State v. Signorelli, 90157 (7-24-2008)State v. Signorelli, 90157 (7-24-2008)
JOURNAL ENTRY AND OPINION
{¶ 1} Appellant State of Ohio, Cleveland Metroparks, appeals the decision of the lower court. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court.
I.
{¶ 2} On June 11, 2006, defendant-appellee John F. Signorеlli (“Signorelli“) was arrested and charged in the city of Euclid by the Cleveland Metroparks with violation of
{¶ 3} Meanwhile, Signorelli failed to appear before the Euclid Municipal Court on November 9, 2006 as a result of his incarceration. Appellant‘s attorney appeared on his behalf before the Euclid Municipal Court on that date and related his circumstances, whereupon a capias was issued.
{¶ 4} On June 22, 2006, Signorelli appеared without counsel in Euclid Municipal Court and entered a plea of not guilty. On July 6, 2006, Signorelli‘s attorney, Terrence Carl, entered an appearance on behalf of Signorelli, appeared with Signorelli in court, and requested a continuance of the pretrial until August 3, 2006. On August 31, 2006, defense counsel appeared and indicated to the court that he was going to file a motion to reduce the
{¶ 5} On October 23, 2006, the court overruled the defense motion to reduce the charge and set the matter for a final pretrial on November 9, 2006. On November 9, 2006, Carl appeared in Euclid Municipal Court and indicated that his client was incarceratеd. The Euclid Municipal Court did not know where Signorelli was incarcerated, so capias was issued on that date.
{¶ 6} On May 7, 2007, counsel for the defendant and the Metroparks prosecutor appeared before the Euclid Municipal Court for an oral hearing on Signorelli‘s motion to dismiss, filed on March 26, 2007. In that motion Signorelli argued that statutory and constitutional speedy trial provisions mandated dismissal. The Euclid Municipal Court ordered counsel to prepare additional briefs on the issue of who bears the burden of transporting defendant for trial. On June 4, 2007, Signorelli filed a “Supplement to Defendant‘s Motion to Dismiss” which the lower court granted on June 19, 2007 and from which the state has appealed.
II.
{¶ 7} Appellant‘s first assignment of error provides the following: “The trial court committed revеrsible error in granting the defendant‘s motion to dismiss based on
{¶ 8} Appellant‘s second assignment of error provides the following: “The trial court committed reversible error in granting the defendant‘s motion to dismiss when it discounted the application of
III.
{¶ 9} Appellant arguеs that the court erred in granting defendant‘s motion to dismiss based on
{¶ 10}
“The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
“(A) Any period during which the accused is unavailable for hеaring or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercisеs reasonable diligence to secure his availability;” (Emphasis added.)
R.C. 2941.401 , in pertinent part, provides the following:“When a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untriеd indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he caused to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending written notice of his imprisonment and a request for a final disposition to be made on the matter * * *.”
{¶ 11} In addition, the statute places a responsibility upon the institution as follows:
“The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contеnts of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right to request a final disposition of those charges.” Id.
{¶ 12} It is well established that the Ohio speedy trial statute is mandatory, constitutional, and must be construed strictly against the state. Once a criminal defendant shows that he was not brought to trial within the permissible period, the accused presents a prima facie case for release. At that point, the burden shifts to the state to demonstrate that suffiсient time was tolled or extended under the statute. Furthermore, defendant‘s rights to a speedy trial may be waived provided that such waiver is either expressed in writing or made in open court on the record. Brook Park v. Clingman, Cuyahoga App. No. 88839, 2007-Ohio-4835.
{¶ 13} The Ohio Supreme Court has held that, pursuant to
{¶ 14} “An inmate‘s `notification of availability and request for final disposition’ can take several forms, depending on the circumstances of the inmate. Inmates are sometimes in halfway houses or municipal jail facilities where a warden or superintendent may or may not
{¶ 15} For appellee to have strictly followed the
{¶ 16} “While in general, the one hundrеd eighty day time requirement of
{¶ 17} The state cites and relies upon the Ohio Supreme Court‘s decision in State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, in urging us to reverse the trial court‘s order granting appellee‘s motion to dismiss. However, we find Hairston to be distinguishable from the case at bar. Unlike in Hairston, there is evidence in this case that the state and the trial court had previous knowledge of the fact Signorelli was incarcerated.
