State v. Corn

[Cite as State v. Corn, 2023-Ohio-1407.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 22 CA 004
:
KYLE D. CORN :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court
of Common Pleas, Case No. 20CR043
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 28, 2023
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
MATTHEW MUZIC DAVID M. HUNTER
HOLMES COUNTY PROSECUTOR 244 West Main Street
Loudonville, OH 44842
ROBERT K. HENDRIX
164 E. Jackson Street
Millersburg, OH 44654
Holmes County, Case No. 22 CA 004 2
Delaney, J.
{¶1} Plaintiff-Appellant State of Ohio appeals the January 20, 2022 judgment
entry of the Holmes County Court of Common Pleas. Defendant-Appellee is Kyle D. Corn.
FACTS AND PROCEDURAL HISTORY
Secret Indictment
{¶2} On July 6, 2020, the Holmes County Grand Jury issued a Secret Indictment
against Defendant-Appellee Kyle D. Corn, charging him with five counts of Breaking and
Entering, five counts of Vandalism, four counts of Petty Theft, two counts of Possessing
Criminal Tools, and one count of Burglary. The charges were based on events that
occurred on or about February 16, 2020. The Secret Indictment was filed with the Holmes
County Clerk of Courts on July 6, 2020 and assigned Case No. 20CR043. The caption of
the Secret Indictment named Kyle D. Corn as the defendant and listed his address as
located in Elyria, Ohio.
{¶3} Also on July 6, 2020, the State filed a “Prosecuting Attorney’s Request for
Issuance of Warrant on Indictment” pursuant to Criminal Rule 9. The filing requested,
“Issue Warrant to the Sheriff of Holmes County and direct them to make personal service
upon defendant at the address stated in the caption of this request.”
{¶4} The State also filed a Bail Recommendation, where it commented that
“Defendant presently under indictment a [sic] investigation in multiple counties.” The State
requested a warrant to be issued and, pursuant to Crim.R. 6(E), the indictment be kept
secret until Corn was in custody.
{¶5} The Holmes County Sheriff’s Office received Corn’s warrant on July 9,
2020.
Holmes County, Case No. 22 CA 004 3
{¶6} According to the Holmes County Clerk of Courts, if an indictment is listed
as “secret,” information about that case would not be visible on the online portal to the
Holmes County Clerk of Courts docket until the Clerk’s office received return service of
the warrant. (Nov. 8, 2021 T. 15). The case number for the secret, unserved indictment
would only be known to the Clerk’s Office and the prosecutor’s office. (Nov. 8, 2021 T.
15).
Corn in Custody of ODRC
{¶7} In June 2020, Corn was held in the Medina County Jail. (Nov. 8, 2021 T. 7).
While he was in the Medina County Jail, Corn spoke with Kyle Vaughn from the Holmes
County Sheriff’s Office. On August 19, 2020, Corn was transferred to the Ohio
Department of Corrections in Orient, Ohio. (Nov. 8, 2021 T. 7).
{¶8} On August 21, 2020, the Ohio Department of Rehabilitation and Corrections
(“ODRC”) issued a notice regarding Corn and the warrant issued in Case No. 20CR043
to the Holmes County Sheriff’s Office. (“Exhibit B”). Corn did not recall receiving a copy
of the notice. The notice to the Holmes County Sheriff’s Office stated:
DATE: 8/21/2020
TO: HOLMES COUNTY SHERIFF’S OFFICE
RE: CORN, KYLE D.
OUR: A773436; WARRANT #: 20CR043
***
This is to acknowledge the receipt of the detainer on the above named
subject. The above inmate is currently serving:
SENTENCE: *3.00 HB86-5
Holmes County, Case No. 22 CA 004 4
MOST SERIOUS OFFENSE: 2911.12 5 – BURGLARY
COUNTY OF COMMITMENT: MEDINA
The release date is 6/23/2023. CORN, KYLE D. will be given the opportunity
to file a Quick and Speedy Trial if your charges are for an untried indictment.
