STATE OF OHIO v. GREGORY S. WAGNER
Appellate Case No. 2020-CA-6
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
Rendered on the 14th day of May, 2021.
[Cite as State v. Wagner, 2021-Ohio-1671.]
TUCKER, P.J.
Trial Court Case Nos. 2017-CR-525 and 2018-CR-406; (Criminal Appeal from Common Pleas Court)
BRIAN A. SMITH, Atty. Reg. No. 0083620, 755 White Pond Drive, Suite 403, Akron, Ohio 44320 Attorney for Defendant-Appellant
OPINION
TUCKER, P.J.
{¶ 2} Raising three assignments of error, Wagner argues that his convictions should be reversed because the trial court erred by overruling his motions to dismiss the indictments in the two cases on speedy trial grounds; because the trial court failed to make the findings required by
I. Facts and Procedural History
{¶ 3} On August 18, 2017, Wagner was arrested on charges pending against him in Auglaize C.P. No. 2017-CR-95. He was arraigned later that day, pleaded not guilty by reason of insanity, and moved for a competency evaluation. The Auglaize County Court of Common Pleas sustained the motion and ordered that Wagner report to the Forensic
{¶ 4} At a hearing on October 25, 2017, the Auglaize County Court of Common Pleas ordered that Wagner be transferred from the Auglaize County Correctional Center to the Northwest Ohio Psychiatric Hospital for competency restoration. Five days later, a Miami County grand jury indicted Wagner in Case No. 2017-CR-525, charging him with one count of gross sexual imposition, which is a fourth degree felony pursuant to
{¶ 5} In an entry filed on March 9, 2018, the Auglaize County Court of Common Pleas seems to have found Wagner competent to stand trial, but it ordered that he be transported from the Auglaize County Correctional Center to the Northwest Ohio Psychiatric Hospital on April 17, 2018, for further evaluation.1 The court stayed the case until the evaluation was complete. Notwithstanding the stay, Wagner‘s defense counsel filed a motion to suppress on April 4, 2018, and the court set a hearing for May 22, 2018, although the hearing was apparently canceled because Wagner and the State reached a
{¶ 6} On July 20, 2018, a Miami County grand jury indicted Wagner in Case No. 2018-CR-406, charging him with six counts of illegal use of a minor in nudity-oriented material, which are second degree felonies pursuant to
{¶ 7} The Auglaize County Sheriff conveyed Wagner from the Auglaize County Correctional Center to the Correctional Reception Center on August 1, 2018. Wagner was released from the Correctional Reception Center on or about January 31, 2020, and later that day, deputies with the Miami County Sheriff‘s Office arrested him and served the indictments in Case Nos. 2017-CR-525 and 2018-CR-406. On February 7, 2020, Wagner moved for a competency evaluation in each of the cases, followed on March 17, 2020, by motions to dismiss. Wagner argued in the motions that the indictments should be dismissed under
{¶ 8} On March 19, 2020, the Miami County Court of Common Pleas found Wagner competent to stand trial, and on April 24, 2020, the court overruled his motions
II. Analysis
{¶ 9} For his first assignment of error, Wagner contends that:
THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT‘S MOTION [sic] TO DISMISS ON SPEEDY TRIAL GROUNDS, IN VIOLATION OF APPELLANT‘S RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶ 10} Wagner argues that the trial court overruled his motions to dismiss as a result of its misapplication of
{¶ 11} The
{¶ 12} On consideration of a defendant‘s challenge to a conviction based on an alleged violation of the defendant‘s statutory right to a speedy trial, the standard of review initially entails little more than a count of days pursuant to
{¶ 14} Although “statutory and constitutional speedy trial [rights] are [generally] coextensive,” the constitutional right, as embodied in the Ohio Constitution and the United States Constitution, “may be broader than the * * * statutory right” in some circumstances. (Citation omitted.) State v. Kadunc, 10th Dist. Franklin No. 15AP-920, 2016-Ohio-4637, ¶ 19. To determine whether a defendant‘s constitutional right to a speedy trial has been violated, a court should apply the four-factor balancing test adopted by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See, e.g., State v. Louis, 2d Dist. Montgomery No. 27909, 2020-Ohio-951, ¶ 32. The factors include: (1) the length of the delay “between accusation and trial“; (2) the reason for the delay; (3) the defendant‘s assertion, if any, of his right to a speedy trial; and (4) the prejudice, if any, to the defendant. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 88.
