State v. Taylor

[Cite as State v. Taylor, 2020-Ohio-3481.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28463
:
v. : Trial Court Case No. 2018-CR-4239/1
:
JERMICHAEL TAYLOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 26th day of June, 2020.
...........
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Jermichael Taylor appeals his conviction for the
following offenses: Count I: felonious assault (deadly weapon), in violation of R.C.
2903.11(A)(2), a felony of the second degree; Count II: felonious assault (serious physical
harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree; Count III: burglary
(habitation/person present or likely to be present), in violation of R.C. 2911.12(A)(2), a
felony of the second degree; and Count IV: having a weapon while under disability (prior
offense of violence), in violation of R.C. 2923.13(A)(2), a felony of the third degree.
Counts I, II, and IV were each accompanied by a mandatory three-year firearm
specification and a specification that the offender displayed, brandished, indicated
possession of, or used a firearm and had a prior conviction. Taylor filed a timely notice
of appeal on July 15, 2019.
{¶ 2} The incidents which formed the basis for charges against Taylor occurred on
the night of November 26, 2017, when Taylor and his friend, Jamariyo Drane, met with
Marqisa Goode and her friend, Davon Williams. 1 Goode testified that she was not
familiar with Drane, but she knew Taylor from high school. After meeting at around 10:00
p.m., Goode transported the men in her own vehicle, a silver Chevrolet Monte Carlo, to a
bar called Club Plush, where they all drank alcohol. Goode testified that after they had
been at the club for a while, a fight broke out, and they decided to leave. Goode, who
was intoxicated at this point, testified that she handed her car keys to Davon and told him
to meet her at her vehicle.
{¶ 3} Goode testified that, when she reached her vehicle, she observed that Drane
1 More than one participant in the events at issue had the last name Williams, so we will
refer to them by their first names.
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had taken the car keys from Davon and was sitting in the driver’s seat. Davon, who was
also intoxicated, was seated in the backseat, and Taylor was seated in the front
passenger seat. Goode and Drane briefly argued over the car keys before Drane exited
the vehicle and “slammed” Goode to the ground. Drane then got back into the vehicle
and drove away with Taylor and Davon in tow. Goode testified that she immediately
walked up to a nearby Montgomery County Sheriff’s Deputy and reported that her car had
been stolen. Because Drane could still be seen driving away at this point, the deputy
drove off in pursuit of the stolen vehicle.
{¶ 4} The record further establishes that, while these events were taking place at
Club Plush, Shavoria Williams was driving to her residence after dropping off an
acquaintance at another location. Shavoria testified that, as she was traveling on
Siebenthaler Avenue, she came to a stop at a red light. Shavoria testified that she then
saw “flashes” and heard what she knew to be gunshots coming from a vehicle located
behind her, a silver Monte Carlo containing multiple individuals. Shavoria testified that
she ran the red light because she was being shot at and eventually turned left onto Arlene
Avenue in order to escape the shooters. At this point, Shavoria stopped her vehicle and
turned on her interior light in an effort to show the individuals shooting at her that she was
not who they thought. Shavoria testified, however, that after the shooters passed her in
the Monte Carlo, they performed a U-turn and drove back toward her. When she saw
the shooters coming back, Shavoria quickly turned down another side street; she then
stopped, exited her vehicle, and continued on foot. While she was walking, Shavoria
called 911 to report the car chase and shooting. Shortly thereafter, police and
emergency personnel arrived at the scene, and she was transported to Miami Valley
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Hospital. After an examination, it was found that Shavoria had been shot in the leg.
{¶ 5} Shortly thereafter, Drane crashed Goode’s vehicle into a garage on Arlene
Avenue. Davon, who had been sitting in the back seat, exited the vehicle through the
driver’s side window only to be tackled by the owner of the residence, Darrell Daniel.
