State v. Gordon , 2011 Ohio 1227 ( 2011 )

[Cite as State v. Gordon, 2011-Ohio-1227.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Julie A. Edwards, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : John W. Wise, J.
:
-vs- : Case No. 2010CA00132
:
:
TERRENCE LEE GORDON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2009CR1576
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD L. HUNT
Prosecuting Attorney 2395 McGinty Road, N.W.
Stark County, Ohio North Canton, Ohio 44720
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Ste. #510
Canton, Ohio 44702-1413
[Cite as State v. Gordon, 2011-Ohio-1227.]
Edwards, P.J.
{¶1} Defendant-appellant, Terrence Gordon, appeals from the April 20, 2010,
Judgment Entry of the Stark County Court of Common Pleas. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 23, 2009, appellant was charged with one count of
aggravated burglary in Canton Municipal Court Case No. 2009CRA04740. On
September 25, 2009, appellant was charged with two counts of aggravated robbery in
Canton Municipal Court Case No. 2009CRA04786. One of the robberies was alleged to
have occurred on August 26, 2009 and the other on September 4, 2009. Both involved
the same Mini-Mart store in Canton. Appellant was arrested in both cases on
September 26, 2009. Thereafter, on October 5, 2009, appellant was bound over from
Canton Municipal Court. Appellant was held in lieu of cash or bond.1
{¶3} The Stark County Grand Jury, on November 2, 2009, indicted appellant on
two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of the first
degree, and one count of aggravated burglary in violation of R.C. 2911.11(A)(1), also a
felony of the first degree. At his arraignment on November 6, 2009, appellant entered a
plea of not guilty to the charges in the indictment.
{¶4} Thereafter, on November 25, 2009, appellant filed a Motion for Separate
Trials, asking that the two counts of aggravated robbery be tried first. On December 9,
2009, appellant filed a Motion to Suppress Identification Evidence. A suppression
hearing was scheduled for January 11, 2010.
1
The bond in Case No. 2009CRA04786 was set at $100,000.00 cash or surety. The bond in Case No.
2009CRA04740 was set at $50,000.00 cash or surety.
Stark County App. Case No. 2010CA00132 3
{¶5} As memorialized in a Judgment Entry filed on December 16, 2009, the trial
court overruled appellant’s Motion for Separate Trials. However, pursuant to a
Judgment Entry filed on December 31, 2009, the trial court granted such motion and
ordered that the two counts of aggravated robbery be tried first. The suppression
hearing was later rescheduled to January 19, 2010.
{¶6} Via a Judgment Entry filed on January 27, 2010, the trial court overruled
appellant’s Motion to Suppress.
{¶7} A hearing was held before the trial court on February 19, 2010, on
appellee’s motion for a continuance of the trial date. Appellee had requested a
continuance in order to obtain the DNA of appellant’s twin who allegedly looks exactly
like appellant. As memorialized in a Judgment Entry filed on March 2, 2010, the trial
court granted such motion. The trial court, in its Judgment Entry, scheduled the trial on
the two counts of aggravated robbery for April 1, 2010, and the trial on the count of
aggravated burglary for April 27, 2010.
{¶8} Appellant, on March 31, 2010, filed a Motion to Dismiss for Speedy Trial
Violations. In order to give appellee time to respond to the same and in order to
accommodate appellant’s request for a hearing on the Motion to Dismiss, the trial court,
pursuant to a Judgment Entry filed on March 31, 2010, continued the trial on the
aggravated robbery counts until April 8, 2010. The trial court also scheduled an oral
hearing on the Motion to Dismiss for April 7, 2010. Appellee filed a response to
appellant’s Motion to Dismiss on April 6, 2010.
{¶9} On April 9, 2010, appellant was found guilty of both counts of aggravated
robbery.
Stark County App. Case No. 2010CA00132 4
{¶10} Pursuant to a Judgment Entry filed on April 15, 2010, the trial court
overruled appellant’s Motion to Dismiss on Speedy Trial Grounds. As memorialized in a
Judgment Entry filed on April 20, 2010, appellant was sentenced to an aggregate prison
sentence of fifteen (15) years on the two counts of aggravated robbery.
