State v. Turner , 2016 Ohio 4733 ( 2016 )

[Cite as State v. Turner, 2016-Ohio-4733.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : PER CURIAM OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-116
- vs - :
JOHN L. TURNER, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000533.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
John L. Turner, Jr., pro se, PID: A673-787, Belmont Correctional Institution, P.O. Box
540, 68518 Bannock Road, St. Clairsville, OH 43950 (Defendant-Appellant).
PER CURIAM
{¶1} Appellant, John L. Turner, Jr., pro se, appeals his conviction, following a
jury trial, of seven counts of felony theft and one count of intimidation of a witness.
These charges arose from appellant’s breaking into several parked vehicles and
stealing their contents. Appellant has previously filed three appeals of interlocutory
orders, which were dismissed, and seven petitions for extraordinary relief, all of which
were dismissed. The lead issue in this appeal is whether the trial court abused its
discretion in allowing the state to present evidence that appellant was wearing a Global
Positioning System (“GPS”) monitoring device at the time he committed the instant
crimes. For the reasons that follow, we affirm.
{¶2} On Friday evening, January 17, 2014, at about 7:00 p.m., appellant broke
into an SUV that was parked in the parking lot of a computer repair shop in Eastlake,
Ohio, and stole its contents. During the break-in, Dillon Hardy, an employee of that
shop, came outside for a cigarette break and heard a noise. Dillon saw appellant
coming out of a broken window of the SUV carrying a backpack and briefcase. Dillon
yelled at appellant, telling him to put the items back in the SUV and leave. Appellant
turned toward Dillon and yelled, “man, I’ll smoke you,” which Dillon understood to be
slang for “I’ll kill you.” While appellant made this threat, he reached behind his back
and, according to Dillon, appeared to be reaching for a gun. Dillon was in fear for his
life. He ran into the shop and called the police. Appellant left the scene with the stolen
items in the car he was driving. Dillon provided appellant’s description to the police and
later identified him in a photo lineup.
{¶3} During the evening of January 17, 2014, and Saturday, January 18, 2014,
appellant also broke into six vehicles that were parked in different parking lots in
Mentor, Ohio and stole their contents. At the time appellant was wearing a GPS
monitoring device that he was required to wear by the Adult Parole Authority (“APA”) in
2013 due to the violation of his conditions of post-release control. Appellant’s GPS
device placed him at every location in Mentor where and when the break-ins and thefts
were committed.
{¶4} On March 5, 2014, the Eastlake Police Department issued a warrant for
appellant’s arrest for the offenses he committed in that city.
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{¶5} The APA was advised of appellant’s involvement in these crimes. On
March 12, 2014, appellant’s parole officer, Yolanda Roy, called him and had him come
into the office ostensibly for a routine appointment. However, when appellant arrived,
she advised him he was being held for the Eastlake Police Department based on the
warrant for appellant issued by that city. The APA also placed a hold on appellant for
the violation of his post-release control, and he was picked up by the APA from the Lake
County Jail on March 18, 2014. He was held by the APA until a parole revocation
hearing was held on May 6, 2014. After that hearing, appellant was found guilty of a
parole violation, and he was sanctioned to serve 200 days or just over six months in
prison.
{¶6} On August 4, 2014, appellant was indicted. An amended indictment
charged him with seven counts of theft, felonies of the fifth degree, and one count of
intimidation of a witness, a felony of the third degree. Appellant pled not guilty.
{¶7} On November 10, 2014, appellant filed a pro se motion to represent
himself. Following a hearing on that motion on December 22, 2014, the court granted it
and appointed appellant standby counsel.
{¶8} Subsequently, appellant filed more than 90 motions. Pertinent to the
issues raised on appeal, he filed a motion to suppress the GPS device and a motion to
dismiss for lack of a speedy trial. He also appealed interlocutory rulings of the trial
court and filed multiple petitions for extraordinary writs in this court. He also filed an
affidavit of disqualification in the Ohio Supreme Court against the trial judge. These
filings resulted in the trial being delayed several times until trial proceeded on
September 11, 2015.
