State v. TolerState v. Toler
COUNSEL FOR APPELLANT: Benjamin J. Partee, 137 South Paint Street, Chillicothe, Ohio 45601
COUNSEL FOR APPELLEE: Michael M. Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross County Assistant Prosecuting Attorney, 72 North Paint Street, Chillicothe, Ohio 45601
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-11-09
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas court judgment of conviction and sentence. Nikita D. Toler, defendant below and appellant herein, entered a no contest plea to six counts of trafficking in cocaine. The trial court found her guilty and sentenced her to serve eighteen months in prison.
{¶ 2} Appellant raises the following assignment of error for review.
“THE TRIAL COURT ERRED IN DENYING DEFENDANT APPELLANT‘S MOTION TO DISMISS ON STATUTORY SPEEDY TRIAL GROUNDS.”
{¶ 4} On August 19, 2008, the court set the matter for a September 15, 2008 jury trial. On that same date, appellant requested the court to: (1) order the prosecuting attorney to reveal the identity of any confidential informant; and (2) order the prosecuting attorney to reveal before trial “any promises, considerations, deals, or agreements made or given to any testifying confidential informant * * * in exchange for said informant‘s cooperation and/or assistance.”
{¶ 5} On August 25, 2008, appellant posted bond and was released from the Ross County Jail. Upon her release, she somehow apparently ended up in the Franklin County jail. She was released from confinement on September 4 or 5, 2008.
{¶ 6} On September 16, 2008, the trial court continued the trial to November 5, 2008. The court observed that a wind storm had passed through the area and left the courthouse without electricity to conduct the trial. On November 5, 2008, appellant filed a motion to continue the trial.
{¶ 7} On November 13, 2008 the trial court held a hearing. At this hearing, appellant first raised an argument about whether the time to bring her to trial had expired. Defense counsel thought he had filed a written motion to dismiss on speedy trial grounds, but had not. In reviewing appellant‘s argument, the court explained:
“The period from June 7 to the 28th would be twenty-one days, would be
three for one, that‘s sixty-three. Bond was fixed, I believe at ten thousand dollars here. She made that bond on, I believe, August 25. She posted bond so from June 28 to August 25, shе was held, that would be two days, June plus thirty-one in July, twenty-five in August, that would be a total of fifty-eight times three is a hundred seventy-four added to the sixty three, that‘s two thirty seven. The question then becomes--her jury trial was scheduled to September fifteenth, two thousand eight. We had no power on that date due to a windstorm which occurred on September fourteenth, two thousand eight and the jury trial was continued from that date until November fifth so the court believes that the period from September fifteenth to November fifth was tolled properly and the court did that by entry and then the motion to continue tolled speedy trial time from there so the question is what happenеd between August twenty-fifth and September fifteenth, that would be a period of twenty days, excuse me, twenty-one days. If those ran day for day, she would still be twelve days within speedy trial.”
{¶ 8} Apparently, some issue remained as to whether appellant was in jail on these same trafficking in cocaine charges in Franklin County between August 25, 2008 аnd September 4 or 5, 2008. Thus, on January 8, 2009, the trial court held a further hearing on the matter. Franklin County Common Pleas Court Intensive Mental Health Officer Ken Stubrick stated that appellant was one of his probationers. He testified that from August 25 to September 4, appellant was under house arrest for a forgery conviction.
{¶ 9} On January 9, 2009, appellant filed a written motion to dismiss on the basis of a speedy trial violation. On January 27, 2009, the trial court denied appellant‘s motion. The court found: (1) appellant was arrested on June 7, 2008 in Franklin County pursuant to a holder issued in the immediate case; (2) a Rule 4 hearing was held on June 11, 2008 and bond set at $10,000; (3) appellant was transported to Ross County and arraigned on June 25, 2008, where bond was continued; (4) on August 19, 2008, appellant filed a motion that requested the prosecutor to reveal the identity of any
{¶ 10} The trial court calculated the speedy trial time as follows: (1) from June 7, 2008 to August 19, 2008, two hundred nineteen speedy trial days elapsed; (2) appellant‘s August 19, 2008 motion tolled the speedy trial time; (3) the court‘s continuance of the September 15, 2008 trial date tolled the speedy trial time until November 5, 2008; (4) appellant‘s November 5, 2008 motion to continue the trial further tolled the speedy trial time; and (5) appellant‘s January 9, 2009 motion to dismiss for a spеedy trial violation further tolled the speedy trial time. The court determined that the speedy trial time had been tolled since August 19, 2008, and that fifty-one days remained to try appellant. It, therefore, denied her motion to dismiss.