{¶9} We note the Warrant Number listed in the notice is #20CR043. The case
number assigned to the Secret Indictment against Corn is Case No. 20CR043.
{¶10} Also on August 21, 2020, the ODRC issued a notice to Corn about a
“WANTED DETAINER.” (“Exhibit A”). The notice stated:
DATE DETAINER PLACED: 8/19/2020
NAME OF OFFENDER: CORN, KYLE D.
***
EXPECTED RELEASE: 6/23/2023
WANTED BY:
HOLMES COUNTY SHERIFF’S OFFICE
***
OTHER DETAINERS:
ERIE COUNTY SHERIFF’S OFFICE
***
SENECA COUNTY SHERIFF’S OFFICE
***
We will notify you 30 days before Parole Hearing and 30 days before
release.
Holmes County, Case No. 22 CA 004 5
Corn signed the Wanted Detainer notice on August 26, 2020. His signature on Exhibit A
was witnessed on August 26, 2020 by a ODRC employee.
Pro Se Motion to Dismiss
{¶11} On June 9, 2021, Corn filed a pro se Motion to Dismiss Indictment arguing
that he had been deprived of his right to a speedy trial in Case No. 20CR043. In support
of his motion, Corn stated that he filed a request for a speedy trial in August 2020. Of
note, Corn captioned his pro se motion to dismiss with the correct case number, Case
No. 20CR043.
{¶12} The State responded to the motion on June 10, 2021, arguing that it did not
receive a Notice of Availability from Corn in August 2020. Further, Corn had not been
served with the Secret Indictment, so the speedy trial had not started to run.
The Secret Indictment is Served
{¶13} The Holmes County Sheriff’s Office served Corn with the Secret Indictment
on June 23, 2021.
Motion to Dismiss Proceedings
{¶14} After Corn was served with the indictment and arraigned, he was appointed
counsel. Through counsel, Corn filed a Motion to Supplement his original motion to
dismiss. The October 19, 2021 supplement raised further grounds to support his motion
to dismiss the indictment based on speedy trial violations, including R.C. 2941.401, R.C.
2945.71, and the Sixth Amendment. A memorandum of support followed on November
4, 2021. Corn argued he provided Notice of Availability to the State in August 2020.
{¶15} The State responded to the supplemented Motion to Dismiss on November
5, 2021. In its argument, the State contended the earliest the speedy trial clock could start
Holmes County, Case No. 22 CA 004 6
was on June 9, 2021, when Corn filed his pro se motion to dismiss. Calculating from June
9, 2021, the case was within the speedy trial time parameters.
{¶16} On November 8, 2021, the trial court held a hearing on Corn’s motion to
dismiss. Corn and the State stipulated to facts raised in Corn’s November 4, 2021
memorandum: (1) Corn was indicted on July 6, 2020; (2) the Holmes County Sheriff’s
Office received the warrant on July 9, 2020; (3) Corn filed his pro se Motion to Dismiss
on June 9, 2021, which stated he sent a request for final disposition in August 2020; and
(4) the Holmes County Sheriff’s Office served the indictment on June 23, 2021. (Nov. 8,
2021 T. 3).
{¶17} Corn testified that while he was incarcerated at the Ohio Department of
Corrections in Orient, Ohio, he sent a motion of availability, also known as a request for
final disposition, to Holmes County in August 2020. (Nov. 8, 2021 T. 7). He stated he
spoke with a female case manager who informed him of untried indictments in Seneca
and Erie Counties. (Nov. 8, 2021 T. 8). When asked how he was aware of the existence
of the Holmes County Case No. 20CR043 prior to being served with the indictment on
June 23, 2021, Corn answered:
A. From when I uh, got to CRC and they uh, let me know about all the
untried indictments and warrants I had.
Q. Okay. So on the uh, on the Motion to Dismiss Indictment that has you
uh, that the docket indicates you filed, the time stamp June 9, 2021 there is
a case number on that document in the caption of 20CR043. Did you write
that case number in?
