STATE OF OHIO, PLAINTIFF-APPELLEE, v. JERROD E. POOLER, DEFENDANT-APPELLANT.
CASE NO. 8-16-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
July 25, 2016
2016-Ohio-5099
Appeal from Bellefontaine Municipal Court, Trial Court No. 15-TRC-03382. Judgment Reversed.
Natalie J. Bahan for Appellant
Joe Bader for Appellee
{¶1} Defendant-Appellant, Jerrod Pooler, appeals the judgment of the Bellefontaine Municipal Court convicting him of operating a vehicle under the influence of alcohol and sentencing him to 180 days in jail. On appeal, Pooler argues that the trial court erred by denying his motion to dismiss the charges based on speedy trial grounds. For the reasons that follow, we reverse the judgment of the trial court.
{¶2} On August 3, 2015, Pooler was arrested and issued a citation charging him with one count of operating a vehicle while under the influence of alcohol in violation of
{¶3} That same day at approximately 5:44 a.m., Pooler was released on his own recognizance and was ordered to appear in the Bellefontaine Municipal Court
{¶4} On August 10, 2015, Pooler was arraigned on all charges and was appointed counsel. The trial court set a trial date of September 14, 2015, and the $5,000 cash or surety bond remained in place.
{¶5} Pooler‘s counsel filed a request for discovery on September 8, 2015. He also filed motions to convert the trial date into a pre-trial conference and to preserve any evidence that same day. The trial court granted both of Pooler‘s motions later that day.
{¶6} On September 14, 2015, the trial court filed an entry scheduling a change of plea hearing on September 15, 2015.
{¶7} Appearing to reject a plea deal, Pooler was given a new trial date of November 2, 2015. The same $5,000 cash or surety bond remained.
{¶8} On October 30, 2015, Pooler‘s current appellate counsel filed a motion to substitute as counsel. Likewise, Pooler‘s initial counsel filed a motion to withdraw as counsel in this case. Both motions were granted that afternoon.
{¶10} On November 6, 2015, Pooler filed a motion to dismiss based on speedy trial grounds.
{¶11} A hearing was held on November 12, 2015. Present were the trial judge, Pooler, and his counsel. Pooler‘s counsel indicated that the State did not oppose Pooler‘s motion, but the prosecutor did not appear for the hearing. The court found that several occurrences tolled time for speedy trial purposes, including the time from the date of his first scheduled arraignment and his actual arraignment.
{¶12} At the conclusion of the hearing, the court denied Pooler‘s motion. Further, Pooler was released on his own recognizance subject to certain conditions.
{¶13} The State responded to Pooler‘s discovery request on December 18, 2015.
{¶14} On December 23, 2015, Pooler pleaded no contest to one count of operating a vehicle while under the influence of alcohol in violation of
{¶15} Pooler filed this timely appeal, presenting the following assignment of error for our review.
Assignment of Error
THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S MOTION TO DISMISS DUE TO A VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.
{¶16} Before we address the merits of Pooler‘s appeal, we must first briefly address the State‘s argument that the appeal should be dismissed due to the defective notice of appeal. The State argues that the appeal should be dismissed because Pooler‘s notice of appeal only lists the entry of conviction and sentence as the judgment from which he appeals and not the entry denying Pooler‘s motion to dismiss.
{¶17}
{¶18} The problem with the State‘s argument is that the trial court‘s entry denying Pooler‘s motion to dismiss was not a final appealable order because it was not followed by a nolle prosequi. See City of Middletown v. Jackson, 8 Ohio App.3d 431, 432 (12th Dist.1983). Rather, it was merely an interlocutory order. See id. The only final appealable order was the formal entry of conviction and sentence. Thus, Pooler‘s notice of appeal was sufficient as he is challenging his conviction and sentence based on an error by the trial court (denying his motion to dismiss).
{¶19} In his sole assignment of error, Pooler argues that the trial court erred by denying his motion to dismiss the charges based on speedy trial grounds. We agree.
{¶20} Our standard of review upon an appeal raising a speedy trial issue is to count the expired days as directed by
{¶21} Under the applicable statutory speedy trial provision,
{¶22} Pooler was arrested on August 3, 2015, released on his own recognizance, appeared in court, and was later remanded to jail in lieu of bond that same day. For the purposes of calculation, this day is excluded. The speedy trial clock began on August 4, 2015. Because Pooler remained in jail until mid-November 2015, the State was required to bring Pooler to trial within 30 days, which would have expired on September 2, 2015. Pooler‘s motion to dismiss was filed on November 6, 2015. Since this was clearly beyond the statutory limit, Pooler‘s motion should have been granted unless certain actions tolled the speedy trial clock beyond that date.
{¶23} Pooler argues that the first action, which would have tolled time, was his initial counsel‘s discovery request filed on September 8, 2015. Because this was filed after the time for which the State was required to bring him to trial, Pooler argues that this action cannot be said to have tolled the speedy trial clock. We agree. Since the clock expired on September 2, 2015 (meaning the last day
{¶24} Here, the State failed to present any argument as to why the clock was tolled during this period. At the speedy trial hearing, the court found that the time between August 4 and August 10, 2015 was tolled because Pooler asked for his arraignment to be continued and, therefore, this period was not chargeable to the State. We disagree.
{¶25} Nothing in the record itself, other than the trial court‘s statement at the hearing, establishes that the continuance of the arraignment was made at Pooler‘s request. Again, if any ambiguity exists, we construe the record in favor of the accused. See Singer, 50 Ohio St.2d at 109. The entry continuing the arraignment does not include any language as to who requested the continuance. Thus, this action is not charged to Pooler.
{¶26} However, this does not end the analysis as the clock will be tolled for “the period of any reasonable continuance granted other than upon the accused‘s own motion[.]” (Emphasis added.)
{¶27} This court has recently found that when the trial court fails to provide its reasoning for granting a continuance, which is not on behalf of the defendant, that time is charged against the State. State v. Shafer, 3d Dist. Logan No. 8-14-28, 2015-Ohio-2469, ¶ 15, citing State v. Hohenberger, 189 Ohio App.3d 346, 2010-Ohio-4053, ¶ 47 (6th Dist.) Therefore, we find that the time between August 4 and August 10, 2015 is charged against the State.
{¶28} No other events occurred that would have tolled time before it expired on September 2, 2015. Thus, there is no need to discuss later events as the clock had already expired. Specifically, 35 days were chargeable against the State as of September 8, 2015. Because Pooler was in jail for all 35 days, the total, for speedy trial purposes, becomes 105, which is 15 days more than the statutory limit of 90. Therefore, Pooler‘s speedy trial rights were violated.
{¶29} Accordingly, we sustain Pooler‘s sole assignment of error.
{¶30} Having found error prejudicial to the appellant, in the particulars assigned and argued, we reverse the judgment of the trial court.
Judgment Reversed
SHAW, P.J. and WILLAMOWSKI, J., concur.
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