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{¶9} Following the trial, the jury found appellant guilty of all counts in the
amended indictment. After considering appellant’s extensive criminal history dating
back more than 30 years and other relevant factors, the court sentenced him to 12
months in prison on each of the seven theft counts and 18 months for intimidation, each
term to be served consecutively to the others, for a total of 102 months, or eight and
one-half years.
{¶10} Appellant appeals his conviction, asserting four assignments of error. For
his first, he alleges:
{¶11} “Appellant was prejudiced by the Global Positioning System Regarding
Post Release Control, denying Appellant Motion to Suppress GPS device. (Sic
throughout.)
{¶12} Appellant filed two motions regarding his GPS device. In his first, which
he referred to as a “Motion To Suppress Global Position [sic] (GPS) device,” he sought
to prevent the court from allowing any evidence that he was wearing a GPS device. In
support of that motion, he argued his GPS device should be “inadmissible for any
evidence” because the APA allegedly lacked authority to require that he wear the GPS
device when it was placed on him in 2013. In his second motion regarding his GPS
device, which he referred to as a “Motion To Preclude Global Positioning System (GPS)
or Electronic Monitoring,” appellant argued that the police improperly failed to obtain a
warrant before obtaining his GPS tracking records.
{¶13} However, on appeal, appellant changes his argument and now contends
the trial court erred in denying his motion to suppress evidence that he was wearing a
GPS device because such evidence improperly suggested to the jury that he had
previously committed “some wrong act.” Appellant argues the probative value of this
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evidence was outweighed by the danger of unfair prejudice and thus not admissible
pursuant to Evid.R. 403(A). As a result, appellant’s present argument, which is more
properly directed to a motion in limine, is different from the arguments he raised below
in support of his motions to suppress.
{¶14} It is well settled that arguments not raised and determined in the court
below cannot be considered by a reviewing court. BancOhio Nat’l Bank v. Abbey Lane,
Ltd., 13 Ohio App.3d 446, 448 (10th Dist.1984), citing Schade v. Carnegie Body Co., 70
Ohio St.2d 207 (1982). “Generally, the theory upon which a case is tried must be
adhered to on appeal.” BancOhio, supra, citing Republic Steel Corp. v. Bd. of Revision
of Cuyahoga Cty., 175 Ohio St. 179 (1963). Because the grounds urged by appellant
on appeal for excluding evidence of his GPS device are different from those he asserted
below, they cannot be raised for the first time on appeal.
{¶15} In any event, even if appellant had raised his relevance-vs.-prejudice
argument below, it would still lack merit. “The admission or exclusion of evidence rests
within the sound discretion of the trial court.” State v. Rhodes, 11th Dist. Lake No. 2000-
L-089, 2001 Ohio App. LEXIS 5650, *15 (Dec. 14, 2001). “An appellate court will not
disturb the ruling of a trial court as to the admission or exclusion of evidence absent an
abuse of discretion and a showing that appellant has suffered material prejudice.” Id. at
*15 -*16. Further, evidence is relevant and admissible if it has any tendency to make a
consequential fact more or less probable. Evid.R. 401 and Evid.R. 402. A trial court,
however, is required to exclude relevant evidence “* * * if its probative value is
substantially outweighed by the danger of unfair prejudice * * *.” (Emphasis added.)
Evid.R. 403; State v. Boggs, 63 Ohio St.3d 418, 422 (1992).
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{¶16} Here, the evidence that appellant was wearing a GPS device at the time
he committed these crimes was highly relevant to the issue of identification because his
GPS tracking records showed he was at each of the crime scenes when the crimes
were committed. Detective Mark Ketheroff of the Mentor Police Department testified
that on January 20, 2014, he was assigned to investigate the six thefts of items from
vehicles in Mentor the previous weekend, on January 17 and 18, 2014. He reviewed
the initial reports for the six thefts in Mentor and the theft in Eastlake. As to the thefts in
Mentor, the first occurred on January 17, 2014, at about 5:00 p.m. at Chuck E. Cheese;
the next two took place on January 17, 2014, at about 6:00 p.m. at Winking Lizard; and
the next two occurred on January 17, 2014, at about 7:00 p.m. at Outback Steakhouse.
