C.A. No. 05CA008743. | Ohio Ct. App. | Jan 11, 2006
{¶ 3} On March 25, 2005, Appellee was indicted on two counts of trafficking in heroin, in violation of R.C.
{¶ 4} On June 15, 2005, the trial court, having found that Appellee was arrested on April 1, 2004 and was indicted 357 days later on March 25, 2005, concluded that Appellee had not been brought to trial within the statutory period set forth in R.C.
{¶ 5} The State has timely appealed this decision, asserting one assignment of error.
{¶ 6} In its first assignment of error, the State has argued that trial court erred when it granted Appellee's motion to dismiss on statutory speedy trial grounds. Specifically, the State has argued that a subsequent indictment is not subject to the speedy trial timetable of the initial indictment when additional criminal charges arise from facts different from the original charges, or when the State did not know of the facts at the time of the initial indictment. We agree.
{¶ 7} This court reviews a trial court's decision to grant a motion to dismiss de novo. Indiana Ins. Co. v. Forsmark,
{¶ 8} R.C.
{¶ 9} The Ohio State Supreme Court has carved out an exception to the speedy trial timetable with regards to subsequent indictments. In State v. Baker, the Court held that:
"When additional criminal charges arise from facts distinct from those supporting an original charge, or the state was unaware of such facts at that time, the state is not required to bring the accused to trial within the same statutory period as the original charge under R.C.
{¶ 10} This Court has recognized the significance of the Supreme Court's use of the disjunctive "or" in Baker. SeeState v. Haggard (Oct. 6, 1999), 9th Dist. No. 98CA007154, at 8. Additionally, our cases indicate that the disjunctive nature of Baker's rule creates two separate exceptions to the speedy trial timetable, either of which may be employed by the state. See Haggard at 8; State v. Armstrong, 9th Dist. No. 03CA0064-M,
{¶ 11} In Haggard, Robert McFadden, Charles Butterfield, and defendant Terrence Haggard where involved in a brawl outside of a North Ridgeville restaurant. McFadden immediately pressed assault charges against Haggard, who did not contest the charge.Haggard at 2. Subsequently, Butterfield swore out a complaint of assault to which Haggard pled not guilty. We held that while the second prosecution would not be covered under Baker's "second exception," the "first speedy trial exception permitted by Baker" was applicable. Id. at 8. Specifically, we held that because the prosecution admittedly knew the facts concerning the Butterfield assault at the time it filed the McFadden assault charge, the second Baker exception did not apply. However, we noted that it could not be said that the facts as to the Butterfield assault were the same as the facts relating to the McFadden assault. Therefore, we concluded that the speedy trial clock for the second charge started upon the service of the second charge. In Haggard, we clearly advocated the Baker rule as comprising two separate exceptions.
{¶ 12} In Armstrong, the defendant was arrested for possession of drug paraphernalia and criminal trespassing. At the time of his arrest, the police found white powder on his person which was sent to the Bureau of Criminal Investigation ("BCI") to be analyzed. In the interim, Armstrong pled no contest to the possession of drug paraphernalia and the criminal trespassing charge was dropped. Thereafter, the State received BCI's report, indicted Armstrong and arrested him. We utilized the secondBaker exception to hold that "[t]he State is not required to bring additional charges within the time period of the original indictment if the State did not have knowledge of the additional charges until performing investigations of later-seized evidence." Armstrong at ¶ 7. This was so even though both charges stemmed from the same arrest and arguably the same set of operative facts. In Armstrong, we clearly treated the Baker rule as having two distinct elements.
{¶ 13} In the present case, Appellee has argued that his motion to dismiss was properly granted because all of the facts which gave rise to the offenses in the indictments were gathered under the umbrella of a single investigation and were known to the State on May 18, 2004, approximately two weeks prior to the first indictment on June 2, 2004. Conversely, the State has argued that Haggard explained that "facts different from the original charges" involve separate offenses and animus and that in this case, such separate offenses exist. See Haggard at 8, quoting Baker, 78 Ohio St.3d at the syllabus. We agree with the State.
{¶ 14} In Haggard, this Court illustrated that "facts different from the original charges" could include separate victims, separate offenses, or a separate animus as to the offense. See Haggard at 7-8. In the case sub judice, despite Appellee's efforts to prove the contrary, separate facts and offenses gave rise to the second indictment on March 25, 2005. Although both indictments stem from the same investigation, the offenses Appellee is charged with are the direct result of different events on different dates.