A. Yes sir.
Holmes County, Case No. 22 CA 004 7
Q. And how did you know that case number?
A. From the CRC employees.
Q. Did they inform you of that in August of 2020?
A. Yes sir.
(Nov. 8, 2021, 9-10). Corn stated he did not submit a form asking the warden’s office to
notify the Holmes County Prosecutor’s Office that he was available for trial, but the case
manager had him fill out forms that she stated would be sent to the warden. Corn testified
the case manager did not provide him with copies of those papers. (Nov. 8, 2021 T. 10).
He waited until June 2021 to follow up with the August 2020 Notice of Availability because
after he was in the CRC for 40 days, in October 2020, he was sent to Lake Erie
Correctional for two weeks, then Seneca County from October 2020 to February 2021,
and then returned to Lake Erie Correctional. (Nov. 8, 2021 T. 11-12).
{¶18} The Holmes County Clerk of Courts testified at the hearing, explaining how
a secret indictment appears in the online records of the Clerk of Courts. She testified that
if the ODRC is seeking information regarding an unserved and untried indictment, the
Clerk refers them to who originated the indictment, which would be the prosecutor’s office.
(Nov. 8, 2021 T. 15). The Clerk of Courts did not know how Corn filed his pro se motion
to dismiss with the correct case number prior to being served with the indictment. (Nov.
8, 2021 T. 15).
{¶19} The hearing concluded because the ODRC witnesses subpoenaed by Corn
did not appear for the November 8, 2021 hearing. The trial court issued a judgment entry
on November 8, 2021, continuing the hearing to November 17, 2021 and setting the
matter for a show cause hearing.
Holmes County, Case No. 22 CA 004 8
{¶20} At the November 17, 2021 hearing, the show cause issues were resolved,
and the hearing was continued to December 6, 2021.
ODRC Procedures
{¶21} On December 6, 2021, Charlotte Griffiths, case manager with the
Corrections Reception Center, testified as to how she assisted inmates with the Notice of
Availability:
Q. Um, is it your practice to inform inmates of their right of notice of
availability?
A. When we receive that paperwork we uh, go ahead and have them sign
it. And then after they sign it we go ahead and forward it back to our central
office.
Q. Okay. So when you say the paperwork, like the paperwork that you’re
relaying to an inmate would it explain in writing what a notice of availability
is and how it works?
A. Yes. What it would be a um, wanted detainer and it would have the date
that the detainer is placed, the offender’s name, their number, their release
date and then what county they are wanted by and then also if there were
other detainers that were listed on that paperwork.
(Dec. 6, 2021, T. 5). Corn’s counsel showed Exhibit A, the notice signed by Corn on
August 26, 2020, to Griffiths:
Q. So this document here, which I’m referring to Exhibit A you’re saying that
this was notice of availability that was given to Mr. Corn?
Holmes County, Case No. 22 CA 004 9
A. Yeah that’s what I would have received and that’s what I would have
given to him, have him sign and that’s what I would have forward back to
our detainer section.
Q. Okay. So this, is this the, the form that it usually takes, this document?
A. Yes.
(Dec. 6, 2021 T. 5). Griffiths had signed Exhibit A as the witness signature on August 26,
2020.
{¶22} During Griffith’s testimony, she referred to paperwork known at the ODRC
as a “fast and speedy.” (Dec. 6, 2021 T. 6). She did not know whether the “fast and
speedy” was the same as a notice of availability, but it was what the ODRC referred “to
as far as how much time they have to be able to have to file something in a speedy
manner.” (Dec. 6, 2021 T. 6). The State inquired further as to the notice of availability:
Q. Okay. Uh, now my understanding is that this is essentially a two-step
process. One that the inmate is notified about outstanding warrants and
then there’s the second step of a process where the inmate actually
requests a, a, a speedy trial and notifies the county is that correct?
A. So there are times that I would just get this page that you guys have on
your screen [Exhibit A].
Q. Okay.
A. And there are other times I would get two (2) other pages to go with it.
Q. Okay. Alright.
A. But, I don’t recall getting any other additional pages for him, other than
the one you see right here.