{¶11} Subsequently, on April 21, 2010, appellant entered a plea of guilty to one
count of aggravated burglary as charged in the remaining count in the indictment.
Pursuant to a Judgment Entry filed on April 27, 2010, appellant was sentenced to three
(3) years in prison. The trial court ordered that such sentence run concurrently to the
sentence previously imposed on April 8, 2010.
{¶12} Appellant now raises the following assignment of error on appeal:
{¶13} “THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE
DEFENDANT’S MOTION TO DISMISS FOR SPEEDY TRIAL VIOLATIONS.”
I
{¶14} Appellant, in his sole assignment of error, argues that the trial court erred
in overruling appellant’s Motion to Dismiss for Speedy Trial Violations. We disagree.
{¶15} An accused is guaranteed the right to a speedy trial by the Sixth
Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution. To determine whether an accused's right to a speedy trial has been
violated, the United States Supreme Court has devised a balancing test that requires
courts to balance and weigh the conduct of the prosecution and that of the accused by
examining four factors: the length of the delay, the reason for the delay, whether the
accused has asserted his speedy trial rights, and any resulting prejudice to the accused.
Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
Stark County App. Case No. 2010CA00132 5
{¶16} In Ohio, the right to a speedy trial has been implemented by statutes that
impose a duty on the state to bring a defendant who has not waived his rights to a
speedy trial to trial within the time specified by the particular statute. R.C. 2945.71 et
seq. applies to defendants generally. R.C. 2945.71 provides:
{¶17} “(C) A person against whom a charge of felony is pending:
{¶18} “(1) * * *
{¶19} “(2) Shall be brought to trial within two hundred seventy days after the
person's arrest.
{¶20} “(D) A person against whom one or more charges of different degrees,
whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of
which arose out of the same act or transaction, are pending shall be brought to trial on
all of the charges within the time period required for the highest degree of offense
charged, as determined under divisions (A), (B), and (C) of this section.
{¶21} “(E) For purposes of computing time under divisions (A), (B), (C)(2), and
(D) of this section, each day during which the accused is held in jail in lieu of bail on the
pending charge shall be counted as three days. This division does not apply for
purposes of computing time under division (C)(1) of this section.” (Emphasis added).
{¶22} A speedy-trial claim involves a mixed question of law and fact. State v.
Larkin, Richland App. No.2004-CA-103, 2005-Ohio-3122. As an appellate court, we
must accept as true any facts found by the trial court and supported by competent,
credible evidence. With regard to the legal issues, however, we apply a de novo
standard of review and thus freely review the trial court's application of the law to the
facts. Id.Stark County App. Case No. 2010CA00132 6
{¶23} When reviewing the legal issues presented in a speedy-trial claim, we
must strictly construe the relevant statutes against the state. In Brecksville v. Cook, 75
Ohio St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706, 709, the court reiterated its prior
admonition “to strictly construe the speedy trial statutes against the state.”
{¶24} The time to bring a defendant to trial can be extended for any of the
reasons enumerated in R.C. 2945.72.
{¶25} “When reviewing a speedy-trial issue, an appellate court must calculate
the number of days chargeable to either party and determine whether the appellant was
properly brought to trial within the time limits set forth in R.C. 2945.71.” State v. Riley,
162 Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19.
{¶26} Appellant, in the case sub judice, argues that he was entitled to the triple
count provisions of R.C. 2945.71(E) from the date of his arrest on September 26, 2009,
because he was held in jail in lieu of cash or bond on the pending charge. Appellant
argues that he had to be brought to trial within ninety (90) days of his arrest on
September 26, 2009, unless such time was extended by delays chargeable to the
defense. In his motion before the trial court, appellant specifically argued, in relevant
part, as follows:
{¶27} “Counsel bases his calculation on the fact that sixty (60) days had elapsed
from arrest until filing of a motion for separate trial (9/26 – 11/25/2009). This time period
is clearly chargeable to the state. The second of Defendant’s two pretrial motions, the
motion to suppress, was decided on January 27, 2010 when the Court filed its entry
denying the motion. At this point, time began to run again because no defense motions
were pending that would act as a tolling event. With a total of ninety (90) days in which
Stark County App. Case No. 2010CA00132 7
to bring the Defendant to trial, the state had thirty (30) days remaining from January 27,
2010 when Defendant’s motion to suppress was overruled. This would place
Defendant’s try-by date as February 26, 2010.” As is stated above, the trial did not take
place until April 8, 2010.
