State v. Ramey , 2012 Ohio 6187 ( 2012 )

[Cite as State v. Ramey, 2012-Ohio-6187.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 19
v. : T.C. NO. 09CR1051
09CR869
KEITH RAMEY :
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of December , 2012.
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ANDREW R. PICEK, Atty. Reg. No. 0082121 and LISA M. FANNIN, Atty. Reg. No.
0082337, Assistant Prosecuting Attorneys, 50 E. Columbia Street, 4th Floor, P. O. Box 1608,
Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
DAWN S. GARRETT, Atty. Reg. No. 0055565, 7865 Paragon Road, Suite 107, Centerville,
Ohio 45459
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} The instant matter is presently before us on remand from the Ohio Supreme
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Court after the issuance of its decision in State v. Ramey, 132 Ohio St.3d 309,
2012-Ohio-2904, 971 N.E.2d 937, reversing our prior decision in State v. Ramey, 2d Dist.
Clark No. 2010 CA 19, 2011-Ohio-1288 (hereinafter “Ramey I”). On remand, the Ohio
Supreme Court has directed us to determine, pursuant to R.C. 2945.72(H), whether the trial
court’s setting of defendant-appellant Keith Ramey’s original trial date beyond the statutory
time period was reasonable. State v. Ramey, 132 Ohio St.3d 309, at ¶ 35.
{¶ 2} We set forth the history of the case in State v. Ramey, 2d Dist. Clark No.
2010 CA 19, 2011-Ohio-1288, and repeat it herein in pertinent part:
On October 13, 2009, Ramey was jointly indicted with co-defendant
Jonathan Keeton in Case No. 09-CR-0869 for one count of aggravated
robbery (deadly weapon), one count of aggravated robbery (serious physical
harm), one count of felonious assault (deadly weapon), one count of felonious
assault (serious physical harm), and one count of breaking and entering. The
aggravated robbery and felonious assault charges each contained a firearm
specification. Subsequently, on December 21, 2009, Ramey and Keeton
were indicted on an additional charge in Case No. 09-CR-1051 for having a
weapon while under disability.
All of the charges against Ramey and Keeton stem from incidents
which occurred on October 6, 2009, wherein the defendants were accused of
breaking and entering into and stealing from “Nasty N8's” tattoo parlor
located at 805 East Main Street in Springfield, Ohio. The owner of the tattoo
parlor reported that tattoo equipment, ink, a laptop computer, a printer, and
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cell phones were missing after the break-in.
Ramey and Keeton were also accused of beating and robbing an
individual named Howard Fannon. The robbery and assault of Fannon also
occurred on October 6, 2009, shortly after Ramey and Keeton were alleged to
have broken into the tattoo parlor. During the assault, Ramey allegedly
shocked Fannon multiple times with a taser while Keeton hit him over the
head with the butt of a handgun before they stole his watch and two gold
necklaces. Fannon immediately called 911 to report the robbery, and Ramey
was arrested a short time later at his home located at 106 N. Greenmount
Avenue in Springfield, Ohio. Keeton was arrested the next day on October
7, 2009, at his father’s house also located in Springfield. During the course
of their investigations, Springfield police were able to recover almost all of
the items alleged to have been stolen by Ramey and Keeton.
At his arraignment on October 16, 2009, Ramey pled not guilty to the
charges in the indictment. Ramey’s bond was set at $50,000.00. Ramey did
not post bond and, therefore, remained incarcerated pending trial. Keeton’s
bail was also set at $50,000.00 by the trial court, but he posted that amount on
October 30, 2009, and was released from jail until the trial.
Due to a conflict of interest, Ramey’s appointed counsel filed a
motion to withdraw on October 16, 2009. On October 20, 2009, the trial
court granted the motion to withdraw, and Ramey was appointed new
counsel. The case was also reassigned to Judge Richard P. Carey of the
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Clark County Court of Common Pleas, Probate Division, on November 10,
2009.
On December 10, 2009, co-defendant Keeton filed a motion to
suppress physical evidence seized by police, as well as statements made by
Keeton after his arrest. As previously stated, the State filed a second
indictment on December 21, 2009, charging Ramey and Keeton with having a
weapon while under disability. On December 29, 2009, Keeton filed a
supplemental motion to suppress in which he argued that the photo lineups
used by the police to identify him were inherently suggestive. A hearing was
held on Keeton’s motion to suppress on January 5, 2010. On January 6,
2010, the trial court issued a decision and entry overruling the motion to
suppress in its entirety. The court also set a date for Ramey and Keeton’s
trial on February 1, 2010.
On February 1, 2010, Ramey filed a motion to dismiss for violation of
his right to a speedy trial. After a brief hearing during which the court heard
arguments from both parties, the court overruled Ramey’s motion. The trial
court also moved the trial date to February 2, 2010, explaining that the
courtroom was being used by the Second District Court of Appeals for oral
arguments.