Holmes County, Case No. 22 CA 004 10
Q. Okay. But this document that we have with regards to him is merely a
document that notifies him that there is a detainer is that correct?
A. As far as my understanding yes.
(Dec. 6, 2021, T. 9). Griffiths conducted a records search to determine if there was any
other paperwork related to Corn and the only documents located were Exhibit A and
Exhibit B. (Dec. 6, 2021, T. 12).
{¶23} Regina Cox, supervisor for the ODRC detainer section, testified that ODRC
did not have any record of a request for notice of availability by Corn. (Dec. 6, 2021, T.
15). The document she had was a “copy of the letter we sent to Mr. Corn and to um, the
Holmes County Sheriff’s office dated 8-19-2020 and that it when Mr. Corn first came in
and was admitted to the Department of Corrections. And this is just basically a notify to
him that he has a warrant out of Holmes County. Um, and then he signed it at the bottom
stating that he acknowledged that he had the warrant.” (Dec. 6, 2021, T. 15). Cox did not
regard Exhibit A as a notice of availability. She stated, “* * * I guess it is probably a
terminology thing. Like when you say notice of availability to that we um, we kind of look
at that as a request for fast and speedy.” (Dec. 6, 2021, T. 15). She agreed that a “fast
and speedy” was synonymous with a notice of availability. (Dec. 6., 2021, T. 16). Cox
explained further:
So I guess what, what I’m calling a notice of availability is the right for him
to file that fast and speedy. Um, and right now we I don’t have that that has
been done. And the reason that has not been done or was not done is
because um, we could not find the docket online and we since we could not
find the docket online there we notified, we asked the um, sheriff’s office, it
Holmes County, Case No. 22 CA 004 11
looks like Justin has notes here, he called and they let him know that it had
not been served, the warrant had not been served. So therefore a fast and
speedy could not be completed.
(Dec. 6, 2021, T. 16). In this particular case, Cox testified it was a two-part process
because when Corn initially came in, ODRC notified him of the Holmes County warrant,
but Corn had not been served with the warrant. ODRC would have to notify Corn that he
could file a request for a speedy trial after the actual warrant had been served. (Dec. 6,
2021, T. 19). The triggering event to start the process is when the sheriff serves him.
(Dec. 6, 2021, T. 18).
{¶24} Cox testified that as of December 6, 2021, Corn had not been informed in
writing of his right to fast and speedy and/or the notice of availability. (Dec. 6, 2021, T.
17). However, Cox later testified that Corn was provided a copy of Exhibit B, which
indicated he has a right to a quick and speedy trial. (Dec. 6, 2021, T. 19). ODRC had not
received any kites from Corn requesting that the matter proceed to a speedy trial. (Dec.
6, 2021, T. 19).
{¶25} Corn’s counsel attempted to clarify the ODRC process on redirect
examination:
Q. Uh, as, as I had asked you earlier, service of the indictment would have
functioned as a triggering event is that correct?
A. Yes.
Q. To get and so when, when we’re saying that he never sent you any
request uh, or kites for a uh, to file a notice of availability it’s under, your
Holmes County, Case No. 22 CA 004 12
understanding that he; you have not met the, the State or the prison had
not yet informed him of, in writing, of his right to do so?
A. The prison did inform him of his right.
Q. Well then what would be the what, what, what is so when the indictment
is served what is triggered by that?
***
A. So they when the indictment is served if the um, is we don’t know about
it in our office. Then by either the inmate letting us know, via kite, or the
sheriff’s office or the court letting us know that that indictment has been
served then when won’t have a trigger to um, basically move forward with
the fast and speedy paperwork.
Q. Okay so there would be new paperwork you would give him once he’s
served?
A. Correct.
Q. So all the information that have about fast and speedy (unintelligible)
notice of availability you’ve not given him yet until the Holmes County Sheriff
serves it?
A. The actual paperwork for him to sign that’s correct.
Q. Okay. So he’s the paperwork he’s going to sign you’re saying that, that
would signify that he has now been informed, in writing, of his right to fast
and speedy is that the document you’re talking about for him to sign?
