STATE OF OHIO v. HEZEKIAH M. MOORE
CASE NOS. 14-14-06, 14-14-07, 14-14-08, 14-14-11, 14-14-12
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
November 3, 2014
2014-Ohio-4879
WILLAMOWSKI, P.J.
Appeals from Marysville Municipal Court, Trial Court Nos. CRB1200323, TRC1202111B, TRC1201397A, CRB1200324 and CRB1200206
STATE OF OHIO, PLAINTIFF-APPELLEE, v. HEZEKIAH M. MOORE, DEFENDANT-APPELLANT. OPINION. CASE NO. 14-14-06
STATE OF OHIO, PLAINTIFF-APPELLEE, v. HEZEKIAH M. MOORE, DEFENDANT-APPELLANT. OPINION. CASE NO. 14-14-07
STATE OF OHIO, PLAINTIFF-APPELLEE, v. HEZEKIAH M. MOORE, DEFENDANT-APPELLANT. OPINION. CASE NO. 14-14-08
STATE OF OHIO, PLAINTIFF-APPELLEE, v. HEZEKIAH M. MOORE, DEFENDANT-APPELLANT. OPINION. CASE NO. 14-14-12
Appeals from Marysville Municipal Court Trial Court Nos. CRB1200323, TRC1202111B, TRC1201397A, CRB1200324 and CRB1200206
Judgments Reversed
Date of Decision: November 3, 2014
APPEARANCES:
Alison Boggs for Appellant
John M. Eufiner for Appellee
{1} In this consolidated action, Defendant-appellant Hezekiah Moore (“Moore“) appeals the judgments of the Marysville Municipal Court of Union County, Ohio, overruling his motions for speedy trial and finding him guilty of multiple charges, as listed below, upon his entry of no contest pleas in five separate cases, labelled as CRB 1200323 (App. # 06), TRC 1202111 (App. # 07), TRC 1201397 (App. # 08), CRB 1200324 (App. # 11), and CRB 1200206 (App. # 12). For the reasons that follow, we reverse the trial court‘s judgments.
{2} The procedural facts relevant to this opinion indicate that on March 15, 2012, Moore was charged with multiple traffic offenses, including OVI (operation of a vehicle under the influence), speeding, operation without a license, and a lane violation, in Union County case number TRC 1201397 (App. # 08). On the same date, Moore was charged with failure to comply with an order of a police officer (fleeing and eluding), in case number CRB 1200206 (App. # 12). On March 21, Moore filed a plea of not guilty and he was released on a personal recognizance bond. A jury trial for these two cases was scheduled for May 25, 2012.
{3} On April 20, 2012, Moore was charged with another OVI, as well as operation with a suspended license, operation without a license, and noncompliance with suspension, in case number TRC 1202111 (App. # 07). On
{4} It appears that the scheduled jury trials did not take place. A filing in one of the five cases, TRC 1201397, indicates that on May 17, 2012, Moore failed to appear in court for a pretrial and the trial court issued a bench warrant for his arrest. No other filings appear in the cases until January 2013.
{5} On January 23, 2013, Moore filed a motion for speedy trial pursuant to
{6} On March 27, 2013, the State filed a response in opposition to Moore‘s motion, requesting the trial court “to deny action” upon the motion, because it “failed to comport with the requirements of
{8} On February 27, 2014, a notice of hearing was filed, indicating that all cases had been assigned for a hearing. (R. at 12.) The hearing took place on March 6, 2014. Moore was represented by his attorney Mr. Parsons, who started with an argument regarding the January 2013 motion for speedy trial. (Tr. of Proceedings (“Tr.“) at 3, Mar. 6, 2014.) Through his counsel, Moore argued that he substantially complied with the requirements of
{9} The trial court refused to dismiss the cases for violation of speedy trial rights, stating, “I don‘t think the statute was complied with even substantially in the case.” (Id. at 7:1-4.) Following the trial court‘s decision, Moore entered pleas of no contest to each of the charges. (Id. at 8-14.) The trial court found him guilty of OVI in case TRC 1201397, fleeing and eluding in case CRB 1200206, assault in case CRB 1200323, driving under suspension in case TRC 1202111, and possession of drug paraphernalia in case CRB 1200324. The remaining charges have been dismissed. (Id.)