Daniel testified that he observed another individual climb out of the passenger side of the
vehicle, jump over the hood of the vehicle, and flee the scene. Daniel held Davon down
on the ground until the police arrived and took him into custody. Taylor and Drane were
both able to flee the scene, but both men had suffered significant injuries in the crash.
During a later search of the vehicle by police, a .380 semi-automatic handgun was found
with an empty magazine. Notably, Goode testified that Drane later offered to pay for the
damage done to her vehicle in exchange for her not testifying against him.
{¶ 6} In an attempt to clean themselves up after the car accident and evade the
police, Taylor and Drane broke into the residence of 70-year-old Leslie Cox. Taylor and
Drane used Cox’s towels to clean their injuries. Evidence also indicated that Taylor
vomited while inside Cox’s residence, and one of Taylor’s boots was found under Cox’s
bed. Eventually, the two men forced Cox to call Drane’s mother and Taylor’s girlfriend
on her cellphone. Cox then called her granddaughter, who came to Cox’s residence,
Cox testified that her granddaughter called the police, at which point Taylor and Drane
left Cox’s residence.
{¶ 7} Taylor’s girlfriend, Angela Lovett, picked him up near Cox’s house and took
him to his mother’s house. In light of the severity of his injuries, an ambulance was
called, and Taylor was transported to the hospital. After his release from the hospital,
Taylor was advised to remain at a rehabilitation center, but he left against his doctor’s
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orders and disappeared for approximately eight months; he was eventually taken into
custody on June 25, 2018. After being informed of his rights and interviewed by Dayton
Police Detective Joshua Campbell, Taylor claimed that he had been with his girlfriend the
entire time and had not been involved in the shooting.
{¶ 8} On November 20, 2018, Taylor was indicted for the following offenses: Count
I: felonious assault (deadly weapon); Count II: felonious assault (serious physical harm);
Count III: burglary; and Count IV: having a weapon while under disability. As previously
stated, Counts I, II, and IV were each accompanied by a mandatory three-year firearm
specifications and by a second specification that the offender displayed, brandished,
indicated possession of, or used a firearm and had a prior conviction with a firearm
specification. Drane was a co-defendant in the case (Montgomery C.P. No. 2018 CR
4239/2.).
{¶ 9} Because Taylor had been imprisoned for a violation of post-release control
stemming from a prior conviction, he was transported from Lebanon Correctional
Institution to the Montgomery County Common Pleas Court for his arraignment on
February 5, 2019.2 At his arraignment, Taylor stood mute, and the trial court entered a
plea of not guilty on his behalf. On February 19, 2019, Taylor requested a continuance
for medical reasons, and the trial court continued the case until March 6, 2019. At a
hearing on March 6, 2019, the trial court scheduled a trial date for June 3, 2019. Based
upon a discussion held with counsel during the hearing, the trial court issued an “Order
Setting Trial Date Beyond Statutory Period.”3
2
Taylor had been appointed counsel by the trial court on January 22, 2019.
3
The trial court issued the order on March 29, 2019.
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{¶ 10} On March 20, 2019, Taylor was inadvertently brought before the trial court
since his original pretrial hearing had been scheduled for that day. Taylor appeared
before the court without counsel; the trial court simply informed him again that a final
pretrial hearing had been scheduled for May 2019, and the jury trial was scheduled to
begin on June 3, 2019.
{¶ 11} On May 30, 2019, a hearing was held before the trial court to address
certain pretrial motions and evidentiary issues. Specifically, the trial court addressed two
motions filed by Taylor’s co-defendant, Drane: a motion to sever and a motion to exclude
DNA evidence. At the hearing, Taylor orally moved to join in both of the motions filed by
Drane. The trial court granted the motion to sever Drane’s and Taylor’s cases. With
respect to the DNA evidence, the trial court held that the DNA evidence would not be
admissible at trial against Taylor because the State had failed to disclose the reports to
defense counsel in a timely manner.