{¶17} On the following day, Saturday, January 18, 2014, at about 8:15 p.m., a
vehicle was broken into at a butcher shop in Mentor. On January 23, 2014, a man
recovered some of the items stolen during this theft in a clothes bin in the parking lot of
Silverman’s, a discount department store, at 6601 Harvard Ave. in Cleveland. He called
the owner of these items whose business cards were in his stolen backpack and told
him he had found his property. The victim then called the police who picked up the
items for him.
{¶18} Detective Ketheroff contacted the Eastlake Police Department on January
20, 2014, and learned they had a witness to the theft that occurred in their city who
identified appellant in a photo lineup. Also, from his investigation, Detective Ketheroff
learned appellant was being monitored by GPS during January 17, 2014 and January
18, 2014. After learning this, the detective requested appellant’s GPS tracking records
from the APA.
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{¶19} The electronic monitoring records for appellant showed that he was at
each of the crime locations in Mentor at the times the thefts were committed. Further,
appellant’s GPS reports showed that on January 18, 2014, at about 9:15 p.m., one hour
after the theft from the vehicle at the butcher shop parking lot in Mentor, appellant was
at 4079 E. 66th St., near Silverman’s and, minutes later, he was at his nearby residence
at 6668 Harvard Ave. in Cleveland.
{¶20} Further, the state presented the least amount of evidence necessary to
explain why appellant was wearing a GPS device at the time of his crimes. Yolanda
Roy, appellant’s parole officer, testified that she is employed as an “agent of the state of
Ohio”; that as part of her job, she “supervises” individuals; that some of those
individuals are required to wear a GPS monitoring device if they violate the terms of
their supervision; that she began supervising appellant in 2012; and that he was
wearing a GPS device on January 17 and 18, 2014.
{¶21} In order to explain to the jury how the police were able to track appellant’s
movements on January 17 and 18, it was necessary that the jury understand appellant
was wearing a GPS device. While the implication could be drawn from this testimony
that appellant had engaged in some sort of prior criminal conduct, Ms. Roy did not
testify that appellant was on parole and she did not say he had any prior convictions.
Thus, the least possible information was presented to explain to the jury why appellant
was wearing a GPS device. In fact, during a pretrial hearing, the court explained to
appellant that the court would only allow the minimum information to substantiate the
reason why he was wearing a GPS device. The court stated, “That’s gonna have to
come in, because I don’t know of any other way to explain to the jury why you’re
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wearing a [GPS] bracelet.” The court then asked appellant if he had a better way of
explaining that to the jury and appellant said, “No, sir.”
{¶22} Further, “‘Evid.R. 403 speaks in terms of unfair prejudice. Logically, all
evidence presented by a prosecutor is prejudicial, but not all evidence unfairly
prejudices a defendant. It is only the latter that Evid.R. 403 prohibits.’” (Emphasis
added.) State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶107, quoting State v.
Wright, 48 Ohio St.3d 5, 8 (1990). “The term ‘unfair prejudice’ * * * speaks to the
capacity of some concededly relevant evidence to lure the factfinder into declaring guilt
on a ground different from proof specific to the offense charged.” Old Chief v. United
States, 519 U.S. 172, 180 (1997).
{¶23} While the evidence that appellant was wearing a GPS device (showing his
whereabouts at the time of his crimes) was prejudicial in that it tended to prove he
committed these crimes, it was not unfairly prejudicial. The evidence was highly
relevant and did not lure the jury into finding appellant guilty on a ground different from
proof specific to the offenses charged. As a result, even if appellant had raised his
relevance-vs.-prejudice argument below, the court did not abuse its discretion in
allowing the state to present evidence that appellant was wearing the device.
{¶24} For his second assigned error, appellant contends:
{¶25} “The trial court failed to fully comply with Crim.R. 44(C).”