{¶28} As noted by the court in State v. Moore, Cuyahoga App. No. 91464, 2010-
Ohio-509, “R.C. 2945.71(E) explains that each day a defendant is held in jail in lieu of
bail shall be counted as three; however, this provision applies only when a defendant is
held solely on the pending charges in a case. State v. Kaiser (1978), 56 Ohio St.2d 29,
381 N.E.2d 633, paragraph two of the syllabus. See, also, State v. Dankworth, 172 Ohio
App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, at ¶ 35 (“[b]ecause Dankworth was
arrested for numerous unrelated charges, he was not held in jail in lieu of bail on a
single ‘pending charge.’ To the contrary, Dankworth was held in jail in lieu of bail on
several unrelated charges. * * * Under the circumstances presented, the fact that he
was arrested on the same date for each of the unrelated criminal incidents is
inconsequential.”) Id at paragraph 45.
{¶29} In Dankworth, supra, the Court of Appeals stated, in relevant part, as
follows: “Dankworth's July 20 arrest was not related to a single criminal incident that
resulted in multiple charges. Rather, Dankworth had engaged in four unrelated acts of
criminal conduct, involving at least three separate victims, on four separate dates:
forgery on July 17, 2005, theft of a firearm on July 12, 2005, violation of a protective
order and burglary on July 18, 2005, and violation of a protective order and arson on
July 20, 2005. The state filed separate complaints, and the municipal court imposed
separate cash bonds for each of the offenses. Because Dankworth was arrested for
Stark County App. Case No. 2010CA00132 8
numerous unrelated charges, he was not held in jail in lieu of bail on a single “pending
charge.” To the contrary, Dankworth was held in jail in lieu of bail on several unrelated
charges. Accord State v. Johnson, Cuyahoga App. Nos. 81692 and 81693, 2003-Ohio-
3241, 2003 WL 21419631, ¶ 15-17. Under the circumstances presented, the fact that he
was arrested on the same date for each of the unrelated criminal incidents is
inconsequential. “Id at paragraph 35.
{¶30} In the case sub judice, appellant was arrested on September 26, 2009 on
two separate Municipal Court cases. The one case alleged one count of aggravated
burglary, and the other case alleged two counts of aggravated robbery. The aggravated
robberies occurred on two different dates, although the victim and the location were the
same. The burglary occurred on a completely different date than either of the
aggravated robbery counts and was at a different location and involved a different
victim. There were different bonds on each of the two Municipal Court cases. In short,
pursuant to Dankworth, because appellant was arrested for numerous unrelated
charges, he was not held in lieu of bond on a single “”pending charge” and therefore
was not entitled to the triple count provisions of R.C. 2945.71(E) from the date of his
arrest on September 26, 2009, until the indictment was filed on November 2, 2009.
{¶31} Appellant, in his brief, cites to State v. Parker, 113 Ohio St.3d 207, 2007-
Ohio-1534, 863 N.E.2d 1032. However, we find that such case is distinguishable. In
Parker, the appellee was arrested on November 6, 2002, in connection with the
discovery of a methamphetamine lab. As a result of his arrest, Parker was incarcerated
and three separate complaints were filed in the Ashtabula Municipal Court, charging
Parker with illegal manufacture of drugs, possession of drugs and carrying a concealed
Stark County App. Case No. 2010CA00132 9
weapon. The Parker court concluded that the triple-count provision applied to the three
charges, despite the fact that Parker was arraigned on three separate complaints. The
court held that “when multiple charges arise from a criminal incident and share a
common litigation history, pretrial incarceration on the multiple charges constitutes
incarceration on the ‘pending charge’ for the purposes of the triple-count provision of the
speedy-trial statute, R.C. 2945.71(E).” Parker at ¶ 21. The court noted: “[T]he charges
at the time of the complaints could have proceeded together in one jurisdiction. Parker
had no control over the decision to refer only the drug charges to the grand jury. The
state cannot reasonably argue that it has a mechanism at its disposal whereby after
bringing both misdemeanor and felony charges based on a single criminal incident, and
retaining the misdemeanor as a pending action in municipal court, it can obviate any
triple-count concerns.” Id. at ¶ 24.