{¶ 12} On May 31, 2019, only three days before the trial was scheduled to begin,
defense counsel made an oral motion to have Taylor evaluated for competency. We
note that the driving force for Taylor’s request for a competency evaluation was that he
purportedly did not understand his counsel’s explanation with respect to his speedy trial
rights. After conducting a hearing and questioning Taylor, the trial court overruled the
motion for a competency evaluation. The trial court also stated that it believed Taylor’s
right to a speedy trial had not been violated. Notably, Taylor never filed a formal motion
to dismiss based on a speedy trial violation. On June 2, 2019, Taylor filed a
memorandum in support of his oral motion for a competency evaluation, which was also
overruled by the trial court.
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{¶ 13} Before the jury was selected, Taylor waived his right to a jury trial with
respect to the having a weapon while under disability charge (Count IV) and its
specifications, as well as the second specification to Counts I and II. 4 The jury trial
regarding the remaining counts took place from June 3-6, 2019. The jury found Taylor
guilty on all counts. In an entry filed on June 13, 2019, the trial court also found Taylor
guilty of Count IV, having a weapon while under disability, and the specifications.
{¶ 14} At sentencing on June 19, 2019, the trial court merged the two felonious
assault convictions, and the State elected to proceed with sentencing on Count II,
felonious assault (serious physical harm). The trial court also merged the firearm
specifications attached to Count II, with the State electing to proceed with sentencing on
the second specification. The trial court also merged the firearm specifications attached
to Count IV, having a weapon while under disability, with the State electing to proceed
with sentencing on the second specification. Thereafter, Taylor was sentenced as
follows: eight years for felonious assault, eight years for burglary, and three years for
having a weapon while under disability. Additionally, Taylor was sentenced to 54 months
in prison for the firearm specification to Count II and an additional 54 months for the
firearm specification to Count IV. The trial court ordered all of the sentences to be served
consecutively, for an aggregate sentence of 28 years in prison. Taylor was awarded 122
days of jail time credit.
{¶ 15} It is from this judgment that Taylor now appeals.
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION
4
As previously stated, the second specification to Counts I, II, and IV stated that the
offender displayed, brandished, indicated possession of, or used a firearm and had a prior
conviction.
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TO DISMISS A JUROR DUE TO HIS POSSIBLE PRIOR KNOWLEDGE OF
THE CASE AT HAND.
{¶ 16} In his first assignment, Taylor contends that the trial court erred when it
refused to remove Juror #10 from the jury, based on the fact that he “possibly had
information that came from outside the trial.”
{¶ 17} “Crim.R. 24(G) and R.C. 2945.29 address removal of jurors during criminal
trials.” State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, ¶ 45. R.C.
2945.29 permits a court to replace a juror with an alternate “[i]f, before the conclusion of
the trial, a juror becomes sick, or for other reason is unable to perform his duty[.]”
Crim.R. 24(G)(1) similarly provides that alternate jurors “shall replace jurors who, prior to
the time the jury retires to consider its verdict, become or are found to be unable or
disqualified to perform their duties.” Moreover, “[a]s of 2008, Crim.R. 24(G)(1) allows the
court to replace a juror after deliberations have begun.” State v. Hunt, 10th Dist. Franklin
No. 12AP-103, 2013-Ohio-5326, ¶ 71. “However, ‘[i]f an alternate replaces a juror after
deliberations have begun, the court must instruct the jury to begin its deliberations anew.’
” Id., quoting Crim.R. 24(G)(1).
{¶ 18} “A trial judge is empowered to exercise ‘sound discretion to remove a juror
and replace him with an alternate juror whenever facts are presented which convince the
trial judge that the juror's ability to perform his duty is impaired.’ ” State v. Brown, 2d Dist.
Montgomery No. 24541, 2012-Ohio-1848, ¶ 46, quoting State v. Hopkins, 27 Ohio App. 3d
196, 198, 500 N.E.2d 323 (11th Dist.1985). (Other citations omitted.) “Absent a record
showing that the court abused that discretion which resulted in prejudice to the defense,
the regularity of the proceedings is presumed.” Id., citing Beach v. Sweeney, 167 Ohio
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St. 477, 150 N.E.2d 42 (1958). (Other citation omitted.)