{¶26} Crim.R. 44(C) provides: “Waiver of counsel shall be in open court and the
advice and waiver shall be recorded * * *. In addition, in serious offense cases the
waiver shall be in writing.”
{¶27} The parties agree that this was a serious offense case per Crim.R. 2(C) as
each charge exposed appellant to more than six months in prison and that the
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requirement of a writing thus applied to him. While the state agrees the trial court erred
in not requiring that appellant confirm his waiver of counsel in writing, the state argues
the error was harmless because the court substantially complied with Crim.R. 44(C).
We agree.
{¶28} In State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, the Supreme
Court of Ohio held that trial courts need only demonstrate substantial compliance with
Crim.R. 44(C). Martin, supra, at ¶38. The Supreme Court stated:
{¶29} While literal compliance with Crim.R. 44(C) is the preferred
practice, the written waiver provision of Crim.R. 44 is not a
constitutional requirement, and, therefore, we hold that trial courts
need demonstrate only substantial compliance. * * *
{¶30} Accordingly, we reaffirm that in the case of a “serious offense” as
defined by Crim.R. 2(C), when a criminal defendant elects to
proceed pro se, the trial court must demonstrate substantial
compliance with Crim.R. 44(A) by making a sufficient inquiry to
determine whether the defendant fully understood and intelligently
relinquished his or her right to counsel. * * * If substantial
compliance is demonstrated, then the failure to file a written waiver
is harmless error.
{¶31} “‘To be valid such waiver must be made with an apprehension of
the nature of the charges, * * * the range of allowable punishments
thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad
understanding of the whole matter.’” State v. Gibson, 45 Ohio
St.2d 366, 377 ([1976]), quoting Von Moltke v. Gillies, 332 U.S.
708, 723 (1948). Martin, supra, at ¶38-40.
{¶32} Here, during the hearing on appellant’s motion to represent himself, the
trial court engaged in an exhaustive colloquy with him spanning 86 pages of transcript
regarding appellant’s experience in representing himself in prior criminal matters, the
charges against him, his potential defenses, his potential maximum sentence, and the
pitfalls of representing one’s self. Appellant told the trial court that the Cuyahoga
County Common Pleas Court allowed him to represent himself in 2010 in a case in
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which he was charged with engaging in a pattern of corrupt activity based on break-ins
and thefts. In addition, appellant told the trial judge that in a breaking and entering case
he had in Summit County in 2013, the trial court allowed him to represent himself.
{¶33} Further, appellant detailed his criminal history. He told the trial court that
his first criminal conviction was in 1986, and that he has been convicted of felonies
three times in the last ten years. He said he was first sentenced to prison in 1989. In
2001, he was sentenced to seven years and he was released in 2008. In 2010, he was
sentenced to two and one-half years on the Cuyahoga County RICO/theft case. While
he was on post-release control for that case, he violated his post-release control in
2013, at which time he was required to wear the GPS device. Then, in May 2014, he
was violated by the APA based on his involvement in the present case. He said he had
been to prison six or seven times and most of his cases were for theft-related offenses.
{¶34} The court explained to appellant the nature of the charges and had the
prosecutor provide an outline of the evidence she anticipated presenting at trial. The
court advised appellant that, based on his criminal history, if he was found guilty of any
or all of the present crimes, the court would likely send him to prison.
{¶35} The court asked appellant if he understood his defenses. Appellant said
he did and discussed them with the court.
{¶36} The court asked appellant why he wanted to represent himself. Appellant
said he did not feel an attorney would represent him to the best of his/her ability. He
said he had had success in representing himself in the past. The judge strongly urged
appellant not to represent himself and said that if he was facing such serious charges,
he would not represent himself. The judge told appellant that he would be bound by all
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the rules of evidence and procedure the same as an attorney would be and that he
could not assist him because he has to be fair to both sides.