{¶ 15} A “delay becomes presumptively prejudicial as it approaches one year,” and unless the length of the delay “is presumptively prejudicial, there is no necessity for inquiry
{¶ 16} In the first part of his argument, Wagner posits that the trial court erred by holding under
{¶ 17} Rather than “requiring the [S]tate to exercise reasonable diligence to locate an incarcerated defendant,”
{¶ 18} Wagner tacitly acknowledges that he did not deliver the notice required by
{¶ 19} Wagner also faults the trial court for finding that the State‘s speedy trial time in Case Nos. 2017-CR-525 and 2018-CR-406 began on the date on which the indictment in each case was issued, rather than March 29, 2017, the date on which he claims he was arrested in Case No. 2017-CR-525. Appellant‘s Brief 10. Although Wagner argues that the State‘s speedy trial time in both cases began on March 29, 2017, he fails to explain why the alleged date of his purported arrest in Case No. 2017-CR-525 should be deemed to have triggered the running of the State‘s speedy trial time in Case No. 2018-CR-406. Id. at 10-11. The indictment in Case No. 2017-CR-525 was issued on October 30, 2017, and the indictment in Case No. 2018-CR-406 was issued on July 20, 2018.
{¶ 20} In its decision on Wagner‘s motions to dismiss, the trial court fixed the dates of Wagner‘s arrests in the two cases in reliance on
{¶ 21} On the date Wagner was indicted in Miami County Case No. 2017-CR-525, he was incarcerated in the Northwest Ohio Psychiatric Hospital, and on the date he was indicted in Miami County Case No. 2018-CR-406, he was incarcerated in the Auglaize County Correctional Center. Because Wagner was incarcerated while the charges in Miami County were pending, the trial court found that he had been arrested for purposes of
{¶ 22} Wagner has offered no evidence that he was arrested in connection with any criminal proceeding on March 29, 2017. Regardless, the provisions of
{¶ 23} Moreover, “the particular protections of the speedy trial provision of the
{¶ 24} In addition, Wagner argues that that the State violated his constitutional right to a speedy trial. The trial court rejected this argument, finding that despite the “substantial” delay from indictment to disposition in Miami County Case Nos. 2017-CR-525 and 2018-CR-406, “much of the delay [was] attributable” to Wagner himself, and regardless, that Wagner “made no showing of prejudice” as a result of the delay. Decision 6.
{¶ 25} The delay from the issuance of the indictment until the entry of Wagner‘s plea in Case No. 2017-CR-525 was approximately 30 months (October 30, 2017, to May 4, 2020), and the delay in Case No. 2018-CR-406 was approximately 21 months (July 20, 2018, to May 4, 2020). These delays weigh in favor of Wagner and are long enough to be deemed “presumptively prejudicial,” which necessitates consideration of the second, third and fourth Barker factors. Barker, 407 U.S. at 530; Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 88.
{¶ 26} The delays were attributable mostly to three causes. First, Wagner was
{¶ 27} Second, from March 9, 2018, until August 1, 2018, in Case No. 2017-CR-525, and from July 20, 2018, until August 1, 2018, in Case No. 2018-CR-406, Wagner was incarcerated in the Auglaize County Correctional Center awaiting disposition in Auglaize County Case No. 2017-CR-95. During these two intervals, the State was required under
{¶ 28} Third, following the disposition of the Auglaize County charges, Wagner was imprisoned in the Correctional Reception Center from August 1, 2018, until January 31, 2020, and during that interval, he failed to demand disposition pursuant to
{¶ 29} Regarding the third Barker factor, Wagner was arrested in Case Nos. 2017-CR-525 and 2018-CR-406 on January 31, 2020, and he filed his corresponding motions to dismiss on March 17, 2020. Id. The 46 days between the arrests and the filing of the motions, though they are not especially long delays, are attributable solely to Wagner. We hold as a result that the third Barker factor does not weigh in Wagner‘s favor.