{¶ 19} “A trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135
Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be expected that most
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597
(1990). “A decision is unreasonable if there is no sound reasoning process that would
support that decision.” Id.
{¶ 20} In the instant case, during jury selection, Juror #10 stated that he worked
as an information technologies specialist and sometimes retrieved video footage of
criminal acts and provided the footage to the Dayton Police Department. When Juror
#10 was questioned by the State, the following exchange occurred:
Juror #10: * * * Yes. Yes, I assist sometimes retrieving video from crimes.
The State: Okay.
A: And we may discuss the, you know. I’m too busy doing IT work to really
follow all of the cases that the department has, but you know, I work with
Detective Statzer and assist him.
Q: Okay.
A: You know, when he needs IT help. But…..
Q: Okay. Based on the fact you are assisting with certain investigations,
let me ask you this. Did you assist in any investigation that you can recall
that stems from the date of November 26th of 2017?
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A: No.
Tr. 76-77. When voir dire was concluded, Juror #10 was chosen to serve on the jury.
{¶ 21} After three of the State’s witnesses had testified, Juror #10 informed the
bailiff that he believed that he had assisted with retrieving a video taken on the night of
the shooting. Thereafter, the following exchange with Juror #10 occurred outside the
presence of the rest of the jury:
The Court: All right. And our deputy’s here, and counselor here
[sic], and Mr. Taylor’s here, and our State’s rep is here, and my staff is here.
* * * And my understanding, * * * Juror #10, is that you had occasion during
the break to indicate to the bailiff something along the lines that you are
wondering, I gather, whether or not it might’ve been you that – I’ll use the
phrase – pulled the 911 call, or calls that we’ve heard in this case.
Juror #10: No, sir. The video – there may be video of the shooting
at the intersection of the car that drove by. I assisted Dayton Police
Department. I don’t know. The car looks familiar, but I pull so much video.
But seeing a picture of the car, it might be that.
The Court: Let me ask – let me ask State’s counsel. Do we have
any video at the intersection or elsewhere that might have memorialized the
shooting, or shootings at issue here?
The State: We do not.
The Court: Okay.
The State: That was part of the sheriff’s investigation. Dayton was
the crash and the burglary. And that was part of the sheriff’s investigation.
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And Detective Statzer says, * * * no, he’s unaware of anything. He doesn’t
have anything. I know we don’t have anything. There’s been no video.
It may be a different incident that has occurred that may sound similar, but
not in this case, Your Honor.
The Court: All right? So that makes that easy, in that sense. Now,
let me ask you the next question. I would assume – but you know, when I
assume things, I get in trouble –
Juror #10: Yes, sir.
The Court: -- like assuming I have my wife’s permission to do
something. That generally gets me in trouble because to hear her tell it, I
never have permission to do anything. But here, I assume that – first of all,
you’re to be commended for bringing your concern to the bailiff. That’s
exactly what I want you to do. So thank you very much.
Juror #10: Okay.
The Court: I know the lawyers feel that way, and certainly Mr. Taylor
does as well. We don’t need to do that – suffer in silence. And we need
to do just what you did, okay? Secondly, I assume that now having been
given this assurance by State’s counsel and the detective that no, there is
no video that was pulled by you or anybody else that they would have been
able to harvest.
And I’m pretty sure they were looking, because that’s part of what
they do. But there is no such video here. So, does that assuage any
concerns that you have about whether or not you can continue to serve on
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this jury?
Juror #10: Yeah, it’s that – I just wanted to make sure that there was
no conflict.
The Court: Well, I don’t perceive one. Do the lawyers think, in any
way, this is a conflict for [Juror #10]? I don’t see it as one personally.