A. Um, I think, I think I’m getting a little confused, like he actually has been
informed of his right on August 21st. Um, however, I, I think I get what you’re
Holmes County, Case No. 22 CA 004 13
saying um, he was never presented with what we call forms 2089 and 29,
which is the right to file the fast and speedy and he would have to sign that
paperwork saying yes he does or does not want it. But yeah, that was never
served to him.
Q. And even to this day it has not been served?
A. No because we at our institution we have never had any indication that
the um, that the warrant has ever been served to him until he went out to
court.
(Dec. 6, 2021, T. 20-21).
{¶26} The trial court issued a judgment entry on December 7, 2021 requesting
written closing arguments and proposed findings of fact and conclusions of law.
Judgment
{¶27} On January 20, 2022, the trial court issued its judgment entry granting
Corn’s motion to dismiss the indictment. The trial court accepted and adopted Corn’s
proposed findings of facts and conclusions of law, where it found the Holmes County
Sheriff’s Office failed to timely serve Corn with the untried indictment when it had notice
of Corn’s location, the ODRC failed to properly inform Corn of the contents of the untried
indictment and Corn’s right to request a final disposition, and Corn’s constitutional rights
to a speedy trial were violated.
{¶28} It is from this judgment that the State now appeals.
Holmes County, Case No. 22 CA 004 14
ASSIGNMENTS OF ERROR
{¶29} The State raises two Assignments of Error:
“I. THE TRIAL COURT ERRED BY DETERMINING THAT DEFENDANT’S
SPEEDY TRIAL RIGHTS WERE VIOLATED PURSUANT TO R.C.
2941.401.
“II. THE TRIAL COURT ERRED IN DISMISSING THE INDICTMENT
BASED ON A VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHT
TO A SPEEDY TRIAL.”
ANALYSIS
{¶30} In its first and second Assignments of Error, the State contends the trial
court erred when it granted Corn’s motion to dismiss the indictment based on violations
to Corn’s right to a speedy trial. We disagree.
I.
Standard of Review
{¶31} Corn’s motion to dismiss was premised upon an alleged violation of his right
to speedy trial. A speedy trial claim involves a mixed question of law and fact. State v.
Hickinbotham, 5th Dist. Stark No. 2018CA000142, 2019-Ohio-2978, 2019 WL 4780988,
¶ 26 citing State v. Jenkins, 5th Dist. Stark No. 2009-CA-00150, 2010-Ohio-2719, ¶ 31,
citing State v. Larkin, 5th Dist. Richland 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. Id. 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.Holmes County, Case No. 22 CA 004 15
{¶32} When reviewing the legal issues presented in a speedy trial claim, we must
strictly construe the relevant statutes against the State. State v. Austin, 5th Dist. Fairfield
No. 18-CA-18, 2019-Ohio-686, 2019 WL 982237, ¶ 36; Brecksville v. Cook, 75 Ohio St.3d
53, 57, 661 N.E.2d 706 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-Ohio-
2326, ¶ 12.
{¶33} In his motion to dismiss the indictment, Corn raised multiple arguments to
the trial court as to how his right to a speedy trial was violated. The trial court found his
rights to a speedy trial were violated pursuant to R.C. 2941.401 and to the Sixth
Amendment of the U.S. Constitution.
R.C. 2941.401
{¶34} R.C. 2941.401 controls the speedy trial rights of a defendant who is in
prison. State v. Austin, 5th Dist. Fairfield No. 18-CA-18, 2019-Ohio-686, 2019 WL
982237, ¶ 60 citing State v. Smith, 140 Ohio App.3d 81, 86, 2000-Ohio-1777, 746 N.E.2d
678 (3rd Dist.). The statute governs the actions an individual incarcerated in a state prison
must take to dispose of other charges pending from other Ohio courts and how to invoke
that person’s speedy trial rights on those pending charges. State v. Johnson, 9th Dist.
Summit Nos. 28515, 28822, 2018-Ohio-2004, ¶ 35.
