State of Ohio/City of Bowling Green v. Christopher S. Willis
Nos. WD-15-006, WD-15-007
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
February 19, 2016
[Cite as State v. Willis, 2016-Ohio-616.]
Trial Court Nos. 14TRC04630, 14CRB01493
Matthew L. Reger, Bowling Green Prosecutor, for appellee.
Michael B. Kelley, for appellant.
PIETRYKOWSKI, J.
{1} This is a consolidated appeal from judgments of the Bowling Green Municipal Court, following that court‘s conviction of defendant-appellant, Christopher S. Willis, of one count of reckless operation, second offense (case No. 14TRC04630), and one count of obstructing official business (case No. 14CRB01493). Because we find that
{2} The facts of this case are as follows. On July 26, 2014, at approximately 1:30 a.m., Officer Patrick Moremile of the Wood County Sheriff‘s Department pulled over a car, driven by appellant, after he determined that appellant was driving 33 m.p.h. in a 25 m.p.h. zone. Moremile also witnessed appellant swerve and cross the center line of the roadway before pulling him over. Appellant was subsequently charged with speeding in violation of
{3} As a result of appellant‘s refusal to submit to the blood alcohol test, his driver‘s license was suspended pursuant to an administrative license suspension (“ALS“).
{4} On December 10, 2014, appellant entered pleas of no contest to one amended charge of reckless operation, second offense within one year, a fourth degree misdemeanor, in case No. 14TRC04630, and one count of obstructing official business in
I. Appellant received ineffective assistance of counsel due to counsel‘s serious errors which deprived appellant of a fair trial because counsel failed to raise the issue of speedy trial after appellant‘s speedy trial rights had been violated, counsel erroneously dismissed appellant‘s motion to suppress although it had merit, and because the cumulative effects of counsel‘s errors resulted in ineffective assistance of counsel as a whole.
II. Appellant‘s no contest pleas were not knowingly and voluntarily entered.
III. An administrative license suspension becomes punitive upon sentencing and must be vacated or subjects appellant to double jeopardy.
IV. Appellant‘s right to due process was violated due to prosecutor misconduct that affected appellant‘s substantial rights.
{6} In Ohio, a properly licensed attorney is presumed competent and the burden is on the appellant to show counsel‘s ineffectiveness. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988). Specifically, appellant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense, such that, without the deficient representation, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{7} Appellant first asserts that he was denied his right to a speedy trial and that his trial counsel was ineffective for failing to raise that issue in the court below.
{8} The right to a speedy trial is guaranteed by the United States and Ohio Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The greatest level of offense for which the defendant is charged determines the time by which he must be brought to trial when he is charged with multiple offenses.
{9} In this case, the highest level of offense for which appellant was charged was the OVI charge, a first degree misdemeanor. Pursuant to
{10} The time by which an accused must be brought to trial, may be tolled under the circumstances listed in
(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;
***
(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; ***
(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[.]
R.C. 2945.72 .
{11} Accordingly, where an accused requests a continuance of a pretrial, that request tolls the statutory speedy trial period from the date of the request until the date of the rescheduled hearing. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-Ohio-2603, ¶ 15. Similarly, an accused‘s filing of a motion to suppress tolls the time by which the accused must be brought to trial. State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 25; State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 44.
{12} The record reveals the following sequence of events. Appellant was arrested on July 26, 2014. He then made his first appearance in court on July 28, 2014. The two days that appellant spent incarcerated prior to his initial appearance count as six days under the three-for-one provision of
{14} The parties then appeared in court on August 20, 2014, for a pretrial. At that time, appellant stated that he did not wish to waive his speedy trial rights. The court set a plea bargain deadline of September 29, 2014, and scheduled a trial for October 21, 2014. The court noted on its judgment entry that there was no speedy trial waiver from August 20 to October 21. On September 18, however, appellant filed a motion to continue the September 29 pretrial to October 1. The court granted the motion. Those two days, therefore, represent a tolling event that is counted against appellant. Therefore,
{15} The parties returned to court on October 1 for the previously scheduled pretrial. The transcript from this brief meeting reveals that the parties simply confirmed the previously scheduled trial date of October 21. The judgment entry reflecting that pretrial notes that on motion of appellant, the case is continued until October 21, 2014, for a jury trial and that the time is taxed to appellant. There is nothing in the record, however, to support the court‘s statement that appellant moved for a continuance. Moreover, the October 21 date for the jury trial had already been scheduled in the court‘s August 20 judgment entry, when the court expressly stated that there would be no speedy trial waiver from August 20 to the October 21 trial date. Accordingly, on October 1, the speedy trial time continued to run against the state.
{16} On October 15, 2014, appellant filed a motion for leave to file a motion to suppress out of rule. On October 17, the court granted the motion, scheduled a motion hearing for November 13, 2014, vacated the jury trial and rescheduled it for November 18, 2014. In addition, the court noted in its judgment entry that the case was being continued at appellant‘s request and the time was taxed to appellant. The filing of a motion to suppress is clearly a tolling event pursuant to
{17} On October 23, 2014, the state filed a motion to continue the motion to suppress hearing scheduled for November 13, due to the officer being unavailable. In an order dated October 27, 2014, the court granted the motion as follows: “Upon motion to
{18} In its motion to continue, the state simply stated that the officer was unavailable. The state did not explain why the officer was unavailable or by when the officer would become available. Then, in granting the motion, the trial court did not identify who requested the continuance, to whom the continuance was chargeable or specify the reason for granting the continuance. In Saffell, supra, at 91-92, the court determined that a continuance granted to the state was not unreasonable where the arresting officer was to be on vacation during the dates that the case was scheduled for
{19} Accordingly, because the record does not support a finding that the continuance of the motion to suppress hearing was reasonable and necessary, the time from November 13 to December 4, when appellant filed his motion to vacate the jury trial and schedule a change of plea hearing, or 21 days, must be charged to the state. The remaining 10 days were tolled by virtue of
{21} On consideration whereof, the judgments of the Bowling Green Municipal Court are reversed. Appellant‘s convictions and sentences are ordered vacated. Pursuant to App.R. 24, appellee is ordered to pay the costs of this appeal.
Judgments reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Stephen A. Yarbrough, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.