The State: I don’t at this point. If we had a video, I could understand,
but we don’t have a video of such. So no, the only thing we have to present
in the form of any audio or video are these 911 calls. So –
Juror #10: Okay.
The Court: Right, and no, you had no – you had no involvement in
harvesting those 911 calls.
Juror #10: That’s a –
The Court: Is that fair?
A: Yes, sir. That’s a –
Q: Okay.
A: -- different department that takes those, not here.
Q: Sure. So would – do you agree with me that, now that we’ve
resolved this, we’ve answered your questions, that you feel perfectly
comfortable continuing to serve on this jury?
A: Yes, sir.
Q: Do you continue to believe, as you’ve believed all along that you
don’t favor one side or the other? You don’t favor the State of Ohio, nor do
you favor Mr. Taylor at this point?
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A: Yes.
Q: Is that fair to say?
A: Yes, sir.
Q: Can you think of any reason at all that you shouldn’t continue on
this jury?
A: No, sir.
(Emphasis added.) Tr. 223-226.
{¶ 22} After Juror #10 returned to the jury room, the following exchange occurred
between defense counsel and the trial court:
Defense Counsel: * * * All right, Your Honor, my client wishes to
have [Juror #10] excused from the jury.
Trial Court: Why?
A: He’s concerned that he may have seen some video that is similar
to this situation and that may taint his perceptions, taint his judgment about
what happened, or did not happen in this case.
Q: Well, I understand your concern, Mr. Taylor. I don’t think it’s well-
founded at all. The detective has flat-out – the detective – the witness has
flat-out said, based now on the fact that the State says there’s no such video
of this incident, they looked for the – whether they were, if they found it, they
damn sure were going to use it. But they didn’t find it, doesn’t exist.
This man, having been given that assurance, indicated it was not he
that had anything to do with pulling or harvesting the 911 calls, and that
there further, upon inquiry from the Court, he has given the Court no
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concern at all that he is in any way biased against anybody in this case,
including you.
And the one thing I know about him, he might be the one honest man
in this whole trial. And that is that he came forward with a concern that he
had, and as far as I’m concerned, we put it to rest. So I note your objection;
it’s overruled. * * *
Tr. 227-228.
{¶ 23} As previously stated, after three of the State’s witnesses testified, Juror #10
informed the bailiff that there may have been a conflict because he might have pulled
surveillance video of the shooting in the instant case. However, both the prosecutor and
the lead detective informed the trial court that no video of the shooting existed Taylor’s
case. Therefore, Juror #10 could not have pulled any video surveillance related to the
instant case. Furthermore, upon inquiry by the trial court, Juror #10 agreed that he was
perfectly capable of continuing to serve on the jury and held no bias against either party.
{¶ 24} Taylor argues that Juror #10 “may have seen some video that is similar to
this situation and that may taint his perceptions, taint his judgment about what happened,
or did not happen in this case.” Taylor’s counsel, however, did not ask Juror #10 a single
question when invited to do so by the trial court. Hence, this argument is wholly
speculative. By all accounts, Juror #10’s responses to the trial court’s inquiries
established that he was not biased against either party and was able to impartially weigh
Taylor’s guilt or innocence based upon the evidence submitted at trial. To argue that
Juror #10’s perceptions were somehow tainted by viewing video surveillance in a
separate but similar case simply finds no support in the record.
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{¶ 25} In support of his argument, Taylor cites City of Cleveland Heights v. Corlew,
8th Dist. Cuyahoga No. 64845, 1994 WL 144532 (April 21, 1994). Corlew, however,
involved a claim of juror misconduct because several of the jurors traveled to the scene
of a car accident in a vehicular homicide case. Corlew held that the voir dire of the jurors
established that they had not gained any new information about the case by the viewing
the scene of the accident; thus, there was no juror misconduct. Unlike the decision in
Corlew, the instant case does not involve a suggestion of juror misconduct. The trial
court questioned Juror #10 and reasonably concluded that he did not view any video
surveillance involved with Taylor’s case because there was none to view. Corlew is
further distinguishable from the instant case because Juror #10 did nothing to investigate,
such as traveling to scene of the shooting.