After a three-day jury trial, Ramey was found guilty of two counts of
aggravated robbery with firearm specifications, one count of felonious assault
(deadly weapon), and one count of having a weapon while under disability.
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The jury acquitted Ramey of felonious assault (serious physical harm) and
breaking and entering. At the sentencing hearing on February 8, 2010, the
court merged the two counts of aggravated robbery and sentenced Ramey to
three years on the firearm specification, eight years for the aggravated
robbery, five years for felonious assault, and one year for having a weapon
while under disability. The court ordered that the three-year term for the
firearm specification was to be served consecutively and prior to the other
sentences, which were to be served concurrently to one another, for an
aggregate prison sentence of eleven years.
{¶ 3} Ramey subsequently appealed his conviction and sentence. Pertinent to the
instant remand, we found that the trial court erred when it overruled Ramey’s motion to
dismiss the second indictment charging him with having weapons while under disability for
violation of his right to speedy trial. State v. Ramey, 2d Dist. Clark No. 2010 CA 19,
2011-Ohio-1288. We, however, affirmed Ramey’s convictions for aggravated robbery and
felonious assault as charged in the first indictment because of tolling events that occurred
which served to extend the time in which to bring him to trial in a timely fashion. Id.{¶ 4} Specifically, we noted that the time within which to bring Ramey to trial on
all of the charges began to run on the date of his initial arrest because the weapons under
disability charge contained in the second indictment arose from the same facts as the
charges contained in the first indictment for aggravated robbery and felonious assault. Id.With respect to the charges in the first indictment, we held that the time to bring Ramey to
trial was tolled when Keeton filed his first motion to suppress. Id. Thus, Ramey’s speedy
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trial rights were not violated regarding the first indictment. Id.{¶ 5} With respect to the charge in the second indictment, we found that Keeton’s
motion to suppress did not toll Ramey’s speedy trial time because Keeton filed the motion
before the second indictment was issued. Id. Accordingly, we vacated Ramey’s conviction
for having a weapon while under disability because the State failed to bring him to trial on
that charge within the statutory period. Id. Because the trial court ordered that Ramey’s
sentence for having weapons while under disability was to be served concurrently with the
charges in the first indictment, his aggregate sentence of eleven years remained unaffected
by our holding. Id.{¶ 6} Ramey appealed our decision, and the Supreme Court of Ohio accepted his
discretionary appeal. State v. Ramey, 129 Ohio St.3d 1478, 2011-Ohio-4751, 953 N.E.2d
844. The Court framed the issue on appeal as “whether the filing of a pre-trial motion to
suppress by a co-defendant automatically tolls the time within which a defendant must be
brought to trial.” State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937.
Ultimately, the Court held that a defendant’s speedy trial period is not automatically tolled
by a co-defendant’s filing of pre-trial motions. The Court remanded the case to us in order
to determine, pursuant to R.C. 2945.72(H), whether the trial court’s decision to set the trial
date beyond the statutory time period was affirmatively supported by the record and,
therefore, reasonable.
{¶ 7} On remand, Ramey asserts the following assignment of error:
“THE TRIAL COURT’S RECORD AFFIRMATIVELY DEMONSTRATES
THERE WAS NO REASONABLE NEED TO DELAY TRYING KEITH RAMEY
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WITHIN HIS STATUTORY SPEEDY TRIAL TIME; THEREFORE THE DELAY WAS
NOT REASONABLE, DID NOT COMPLY WITH EITHER STATUTORY OR
CONSTITUTIONAL SPEEDY TRIAL REQUIREMENTS, WAS PREJUDICIAL TO
KEITH RAMEY, AND MANDATES THAT HIS CONVICTION BE REVERSED AND
THAT KEITH RAMEY BE DISCHARGED AND RELEASED FORTHWITH.”
{¶ 8} In his single assignment of error, Ramey contends that the record does not
affirmatively demonstrate any need for the trial court to delay bringing his case to trial
within the statutory speedy trial time. Accordingly, Ramey asserts that the trial court’s
actions in this regard were unreasonable, and his conviction and sentence for aggravated
robbery and felonious assault must be reversed.
{¶ 9} The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and Article I, Section 10 of the Ohio Constitution. Ohio’s
speedy trial statutes, R.C. 2945.71 et seq., constitute a rational effort to implement the
constitutional right to a speedy trial and will be strictly enforced. State v. Pachay, 64 Ohio
St.2d 218, 416 N.E.2d 589 (1980).