{¶37} With respect to the issue of waiver, the following exchange took place:
{¶38} JUDGE LUCCI: So you understand you have a state and federal
constitutional right not only to the assistance, but to the effective
assistance and representation by a qualified licensed attorney at
law. You understand that?
{¶39} JOHN TURNER: Yes, sir.
{¶40} JUDGE LUCCI: Do you give up that right?
{¶41} JOHN TURNER: Are you saying as a - - for counsel?
{¶42} JUDGE LUCCI: Do you give up that right to an attorney?
{¶43} JOHN TURNER: Yes I do.
{¶44} JUDGE LUCCI: The Court finds that the Defendant has knowingly,
voluntarily, and intelligently waived his right to counsel. Defendant
understands the nature of the charges, the maximum penalties, any
defenses, and the risks and liabilities he will incur, and the rules of
evidence, procedure, and conduct. And has represented to the
Court that he will comply with them, and conduct himself in a
dignified manner, and he understands the purpose of standby
counsel, and the Court finds that the Defendant is competent and
has the ability to represent himself at the trial of this case.
{¶45} Because the trial court demonstrated substantial compliance with Crim.R.
44(C), the failure to obtain a written waiver from appellant was harmless error.
{¶46} For his third assignment of error, appellant alleges:
{¶47} “The trial court erred with the jury instruction on p. 4, and 5 of 16, of the
jury instruction.”
{¶48} Appellant challenges the court’s jury instruction regarding evidence of
crimes or acts other than the charged offenses. Appellant appears to argue in his reply
brief that the “other acts” were his offenses in Eastlake. However, since those were part
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of the charged offenses, they were not other acts. In any event, appellant concedes he
failed to object to the court’s instruction below. He thus waived all but plain error.
Crim.R. 30(A) provides that “a party may not assign as error the giving or the failure to
give any instructions unless the party objects before the jury retires to consider its
verdict, stating specifically the matter objected to and the grounds of the objection.”
This court has held that where an appellant fails to object to the jury instructions at trial,
absent plain error, he waives any right to appeal this issue. State v. Butcher, 11th Dist.
Portage No. 2011-P-0012, 2012-Ohio-868, ¶13, citing State v. Underwood, 3 Ohio St.3d
12 (1983), syllabus.
{¶49} Further, Crim.R. 52(B) allows us to correct “[p]lain errors or defects
affecting substantial rights” that were not brought to the attention of the trial court. State
v. Devai, 11th Dist. Ashtabula No. 2012-A-0054, 2013-Ohio-5264, ¶17. In State v.
Barnes, 94 Ohio St.3d 21, 27 (2002), the Supreme Court of Ohio set forth very strict
limitations on what constitutes plain error. First, there must be an error, i.e., a deviation
from a legal rule. Id. Second, the error must be plain, i.e., the error must be an “obvious”
defect in the proceedings. Id. Third, the error must have affected “substantial rights.” Id.In State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, the Supreme Court of Ohio
held that the defendant has the burden of demonstrating plain error. Id. at ¶17.
{¶50} Appellant quotes the court’s charge to the jury on other acts testimony, but
he fails to state how the instruction was erroneous. In fact, the instruction is the
standard jury instruction on other acts evidence as set forth in OJI 401.25. This court
has addressed the authoritative nature of Ohio Jury Instructions, as follows:
{¶51} The standard instructions found in Ohio Jury Instructions,
commonly referred to as OJI, are not mandatory. Rather, they are
recommended instructions, based primarily upon case law and
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statutes. The particular instruction to be given in a jury trial is fact
specific and based upon the indictment, testimony, evidence, and
the defenses available to the defendant. The standard instructions
are crafted by the Ohio judicial conference and sanctioned by the
Ohio Supreme Court to assist trial judges and lawyers in correctly
and efficiently charging the jury on the law applicable to a particular
case. The OJI are authoritative, and are generally to be followed
and applied by Ohio’s courts. Cf. State v. Kucharski, 2d Dist.