{¶35} R.C 2941.401 reads:
When a person has entered upon a term of imprisonment in a correctional
institution of this state, and when during the continuance of the term of
imprisonment there is pending in this state any untried indictment,
information, or complaint against the prisoner, he shall be brought to trial
within one hundred eighty days after he causes to be delivered to the
Holmes County, Case No. 22 CA 004 16
prosecuting attorney and the appropriate court in which the matter is
pending, written notice of the place of his imprisonment and a request for a
final disposition to be made of the matter, except that for good cause shown
in open court, with the prisoner or his counsel present, the court may grant
any necessary or reasonable continuance. The request of the prisoner shall
be accompanied by a certificate of the warden or superintendent having
custody of the prisoner, stating the term of commitment under which the
prisoner is being held, the time served and remaining to be served on the
sentence, the amount of good time earned, the time of parole eligibility of
the prisoner, and any decisions of the adult parole authority relating to the
prisoner.
The written notice and request for final disposition shall be given or sent by
the prisoner to the warden or superintendent having custody of him, who
shall promptly forward it with the certificate to the appropriate prosecuting
attorney and court by registered or certified mail, return receipt requested.
The warden or superintendent having custody of the prisoner shall promptly
inform him in writing of the source and contents of any untried indictment,
information, or complaint against him, concerning which the warden or
superintendent has knowledge, and of his right to make a request for final
disposition thereof.
***
If the action is not brought to trial within the time provided, subject to
continuance allowed pursuant to this section, no court any longer has
Holmes County, Case No. 22 CA 004 17
jurisdiction thereof, the indictment, information, or complaint is void, and the
court shall enter an order dismissing the action with prejudice.
{¶36} The Ohio Supreme Court has held that, pursuant to R.C. 2941.401, the
initial duty is placed on the defendant to notify the prosecutor and the court of his place
of incarceration and to request final disposition of outstanding charges. State v. Hairston,
101 Ohio St.3d 308, 804 N.E.2d 471, 2004–Ohio–969. “In its plainest language, R.C.
2941.401 grants an incarcerated defendant a chance to have all pending charges
resolved in a timely manner, thereby preventing the state from delaying prosecution until
after the defendant has been released from his prison term.” Id. at 311, 804 N.E.2d 471.
This Court has previously held that the act of giving or sending the written notice and
request for disposition to the warden satisfies the “causes to be delivered” requirement of
the statute. State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019, 2017-Ohio-59,
2017 WL 90619, ¶ 13 citing State v. Colon, 5th Dist. Stark No. 09–CA–232, 2010–Ohio–
2326, ¶ 26. We concluded that ruling otherwise circumvents the remedy afforded an
inmate under R.C. 2941.401, by allowing the warden to ignore or delay an inmate's
request for final disposition. Id. “The right of a defendant to a speedy trial should not be
excused by the failure of a state agent to perform his statutory duty.” Id. See also, State
v. Lear, 5th Dist. Licking No. 15–CA–72, 2016–Ohio–2675.
{¶37} In this case, Corn contends that when he signed Exhibit A, he believed he
was availing himself of the Notice of Availability, or the “fast and speedy” as described by
the ODRC personnel. ODRC employees Griffiths and Cox provided conflicting testimony
as to the bureaucratic procedures under R.C. 2941.401 and what documentation was
provided to Corn while he was in ODRC custody. Griffiths testified Exhibit A was the
Holmes County, Case No. 22 CA 004 18
Notice of Availability. She stated she sometimes received two pages of documentation,
but in this case, she only received Exhibit A. She provided Exhibit A to Corn, he signed
the form, and she forwarded Exhibit A to the detainer section. Cox, on the other hand,
testified Exhibit A was not a Notice of Availability. She stated there was a two-step
process where the inmate would be provided Exhibit A and then a second form, which
she described as a “fast and speedy” form. In this case, while Corn was provided with
Exhibit A, the ODRC did not provide him with a fast and speedy form, nor has it as of the
date of the hearing. Cox testified ODRC did not provide Corn with a fast and speedy form
because (1) the ODRC could not find any information online as to the Secret Indictment,
and (2) Holmes County had not served Corn with the Secret Indictment, which would then
trigger the ODRC to provide Corn with the fast and speedy form. Corn, however, was able
to obtain the Holmes County case number for the matter, Case No. 20CR043, prior to
being served with the Secret Indictment and included it on his pro se motion to dismiss
filed in the Holmes County Court of Common Pleas. He testified he received the case
number from the ODRC employees. The warrant number listed on Exhibit B is the same
as the case number in this case. While Corn did not recall receiving Exhibit B, Cox testified
that Corn was provided with Exhibit B, which stated he had the right to a quick and speedy
trial.