{¶ 26} Significantly, Juror #10 informed the State during voir dire that as part of his
job duties, he routinely pulled surveillance videos for Dayton Police detectives. If Taylor
had been concerned about Juror #10’s potential for bias based on similar cases, he could
have so inquired or used a peremptory challenge to remove Juror #10, but he did not.
Here, there was no misconduct on the part of Juror #10, and the record establishes that
Juror #10 did not view any surveillance footage which could have possibly compromised
his ability to fairly and impartially weigh the merits of this case. Rather, the record
indicates that Juror #10 was qualified to continue service on the jury and held no bias
against either party. Thus, the trial court did not abuse its discretion when it overruled
Taylor’s objection and allowed Juror #10 to remain on the jury for the duration of the trial.
{¶ 27} Taylor’s first assignment of error is overruled.
{¶ 28} Taylor’s second assignment of error is as follows:
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THE TRIAL COURT ERRED WHEN IT VIOLATED THE APPELLANT’S
RIGHT TO A SPEEDY TRIAL.
{¶ 29} In his second assignment, Taylor argues that the trial court erred when it
violated his right to a speedy trial.
{¶ 30} As this Court has noted:
The right to a speedy trial is guaranteed by the United States and
Ohio Constitutions. State v. Adams (1989), 43 Ohio St. 3d 67, 68, 538
N.E.2d 1025. The speedy trial provisions of the Ohio statutes must be
strictly construed against the State. Brecksville v. Cook (1996), 75 Ohio
St.3d 53, 55, 661 N.E.2d 706. 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. Price (1997), 122 Ohio App. 3d 65, 68, 701 N.E.2d 41. 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. Id. If the State does not meet its burden, the defendant must be
discharged. R.C. § 2945.73. See, also, State v. Coatoam (1975), 45 Ohio
App.2d 183, 185-186, 341 N.E.2d 635.
State v. Gray, 2d Dist. Montgomery No. 20980, 2007-Ohio-5449, ¶ 15.
{¶ 31} Initially, we note that Taylor never filed a motion to dismiss based upon an
alleged speedy trial violation. The only time that an alleged speedy trial violation was
discussed was three days before Taylor’s trial was scheduled to begin. At his
competency hearing on May 31, 2019, in response to inquiries from the trial court
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regarding his understanding of the court’s pronouncements, Taylor stated that he
believed that the trial court had violated his right to speedy trial. However, Taylor never
filed a motion to dismiss on this basis, nor did the trial court make a formal ruling with
respect to his speedy trial rights. Since the hearing related to Taylor’s request for a
competency evaluation, the issues raised at that time were confined to Taylor’s overall
competency and understanding of his rights.
{¶ 32} An appellant's “failure to file a motion to dismiss on speedy trial grounds
prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue on
appeal.” State v. Humphrey, 2d Dist. Clark No. 02-CA-25, 2003-Ohio-2825, ¶ 17, citing
State v. Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 37.
{¶ 33} In any event, the record establishes that Taylor was brought to trial within
the required time period. R.C. 2945.71 provides that “[a] person against whom a charge
of felony is pending * * * [s]hall be brought to trial within two hundred seventy days after
the person's arrest.” R.C. 2945.71(C)(2). This 270-day period may be extended for one
or more of the reasons listed in R.C. 2945.72(A)-(I). Absent any such extension, failure
to bring a defendant to trial within the 270-day period subjects the case to dismissal upon
motion of the defendant. R.C. 2945.73(B). “When an accused is discharged pursuant to
[R.C. 2945.73(B)] * * *, such discharge is a bar to any further criminal proceedings against
[the defendant] based on the same conduct.” R.C. 2945.73(D). The “triple-count”
provision set forth in R.C. 2945.71(E) reduces to 90 days the time for bringing to trial an
accused who is incarcerated the entire time preceding trial. See also State v. Dankworth,
