603 N.E.2d 294 | Ohio Ct. App. | 1991
Defendant-appellant, Ora D. Walton, appeals from her conviction for the offenses of aggravated vehicular homicide and driving while under the influence of alcohol or drugs. The appellant's conviction resulted from a plea of no contest as entered before the Cuyahoga County Court of Common Pleas.
On October 9, 1987, the appellant was traveling eastbound on Euclid Avenue, in the city of Cleveland, at a high rate of speed. The appellant failed to stop for a red light at the intersection of Euclid Avenue and Knowles Avenue and struck the rear of a motorcycle which was being operated by Harvey Werber. Werber was thrown approximately one hundred seventy-six feet to his death as a result of the collision.
B. THE INDICTMENT OF THE APPELLANT
On February 10, 1988, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of aggravated vehicular homicide in violation of R.C.
C. THE ARRAIGNMENT OF THE APPELLANT
On July 18, 1989, the appellant was arraigned whereupon a plea of not guilty was entered to the three counts of the indictment.
D. THE APPELLANT'S PLEA OF NO CONTEST
On November 14, 1989, the appellant entered a plea of no contest to the offenses of aggravated vehicular homicide and driving while under the influence. The offense of involuntary manslaughter was nolled by the trial court. *708
E. THE APPELLANT'S TIMELY APPEAL
On December 15, 1989, the trial court sentenced the appellant to incarceration within the Ohio Reformatory for Women, Marysville, Ohio, for a term of three years to five years with regard to the offense of aggravated vehicular homicide and six months of incarceration with regard to the offense of driving while under the influence. The trial court further ordered that the two sentences of incarceration run concurrent with each other.
Thereafter, the appellant brought the instant appeal.
"The trial court erred by overruling appellant's motion to dismiss count three, driving while under the influence, for failure to provide a speedy trial as required by the Ohio Revised Code, the United States Constitution, and the Ohio Constitution."
A. ISSUE RAISED: THE TRIAL COURT APPLIED THE WRONG PERIOD OF SPEEDY TRIAL TO THE MISDEMEANOR OFFENSE
The appellant, in her initial assignment of error, argues that the trial court erred by failing to dismiss count three of the indictment which involved the misdemeanor offense of driving while under the influence. Specifically, the appellant argues that regardless of whether a misdemeanor and a felony are charged in the same criminal case, a defendant must be brought to trial within ninety days as mandated by R.C.
B. SPEEDY TRIAL PERIODS AS APPLIED TO A FELONY AND A MISDEMEANOR
R.C.
"(A) A person against whom a charge is pending in a court not of record, or against whom a charge of minor misdemeanor is pending in a court of record, shall be brought to trial within thirty days after his arrest or the service of summons.
"(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial: *709
"(1) Within forty-five days after his arrest or the service of summons, if the offense charged is a misdemeanor of the third or fourth degree, or other misdemeanor for which the maximum penalty is imprisonment for not more than sixty days;
"(2) Within ninety days after his arrest or the service ofsummons, if the offense charged is a misdemeanor of the first orsecond degree, or other misdemeanor for which the maximumpenalty is imprisonment for more than sixty days.
"(C) A person against whom a charge of felony is pending:
"(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge;
"(2) Shall be brought to trial within two hundred seventy days after his arrest." (Emphasis added.)
Thus, pursuant to the application of R.C.
C. TRIAL COURT APPLIED FELONY SPEEDY TRIAL RULE TO MISDEMEANOR
In the case sub judice, however, the trial court opined that a two-hundred-seventy day period in which to bring a defendant to trial will be applied both to a misdemeanor offense and a felony offense where the misdemeanor and felony offenses are both pending within the same criminal case.
"THE COURT: Thank you.
"Mr. McGinty, I don't see any need for a response to the motion of Defendant.
"With respect to the speedy trial question, the Court notes that the only misdemeanor charge here is the third count of the three-count indictment. Your argument, Mr. Adams, would require this Court either to try a felony within the time provided for a misdemeanor or alternatively to bifurcate this case and have the misdemeanor charges tried separately.