{¶38} To strictly follow R.C. 2941.401 requirements, Corn should have given his
written notice to the prison authorities, who should have forwarded it to the prosecutor
and the court along with a certificate of inmate status. State v. Centafanti, 5th Dist. Stark
No. 2007-CA-00044, 2007-Ohio-4036. Ohio law, however, permits substantial
compliance with R.C. 2941.401 by the inmate. State v. Moore, 2014-Ohio-4879, 23
Holmes County, Case No. 22 CA 004 19
N.E.3d 206, ¶ 22 (3rd Dist.). Based on stipulated facts and the testimony of Corn, Griffiths,
and Cox, the specific circumstances of this case raise the issue of substantial compliance.
Substantial Compliance
{¶39} “While in general, the one hundred eighty day time requirement of R.C.
2941.401 does not begin to run until an inmate demands a speedy resolution of a pending
charge, this is premised on the prosecutor exercising reasonable diligence in properly
notifying the inmate concerning the indictment. The state cannot avoid the application of
R.C. 2941.401 by neglecting to inform the custodial warden or superintendent of the
source and content of an untried indictment. [State v. Carter (June 30, 1981), Franklin
App. No. 80AP-434]. Equally, the state cannot rely upon the prisoner's failure to make
demand for speedy disposition, but must count the time as having commenced upon the
first triggering of the state's duty to give notice of the right to make demand for speedy
disposition. Fitch, supra, at 162. If a prosecutor has not exercised reasonable diligence
in notifying an inmate of pending charges, the proper remedy is a motion to dismiss for
denial of a speedy trial. Id.” State v. Centafanti, 5th Dist. Stark No. 2007-CA-00044, 2007-
Ohio-4036, 2007 WL 2269481, ¶ 42 quoting State v. Rollins (Nov. 17, 1992), 10th Dist.
No. 92 AP-273.
{¶40} “Substantial compliance requires the defendant to do ‘everything that could
be reasonably expected.’ State v. Ferguson (1987), 41 Ohio App.3d 306, 311, 535 N.E.2d
708. ‘The key to determining when the 180-day period begins * * * is delivery upon the
receiving state and its court. * * * What is important is there be documentary evidence of
the date of delivery to the officials of the receiving state.’ State v. Pierce, Cuyahoga App.
No. 79376, 2002-Ohio-652. See, also, Daugherty v. Solicitor for Highland County (1971),
Holmes County, Case No. 22 CA 004 20
25 Ohio St.2d 192, 193, 267 N.E.2d 431 (holding that ‘[w]here an inmate in a penal
institution has made a diligent, good-faith effort to call to the attention of the proper
authorities in another state that he desires a charge pending against him in that state
disposed of, by trial or dismissal, he is entitled to have such request acted upon. The
failure of the authorities to do so constitutes the denial of a speedy trial.’ (Relying on Smith
v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607.)” State v. Antos, 8th Dist.
No. 88091, 2007-Ohio-415 at ¶ 11-13. State v. Centafanti, 5th Dist. Stark No. 2007-CA-
00044, 2007-Ohio-4036, 2007 WL 2269481, ¶ 44.