[Montgomery] No. 20815, 2005-Ohio-6541, ¶25, fn. 1. The OJI are
tested, both at trial and through thorough appellate and (usually)
Supreme Court review. Standard criminal instructions are written
under the particular statutes and existing precedent from the Ohio
Supreme Court. When given, they insure accuracy and compliance
with constitutional protections afforded to litigants and minimize
reversible error. State v. Jeffers, 11th Dist. Lake No. 2007-L-011,
2008-Ohio-1894, ¶107. (O’Toole, concurring.)
{¶52} As noted above, the first requirement of plain error is that there was error.
Because appellant fails to demonstrate the trial court erred in giving its other acts
instruction to the jury, he failed to demonstrate the existence of plain error.
{¶53} For his fourth and last assigned error, appellant maintains:
{¶54} “The trial court erred denying Appellant motion to dismiss the charges for
lack of a Speedy trial.” (Sic throughout.)
{¶55} R.C. 2945.71(C)(2) provides that a party who has been charged with a
felony offense must be brought to trial within 270 days after his arrest. Further,
pursuant to R.C. 2945.71(E), each day during which an accused is held in jail in lieu of
bail on a pending charge will be counted as three days. Thus, R.C. 2945.71(C)(2) and
(E) require the state to bring a felony defendant to trial within 270 days of arrest or
within 90 days if the accused is held in jail in lieu of bail on the pending charge.
{¶56} “The standard of review of a speedy trial issue is to count the days of
delay chargeable to either side, and determine whether the case was tried within the
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time limits set by R.C. 2945.71.” State v. Kist, 173 Ohio App.3d 158, 2007-Ohio-4773,
¶17 (11th Dist.).
{¶57} Appellant argues the trial court erred in denying his motion to dismiss for
want of a speedy trial because he was tried more than 270 days after he was initially
charged in the Willoughby Municipal Court. However, for the reasons that follow, we do
not agree.
{¶58} As a preliminary matter, we note that the triple-count provisions in R.C.
2945.71(E) do not apply in this case. It is well settled that the existence of a valid
parole holder prevents application of the triple-count provisions of R.C. 2945.71(E).
State v. Brown, 64 Ohio St.3d 476, 479 (1992). This is because the triple-count
provisions apply only to those defendants held in jail in lieu of bail solely on the pending
charge, and a parole violation is considered a separate offense. Id. Because appellant
was held on the parole holder and subsequent parole violation from March 18, 2014
until after his October 4, 2015 sentence, contrary to the argument in his “Supplement
Reply Motion for the Fourth Assignment of Error,” he was not entitled to application of
the triple-count provisions for any period of time while this matter was pending.
{¶59} We now address whether any periods of time within the 270-day time
limitation are not counted against the state. First, the four-month period between the
date the municipal court nolled the complaint (April 1, 2014) and the date appellant was
indicted (August 8, 2014) is not counted against the state. The Supreme Court of Ohio
in State v. Broughton, 62 Ohio St.3d 253 (1991), held that for purposes of computing
how much time has run against the state under R.C. 2945.71 et seq., the time period
between the dismissal without prejudice of an original charge and the filing of a
subsequent indictment, based on the same facts as alleged in the original charge, shall
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not be counted against the state unless the defendant is held in jail or released on bail
pursuant to Crim.R. 12(I). Broughton at 259-260.
{¶60} Since appellant was not held in jail or released on bail on these charges
between the date his case was nolled by the municipal court (April 1, 2014) and the
date he was indicted (August 8, 2014), that period is not counted against the state.
{¶61} Further, R.C. 2945.72 provides for reasonable extensions of time within
which an accused must be brought to trial. Pertinent to this appeal, R.C. 2945.72
provides:
{¶62} The time within which an accused must be brought to trial * * * may
be extended only by the following:
{¶63} (A) Any period during which the accused is unavailable for hearing
or trial, by reason of other criminal proceedings against him * * *;
{¶64} * * *
{¶65} (E) Any period of delay necessitated by reason of a * * * motion,
proceedings, or action made or instituted by the accused * * *.