{¶32} In contrast to Parker, appellant’s arrest was not related to a single criminal
incident that resulted in multiple charges. Rather, appellant was arrested based on
three different criminal incidents that occurred on different dates. Appellant, therefore,
was not entitled to apply the triple count provision to all of the charges from the time of
his arrest to the time the indictment was filed.
{¶33} However, once an indictment including all of the charges was filed,
appellant was entitled to the triple count provision of R.C. 2945.71(E). See Dankworth,
supra at paragraph 37. As is stated above, an indictment was filed in this case on
November 2, 2009, that included all three charges. Thereafter, on November 25, 2009,
appellant filed a Motion for Separate Trials. Both parties did not dispute that the motion
Stark County App. Case No. 2010CA00132 10
acted as a tolling event and that the triple count provision did not apply. See, for
example, State v. Knight , Greene App. No. 03-CA-014, 2005-Ohio- 3179.
{¶34} On December 9, 2009, appellant filed a Motion to Suppress. The speedy-
trial period was tolled during the time defendant's motion to suppress was pending. R.C.
2945.72(E).
{¶35} On December 31, 2009, the trial court granted appellant’s motion for
separate trials.2 As is stated above, pursuant to a Judgment Entry filed on January 27,
2010, the trial court overruled appellant’s Motion to Suppress. At this point, the time
began to run again after having been tolled from November 25, 2009 to January 27,
2010. Appellant then filed his motion to dismiss on March 31, 2010.
{¶36} Based on the foregoing, we concur with appellee that appellant’s speedy
trial time should be calculated as follows:
{¶37}
“Dates Days Single/Triple Days Total
9/26/09 to 11/2/093 37 Single 37 37
Gordon arrested in Canton Municipal case Nos. 2009-CRA-04740 and
2009-CRA-04789 until charges consolidated into one indictment
11/2/2009 TO 11/25/2009 23 Triple 69 106
From indictment until Gordon’s motion for separate trials.
11/25/2009 to 1/27/10 0 Tolled 0 106
Gordon’s motions for separate trials and his Motion to suppress are
pending and time is tolled.
1/27/2010 to 3/31/2010 63 Single 63 169
Motion to suppress overruled January 27, 2010. Gordon granted
severance and separate trial on December 31, 2010.
2
In Sate v. DeLeon, Montgomery App. No. 18114, 2002-Ohio-3286, the court held that the time for
bringing an accused to trial does not begin anew after the severance of the indictment. Id. at 4.
3
‘The day of arrest does not count against the state for the purposes of speedy trial calculation. State v.
Stamps (1988), 127 Ohio App.3d 219, 223, 712 N.E.2d 762, 764.’
Stark County App. Case No. 2010CA00132 11
3/31/2010 0 Tolled 0 169
Gordon filed his motion to dismiss”
{¶38} Thus, as of March 31, 2010, the date appellant filed his Motion to Dismiss,
only 169 of the 270 days within which to bring him to trial had passed. Appellant’s trial
was held on April 8, 2010. Thus, appellant was timely tried.
{¶39} Based on the foregoing, we find that the trial court did not err in overruling
appellant’s Motion to Dismiss for Speedy Trial Violations.
{¶40} Appellant’s sole assignment of error is, therefore, overruled.
{¶41} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Edwards, P.J.
Farmer, J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d1203
[Cite as State v. Gordon, 2011-Ohio-1227.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TERRENCE LEE GORDON :
:
Defendant-Appellant : CASE NO. 2010CA00132
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
_________________________________
_________________________________
_________________________________
JUDGES