{¶ 10} R.C. 2945.71(C)(2) requires that a person against whom a charge of felony
is pending be brought to trial within two hundred and seventy days after his arrest. Each
day the accused is held in jail in lieu of bail on the pending charges shall be counted as three
days. R.C. 2945.71(E). Pursuant to R.C. 2945.73, Defendant is entitled to a discharge if
he is not brought to trial within the time required by R.C. 2945.71, subject to any extension
authorized by R.C. 2945.72.
{¶ 11} Relevant to the instant appeal on remand, R.C. 2945.72(H) tolls the
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statutory speedy trial time during "[t]he period of any continuance granted on the accused’s
own motion, and the period of any reasonable continuance granted other than on the
accused’s own motion."
{¶ 12} Sua sponte continuances are continuances "granted other than on the
accused’s own motion." R.C. 2945.72(H). To toll the speedy trial time, the record must
reflect that the period of the continuance was "reasonable." To satisfy that standard, "when
sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order
of continuance and the reasons therefor by journal entry prior to the expiration of the time
limits prescribed in R.C. 2945.71 for bringing a defendant to trial." State v. Mincy, 2 Ohio
St.3d 6, 9, 441 N.E.2d 571 (1982).
{¶ 13} The time requirement that Mincy imposes prevents attempts to revive the
statutory speedy trial time after it has expired. State v. Marbury, 192 Ohio App.3d 210,
2011-Ohio-879, 948 N.E.2d 531, at ¶ 22 (2d Dist.) (Grady. J., concurring). The
journalization of reasons is necessary to permit the appellate court to determine whether, on
the accused’ s claim that his statutory speedy trial rights were violated, the period of delay
resulting from the sua sponte continuance was nevertheless "reasonable." R.C. 2945.72(H).
That reasonableness requirement distinguishes R.C. 2945.72(H) from R.C. 2945.72(E),
which instead requires that the period of delay be "necessitated by reason of a plea in bar and
abatement, motion, proceeding, or action made or necessitated by the accused." Id.{¶ 14} “An accused who claims that his speedy trial rights were nevertheless
violated bears the burden to rebut the presumption by demonstrating that the period of delay
was not necessitated by his own motion or action. It is not sufficient merely to point out
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that his statutory speedy trial time otherwise expired.” Id. at ¶ 23.
{¶ 15} It is undisputed that prior to the filing of Keeton’s motion to suppress on
December 10, 2009, sixty days had passed which were credited to Ramey for speedy trial
purposes. In Ramey I, we originally held that Keeton’s motion to suppress tolled Ramey’s
speedy trial time until January 6, 2010, when the trial court issued an entry overruling said
motion and sua sponte setting the trial date for February 1, 2010. One day later, the trial
court issued an entry moving the trial date to February 2, 2010, because this Court was using
the courtroom for oral arguments on February 1, 2010. We found that with the additional
twenty-seven days between January 6, 2010, and February 2, 2010, only eighty-seven days
had passed for speedy trial purposes. This calculation treated Keeton’s motion to suppress
as an automatic tolling event against Ramey in Ramey I.
{¶ 16} On appeal, however, the Supreme Court of Ohio noted that the “trial court
did not comply with the Mincy rule because it acted upon the mistaken belief that the time
for trial was automatically extended by both Keeton’s filing of pre-trial motions to suppress
and Ramey’s counsel’s acquiescence in the trial date.” State v. Ramey, 132 Ohio St.3d 309,
315. When defense counsel merely acquiesces to a trial date set by the court but does not
affirmatively lodge a motion for a continuance, the continuance is entered “other than upon
the accused’s own motion” and, under the second clause of R.C. 2945.72(H), must be
reasonable. State v. Davis, 46 Ohio St.2d 444, 449, 349 N.E.2d 315 (1976).
{¶ 17} Upon review, we conclude that the record does not affirmatively
demonstrate that the trial court’s decision to set Ramey’s trial date beyond the statutory time
period was reasonable. Initially, we note that Ramey did not file any motions which tolled
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his speedy trial time other than an early motion to withdraw from appointed counsel filed on
October 16, 2009. The trial court granted the motion on October 20, 2009, appointed new
counsel, and Ramey’s speedy trial time began to run again.
{¶ 18} Moreover, the record does not support a finding that Keeton’s motion to
suppress acted to toll Ramey’s speedy trial time because the motion did not relate to or affect
Ramey in any way. In his motion to suppress, Keeton challenged the 1) photo array used to
identify him; 2) statements he made upon being arrested; 3) victim’s backpack, Keeton’s
duffle bag, and a gun found in the home of Keeton’s father; and 4) observations made by
Keeton’s arresting officer. Clearly, Ramey had no interest in Keeton’s motion to suppress.
Additionally, there was no finding by the trial court nor has the State adduced any evidence
which establishes that Keeton’s motion to suppress “necessitated” a delay in Ramey’s case.
