State v. Carroll , 2021 Ohio 3937 ( 2021 )

[Cite as State v. Carroll, 2021-Ohio-3937.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2021CA0020
DUSTIN J. CARROLL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Coshocton County Court
of Common Pleas, Case No.
2021CR0014
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 3, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN DUSTIN J. CARROLL
Coshocton County Prosecuting Attorney Inmate #A767-546
318 Chestnut Street Noble Correctional Institution
Coshocton, Ohio 43812 Caldwell, Ohio 43724
Coshocton County, Case No. 2021CA0020 2
Hoffman, P.J.
{¶1} Defendant-appellant Dustin Carroll appeals the judgment entered by the
Coshocton County Common Pleas Court convicting him of illegal conveyance of drugs of
abuse onto grounds of a specified governmental facility (R.C. 2921.36(A)(2)) and
sentencing him to twelve months incarceration. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On February 1, 2021, Appellant was indicted by the Coshocton County
Grand Jury with one count of illegal conveyance of drugs of abuse onto grounds of a
specified governmental facility. Appellant moved to dismiss the indictment, arguing the
indictment was barred by double jeopardy based on the dismissal of a previous indictment
for conspiracy. The trial court found the motion not well taken, and overruled the motion.
Appellant further moved to dismiss the indictment on the basis his speedy trial rights were
violated.
{¶3} On August 2, 2021, Appellant entered a plea of guilty to the single charge
in the indictment. On recommendation of the prosecutor, the trial court sentenced
Appellant to twelve months incarceration, to be served concurrently with a sentence
Appellant was serving in a prior case.
{¶4} It is from the August 5, 2021 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal.
Coshocton County, Case No. 2021CA0020 3
I. THE TRIAL COURT COMMITTED VIOLENCE TO THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT WHEN IT REFUSED
TO IMPOSE THE BAR TO FURTHER PROSECUTION ATTACHED TO
THE GRANT OF A CRIM. R. 12(C) (2) MOTION TO DISMISS.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT WHEN IT TOLLED THE STATUTE OF LIMITATIONS
PRESCRIBED BY A SPECIFIC STATUTE WITH A GENERAL ONE,
THEREBY USURPING THE JURISDICTION TO ACCEPT A PLEA.
I.
{¶5} Appellant argues the trial court erred in overruling his motion to dismiss the
indictment on the basis of double jeopardy, based on the prior entry of dismissal of an
indictment in Case Number 2020CR0072.
{¶6} A defendant's rights under the Double Jeopardy Clause of the Fifth
Amendment are not waived by a plea of guilty. Village of Montpelier v. Greeno, 25 Ohio
St.3d 170, 172, 495 N.E.2d 581, 582 (1986), citing Menno v. New York, 423 U.S. 61, 96
S.Ct. 241, 46 L.Ed.2d 195 (1975). However, termination of a proceeding before jeopardy
has attached, even if harmful to the defendant in some way, does not entitle him to relief
under the double jeopardy clause State v. Larabee, 69 Ohio St.3d 357, 358, 632 N.E.2d
511, 513 (1994). Without risk of determination of guilt, jeopardy does not attach, and
neither an appeal nor further prosecution constitutes double jeopardy. Id., citing Serfass
v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The Serfass court
held jeopardy did not attach when a trial court granted a pretrial motion to dismiss an
Coshocton County, Case No. 2021CA0020 4
indictment after receiving evidence, stipulations, and arguments relative to the motion.
Id.{¶7} In the instant case, Appellant attached the trial court’s entry filed February
1, 2021, dismissing the indictment in case number 2020CR0072 to his motion to dismiss.
This entry states:
This matter came before the Court on January 22, 2021, for oral
argument upon the Defendant’s “Motion to Dismiss.”
The Defendant was present through remote video conferencing from
the Ohio Department of Rehabilitation and Conviction. The Defendant’s
Counsel, Jeffrey Kellogg was present in Court, with Prosecuting Attorney
Jason Given.
Whereupon, after hearing the arguments of Counsel, the Court finds
the motion to be well taken, and the indictment in this case is hereby
DISMISSED, without prejudice. In so ruling, the Court finds that the crime
charged within the body of the indictment is not a listed offense under the
conspiracy statute, and subsection (M) of R.C. 2923.01 does not include a
violation of R.C. 2921.36, within the definition of “Felony drug trafficking,
manufacturing, processing, or possession offense.”
Therefore, a person cannot be charged with conspiracy to commit a
violation of R.C. 2921.36, as such an offense does not exist in the State of
Ohio.
Coshocton County, Case No. 2021CA0020 5
{¶8} We find it is apparent from the face of this entry the prior indictment was
dismissed without prejudice before jeopardy had attached. The trial court therefore did
not err in overruling Appellant’s motion to dismiss the instant indictment on double
jeopardy grounds.
{¶9} Appellant’s first assignment of error is overruled.
II.
{¶10} In his second assignment of error, Appellant argues the trial court erred in
overruling his motion to dismiss the case based on violation of his right to a speedy trial.
{¶11} Appellant entered a guilty plea in the instant case. Where an accused
enters a plea of guilty, he waives his right to raise the denial of his right to a speedy trial
on appeal. Village of Montpelier v. Greeno, supra.
{¶12} Appellant’s second assignment of error is overruled.
{¶1} The judgment of the Coshocton County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur