents a prima facie case for release. State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, ¶10, citing State v. Steinke, 158 Ohio App.3d 241, 2004-Ohio-1201, ¶5. The burden then shifts to the state to demonstrate that sufficient time was tolled or extended under the statute. Masters at ¶10, citing State v. Butcher (1986), 27 Ohio St.3d 28, 31. A defendant‘s right to a speedy trial may be waived, provided such waiver is either expressed in writing or made in open court on the record. State v. King, 70 Ohio St.3d 158, 1994-Ohio-412, syllabus.
{¶10}
{¶11} “Subject to division (D) of this section, a person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial as follows:
{¶12} “* * *
{¶13} “(2) Within ninety days after the person‘s arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.”
{¶14}
{¶15} Further,
{¶16} “A person against whom one or more charges of different degrees, whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial on all of the charges within the time period required for the highest degree of offense charged, as determined under divisions (A), (B), and (C) of this section.” (Emphasis added.)
{¶17} And
{¶18} According to the record, appellant was arrested for OVI, DUS, and ACD on January 22, 2008 and was held in jail pending charges until April 16, 2008. When the triple-count provision of
{¶19} The issue left for this court to determine is whether the state was required to bring appellant to trial within 90 days pursuant to
{¶20} In State v. Adams (1989), 43 Ohio St.3d 67, 68, the Ohio Supreme Court held that “subsequent charges made against an accused would be subject to the same speedy-trial constraints as the original charges, if additional charges arose from the same facts as the first indictment.” Following Adams, the Ohio Supreme Court stated in State v. Baker, 78 Ohio St.3d 108, 1997-Ohio-229, syllabus, that “[i]n issuing a subsequent indictment, the state is not subject to the speedy-trial timetable of the initial indictment, when additional criminal charges arise from facts different from the original charges, or the state did not know of these facts at the time of the initial indictment.”
{¶21} In this case, the April 19, 2008 misdemeanor charges were not additional charges against appellant. Instead, the state simply re-charged appellant with the same misdemeanor charges it had previously charged on January 25, 2008, which were based on the same facts. Therefore, the exception in Baker does not apply to this case, and the subsequent misdemeanor charges are subject to the same speedy-trial constraints as the original charges.
{¶22} In denying appellant‘s motion to dismiss the April 19, 2008 misdemeanor
{¶23} In City of Rocky River v. Glodick, Cuyahoga App. No. 89302, 2007-Ohio-5705, ¶12-14, the Eighth Appellate District held that two sets of charges must be pending simultaneously for
{¶24} As the court stated in Glodick at ¶14, “[r]egardless of the fact that the later charges stemmed from the same act or transactions as those of the earlier charges, the two sets of charges were not pending simultaneously. The language of
{¶25} Further, we find that the state‘s reliance on State v. Casto (Feb. 8, 2000), Pike App. No. 99 CA 634, is misplaced, as the facts in Casto are distinguishable from those in this case. In Casto, the state charged the defendant with felony OVI by complaint and the
{¶26} As we previously discussed, 144 speedy-trial days elapsed between the date of appellant‘s arrest and the date she was arraigned on the re-filed misdemeanor charges. Because appellant was not brought to trial within 90 days of her arrest, we find that appellant‘s statutory right to a speedy trial was violated.2 The trial court‘s judgment is reversed, and appellant is ordered discharged pursuant to
YOUNG and RINGLAND, JJ., concur.