{¶66} As the trial court found in its judgment denying the motion to dismiss for
lack of a speedy trial, appellant was unavailable to be arraigned from the date on which
he was indicted, August 8, 2014, until November 17, 2014, when he was conveyed from
prison, where he was being held on the parole violation, to the trial court. As a result,
that period is not counted against the state.
{¶67} Further, between November 10, 2014 and July 13, 2015, when appellant
filed his motion to dismiss for lack of a speedy trial, appellant filed more than 90 motions
and other proceedings, which substantially delayed the trial. Following a hearing on this
motion, on July 24, 2015, the court entered judgment denying the motion in which the
court stated:
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{¶68} The defendant indicates that he was arrested due to the municipal
court case on March 12, 2014. However, his motion also indicates
that he was picked up by the Adult Parole Authority on March 18,
2014. Further, the court’s docket indicates that the defendant had
to be conveyed here from prison in order to be arraigned in this
case [on November 17, 2014]. The time for bringing a defendant to
trial is extended by any period during which the defendant is
unavailable for trial or other hearing by reason of other criminal
proceedings against him. R.C. 2945.72(A).
{¶69} Additionally, the time for bringing a defendant to trial is also
extended by any period of delay necessitated by reason of a
motion, proceeding, or action made or instituted by the defendant.
R.C. 2945.72(E). This case was originally scheduled for trial on
January 20, 2015, however, since his arraignment in the within
action, the defendant has filed more than 90 motions in the within
action. On December 22, 2014, the court conducted a hearing on
the defendant’s motion to represent himself. The motion was
granted in an entry dated January 6, 2015. On January 9, 2015,
the court ruled on the approximately 50 pending motions filed by
the defendant. As part of this ruling, the court scheduled a hearing
on the defendant’s motion to suppress for February 19, 2015, and
rescheduled the jury trial for March 2, 2015. On February 4, 2015,
the court held a pretrial. At that time, the defendant indicated that
the petition for writ of habeas corpus he had filed on November 25,
2014 was intended for the court of appeals. The court explained
that filing the petition for writ of habeas corpus with the court of
appeals would likely limit the court’s jurisdiction, delaying the
defendant’s trial. As a result, on February 5, 2015, the court
ordered that the petition be refiled with the court of appeals and the
suppression hearing and trial were cancelled. On February 5,
2015, the defendant also filed a notice of appeal. On March 31,
2015, the court of appeals dismissed the defendant’s petition for
writ of habeas corpus. On May 15, 2015, the defendant filed a writ
of mandamus in the court of appeals relating to this court’s ruling
on the defendant’s motions for an investigator. That matter is still
pending. On June 8, 2015, the court of appeals dismissed the
defendant’s appeal. Three days later, on June 11, 2015, the court
rescheduled the defendant’s suppression hearing for July 30, 2015.
On July 1, 2015, the defendant filed an affidavit of disqualification
with the Ohio Supreme Court, which was denied on July 6, 2015.
Thus, the record demonstrates that the delays in the within case
have been caused by motions, proceedings, or actions made or
instituted by the defendant. In total, the defendant has filed in
excess of 90 motions in the within action, thus further delaying the
proceedings and extending the period of time within which the
defendant must be tried.
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{¶70} As an aside, we note that one week after the court denied appellant’s
motion to dismiss for lack of a speedy trial, on July 31, 2015, the court set this matter for
trial on September 11, 2015. Between those dates, appellant filed some 40 additional
motions. These included multiple motions for discovery, several motions to dismiss, a
motion to suppress appellant’s statement at his parole-violation hearing, a motion for a
different judge, a motion for different standby counsel, and a motion to modify bail. The
court timely addressed the motions and the trial proceeded as scheduled.
{¶71} In view of the foregoing analysis, the trial court did not err in denying
appellant’s motion to dismiss for lack of a speedy trial.
{¶72} For the reasons stated in this opinion, the assignments of error lack merit
and are overruled. It is the order and judgment of this court that the judgment of the
Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J., DIANE V. GRENDELL, J., TIMOTHY P. CANNON,
J., concur.
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