{¶41} “An inmate's ‘notification of availability and request for final disposition’ can
take several forms, depending on the circumstances of the inmate. Inmates are
sometimes in halfway houses or municipal jail facilities where a warden or superintendent
may or may not be present as contemplated in R.C. 2941.401. At times, inmates take it
upon themselves to notify the court and prosecutor directly, outside the prescribed
method in R.C. 2941.401. See State v. Drowell (1991), 61 Ohio Misc.2d 623, 581 N.E.2d
1183. Even where the prescribed method is used, variations in notification still occur. See
State v. Fox (Oct. 22, 1992), Cuyahoga App. No. 63100 and State v. Fox (Dec. 17, 1998),
Cuyahoga App. No. 74641.” State v. Centafanti, 5th Dist. Stark No. 2007-CA-00044,
2007-Ohio-4036, 2007 WL 2269481, ¶ 38 quoting State v. Gill, 8th Dist. No. 82742, 2004-
Ohio-1245 at ¶ 10. (Footnotes omitted).
{¶42} The State argues that the fact pattern of this case fits squarely within State
v. Hairston, 101 Ohio St.3d 308, 804 N.E.2d 471 (2004), where the Ohio Supreme Court
held:
Holmes County, Case No. 22 CA 004 21
Far from requiring the state to exercise reasonable diligence to locate an
incarcerated defendant, R.C. 2941.401 places the initial duty on the
defendant to cause written notice to be delivered to the prosecuting attorney
and the appropriate court advising of the place of his imprisonment and
requesting final disposition; the statute imposes no duty on the state until
such time as the incarcerated defendant provides the statutory notice.
Further, a warden or prison superintendent has a duty to inform the
incarcerated defendant of charges only when the warden or superintendent
has knowledge of such charges.
Hairston, 2004-Ohio-969 at ¶ 20. In Hairston, the court found that the defendant “never
caused the requisite notice of imprisonment and request for final disposition to be
delivered to either the prosecuting attorney or the court; therefore, he never triggered the
process to cause him to be brought to trial within 180 days of his notice and request.” Id.
at ¶ 21. The State contends that Exhibit A was not a Notice of Availability and therefore,
Corn failed to meet the requirements of R.C. 2941.401. The first notice from Corn that
complied with R.C. 2941.401 was his pro se motion to dismiss, filed on June 9, 2021.
{¶43} The evidence in this case supports the trial court’s finding that the State
knew in August 2020 where Corn was incarcerated. There is no factual dispute that the
ODRC issued Exhibit B to be sent to the Holmes County Sheriff’s Office. The State
contends there is no evidence that the Holmes County Sheriff’s Office received Exhibit B.
The State, however, did not produce any witnesses from the Sheriff’s Office to support its
argument that Exhibit B was never received, and the Sheriff’s Office only became aware
of Corn’s location after June 9, 2021.
Holmes County, Case No. 22 CA 004 22
{¶44} We also find there is an evidentiary conflict whether the ODRC knew of the
Secret Indictment and properly informed Corn of the warrant and/or indictment. Corn
testified that he obtained the case number of the indictment from the ODRC and in fact,
the warrant number listed in the Exhibit B notice and the case number are identical,
rendering a secret indictment not so secret. Further, two ODRC employees gave
conflicting testimony as to what was a Notice of Availability. Griffiths testified Exhibit A
was a Notice of Availability. Cox testified Exhibit A was not a Notice of Availability. Cox
testified as of the date of the hearing, ODRC had not notified Corn of his right to a fast
and speedy trial. In this case, the trial court resolved the evidentiary conflict against the
State and in favor of Corn to find that pursuant to R.C. 2941.401, the ODRC failed to
promptly inform Corn of the indictment and Corn substantially complied to provide the
State with Notice of Availability in August 2020. The record in this case supports the trial
court’s determination as both to its findings of fact and conclusions of law.
{¶45} The State’s first Assignment of Error is overruled.
II.
{¶46} In its second Assignment of Error, the State contends the trial court erred
when it dismissed the indictment based upon a violation of Corn’s constitutional right to a
speedy trial.
{¶47} Based upon our disposition of the State’s first Assignment of Error, we find
the second Assignment of Error to be moot under the two-issue rule.
Holmes County, Case No. 22 CA 004 23
CONCLUSION
{¶48} The judgment of the Holmes County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.