We note that no timely speedy trial date was set by journal entry. Accordingly, it was
unreasonable for the trial court to have found that Keeton’s motion to suppress tolled
Ramey’s speedy trial time. As a result, the twenty-eight days between December 10, 2009,
and January 6, 2010, should have been credited to Ramey for speedy trial purposes.
{¶ 19} From January 7, 2010, through February 2, 2010, another twenty-seven
days passed which counted towards Ramey’s speedy trial time, for a total of 115 days,
clearly in excess the statutory speedy trial limit of ninety days. By ordering the trial date to
be set for February 2, 2010, the trial court set the matter well beyond Ramey’s speedy trial
date.
{¶ 20} It is permissible for a trial court to grant the state a continuance of a trial
date beyond the statutory speedy trial time limit if the continuance is reasonable and
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necessary under the circumstances. State v. Saffell, 35 Ohio St.3d 90, 91, 518 N.E.2d 934(1988). In these circumstances, the concept of “reasonable” must be strictly construed
against the state. State v. Baker, 12th Dist. Fayette No. CA2005-05-017, 2006-Ohio-2516,
citing State v. Stamps, 127 Ohio App.3d 219, 224, 712 N.E.2d 762 (1st Dist.1998). If the
continuance is not reasonable, the continuance must be charged against the state for speedy
trial purposes. Id. “To evidence reasonableness, [a continuance] must be supported by an
explanation.” Id. “[A] trial court must journalize the continuance before the expiration of
the time limit set forth in R.C. 2945.71 and must state the reason for the continuance.” Id.{¶ 21} As previously noted, the trial court issued an entry on January 6, 2010,
overruling Keeton’s motion to suppress and setting the trial date for February 1, 2010.
Specifically, the entry stated that “[i]n the event that the defendants do not accept said plea
offers, Counsel have indicated their respective availability for trial to commence at 9:00
o’clock a.m. on February 1, 2010.” Additionally, at the February 1, 2010, hearing on
Ramey’s motion to dismiss the trial court stated as follows:
The Court: Court heard the testimony on January 5 and then following
that hearing the Court made its rulings on the motions that did not effect [sic]
the status of the jury trial going forward. The State tendered the final plea
offers at that time, and counsel advised the Court they would let the Court
know by January 7 as to whether any pleas would go forward. And that in
the event that the defendants not accept any plea offers, that counsel had
essentially agreed that the trial would commence on February 1, 2010.
Indeed, the Court was advised that the defendants denied the plea offers in
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this case. *** Because of the motions and the agreed upon hearing dates by
counsel, I don’t believe your motion to dismiss has merit. I think it’s stayed
as a result of the agreement by all parties to set certain dates to reconsider
the status of the case; otherwise, the Court was well within its ability to set a
trial date within what would have been the 90 days under [R.C.] 2945.71.
And the only reason the Court did not was at the request of counsel. And I
will deny your motion to dismiss.
{¶ 22} As previously stated, when defense counsel merely acquiesces to a trial date
set by the court but does not affirmatively lodge a motion for a continuance, the continuance
is entered “other than upon the accused’s own motion” and, under the second clause of R.C.
2945.72(H), must be reasonable. Davis, 46 Ohio St.2d at 449. In its opinion, the Supreme
Court of Ohio found that Ramey’s counsel acquiesced in the trial date. Thus, if the trial
court decided to extend the trial date beyond the statutory time limit, a determination had to
be made pursuant to R.C. 2945.72(H) regarding whether the continuance was reasonable.
State v. McRae, 55 Ohio St.2d 149, 152, 378 N.E.2d 476 (1978).
{¶ 23} Upon review, we find that the record does not support a finding that
Ramey’s counsel affirmatively requested that the trial date be set outside of the statutory
speedy trial limit. Nor does the record establish that there was an agreement between the
parties to extend the trial date beyond the statutory time limit. As the Supreme Court of
Ohio found, Ramey’s counsel merely acquiesced to the scheduling of the trial date as stated
in the trial court’s entry issued on January 6, 2010. Simply put, defense counsel’s mere
acquiescence to the extension of the trial date beyond the statutory time limit is insufficient
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to establish that the trial court acted in a reasonable manner by ordering the continuance.
Strictly construed against the State, the application of R.C. 2945.72(H) to the facts in the
instant case mandates that we find that the trial court’s decision to continue Ramey’s trial
date beyond the statutory speedy trial limit was not reasonable.
{¶ 24} Ramey’s sole assignment of error is sustained. Accordingly, we find that
Ramey’s statutory right to speedy trial was violated, and his convictions for two counts of
aggravated robbery and one count of felonious assault are hereby reversed and vacated.
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GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Andrew R. Picek
Lisa M. Fannin
Dawn S. Garrett
Hon. Richard P. Carey