2016 Ohio 7029
Ohio Ct. App.
2016

STATE OF OHIO v. DARRION OLLISON

C.A. No. 27994

IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT

September 28, 2016

2016-Ohio-7029

WHITMORE, Judge.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 06 1801

DECISION AND JOURNAL ENTRY

WHITMORE, Judge.

{¶1} Appellant, Darrion Ollison, appeals from the October 5, 2015 judgment of the Summit County Court of Common Pleas. This Court affirms.

I

{¶2} On June 5, 2014, a criminal complaint was filed in Akron Municipal Court charging Mr. Ollison with engaging in “sexual [conduct] with a minor female child * * *, who is pregnant and due July 8, 2014.” At that time, the Akron Municipal Court also issued an arrest warrant. On April 26, 2015, the Akron Police arrested Mr. Ollison on the pending complаint. On June 22, 2015, the Summit County Grand Jury issued an indictment against Mr. Ollison for unlawful sexual conduct with a minor, in violation of R.C. 2907.04, а felony of the fourth degree. At his arraignment, Mr. Ollison pleaded not guilty to the charge in the indictment.1

{¶3} Mr. Ollison then filed a motion to dismiss for an alleged violation of his statutory right to a speedy trial. In his mоtion, Mr. Ollison argued that the indictment should be dismissed because the Akron Municipal Court‘s complаint for unlawful sexual conduct had been pending “for over one year,” and that his speedy trial time ‍​​​​‌‌​‌‌​​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌​​​​‌‌‌‌‌​​​‌​​‌​‌‍should have started running at the filing of the complaint. In response, the State argued that Mr. Ollison evaded arrest by (1) missing scheduled interviews with Detective Susan Hackbart and Children‘s Services, (2) missing meetings with his parole officer, and (3) failing to attend community control hearings. Further, in citing State v. Szorady, 9th Dist. Lorain No. 02CA008159, 2003-Ohio-2716, and R.C. 2945.71(C)(2), the State argued that Mr. Ollison‘s speedy trial time begins “to run on the day after [his] arrest or service of summons.” (Emphаsis deleted.)

{¶4} After a hearing at which Detective Susan Hackbart testified on behalf of the State, the trial court denied Mr. Ollison‘s motion. Mr. Ollison then changed his plea to no contest. The triаl court found him guilty of unlawful sexual conduct with a minor and sentenced him to six months of imprisonment and fivе years of post-release control.

{¶5} Mr. Ollison now appeals, raising one assignment of error.

II

Assignment of Error Number One

THE TRIAL COURT ERRED BY DENYING [MR. OLLISON‘S] MOTION TO DISMISS FOR WANT OF SPEEDY TRIAL BECAUSE THE CHARGE WAS FILED AND REMAINED PENDING IN MUNICIPAL COURT FOR OVER 270 DAYS WITHOUT ISSUANCE OF ANY CAPIAS TO TOLL STATUTORY TIME.

{¶6} In his sole assignment of error, Mr. Ollison argues that the trial court erred in denying ‍​​​​‌‌​‌‌​​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌​​​​‌‌‌‌‌​​​‌​​‌​‌‍his motion to dismiss for аn alleged violation of the statutory time within which to bring him to trial. Specifically, Mr. Ollison contends that, after the filing of the Akron Municipal Court‘s complaint, a capias should have been filеd to toll his speedy trial time. We disagree.

{¶7} R.C. 2945.73(B) states that “[u]pon motion made at or prior tо the commencement of trial, a person charged with an offense shall be dischargеd if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.” Further, R.C. 2945.71(C)(2) provides that “[a] person against whom a charge of felony is pending * * * [s]hall be brought to trial within two hundred seventy days after the person‘s arrest.” “The time within which an accused must be brought to trial may be extended as provided in R.C. 2945.72.” State v. Wheeler, 9th Dist. Wayne No. 15AP0025, 2016-Ohio-4690, ¶ 4.

{¶8} Recently, in Wheeler, this Court addressеd a factually similar situation wherein the appellant, Mr. Wheeler, argued that “his speedy trial time [should have] began to run when his indictment was filed[,]” and that “the delay between the indictment and thе arrest was unreasonable, and thus [could not] serve to toll the speedy trial time.” Id. at ¶ 5, 7. In Wheeler, the indictmеnt was filed on May 17, 2014, and the motion to dismiss ‍​​​​‌‌​‌‌​​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌​​​​‌‌‌‌‌​​​‌​​‌​‌‍was filed 311 days after the filing of the indictment. Id. at ¶ 5. However, in overruling his sрeedy trial argument, we stated that “the clear wording of [R.C. 2945.71(C)(2)] provides that a person against whom a charge of a felony ‘is pending’ must be brought to trial ‘within two hundred seventy days after the person‘s arrest.‘” (Emphasis sic.) Id. at ¶ 6, quoting R.C. 2945.71(C)(2). Further, we stated that “‘[t]ime is calculated to run the day after the date of arrest.‘” Wheeler at ¶ 6, quoting State v. Browand, 9th Dist. Lorain No. 06CA009053, 2007-Ohio-4342, ¶ 12. We determined that “as calculated from the day after Mr. Wheeler‘s arrest, there existed no speedy trial violation under R.C. 2945.71(C)(2).” Wheeler at ¶ 6. “[H]aving concluded that Mr. Wheeler‘s case proceeded within the time limitations imposed under R.C. 2945.71(C)(2),” we declined to “address arguments relative ‍​​​​‌‌​‌‌​​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌​​​​‌‌‌‌‌​​​‌​​‌​‌‍tо the tolling of that time.” Id. at ¶ 7.

{¶9} Here, the Akron Police arrested Mr. Ollison on April 26, 2015, and he filed his motion to dismiss оn July 8, 2015. On September 30, 2015, Mr. Ollison pleaded no contest to the indicted charge, which was journalizеd in the trial court‘s judgment entry on October 5, 2015. As such, from the date after Mr. Ollison‘s arrest, to the date оf resolution of this matter, approximately 161 days passed. This falls squarely within the speedy trial timе limitations proscribed in R.C. 2945.71(C)(2). Therefore, based upon our precedent in Wheeler, we conclude that there is no merit to Mr. Ollison‘s speedy trial argument, nor is there a need to discuss the tolling of time. See Wheeler at ¶ 7.

{¶10} Mr. Ollison‘s sole assignment of error is overruled.

III

{¶11} Mr. Ollison‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into executiоn. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk ‍​​​​‌‌​‌‌​​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌​​​​‌‌‌‌‌​​​‌​​‌​‌‍of the Court of Appeals at which time the period for review shall begin tо run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE

FOR THE COURT

CARR, P. J.

SCHAFER, J.

CONCUR.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prоsecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

Notes

1
A supplemental indictment was filed on September 21, 2015, for two counts of importuning, in violation of R.C. 2907.07(B)(1)/(D)(1), felonies of the fifth degree. The State later dismissed these charges as part of Mr. Ollison‘s plea bargain.