{¶ 30} Regarding the fourth Barker factor, Wagner claims that he “was substantially prejudiced by the delay[s] in bring his case[s] to trial.” Id.; Appellant‘s Brief 14. Before the trial court, however, Wagner presented no evidence to show that he was prejudiced by the delays, and apart from indicating that he predicated his motions to dismiss on alleged violations of his constitutional right to speedy trials, he offered no argument or analysis directed to any of the Barker factors. In his brief, Wagner maintains that the memories of “[a]ny witnesses [who] could testify on [his] behalf” would “necessarily have *** fade[d],” including his own memory, but the mere prospect of faded memories is insufficient to establish that he was prejudiced. Id. Similarly, Wagner argues that he was prejudiced by ” ‘the disruption caused by [the] unresolved charges, ’ ” yet to illustrate the purported “disruption,” he simply refers again to the unsubstantiated possibility that the delays adversely affected his ability to defend himself. See id. at 14-15. In the absence of any evidence that Wagner was prejudiced by the delays, we hold
{¶ 31} For his second assignment of error, Wagner contends that:
THE TRIAL COURT‘S SENTENCE [sic] OF APPELLANT WAS CONTRARY TO LAW BECAUSE IT FAILED TO MAKE THE NECESSARY FINDINGS TO IMPOSE CONSECUTIVE SENTENCES UNDER
R.C. 2929.14(C)(4) .
{¶ 32} Despite the implication of his assignment of error, Wagner essentially concedes that the trial court made the findings required for the imposition of consecutive sentences. See Appellant‘s Brief 17. He argues only that the findings made by the trial court at his sentencing hearing were not accurately memorialized in the corresponding sentencing entries. See id. at 18-19.
{¶ 33} On review of a trial court‘s order requiring an offender to serve terms in prison consecutively, an appellate court may reverse only if it finds, based on clear and convincing evidence, “that the record does not support the trial court‘s findings” pursuant to
{¶ 34} At Wagner‘s sentencing hearing on June 8, 2020, the trial court found that “consecutive sentences as to the two case[s] [were] warranted *** to protect the public from future crime” and to punish Wagner sufficiently; that “[c]onsecutive sentences [were] not disproportionate to the seriousness of [Wagner]‘s conduct and the danger [he] pose[d] to the public“; and in light of his “history of sex offending conduct,” that consecutive sentences were appropriate pursuant to
{¶ 35} In its sentencing entries, however, the trial court found that consecutive sentences were necessary to “protect the public from future crime“; that “[c]onsecutive sentences [were] not disproportionate to the seriousness of [Wagner]‘s conduct“; and that “[a]t least two of the [several] offenses [in question] were committed as part of a course of conduct,” and that “the harm caused by two or more of the * * * offenses * * * was so great or unusual that no single prison term for any of the offenses [would] adequately” reflect the “seriousness of [Wagner]‘s conduct.” Entry of Imposition of Sentence 1, June
{¶ 36} Wagner cites our opinion in State v. Rice, 2d Dist. Montgomery No. 28572, 2020-Ohio-4404, in support of his argument that the “trial court failed to make the necessary findings to impose consecutive sentences on [him] pursuant to
{¶ 37} Here, we find that the record supports the findings made by the trial court at Wagner‘s sentencing hearing on June 8, 2020, and we hold therefore that the trial court did not fail to make the findings required by
{¶ 38} For his third assignment of error, Wagner contends that:
THE RECORD DOES NOT SUPPORT THE TRIAL COURT‘S SENTENCE [sic] OF APPELLANT.
{¶ 39} Finally, Wagner argues that his sentences were not supported by the record because the trial court did not find that his expression of remorse was genuine, and because the court misconstrued the meaning of the term “organized criminal activity” for purposes of
{¶ 40} A “trial court has full discretion to impose any sentence within the authorized statutory range, and [it] is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. Even so, the “court must comply with all applicable rules and statutes, including
{¶ 41} Wagner challenges the trial court‘s finding that he “demonstrate[d] no genuine remorse,” notwithstanding his apology for making “some mistakes,” which he blamed on internet pornography, and the court‘s finding that he “was acting in an organized criminal activity.” See Transcript of Sentencing Hearing 4:25-5:16, 10:9-10:16 and 11:3-11:9. His conviction in Case No. 2017-CR-525 implicated
{¶ 42} The court made the other finding challenged by Wagner, that he “was acting in an organized criminal activity,” in connection with Case No. 2018-CR-406, in which Wagner was convicted of second degree felonies. Under
III. Conclusion
{¶ 43} The trial court did not err in holding that the State did not violate Wagner‘s statutory and constitutional rights to speedy trials in Case Nos. 2017-CR-525 and 2018-CR-406. For purposes of
{¶ 44} This case is, however, remanded to the trial court for the filing of nunc pro tunc amended sentencing entries in Case No. 2017-CR-525 and 2018-CR-406. The amended sentencing entries should reflect that the court imposed consecutive sentences pursuant to
HALL, J. and EPLEY, J., concur.
Copies sent to:
Paul M. Watkins
Brian A. Smith
Hon. Jeannine N. Pratt