{10} Moore now appeals raising one assignment of error.
APPELLANT‘S SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT OVERRULED HIS MOTION TO BRING HIS CASES TO TRIAL WITHIN 180 DAYS AFTER HE NOTIFIED THE COURT AND PROSECUTOR THAT HE WAS INCARCERATED.
Legal Framework for Review of this Case
{11} “Appellate review of speedy-trial issues involves a mixed question of law and fact.” State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, 876
{12} Moore‘s request for speedy trial was based on
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 that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.
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.
The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right to make a request for final disposition thereof.
* * *
If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.
{13} We recognize that the language of
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
(c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
(d) * * * If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
* * *
Requirement of Compliance with
{14} Moore‘s entire argument focuses on the question of whether the trial court properly denied his request for dismissal, which was based on the alleged violation by the State of the speedy trial statute,
{15} The Ohio Supreme Court held that the initial duty under
{16} We note the apparently mandatory nature of
{17} The standard for substantial rather than strict compliance with the statute might be justified by the nature of the right that the statute protects, i.e., the right to a speedy trial. The Ohio Supreme Court recognized that ” ‘[t]he right to a speedy trial is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution, made obligatory on the states by the Fourteenth Amendment. Section 10, Article I of the Ohio Constitution guarantees an accused this same right.’ ” State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032, ¶ 11, quoting State v. Hughes, 86 Ohio St.3d 424, 425, 715 N.E.2d 540 (1999). That is why the Ohio Supreme Court has “repeatedly announced that the trial courts are to strictly enforce the legislative mandates [of the speedy trial statutes]” and construe them against the state. State v. Pachay, 64 Ohio St.2d 218, 221, 416 N.E.2d 589 (1980); see also Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996); Hughes, 86 Ohio St.3d at 427; Masters, 172 Ohio App.3d
{18} Review of Ohio cases indicates that substantial compliance with
{19} Analyzing what is reasonably required of an incarcerated criminal defendant under the statute, the Ohio Supreme Court held:
A careful review of Article III(a) of
R.C. 2963.30 reveals that the prisoner “shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer‘s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint * * *.” (Emphasis added.) The other requirements listed in Article III(a) are the responsibility of the officials having custody of the prisoner.Article III(b) of the agreement then requires that the written notice of the prisoner “* * * shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him * * *.” The remainder of subsection (b) provides the other responsibilities of the officials having custody of the prisoner.
{20} In Mourey, the Ohio Supreme Court was asked to determine when the 180-day time period begins to run. Id. at 485. The court found that the defendant substantially complied with the statute and that therefore, the time began to run when the defendant ” ‘caused to be delivered’ his IAD request form to the California prison officials.” Id. This was found to substantially satisfy the statute, even though the appropriate prosecutor and the court had not been notified of the request yet.6 Id. at 484. Therefore, in spite of the fact that the Ohio Supreme Court recognized two procedures required under the statute, it found substantial compliance upon satisfaction of one of the procedures only. It appears that the Ohio Supreme Court justified this low standard for inmate‘s compliance with the statute by reasoning that the prisoner should not be held “accountable for measures and duties that are totally beyond his or her control.” Id. at 487.
{22} Other cases in Ohio confirm this low standard for substantial compliance with
[f]or appellant to have strictly followed the
R.C. 2941.401 requirements, he should have given his written notice to the prison authorities, who should have forwarded it to the prosecutor and court along with a certificate of inmate status. However, it is clear that, although appellant did not strictly follow that path, the required information arrived at the proper place.
Id. at ¶ 41. The court further noted that upon receipt of the inmate‘s request for speedy trial “[a]ll the State needed to do was communicate with the warden of the institution where appellant was incarcerated to obtain the appropriate certificate.” Id. at ¶ 52.
The State cannot avoid the application of
R.C. 2941.401 by neglecting to inform the custodial warden or superintendent of the source and content of an untried indictment when the State is aware of the defendant‘s location and the source and content of the untried indictment and the defendant has made a demand for speedy disposition of the same.
Id.7
{23} A case from the Eighth District Court of Appeals dealt with facts almost identical to the case at issue. In State v. Barrett, 191 Ohio App.3d 245, 2010-Ohio-5139, 945 N.E.2d 1070 (8th Dist.), an inmate “sent notice to the trial court of his availability and requested that the criminal case move forward.” Id. at
{24} The Ohio Supreme Court has not addressed the exact facts with which we are faced in this case, where an incarcerated defendant requests speedy trial under
{25} In Daugherty v. Solicitor for Highland Cty., 25 Ohio St.2d 192, 267 N.E.2d 431 (1971), an inmate submitted letters “to the prosecuting authorities and the Common Pleas Judge,” requesting “either a trial or dismissal of the charge for lack of prosecution.” Id. at 192. The prosecution argued that “no proper demand
{26} We acknowledge the conflict between the mandatory language of
{27} Several courts in Ohio refused to so significantly lower requirements of the statute. For instance, in State v. York, an inmate sent a letter to the clerk of courts “requesting ‘information as to what [he] must do to have [the] detainer disposed of.’ ” 66 Ohio App.3d 149, 151, 583 N.E.2d 1046 (12th Dist.1990). The clerk forwarded the letter to the trial court, who in turn forwarded it to the appropriate prosecutor. Id. Because “no notice of the alleged request was given to prison officials * * * [,] the alleged request was not accompanied by a certificate of inmate status.” Id. at 153-154. The Twelfth District Court of Appeals held that “[n]otice to the prison officials and the certificate of inmate status are indispensable and essential to effectuate the purposes of the I.A.D.” Id. at 154. We note that York was decided prior to the Ohio Supreme Court‘s decision in Mourey, where the court held that substantial compliance requires the defendant to do “everything reasonably required of him that was within his control” and did not find the certificate of inmate status to be indispensable and essential for
{28} The Twelfth and Sixth districts focused on the requirement that the inmate files his or her request with the officials “having custody of him.” See
{29} Although we recognize the position taken by the courts in the Twelfth and the Sixth districts, and the mandatory language of
Compliance of Moore‘s Request for Speedy Trial with
{30} As we have previously stated, under the express language of
{31} With respect to the first requirement, Moore filed his request for speedy trial on January 23, 2013. Although this request was not initially served on the proper prosecuting attorney, the State‘s response on March 27, 2013, proves that the notice and the request were “cause[d] to be delivered” to it by this date, at the latest. See
{32} With respect to the second statutory requirement, although Moore‘s request was not accompanied by the necessary warden‘s certificate, Moore attached a printout of the “Offender Search” page from the Ohio Department of Rehabilitation and Correction website with information concerning his status at Southeastern Correctional Institution. While the printout was not authenticated or notarized, it did list “the term of commitment under which [Moore was] being held,” the admission date and the expiration of his stated term, as are required to be listed on the certificate under
{33} The dissenting justices in Mourey noted that the certificate was important because the information contained within it “is vital, and it may be difficult for the prosecuting attorney to make an informed decision on whether to prosecute the prisoner on the pending charges without receipt of a completed certificate of the official having custody of the prisoner.” (Emphasis sic.) Mourey, 64 Ohio St.3d at 489-490, 597 N.E.2d 101 (Resnick, J., Moyer, C.J., and Holmes, J., dissenting). In this case, Moore provided much of this “vital” information to the prosecuting attorney in his case. Additionally, the decision to prosecute had already been made, as charges in all cases relevant to this appeal had actually been filed before his incarceration in an unrelated case. Therefore, the concern raised by lack of the certificate by the dissenters in Mourey is not as significant in this case. See Pierce, 8th Dist. Cuyahoga No. 79376, 2002 WL 337727, *3, fn. 2 (citing the Mourey dissent and explaining that “the certificate does not have the same function when a case is already in court and is proceeding to trial“).
{34} With respect to the third statutory requirement, although no evidence was provided that Moore had given his notice and request “to the warden or superintendent having custody of him,” he argued in the trial court that he “did what he was required to do” and that he “can‘t be held liable for the warden not
{35} Based on the review of the Ohio law and our analysis of the statute and the facts of this case, we hold that Moore substantially complied with
{36} For the foregoing reasons, Moore‘s assignment of error is sustained.
Conclusion
{37} Having reviewed the arguments, the briefs, and the record in this case, we find error prejudicial to Appellant in the particulars assigned and argued. The judgments of the Marysville Municipal Court of Union County, Ohio are therefore reversed.
Judgments Reversed
ROGERS, J., concurs.
PRESTON, J., dissents.
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