State v. Hyde ( 2014 )

[Cite as State v. Hyde, 2014-Ohio-1278.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 41
v. : T.C. NO. 12CR443
TAD J. HYDE : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of March, 2014.
..........
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
BRANDON CHARLES McCLAIN, Atty. Reg. No. 0088280, 70 Birch Alley, Suite 240,
Beavercreek, Ohio 45440
Attorney for Defendant-Appellant
..........
FROELICH, P.J.
{¶ 1} Tad J. Hyde pled no contest1 in the Clark County Court of Common Pleas
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The trial court’s judgment entry states that Hyde entered a plea of guilty. Upon review of the plea hearing
transcript, this is clearly a typographical error. The matter will be remanded to the trial court for correction of the entry.
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to one count of robbery in Case No. 12-CR-443. In exchange for the plea, a second robbery
charge in Case No. 12-CR-455 was dismissed. The trial court sentenced Hyde to four years
in prison (with credit for jail time served from June 14, 2012 until conveyance to the
penitentiary), restitution in the amount of $40.98, appointed counsel costs, and court costs.
{¶ 2} Hyde appeals from his conviction, claiming that the trial court erred in
denying his motion to dismiss the action due to violation of his right to a speedy trial.2 For
the following reasons, the trial court’s judgment will be affirmed.
I.
{¶ 3} Hyde’s charges stem from the robberies of two different Rite Aid stores on
June 11 and 14, 2012, respectively, in Springfield, Ohio. On June 14, 2012, Hyde was
arrested and charged with the robbery committed that day. After further investigation by the
police, Hyde was charged on June 20 with the June 11 robbery.
{¶ 4} On June 25, 2012, Hyde was indicted on the June 14 robbery; he was
served with the indictment on the following day. Case No. 12-CR-443. At his
arraignment, the court set bond at $25,000; he remained in jail in lieu of bond. On July 2,
2012, Hyde was indicted for the robbery committed on June 11, 2012. Case No.
12-CR-455. Hyde was arraigned on July 5, 2012, and bond was set at $35,000. Hyde was
not released on bond.
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On March 11, 2014, Hyde, pro se, filed a “Request for Leave to Respond to Answer Brief of Appellee State of Ohio,”
claiming that his attorney failed to respond to the State’s appellate brief. Hyde’s motion is denied. Hyde is represented by
counsel, who filed a reply brief on February 3, 2014. We will not accept Hyde’s pro se memorandum under these circumstances.
Moreover, even if we were to consider Hyde’s pro se brief, Hyde raises the same issues that were competently addressed by his
attorney.
[Cite as State v. Hyde, 2014-Ohio-1278.]
{¶ 5} On October 11, 2012, Hyde moved to dismiss both actions on the ground
that his speedy trial rights were violated. On October 16, 2012, the State moved to
consolidate the two cases, pursuant to Crim.R. 13. After a hearing on October 17, the
motion to dismiss was denied, and the motion to consolidate was granted.
{¶ 6} On October 22, 2012, Hyde entered pleas of not guilty and not guilty by
reason of insanity, and he requested an evaluation of his mental condition both at the present
time and at the time of the charged offenses. On November 6, 2012, the trial court
sustained the motion for a competency evaluation and ordered an evaluation. A
competency review hearing was scheduled for December 13, 2012. On the day of the
hearing, Hyde requested a continuance so that he could call witnesses. The matter was
continued until February 25, 2013, at which time a hearing was held. On March 4, 2013,
Hyde moved for a second evaluation of his mental condition at the time of the alleged
offense. Hyde withdrew that motion on March 7, 2013.
{¶ 7} On April 9, 2013, the day of Hyde’s scheduled trial, Hyde again moved to
dismiss on speedy trial grounds. He also moved for relief from the consolidation of the two
actions and for his counsel to withdraw. The trial court overruled Hyde’s motions and also
filed an entry finding him competent to stand trial. Later that day, Hyde withdrew his
former plea and pled no contest to robbery in Case No. 12-CR-443. Pursuant to the plea,
the robbery charge in Case No. 12-CR-455 was dismissed. Hyde was sentenced
accordingly.
II.
{¶ 8} Hyde appeals from his conviction in Case No. 12-CR-443. His sole
assignment of error states that “trial court committed plain error by not dismissing both
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indictments against Mr. Hyde, due to violation of his speedy trial rights.”
{¶ 9} 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). Ohio’s
speedy trial statute, R.C. 2945.71, “was implemented to incorporate the constitutional
protection of the right to a speedy trial” provided in the United States and Ohio
Constitutions. Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706 (1996).
Accordingly, that statute must be strictly construed against the State. Id.{¶ 10} A defendant can establish a prima facie case for a speedy trial violation by
demonstrating that the trial was held past the time limit set by statute for the crime with
which the defendant is charged. State v. Gray, 2d Dist. Montgomery No. 20980,
2007-Ohio-4549, ¶ 15. “If the defendant can make this showing, the burden shifts to the
State to establish that some exception[s] applied to toll the time and to make the trial timely.
If the State does not meet its burden, the defendant must be discharged. R.C. 2945.73.”
Id.{¶ 11} Under R.C. 2945.71(C)(2), the State must bring a felony defendant to trial
within 270 days of arrest. “Each day during which the accused is held in jail in lieu of bail
on the pending charge is counted as three, pursuant to the triple-count provision of R.C.