"I don't believe that's what the legislature intended, and I believe that when a misdemeanor is included as one count in an otherwise felony indictment, that *710 the felony provisions apply and, therefore, this case is not barred by the speedy trial provisions."
D. APPELLATE JURISDICTIONS WHICH EXAMINED THE ISSUE OF SPEEDY TRIAL WHEN FELONY AND MISDEMEANOR CHARGED IN SAME CRIMINAL CASE APPLIED
A review of the case law of this jurisdiction fails to disclose a previous examination of the issue of speedy trial as to a misdemeanor and a felony when joined together in the same criminal case. Other appellate jurisdictions within the state of Ohio, however, have examined the issue of speedy trial in a criminal prosecution where a felony and misdemeanor have been joined and have held that each misdemeanor offense must still be tried within ninety days of arrest regardless of the existence of additional pending felony offenses.
In State v. Dunson (Mar. 20, 1991), Hamilton App. No. C-900218, unreported, 1991 WL 36532, the Court of Appeals for Hamilton County held that:
"Based upon the foregoing analysis we conclude that the trial court correctly dismissed the two second-degree misdemeanor charges (resisting arrest and obstructing official business).Where both misdemeanor and felony charges are pending against aperson, the longer statutory period for the felony charges doesnot apply to the misdemeanor charges, and the misdemeanorcharges must be brought to trial within the statutory limit ofninety days. See State v. Doane (Sept. 28 [sic, Oct. 1], 1990), Trumbull App. Nos. 3925, 4023, 4040, unreported [1990 WL 146515]; State v. Leadingham (June 2, 1989), Scioto App. No. 1749, unreported [1989 WL 62873]. However, from our review of the record, we have concluded that as of January 23, 1990, only thirty days were chargeable against the State on the assault charge. This requires further inquiry into the approximately two-month delay from January 23, 1990, to March 13, 1990." (Emphasis added.) State v. Dunson, supra, at 8.
In State v. Doane (1990),
"As was previously noted, the indictment against appellant also contained seven felony charges. R.C.
"However, in State v. Dembecki (Apr. 15, 1983), Portage App. No. 1273, unreported [1983 WL 6239], this court reached the opposite conclusion on this issue. In that case, the defendant was indicted on one felony charge and two misdemeanor charges. After the state had failed to bring him to trial on the misdemeanor charges within the ninety day period, the defendant moved to dismiss for lack of a speedy trial. The trial court overruled this motion. On appeal, this court reversed, specifically holding that the ninety day period was still applicable to the two misdemeanor charges.
"In arguing that the 270 day period applied to all three charges, the state in Dembecki referred to R.C.
"`(D) A person against whom one or more charges of minor misdemeanor and one or more charges of misdemeanor other than minor misdemeanor, all of which arose out of the same act or transaction, are pending, or against whom charges of misdemeanors of different degrees, other minor misdemeanor [sic], all of which arose of the same act or transaction, are pending shall be brought to trial within the time period required for the highest degree of misdemeanor charged, as determined under division (B) of this section.'
"Arguing by analogy, the state submitted that the time for trying the misdemeanor charges should be extended to 270 days when the felony charge arises out of the same act.
"Rejecting this argument, this court noted that `[t]here is no provision in the statute, the committee notes, or the case law interpreting the statute' as the state desired. Id. at 3. We also emphasized that the speedy trial statute was mandatory and that the state was required to strictly comply with its provisions.
"Although the Dembecki decision was rendered seven years ago, this court still finds its logic persuasive and considers it binding precedent in our jurisdiction. In this regard, we again note that the language of the statute has not been amended in the period since Dembecki. Moreover, the logic of that decision has recently been followed by the Fourth Appellate District inState v. Leadingham (June 1, 1989), Scioto App. No. 1749, unreported [1989 WL 62873].
