STATE OF OHIO v. DEAN M. PIERONEK
C.A. No. 18AP0031
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
October 21, 2019
[Cite as State v. Pieronek, 2019-Ohio-4305.]
SCHAFER, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. 2017 TR-D 008266
SCHAFER, Judge.
{1} Defendant-Appellant, Dean M. Pieronek, appeals from his conviction in the Wayne County Municipal Court. For the reasons that follow, this Court reverses.
I.
{2} On August 11, 2017, Mr. Pieronek, in the course of his employment as a driver for FedEx, was operating a truck along his route through Apple Creek in Wayne County. While driving the truck on Bank Street, Mr. Pieronek “heard a big bang” and immediately stopped his truck. He noticed a wire on the truck and, according to Mr. Pieronek, he informed a FedEx dispatcher “about hitting a wire and the damage to the poles.” Mr. Pieronek indicated that he waited approximately ten minutes to hear back from the dispatcher, who then instructed him to continue on his route and fill out an incident report when he got back. Mr. Pieronek left the scene and continued on his route to his next stop at a business located on Apple Creek Road.
{3} Meanwhile, a witness looking out of a window in the front room of his house had observed the FedEx truck get hooked on something at the intersection of Bank Street and County Road 44. He saw a wire come out of the transformer, followed by a shower of sparks, and the lights going out. The witness, who resides on West Wood Drive in Apple Creek, contacted the Wayne County Sheriff‘s office to report the incident. The witness also contacted the electric service provider to report the downed power line and approximately five or six poles. After the Highway Patrol arrived, the witness gave a statement to Trooper Hannah Hill.
{4} While on his mandatory break, Mr. Pieronek received a message from a FedEx dispatcher instructing him to return to the location where he had struck the wire. Mr. Pieronek met with Trooper Hill and gave a statement. Trooper Hill cited Mr. Pieronek for violating
{5} The complaint filed in the Wayne County Municipal Court originally charged Mr. Pieronek for violating
{6} The matter was set for trial and, after several continuances of the trial date, the matter proceeded to a bench trial. After the State presented its case, Mr. Pieronek moved the trial court for a judgment of acquittal pursuant to
{7} The trial court found Mr. Pieronek guilty of “hit skip” in violation of
II.
Assignment of Error I
The trial court committed prejudicial error by not granting defense counsel‘s [Crim.R.] 29 motion, since it was undisputed that the incident in question did not involve a collision with either a pedestrian or another motor vehicle nor did it occur upon public road or highway as required by
Assignment of Error II
The evidence presented at trial was insufficient to sustain a finding of guilt for hit-skip pursuant to
{8} In his first assignment of error, Mr. Pieronek contends that the trial court erred by denying his
{9}
{10}
{11} In support of his sufficiency argument, Mr. Pieronek cites to State v. Cutlip, 9th Dist. Summit No. 28735, 2018-Ohio-726. In Cutlip, this Court found insufficient evidence to support a conviction for failure to stop where the collision occurred after Mr. Cutlip left the roadway, collided with a mailbox adjacent to the road, and landed in a ditch. Recognizing in Cutlip that the accident did not, as it must, “occur on a public road or highway[,]” we concluded that the trial court erred by denying Mr. Cutlip‘s
{12} Despite Mr. Pieronek‘s insistence that the outcome in Cutlip is determinative of this case, the facts of the present matter are wholly distinguishable from the facts at issue in Cutlip. Here, Mr. Pieronek does not claim that the collision occurred after he left the roadway, nor does he attempt to establish that the overhead wires with which he collided were located adjacent to the roadway. In his merit brief, Mr. Pieronek asserts that it is “undisputed” that he “was lawfully driving his FedEx tractor trailer on a road he had travel[ed] many times before when his vehicle somehow caught on overhanging power line.” Indeed, such facts are not in dispute. By Mr. Pieronek‘s own admission, he was operating his vehicle on the road when it
{13} Mr. Pieronek‘s first and second assignments of error are overruled.
Assignment of Error III
The verdict of guilty for hit-skip pursuant to
{14} In his third assignment of error, Mr. Pieronek asserts that the verdict was against the manifest weight of the evidence. When considering an argument that a criminal conviction is against the manifest weight standard, this Court is required to
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against the conviction[.]” Thompkins at 387.
{15} Although Mr. Pieronek‘s merit brief does set forth the standard of review for a manifest weight challenge, he does not articulate a manifest weight argument. Mr. Pieronek instead asserts that “it is clear that controlling case law was not followed” and briefly reiterates the arguments presented in his first assignment of error. In doing so, Mr. Pieronek fails to provide citations to the parts of the record on which his contention is based and has not presented
{16} Mr. Pieronek‘s third assignment of error is overruled.
Assignment of Error IV
The trial court denied [Mr. Pieronek] due process by prohibiting all of [his] subpoenaed witnesses from testifying[.]
{17} In his fourth assignment of error, Mr. Pieronek contends that the trial court erred by granting the State‘s motion to exclude all of his subpoenaed witnesses from testifying. We agree.
