State v. Garner , 2023 Ohio 1685 ( 2023 )

[Cite as State v. Garner, 2023-Ohio-1685.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-3
:
v. : Trial Court Case No. 21CR455
:
TODD GARNER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on May 19, 2023
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PAUL M. WATKINS, Attorney for Appellee
ADAM J. ARNOLD, Attorney for Appellant
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EPLEY, J.
{¶ 1} Todd Garner was convicted in the Miami County Court of Common Pleas of
failure to comply with an order or signal of police officer, a felony of the third degree.
Garner appeals from his conviction, claiming that (1) the trial court committed plain error
in failing to dismiss the indictment on speedy trial grounds, (2) his trial counsel rendered
ineffective assistance by failing to file motions to dismiss due to a speedy trial violation
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and to suppress, and (3) his conviction was against the manifest weight of the evidence.
Because we conclude that Garner’s trial counsel rendered ineffective assistance by failing
to file a motion to dismiss on speedy trial grounds, the trial court’s judgment will be
vacated.
I. Facts and Procedural History
{¶ 2} On September 10, 2021, Piqua Police Officer Devon Alexander observed a
silver Mazda drive past him, and the officer found the driver’s eye contact with him to be
suspicious. The officer followed the Mazda and then attempted to initiate a traffic stop
after learning that the car had been reported stolen and observing the vehicle turn left
from the wrong lane against a red light. A high-speed chase ensued during which the
Mazda ran an additional red light and five stop signs, many on residential streets. The
pursuit was called off prior to the driver’s apprehension.
{¶ 3} The police soon learned that several individuals were let out of the Mazda in
the middle of the chase, and officers located them shortly thereafter. Marcia Betts, a
passenger in the Mazda, told the police that the driver’s name was “Garner.” After
learning the driver’s name, Officer Alexander looked up Garner’s driver’s license and
confirmed that Garner was the driver he had seen.
{¶ 4} On September 26, 2021, Garner was arrested on charges related to the
incident. Almost eight weeks later, he was indicted for failure to comply with an order or
signal of police officer. No pretrial motions or a written waiver of his speedy trial rights
were filed.
{¶ 5} On January 4, 2022, the matter proceeded to a jury trial. Officer Alexander
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and Betts testified for the State, and the State offered five exhibits for consideration.
Garner did not present any evidence in his defense. The jury found Garner guilty and,
after a presentence investigation, the trial court sentenced him to 30 months in prison
(with 110 days of jail time credit), suspended his driver’s license for life, and ordered him
to pay costs of $1,400.50.
{¶ 6} Garner appealed from his conviction. His original appointed counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), stating that he could find no non-frivolous issues for appeal and seeking leave to
withdraw. Upon our initial review, we identified two non-frivolous issues for appeal.
Accordingly, we rejected the Anders brief and appointed new counsel for Garner.
{¶ 7} Garner now raises three assignments of error. In his first assignment of
error, he claims that the trial court committed plain error by failing to dismiss the indictment
on speedy trial grounds. Garner’s second assignment of error claims that his trial
counsel rendered ineffective assistance by failing to file a motion to dismiss due to a
speedy trial violation and a motion to suppress the officer’s identification. Finally, Garner
raises that his conviction was against the manifest weight of the evidence.
II. Statutory Right to a Speedy Trial
{¶ 8} In his first assignment of error, Garner claims that the trial court should have
dismissed his case due to a violation of his speedy trial rights. A portion of his second
assignment of error raises that his trial counsel was ineffective for failing to file a motion
to dismiss due to the speedy trial violation. We will address these issues together.
{¶ 9} Initially, we note that Garner did not file a motion to dismiss on speedy trial
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grounds. R.C. 2945.73(B) states that, “[u]pon motion made at or prior to the
commencement of trial, a person charged with an offense shall be discharged if he is not
brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised
Code.” (Emphasis added.) We have held that a defendant’s failure to raise a speedy
trial violation in the trial court at or prior to trial precludes the defendant from raising that
issue on appeal. State v. Merrick, 2d Dist. Greene No. 2019-CA-29, 2020-Ohio-3744,
¶ 28, citing State v. Wilson, 2d Dist. Clark No. 2018-CA-2, 2020-Ohio-2962, ¶ 22. See
also Bradford v. Werts, 2d Dist. Miami No. 2009-CA-29, 2010-Ohio-3921, ¶ 11 (“Speedy
trial rights must be asserted by a defendant in a timely fashion or they are waived.”).