2945.71(E). This ‘triple-count’ provision would reduce to 90 days the time for bringing to
trial an accused who is incarcerated the entire time preceding trial.” (Citation omitted.)
State v. Dankworth, 172 Ohio App.3d 159, 2007-Ohio-2588, 873 N.E .2d 902, ¶ 31 (2d
Dist.). However, an accused is only entitled to the triple-count provision when he or she is
held in jail solely on the pending charge. State v. Kaiser, 56 Ohio St.2d 29, 381 N.E.2d 6335
(1978), paragraph two of the syllabus.
{¶ 12} In addition, the time within which a defendant must be brought to trial may
be extended for the reasons specifically enumerated in R.C. 2945.72. State v. Brewer, 2d
Dist. Montgomery Nos. 22159, 22160, 2008-Ohio-2715, ¶ 37, citing State v. Palmer, 84
Ohio St.3d 103, 702 N.E.2d 72 (1998). Permissible reasons for extending the trial date
include “[a]ny period of delay necessitated by reason of a plea in bar or abatement, motion,
proceeding, or action made or instituted by the accused,” R.C. 2945.72(E), and “[t]he 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(H).
{¶ 13} Hyde argues that the triple-count provision applied throughout his case,
because the State knew of the June 11, 2012 robbery at the time he was charged with the
June 14, 2012 robbery.
{¶ 14} The Supreme Court of Ohio has held: “When new and additional charges
arise from the same facts as did the original charge and the state knew of such facts at the
time of the initial indictment, the time within which trial is to begin on the additional charge
is subject to the same statutory limitations period that is applied to the original charge.”
State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025, 1027 (1989). However, “in issuing
a subsequent indictment, the state is not subject to the speedy trial timetable of the initial
indictment, when additional criminal charges arise from facts different from the original
charges, or the state did not know of these facts at the time of the initial indictment.”
(Emphasis added.) State v. Baker, 78 Ohio St.3d 108, 111, 676 N.E.2d 883 (1997).
{¶ 15} We have interpreted this authority to mean that “[a]dditional crimes based
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on different facts should not be considered as arising from the same sequence of events for
the purpose of speedy trial computation.” State v. Matthews, 2d Dist. Montgomery No.
23953, 2011-Ohio-2067, ¶ 14, citing Baker. “[I]f the facts of the offenses in multiple
indictments are truly different – i.e, they arise from different circumstances, require different
evidence, and are otherwise distinguishable in a significant way – the State is permitted to
charge them separately even if all of the facts are known to the [S]tate when the initial
indictment is filed.” State v. Jones, 2d Dist. Montgomery No. 21974, 2008-Ohio-1603,
¶ 10.
{¶ 16} In this case, Hyde was charged with committing robberies at two different
Rite Aid locations on different days in June 2012. According to the record, at
approximately 9:30 a.m. on June 11, 2012, an individual entered a Rite Aid on South
Limestone Street in Springfield and demanded cash and drugs from the pharmacists. The
man was given the cash and drugs, and he left the store; the police had no suspects at that
time. On June 14, 2012, an individual entered a Rite Aid on West North Street in
Springfield and committed a similar crime. In both robberies, the perpetrator wore a
“hoodie” to cover his face, put his hand inside the pocket of his sweatshirt, acted as though
he had a gun as he approached the clerks, and demanded cash and a particular medication
(Percocet) from them. Hyde was apprehended shortly after committing the June 14
robbery.
{¶ 17} Several days after Hyde was arrested, the detective assigned to the case
reviewed the surveillance video from the June 11 robbery. The detective concluded that
Hyde had committed both robberies and, on June 20, 2012, Hyde was charged with the June
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11 robbery. As stated above, Hyde was indicted on the June 14 robbery on June 25, 2012,
and on the June 11 robbery on July 2, 2012.
{¶ 18} When Hyde was indicted on the June 14 robbery, the State knew of Hyde’s
alleged involvement in both the June 11 and June 14 robberies and Hyde had been charged
with both robberies. However, the robberies were committed at separate locations on
different dates. Hyde’s methodology was the same, but the witnesses and evidence at the
two locations were likely to be different. In our view, the two robberies were distinct in
significant ways and did not constitute a single “pending charge” for purposes of the speedy
trial statute. Accordingly, after Hyde was detained for both the June 11 and June 14
robberies, he was not entitled to the triple-count provision of R.C. 2945.71(E).
{¶ 19} Hyde was arrested on June 14, 2012. From June 15 to June 20, 2012, he
was being held solely for the June 14 robbery. Accordingly, he was entitled to the
triple-count provision for those six days of confinement. However, from June 21, 2012
until he pled no contest, he was being held on multiple charges – the June 11 and the June 14
robberies. Accordingly, those days (minus the days that his speedy trial time was tolled due
to motions he filed) were counted on a one-to-one basis. Counted in this manner, and
considering periods of delay necessitated by Hyde’s motions, Hyde’s speedy trial time for
the June 14 robbery had not expired when he entered his no contest plea on April 9, 2013.
{¶ 20} Hyde’s assignment of error is overruled.
III.
{¶ 21} The trial court’s judgment will be affirmed. However, we remand the
matter to the trial court for the limited purpose of correcting the judgment entry to reflect
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that Hyde entered a plea of no contest, rather than a plea of guilty.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Lisa M. Fannin
Brandon Charles McClain
Hon. Richard J. O’Neill