172 Ohio App. 3d 159, 2007-Ohio-2588, 873 N.E .2d 902, ¶ 31 (2d Dist.).
{¶ 34} However, the rule is that triple counting applies “only when the defendant is
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being held in jail solely on the pending charge.” State v. Sanchez, 110 Ohio St. 3d 274,
2006-Ohio-4478, 853 N.E.2d 283, 286, ¶ 7; see also State v. MacDonald, 48 Ohio St. 2d
66, 357 N.E.2d 40 (1976), paragraph one of the syllabus (construing former R.C.
2945.71(D), now (E)). Therefore, the triple-count provision does not apply when a
defendant is being held in custody on other charges. Id. Nor does it apply when the
accused is being held on a parole- or probation-violation holder. State v. Brown, 64 Ohio
St.3d 476, 479, 597 N.E.2d 97 (1992) (parole-violation holder); State v. Martin, 56 Ohio
St.2d 207, 211, 383 N.E.2d 585 (1978) (probation-violation holder). Additionally, the
triple-count provision does not apply when the accused is simultaneously serving a prison
sentence for a separate offense. State v. Steele, 8th Dist. Cuyahoga App. Nos. 101139,
101140, 2014-Ohio-5431, ¶ 19.
{¶ 35} Speedy trial time may be waived by the defendant or tolled by operation of
law, namely R.C. 2945.72. State v. Blackburn, 118 Ohio St. 3d 163, 2008-Ohio-1823,
887 N.E.2d 319, ¶ 11. The tolling of speedy trial time under R.C. 2945.72 is automatic
and extends the speedy trial time “whether or not a waiver has been executed.” Id. at
¶ 18. 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). Unlike a waiver, which serves
the defendant's interests in obtaining additional time, “the automatic tolling of time * * *
operates to protect the state's ability to adequately prosecute persons who have
committed crimes.” Id. at ¶ 21.
{¶ 36} The record establishes that, at the time Taylor committed the instant
offenses, he was on post-release control (PCR) supervision in a separate case. Taylor
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was not arrested by police initially because of the severe nature of the injuries he suffered
in the car accident after the shooting on November 26, 2017. As previously stated,
Taylor left treatment early against medical advice and was not located until approximately
eight months later. When he was located, however, the record indicates that Taylor was
taken into custody on the parole warrant in the separate case, not the arrest warrant
issued in this case. Thereafter, Taylor attended a parole violation hearing, his PCR was
revoked, and he was sent to prison.
{¶ 37} During the time he was serving a prison sentence for the PCR violation,
Taylor was indicted in this case and transferred to the Montgomery County Jail. We note
that the warrant for removal from prison stated, “[t]his is a continuing order and shall have
continuing effect until the termination of all proceedings in this case.” Accordingly,
because Taylor was serving a prison sentence stemming from a separate case at the
same time he was being held in custody in the instant case, he was not entitled to the
triple-count provision. Absent any tolling events, the State therefore had 270 days to
bring Taylor to trial. The record establishes that only 119 days passed between the day
Taylor was booked into the Montgomery County Jail (February 4, 2019) and when his trial
began (June 3, 2019), and thus there was no speedy trial violation.
{¶ 38} Moreover, on February 19, 2019, Taylor filed a motion to continue a hearing
originally scheduled for February 20, 2019, for “medical reasons.” In an entry filed on
February 20, 2019, the trial court granted the continuance and rescheduled the hearing
for March 6, 2019. Permissible reasons for extending the trial date include “[a]ny period
of delay necessitated by reason of a * * * motion * * * made or instituted by the accused”
and “[t]he period of any continuance granted on the accused's own motion, and the period
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of any reasonable continuance granted other than upon the accused's own motion[.]” R.C.