{¶ 10} Garner did not file a written motion to dismiss on speedy trial grounds, and
he did not otherwise raise the issue prior to the commencement of trial on January 4,
2022. Consequently, he is precluded from challenging the trial court’s failure to dismiss
the indictment due to an alleged speedy trial violation. Garner’s first assignment of error
is overruled.
{¶ 11} Garner further claims that his trial counsel should have filed a motion to
dismiss on speedy trial grounds. To establish ineffective assistance of counsel, a
defendant must demonstrate both that (1) trial counsel’s conduct was deficient, and (2)
trial counsel’s deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Lloyd, Ohio Slip Opinion
No. 2022-Ohio-4259, __ N.E.3d __, ¶ 15.
{¶ 12} Trial counsel’s performance is deficient if it falls below an objective standard
of reasonableness. Strickland at 687; Lloyd at ¶ 16. This first prong “requires showing
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that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland at 687; State v. Dennis,
2d Dist. Montgomery No. 29266, 2022-Ohio-2888, ¶ 37. Hindsight is not permitted to
distort the assessment of what was reasonable considering counsel’s perspective at the
time, and a debatable decision concerning trial strategy cannot form the basis of a finding
of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605
N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.). Trial
counsel is entitled to a strong presumption that his or her conduct fell within the wide
range of reasonable assistance. Strickland at 689.
{¶ 13} The second prong requires a showing that the errors were serious enough
to create a reasonable probability that, but for the errors, the outcome of the case would
have been different. Id. at 694; Lloyd at ¶ 18. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland at 694.
{¶ 14} R.C. 2945.71 designates specific time requirements for the government to
bring an accused to trial. Under that statute, a felony defendant must be brought to trial
within 270 days of arrest. R.C. 2945.71(C). Each day during which the accused is held
in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.71(E).
The day of arrest is not counted when calculating an accused’s speedy trial time. State
v. Cimpaye, 2020-Ohio-2740, 154 N.E.3d 415, ¶ 17 (2d Dist.).
{¶ 15} 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. Harris, 2d Dist. Montgomery No. 29379, 2023-
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Ohio-648, ¶ 13, citing 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.” Gray at ¶ 15, citing R.C.
2945.73.
{¶ 16} R.C. 2945.72 sets forth several circumstances under which a defendant’s
speedy trial time may be extended. See State v. Dankworth, 2007-Ohio-2588, 873
N.E.2d 902, ¶ 40 (2d Dist.). For instance, time may be tolled for “[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).
{¶ 17} The record reflects that Garner was arrested on September 26, 2021, and
was held in jail on misdemeanor charges related to the incident. Ultimately, he was
indicted for failure to comply on November 18, 2021. The State concedes that the
misdemeanor and felony cases all arise from the same criminal incident and share a
common litigation history, and that Garner’s speedy trial time therefore began on
September 27, 2021. The parties also agree that Garner was incarcerated on the
pending charges until his trial, and that the triple-count provision applied for his entire
pretrial incarceration. Accordingly, the State had 90 calendar days in which to bring
Garner to trial. Without tolling, that 90-day period expired on December 25, 2021.
Garner was tried on January 4, 2022.
{¶ 18} Citing State v. Cruea, 2d Dist. Miami No. 2004-CA-38, 2005-Ohio-4731, the
State asserts that a seven-day period – from November 23 to November 29, 2021 – was
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tolled due to Garner’s oral request for a pretrial conference, which was made at his
arraignment. We agree that the oral request for a pretrial conference constituted a tolling
event.