{18} A defendant‘s “right to offer the testimony of witnesses * * * is in plain terms the right to present a defense,” and “[t]his right is a fundamental element of due process of law.” City of Lakewood v. Papadelis, 32 Ohio St.3d 1, 4-5 (1987), quoting Washington v. Texas, 388 U.S. 14, 19 (1967). Yet, where the defendant fails to properly disclose witnesses, it is within the discretion of the trial court “to exclude testimony that is not disclosed in a timely manner in order to prevent surprise and ensure a fair trial.” State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 30. However, “the sanction of exclusion may infringe on a criminal defendant‘s Sixth Amendment right to present a defense, particularly where * * * all the defendant‘s witnesses are excluded.” Papadelis at 5.
{19}
{20} We review a trial court‘s decision regarding a
{21} After the close of the State‘s case, counsel for Mr. Pieronek attempted to call the first witness for the defense. The State objected to the witness testifying on the grounds that Mr. Pieronek had not provided the State with a witness list. Mr. Pieronek‘s trial counsel countered the State‘s claim, asserting that the “[w]itnesses were identified,” that she issued subpoenas to each witness, and that copies of the subpoenas were provided to the court and also to the State each and every time this case was set for trial.
{22} The State acknowledged that they received notice of the subpoenas for the defense witnesses prior to the trial and that they had “received subpoenas every time[.]” However, the State argued that Mr. Pieronek‘s efforts were insufficient because
{23} At issue in Bennet was the State‘s act of providing the defendant with a copy of a police report and informing Mr. Bennet of its intention to call as witnesses all of the individuals mentioned therein. Considering the purpose and the language of
this Court believes that when
Crim.R. 16 requires the parties to exchange witnesses lists, the rule means exactly what it says. It does not say that parties may exchange documents from which the identities of potential witnesses may possibly be gleaned, but requires the exchange of witness lists.
Bennet at ¶ 6. Despite having determined that the State failed to comply with
{24} In the present matter, the trial court reviewed the record and informed the parties of its conclusion that, regardless of the subpoenas identifying the defense witnesses, Mr. Pieronek failed to provide a witness list. The record reflects that counsel for Mr. Pieronek attempted to persuade the trial court that these witnesses were not a surprise to the State, and argued that an adverse ruling regarding the witnesses would prevent Mr. Pieronek from presenting a defense. The trial court declined to consider whether the State was prejudiced or surprised by the witness, indicating instead that the Bennet case was “dead on point” and it does not “even get into the whole issue about surprise” before concluding that the court was bound to follow the case in its decision. The trial court then ruled, “in accordance with [Bennet,]” that the defense failed to demonstrate that a witness list had been provided to the State prior to trial, sustained the State‘s objection, and excluded the testimony of Mr. Pieronek‘s witnesses. After
{25} The trial court‘s application of the holding in Bennet to the facts of this case is questionable in and of itself. The record is clear that Mr. Pieronek subpoenaed six witnesses—Trooper Elliot Rawson, Jeremey Carson, Mike Cullop, Ryan Fisher, Joe Hensley, and Rich Stichle—to attend and give testimony at trial on Thursday, May 17, 2018, and served a copy of each subpoena on the assistant prosecuting attorney handling the case. Although these subpoenas do not constitute the single document containing a list of witnesses—which would be the preferred method for ensuring compliance with
{26} Even if we were to assume that the subpoenas failed to comply with the witness list requirement in
{27} Prior to imposing sanctions, “a trial court must inquire into the circumstances surrounding a violation of
{28} The record reflects that the trial court declined to consider any of the circumstances surrounding the purported discovery violation. To the contrary, the trial court evinced a faulty belief that it was precluded by law from considering whether the prosecution would be surprised or prejudiced by the testimony of witnesses all of whom, the State was admittedly aware, had been subpoenaed to testify at trial. Nor did the trial court take into account the impact that exclusion of all defense witness would have on the trial and on the outcome of the case: effectively denying Mr. Pieronek the ability to present a defense. Furthermore, the record reflects that the trial court did not contemplate any alternative to this sanction, much less consider the feasibility of a sanction less severe than the exclusion of Mr. Pieronek‘s witness.
{29} Based on the foregoing, we conclude that the trial court abused its discretion. “[T]he trial court did not indicate that it balanced the [S]tate‘s interests against [Mr. Pieronek‘s] Sixth Amendment right to present a defense by considering any sanction other than excluding the testimony of his witnesses.” Papadelis, 32 Ohio St.3d at 5. Thus, without considering whether it was an appropriate sanction, the trial court arbitrarily applied the exceedingly harsh sanction of
Assignment of Error V
[Mr. Pieronek] was denied due process and a fair trial d[ue] to the prosecutorial misconduct of the state of Ohio[.]
Assignment of Error VI
[Mr. Pieronek] received ineffective assistance from his trial counsel.
{30} In his fifth assignment of error, Mr. Pieronek argues that he was denied due process based on prosecutorial misconduct that deprived him of a fair trial. In his sixth assignment of error, he contends that his trial counsel was ineffective for failure to strictly comply with
III.
{31} Mr. Pieronek‘s first, second, and third assignments of error are overruled. His fourth assignment of error is sustained, and his fifth and sixth assignments of error are moot. The judgment of the Wayne County Municipal Court is reversed and remanded for proceedings consistent with this decision.
There were reasonable grounds for this appeal.
Judgment reversed and cause remanded.
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.
Costs taxed to Appellee.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.