"* * *
"This court is aware that this decision places a heavy burden upon the state. In many instances in which both types of charges are pending against the defendant, the state may simply be unable to proceed to trial on all of the *712 charges before the end of the ninety-day period. Under these circumstances, the state could be forced to allow the time to run out as to the misdemeanors, instead of risking going forward too quickly on the felonies. As a practical matter, it is difficult to discern what interest is being served by this requirement. Certainly, the defendant would not be prejudiced if the longer time period was applicable to all of the charges.
"Nevertheless, the inclusion of R.C.
"Accordingly, even though the indictment in this case contained seven felony charges, the state was still required to bring appellant to trial on the four misdemeanor charges within the statutory limit of ninety days. As was stated earlier, this limit was exceeded by twenty days. Pursuant to R.C.
Finally, in State v. Leadingham (June 1, 1989), Scioto App. No. 1749, unreported, 1989 WL 62873, the Court of Appeals for Scioto County held that:
"The sole issue presented on appeal is whether the court below erred in dismissing the three misdemeanor charges. Appellant asserts that when a case involves several charges, the speedy trial period imposed by R.C.
"The scheme of the Ohio speedy trial statutes does not address this issue. In support of its conclusion that the trial court erred in dismissing the three misdemeanor charges, appellant relies on cases from several jurisdictions other than Ohio. First, appellant cites an Arizona appellate court case which held, `When two or more cases are consolidated for trial the time limitations * * * shall be calculated from the case which has the longest period of time available.' State v.Campos (1975) [
"* * * *713
"All of the cases cited by appellant are inapplicable because they involve a specific statute not present in Ohio or because they do not address the specific issue with which we are confronted in the present case. The only cases which even present an issue close to that in the case at bar are the two Arizona cases. However, we cannot read into the speedy trial statute language which is not there. The Supreme Court inState v. Pachay (1980),
"`The statutory speedy trial provisions, R.C.
"`R.C.
"`"A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
"`"* * *
"`"(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days."'
"Therefore, since more than 90 days had elapsed, the statute mandates that, upon appellee's motion, the court below was required to dismiss the misdemeanor charges against appellee. R.C.
"Further support for the holding herein is found in R.C.
"`A person against whom one or more charges of minor misdemeanor and one or more charges of misdemeanor other than minor misdemeanor, all of which arose out of the same act or transaction, are pending, or against whom charges of misdemeanors of different degrees, other than minor misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial within the time period required for the highest degree of misdemeanor charged, as determined under division (B) of this section.'
"Thus, the General Assembly was aware of the possibility of a person being charged with multiple offenses at least two of which could involve different time periods. Because there is a provision dealing with multiple misdemeanors *714 but no provision dealing with a felony and a misdemeanor, we must assume the General Assembly intended, in such a case, for the time limit for the misdemeanor to remain applicable." State v.Leadingham, supra, at 1.
E. MISDEMEANOR OF FIRST DEGREE IS CONTROLLED BY NINETY DAY SPEEDY TRIAL RULE
This court finds the appellate decisions of Dunson, Doane andLeadingham to be most persuasive. Clearly, R.C.
F. REVIEW OF ISSUE OF SPEEDY TRIAL WITH REGARD TO MISDEMEANOR
This court must next determine whether the appellant was brought to trial within ninety days of arrest with regard to the offense of driving while under the influence as mandated by R.C.
The running of the statutory period of ninety days with regard to a misdemeanor may be tolled as a result of the application of the conditions found at R.C.
"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 hearing 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 exercises reasonable diligence to secure his availability;
"(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
"(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
"(D) Any period of delay occasioned by the neglect or improper act of the accused; *715
"(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
"(F) Any period of delay necessitated by a removal or change of venue pursuant to law;
"(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;
"(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion;
"(I) Any period during which an appeal filed pursuant to section
G. MISDEMEANOR WAS "TRIED" WITHIN NINETY DAYS PER R.C.
In the case sub judice, a review of the record demonstrates that a period of one hundred twenty-one actual days passed between the appellant's arrest on July 15, 1989 and the plea of no contest as entered by the appellant on November 14, 1989.