{¶ 15} The record3 reflects that the single count of trafficking in heroin set forth in case number 04CR065344 arose from a controlled drug buy on March 10, 2004. The first count in case number 05CR067480 arose from an attempted drug buy on March 13, 2004. Count two of the indictment in case number 05CR067480 stemmed from yet another controlled purchase of heroin from defendant on March 23, 2004. Finally, counts three through nine arose from valid searches conducted on April 1, 2004. It is apparent that while the investigation of Appellee may have been ongoing, the offenses with which he is charged were separate and distinct from one another. This conclusion is strongly evidenced in the record where counsel for Appellee admitted in open court that the charges did not arise from the same facts and circumstances and that separate incidences were involved.4
{¶ 16} We agree with the State that Appellee was charged with different offenses, on different dates stemming from different events. Therefore, given our decision in Haggard, we find that the first exception to the speedy trial statute is established in the present matter.
{¶ 17} Assuming arguendo that both indictments arose from the same facts, this Court finds that the second Baker exception would also apply in the case sub judice. The second Baker exception simply states that where the "state was unaware of such facts at that time, the state is not required to bring the accused to trial within the same statutory period as the original charge[.]" Baker at 112. Put another way "in issuing a subsequent indictment, the state is not subject to the speedy-trial timetable of the initial indictment, when * * * the state did not know of these facts at the time of the initial indictment." Id. at 110.
{¶ 18} Appellee has argued that "all of the facts which give rise to the offenses charged in the indictment were gathered in the investigation * * * and were known to appellant two weeks prior to [Appellee's] first indictment in case no. 04CR065344." This statement is not entirely accurate. The record indicates that the LPD was in possession of all facts relevant to both indictments on May 18, 2004. The Lorain County Prosecutor, however, did not come into possession of said facts until July 12, 2004; over one month after the initial indictment was handed down on June 2, 2004.
{¶ 19} The police do not prosecute criminal cases; they enforce the laws of our state. The office of the prosecutor is responsible for the filing of charges, preparing court documents, and bringing the alleged criminal to trial. Therefore, it flies in the face of logic to presume that the Lorain County Prosecutor, on behalf of the State of Ohio, could indict Appellant on June 2, 2004 for the offenses stemming from the March 13, March 23, and April 1, 2004 incidents when they did not have all of the facts relating to those offenses until July 12, 2004.
{¶ 20} Based on the foregoing, we conclude that the speedy trial period regarding the offenses included in the indictment for case number 05CR067480 did not begin to run on April 1, 2004, but rather upon Appellee's second arrest on March 29, 2005.
{¶ 21} Having determined the commencement of the speedy trial period, we must next determine whether the State has violated Appellee's speedy trial rights with regard to the second indictment concerning case number 05CR067480.5 We will begin by reviewing the applicable statutory authority.
{¶ 22} R.C.
{¶ 23} Pursuant to the indictment in case number 05C067480, Appellee was charged with offenses ranging from a fourth degree misdemeanor to a third degree felony. When a defendant is charged with one or more offenses of varying degrees, the applicable speedy trial timetable is that which is required for the highest degree of offense charged. R.C.
{¶ 24} Appellee was arrested on March 29, 2004 and posted bond on March 30, 2004. R.C.
{¶ 25} Next, we must calculate the period between Appellee posting bond and his filing the motion to dismiss. Appellee posted bond on March 30, 2005 and filed his motion to dismiss on April 7, 2005, a total of eight days. This eight day period reduced Appellee's speedy trial timetable to 262 days. As discussed supra, Appellee's filing of the motion to dismiss tolled the speedy trial timetable until its resolution by the trial court on June 15, 2005. Because the trial court granted Appellee's motion to dismiss, he was no longer awaiting pending charges, and thus the speedy trial timetable has remained tolled during the subsequent period of appellate review.6 R.C.
{¶ 26} Based on the foregoing, the State's sole assignment of error is sustained.
Judgment reversed, and cause remanded.
The Court finds that 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 Appellee.
Exceptions.
Moore, J. Concurs.
Carr, J. Concurs in judgment only.