{¶ 19} In Cruea, the trial court tolled the time from the defendant’s arraignment
until the pretrial conference, a period of two weeks. On appeal, we upheld the trial court’s
determination. We stated: “While requests for pretrial conferences do not automatically
extend the statutory time requirements in R.C. 2945.71, the time between a request and
pretrial conference will be tolled where the record shows that the pretrial was granted at
the defendant’s own request and there is nothing facially unreasonable about the time
taken to provide the pretrial.” Id. at ¶ 10. Because Cruea’s defense counsel had
requested the pretrial conference at the arraignment and the two-week delay was “not
facially unreasonable,” we concluded that the delay was properly charged to Cruea, not
the State. Id. at ¶ 12.
{¶ 20} The same is true here. As in Cruea, Garner’s defense counsel requested
a pretrial conference at the arraignment on November 22, 2021, and a pretrial conference
was held on November 29, 2021, seven days later. The delay was not unreasonable.
Accordingly, Garner’s speedy trial time was tolled for the period between his arraignment
and the pretrial conference. As a result, Garner’s speedy trial deadline was extended to
Saturday, January 1, 2022.
{¶ 21} As noted by the State, Garner’s speedy trial deadline was further extended
by Crim.R. 45(A), which provides:
In computing any period of time prescribed or allowed by these rules, by the
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local rules of any court, by order of court, or by any applicable statute, the
date of the act or event from which the designated period of time begins to
run shall not be included. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday, or legal holiday, in which event
the period runs until the end of the next day which is not Saturday, Sunday,
or legal holiday. When the period of time prescribed or allowed is less than
seven days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in computation.
(Emphasis added.) Because Garner’s speedy trial time expired on a Saturday, Crim.R.
45(A) operated to extend the deadline to the next non-weekend or non-holiday day. In
Garner’s case, that day was Monday, January 3, 2022.
{¶ 22} The State contends that Monday, January 3, 2022, was a legal holiday, the
observation of New Year’s Day. However, when a legal holiday falls on a Saturday (as
New Year’s Day did in 2022), the holiday generally is observed on the preceding Friday.
For example, the statute governing holiday pay for county employees provides: “If any of
those holidays fall on Saturday, the Friday immediately preceding shall be observed as
the holiday. If any of those holidays fall on Sunday, the Monday immediately succeeding
shall be observed as the holiday.” R.C. 325.19(D)(1). Accord 5 U.S.C. 6103(b)(1); R.C.
1.14 (“If any day designated in this section as a legal holiday falls on Sunday, the next
succeeding day is a legal holiday.”). Through a clarifying order issued at this court’s
request, the trial court has confirmed that the legal holiday of New Year’s Day was
observed on Friday, December 31, 2021, and that the court was open for business on
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Monday, January 3, 2022.
{¶ 23} The State further proposes, alternatively, that additional days in late
December 2021 should not have counted toward Garner’s speedy trial deadline.
Specifically, it states that Sunday, December 26 should have been excluded as an
“intermediate Sunday,” and that Monday, December 27 should have been excluded as
the observance of Christmas Day. We reject this argument. Under Crim.R. 45(A),
intermediate Saturdays, Sundays, and legal holidays are excluded in computation only
when the deadline is less than seven days. In Garner’s case, the State had 90 calendar
days (270 speedy trial days) to bring him to trial. The rule governing time limits of less
than seven days is inapplicable to this case.
{¶ 24} In short, we conclude that Garner was brought to trial on January 4, 2022,
one day after his speedy trial time had expired. Under these circumstances, we find that
trial counsel acted deficiently when he failed to make a motion, at or prior to trial, for
dismissal of the failure to comply charge due to the speedy trial violation. The prejudice
to Garner is apparent. Accordingly, the portion of Garner’s second assignment of error
concerning counsel’s failure to raise a speedy trial violation is sustained. The remaining
portion of the second assignment of error and Garner’s third assignment of error are
overruled as moot.
III. Conclusion
{¶ 25} Garner’s conviction for failure to comply will be vacated. The matter is
remanded to the trial court with instructions to immediately take the appropriate steps to
advise the Ohio Department of Rehabilitation and Correction of this Opinion and Final
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Judgment Entry. The trial court is further instructed to file a copy of this Opinion and
Final Judgment Entry as part of the trial court record in this case.
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TUCKER, J. and HUFFMAN, J., concur.