Pursuant to the application of R.C.
Historical Date and Activity Chargeable Elapsed Time 1. July 15, 1989 — appellant arrested and incarcerated in lieu of bond 2. July 26, 1989 — pretrial is 10 × 3 = 30 days continued at appellant's request to July 27, 1989 3. July 27, 1989 — pretrial is 0 days continued at state's request to August 3, 1989 4. July 31, 1989 — motion for 4 × 3 = 12 days bond reduction filed by the appellant 5. August 3, 1989 — pretrial is 3 × 3 = 9 days reset to August 8, 1989 6. August 8, 1989 — pretrial is 5 × 3 = 15 days continued at appellant's request to August 20, 1989 7. August 20, 1989 — pretrial is 0 days continued at appellant's request to August 30, 1989 8. August 30, 1989 — pretrial is 0 days continued at appellant's request to September 14, 1989 *716 9. September 14, 1989 — pretrial is 0 days continued at appellant's request to October 14, 1989 10. October 14, 1989 — trial court 0 days issues a capias for the arrest of the arrest of the appellant as a result of the failure to appear1 11. October 18, 1989 — appellant 0 days files a motion to dismiss 12. November 14, 1989 — appellant 0 days enters a plea of no contest to the offenses of aggravated vehicular homicide and driving while under the influence Total Elapsed Chargeable Time 66 days
The record before this court documents that the appellant was brought to trial within ninety days as mandated by R.C.
Thus, although a ninety-day period for trial was applicable to the charged misdemeanor of driving while under influence, the appellant was not denied a speedy trial. The appellant's first assignment of error is not well taken.
"The trial court erred by granting, over defense counsel's objection, the prosecuting attorney's request to enter anolle prosequi of the involuntary manslaughter charge."
A. ISSUE RAISED: TRIAL COURT ERRED BY ENTERING A NOLLE PROSEQUI WITH REGARD TO OFFENSE OF INVOLUNTARY MANSLAUGHTER
The appellant, in her second assignment of error, argues that the trial court erred by entering a nolle prosequi of the second count of the indictment *717
which involved the offense of involuntary manslaughter. Specifically, the appellant argues that the failure of the state to comply with the mandate R.C.
The appellant's second assignment of error is not well taken.
B. R.C.
R.C.
"The prosecuting attorney shall not enter a nolle prosequi in any cause without leave of the court, on good cause shown, in open court. A nolle prosequi entered contrary to this section is invalid."
In addition, Crim.R. 48, which is essentially identical to R.C.
"(A) Dismissal by the state. The state may by leave of courtand in open court file an entry of dismissal of an indictment,information, or complaint and the prosecution shall thereuponterminate.
"(B) Dismissal by the court. If the court over objection of the state dismisses an indictment, information or complaint, it shall state on the record its findings of fact and reasons for the dismissal." (Emphasis added.)
Upon review of the record herein, this court finds no error associated with the entry of a nolle prosequi with regard to the offense of involuntary manslaughter. The state requested the nolle in open court and "good cause" can be gleaned from the record. Cf. State v. Brown (1988),
C. PROSECUTOR HAS DISCRETION IN PURSUING PROSECUTION WITH REGARD TO CHARGED OFFENSES
In addition, the United States Supreme Court has affirmatively established that the prosecution is free to select under which criminal statute a defendant will be prosecuted where multiple offenses stem from one criminal course of conduct.
"This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. See United States v. Beacon Brass Co.,
See, also, Paul Adams Coal Co. v. Mamone (1988),
46 Ohio App.3d 174 ,546 N.E.2d 454 .
Thus, the trial court did not err in entering a nolleprosequi with regard to the offense of involuntary manslaughter. The appellant's second assignment of error is not well taken.
Judgment affirmed.
JAMES D. SWEENEY and ECONOMUS, JJ., concur.
PETER C. ECONOMUS, J., of the Mahoning County Common Pleas Court, sitting by assignment.