{¶ 11} The trial court set the matter for a February 9, 2009 trial. On January 29, 2009, appellant filed a motion to continue thе February 9, 2009 trial date. On February 2, 2009, the court continued the trial date to February 25, 2009. On March 2, 2009, the court continued the trial until March 12, 2009.
{¶ 12} On March 13, 2009, appellant entered a no contest plea to the six counts of the indictment. On March 18, 2009, the court sentenced appellant. This appeal followed.
{¶ 14} Appellee asserts that once appellant filed her August 19, 2008 motion, time was tolled until September 15, the scheduled trial date. Thus, her argument regarding her purported incarceration from August 25, 2008 to September 4, 2008 is moot.
{¶ 15} Our review of a trial court‘s decision regarding a motion to dismiss for an alleged speedy trial violation involves mixed questions of law and fact. See, e.g., State v. Alexander, Scioto App. No. 08CA3221, 2009-Ohio-1401, at ¶15. We accord due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence. Id. However, we independently determine whether the trial court properly applied the law to the facts of the case. Id.
{¶ 16} “The Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial.
{¶ 17}
{¶ 18}
{¶ 19} “When computing any period of time prescribed by an applicable statute,
{¶ 20} A defendant‘s filing of a motion for discovery tolls the speedy trial clock. See State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus; State v. Jensen, Pickaway App. No. 07CA21, 2008-Ohio-5228; State v. Baucom, Highland App. No. 06CA33, 2008-Ohio-562. Additionally, a defense motion tolls the time, for a reasonable time, even if the trial date is not rescheduled. See, State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, ¶25-26 (state need not show motion in limine diverted state‘s attention or caused delay of trial date to be entitled to tolling and that time tolled by defendant‘s motion can be lifted at the point the time taken to rule on the motion becomes unreasonable). Moreover, courts recognize that a motion to disclose the identity of a confidential informant tolls the speedy trial clock.1 See State v. Nelson, Clinton App. No. CA2007-11-046, 2009-Ohio-555; State v. Deltoro, Mahoning App. No. 07-MA-90, 2008-Ohio-4815.
{¶ 22} Consequently, under the triple-count provision, two hundred nineteen days elapsed between June 7, 2008 and August 19, 2008, when appellant filed her discovery request. The speedy trial time was tolled until at least September 15, 2008 – the date the court originally scheduled the trial. The next day, the trial court noted that it had to continue the trial due to a wind storm that caused a power outage at the courthouse. The court thus continued the trial until November 5, 2008. During this time, the speedy trial clock remained tolled. On November 5, 2008, appellant filed a motion to continue the trial, again tolling the speedy trial clock. At a November 13,
{¶ 23} Due to our calculation set forth above, we need not address appellant‘s argument that the time she spent in jail in Franklin County should be included in our speedy trial calculation. The reason for this confinement is not entirely clear. Appellant‘s Franklin County probation officer stated that she was on housе arrest during this time for a forgery conviction. Appellant asserts that when she posted bond in Ross County, Franklin County improperly continued to confine her for the Ross County charges. Even if appellant is correct, however, we agree with the trial court‘s analysis that the speedy trial clock tolled when appellаnt filed her August 19, 2005 motion. Thus, even if we accept for purposes of argument that appellant was in a Franklin County jail for these same charges during this period, those days were tolled under her August 19, 2008 motion.
{¶ 25} Accordingly, based upon the foregoing reasons, we hereby overrule aрpellant‘s assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Cоurt an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period рursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellаte Procedure.
Kline, P.J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY: ____________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.