State v. OndrusekState v. Ondrusek
Dated: June 21, 2010
MOORE, Judge.
{¶1} Appellant, Daniel Ondrusek, appeals from the decision of the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶2} In January of 2007, Ondrusek was serving a four-year prison term. During his incarceration, on January 25, 2007, a new indictment was filed, charging Ondrusek with fourteen counts of gross sexual imposition, in violation of
{¶3} On August 5, 2008, Ondrusek filed a motion to dismiss on speedy trial grounds. On October 23, 2008, the trial court denied Ondrusek’s motion. On April 2, 2009, Ondrusek changed his plea of not guilty to no contest. The trial court found Ondrusek guilty of the
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING [] ONDRUSEK’S MOTION FOR DISMISSAL OF THE INDICTMENT BASED UPON THE VIOLATION OF ONDRUSEK’S RIGHT TO A SPEEDY TRIAL[.]”
{¶4} In his sole assignment of error, Ondrusek contends that the trial court committed error when it denied his motion to dismiss the indictment based upon a violation of his right to a speedy trial. We do not agree.
{¶5} A trial court’s ruling on a motion to dismiss on speedy trial grounds presents a mixed question of law and fact. State v. Murray, 9th Dist. No. 03CA008330, 2004-Ohio-4966, at ¶13. When reviewing Ondrusek’s claim that the trial court erred in denying his motion to dismiss, this Court applies the de novo standard of review to questions of law. State v. Davis, 9th Dist. No. 08CA009412, 2008-Ohio-6741, at ¶22; State v. Thomas (Aug. 4, 1999), 9th Dist. No. 98CA007058, at *4.
{¶6} Ondrusek first argues that the trial court violated the statutory speedy trial protections of
“‘
R.C. 2941.401 controls the speedy trial rights of a defendant who is in prison.’ State v. Smith (2000), 140 Ohio App.3d 81, 89 []. In fact,R.C. 2941.401 supplants the provisions ofR.C. 2945.71 . See State v. Stewart, 2d Dist. No. 21462, 2006-Ohio-4164, at ¶22 (‘the great weight of authority *** support[s] *** the proposition that once a person under indictment has begun serving a prisonsentence in another case, the provisions of R.C. 2941.401 apply, to the exclusion of the provision ofR.C. 2945.71 , et seq., so that the running of speedy trial time under the latter statute is tolled.’)” Id. at ¶19.
{¶7} The parties agree that Ondrusek was incarcerated as a result of other charges. Accordingly, Ondrusek’s contention that the trial court violated his speedy trial rights pursuant to
{¶8} Ondrusek further contends that his speedy trial rights were violated pursuant to
“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 ***.
“***
“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.”
{¶9} Pursuant to
{¶10} Ondrusek made only a passing reference to
{¶11} The Ohio Supreme Court has determined that the clear language of
{¶12} Ondrusek does not contend here or below that he complied with the mandate of
III.
{¶13} Ondrusek’s sole assignment of error is overruled. The judgment of the Lorain 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 Lorain, State of Ohio, to carry this judgment into execution. 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 to run. App.R. 22(E). 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.
CARLA MOORE
FOR THE COURT
DICKINSON, P. J.
CONCURS
CONCURS IN JUDGMENT ONLY SAYING:
{¶14} I concur in the judgment of the Court. I do so because Ondrusek’s argument in the trial court focused almost exclusively on
{¶15} I do not believe that the Supreme Court intended State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, to universally preclude an incarcerated defendant from succeeding under a
{¶16} In Hairston, the Supreme Court noted that:
“[t]he facts here demonstrate that Hairston knew of his arrest, knew he had been apprehended in the bar, and knew that the police had removed from his waistband the money taken from the blue bag discovered during the robbery. He also knew that the prosecutor had charged him by information; despite this, he waited until June 2001 to seek to enforce
R.C. 2941.401 .” Id. at ¶25.
Further, “the warden had no knowledge of any of the charges pending against [Hairston].” Id. at ¶21. Based upon those facts, the Supreme Court held that:
“
R.C. 2941.401 places a duty on an incarcerated defendant to ‘cause[] to be delivered to the prosecuting attorney and the appropriate court * * * written notice of the place of his imprisonment and a request for a final disposition to be made of the matter[]’ and that the duty to bring such a defendant to trial within 180 days of the written notice and request arises only after receipt of that statutory notice.” Id. at ¶26.
{¶17} The Supreme Court later distinguished Hairston in State v. Dillon, 114 Ohio St.3d 154, 2007-Ohio-3617. While Dillon was in prison on other charges, the prosecutor advised him that there was a pending indictment against him and of his right to request a speedy trial. Id. at
{¶18} The Court concluded that “an inmate’s awareness of a pending indictment and of his right to request trial on the pending charges [does not satisfy] the notification requirements of
{¶19} Thus, it is clear that the defendant’s failure to file a request under
“[t]he 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.
{¶20} Thus, in my view there are situations in which Hairston’s broad holding is clearly distinguishable. However, Ondrusek has not established when in time the State knew where he was. Alternatively, as in Dillon, there is no suggestion that once the State knew where Ondrusek
APPEARANCES:
BRIAN J. DARLING, Attorney at Law, for Appellant.
DENNIS WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.