{¶ 18} Indeed, the trial court stated in its June 27, 2007 journal entry:
“It is uncontroverted that the defendant‘s attorney orally notified the court and the рrosecution on the record on November 9th that the defendant was incarcerated at the Lake County Jail. The prosecution is a bit disingenuous in his supplemental brief when he argues that he was never notified by the defendant as to his whereabouts.” (Emphasis added.)
{¶ 19} In addition to the statement in the journal entry above, the record reflects that Signorelli filed a pro se motion on March 21, 2007. Although his motion was overruled, the motion did inform the trial court that Signorelli was in jail and had a speedy trial issue. The trial judge mentioned Signorelli‘s pro sе motion on the record at the May 7, 2007 hearing when speaking with defense counsel.
“Just so you know, and I don‘t know if you know this, Mr. Carl, your client in March — — on March 21st of 2007 filed a — — I don‘t know what you call it. I get these all the time from people who are incarcerated. It is styled a Notice of Availability pursuant to Revised Code section
2941.401 that was filed in this clerk‘s office on March 21st of 2007.” (Emphasis added.)
“IN THE COURT OF Euclid Municipal Court, 555 E. 222nd St., Euclid, OH 44123
CASE # 06-CRB 595
Lake Cuyahoga [bоth handwritten, Lake scratched out] CUYAHOGA [scratched out] COUNTY, OHIO
Ss: NOTICE OF AVAILABILITY”
To all prosecuting attorneys and their respective assigns. You are hereby notified that John Signorelli (Date of Birth: [XX-XX-XX] Social Security No. [XXX-XX-XXXX]) is currently incarcerated at the Cuyahoga County Jail, and is available for final adjudication of all indictments, infоrmations and/or complaints which are or may be pending against him/her in your respective jurisdiction(s). This NOTICE OF AVAILABILITY is given to your office(s) pursuant to Ohio Revised Code, Section
2941.401 . Certification of custody is available upon request.Executed on 3-19-07, [signature] John Signorelli, Defendant, Pro Se, Address:
Lake County Jail, 104 E. Erie St. Painesville, OH 44077.” (Emphasis added.)
{¶ 21} Although, the body of the pre-printed form already listed Cuyahoga County as the location, Signorеlli did write in the correct court at the top of the motion and he also filled in the correct jail and address at the bottom of the form, thereby providing additional evidence to the court in this filed and time-stamped motion that he was in jail.
{¶ 22} We find substantial evidence to support the lower court‘s ruling. First, it is uncontroverted that Signorelli‘s attorney orally notified the court and the prosecution on the
{¶ 23} In addition to the evidence above, we find that the prosecution failed to exercise reasonable diligence to secure Signorelli‘s availability. Upon the oral notification by Signorelli‘s attorney of his location, the prosecution had a duty to exercise reasonable diligence to secure defendant‘s availability.
{¶ 24} Appellant was aware beginning November 9, 2007 that Signorelli was incarcerated as a result of the Willoughby matters. No effort to request the Euclid Municipal Court for a transport order was made at that time or at any time thereafter. Reasonable diligence to securе the availability of the accused was lacking and the provisions of
{¶ 25} The prosecution did nothing to confirm the information provided by Signorelli‘s attorney. In fact, the prosecution waited until the oral hearing on the motion to
{¶ 26} We find the lower cоurt‘s actions to be proper. There is nothing in the record to demonstrate an abuse of discretion on the part of the lower court.
{¶ 27} Accordingly, appellant‘s first and second assignments of error are overruled.
Judgment affirmed.
It is ordered that appelleе recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy оf this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, J., CONCURS;
CHRISTINE T. McMONAGLE, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION
{¶ 28} Respectfully, I concur in judgment only and write separately on the issue of the application of