2945.72(E) and (H). Thus, Taylor’s motion for continuance tolled speedy trial time from
February 19, 2019, until March 6, 2019. Where an accused requests a continuance of
a pretrial hearing, the request tolls the statutory speedy trial period from the date of the
request until the date of the rescheduled hearing. See State v. Wilson, 2d Dist. Clark No.
2018-CA-2, 2020-Ohio-2962, ¶ 32-33.
{¶ 39} Furthermore, prior to trial, Taylor orally moved to join in two motions filed by
his co-defendant, a motion to sever filed on May 21, 2019, and a motion to exclude
evidence filed on May 28, 2019. As previously stated, on May 30, 2019, the trial court
held a hearing on these motions and granted both motions as they related to Taylor.
R.C. 2945.72(H) permits the speedy-trial clock to be tolled for the “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.” While the co-
defendant’s motions did not automatically toll Taylor’s speedy trial time, the fact that he
joined his co-defendant with respect to both motions tolled Taylor’s speedy trial time from
May 21, 2019, until May 30, 2019. See State v. Smith, 2d Dist. Clark No. 2003-CA-93,
2004-Ohio-6062, ¶ 20 (a motion by a co-defendant may operate to extend speedy trial
time for another); but see State v. Ramey, 2d Dist. Clark No. 2010-CA-19, 2012-Ohio-
6187 (the record did not support a finding that co-defendant's motion to suppress acted
to toll defendant's speedy trial time because the motion did not relate to or affect
defendant in any way).
{¶ 40} Additionally, the time within which an accused must be brought to trial may
be tolled by any period during which the accused’s mental competence to stand trial is
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being determined. R.C. 2945.72(B). On May 31, 2019, Taylor made an oral motion for
a competency evaluation, only three day before the trial was scheduled to begin. The
trial court held a hearing during which it found Taylor competent to stand trial. On June
2, 2019, Taylor filed a written motion for a competency evaluation, and the trial court filed
a written decision overruling Taylor’s motion for a competency evaluation on June 3.
Accordingly, Taylor’s speedy trial time was also tolled from May 31 until June 3, 2019.
{¶ 41} Lastly, during the hearing on March 6, 2019, the trial court set forth its
explanation on the record for scheduling the trial date for June 3, 2019. As is apparent
from the record, the trial court and the parties erroneously believed that the speedy trial
deadline was May 10, 2019. Perhaps, this was the source of Taylor’s own confusion.
During the hearing the trial court stated the following:
Trial Court: The Court began by throwing out some trial dates to the
parties. We threw out, I think, a date of April the 22nd. I think that date –
I don’t mean to speak for Mr. Lennen [Counsel for Co-Defendant] – I think
Mr. Gramza [Counsel for Taylor] indicated that date would be acceptable to
him.
I think State’s counsel indicated that would not be acceptable to
them, given their schedules and given conflicts – trials already scheduled in
other courts in this courthouse.
I threw out the date – I didn’t, the bailiff did – of April the 29th. That
was acceptable to State’s counsel. Mr. Gramza indicated that date was –
would not work for him, that he had a previously scheduled matter in another
court.
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We then talked about May the 13th. That date was unacceptable to
State’s counsel, owing to a conflict in another court.
We then threw out a date of May the 20th. Mr. Gramza indicated
again that date would not work for him, owing to his conflicts on a previously
scheduled matter in another court.
And that’s what happens when you’ve got multiple lawyers – good
lawyers that represent any number of people and invariably, conflicts arise.
We finally reached a date that works for everybody, and that was
June the 3rd. That, on its face, lies outside the May 10th speedy trial
calculation, as I understand it for Mr. Taylor; but nevertheless, certainly is
within a reasonable earshot, shall we say of that date. It’s also the only
date that works for all the lawyers, including Mr. Gramza, Mr. Taylor’s
counsel; and that is the date, then, that the Court selects.
The Court believes, and I think the statute bears this out regarding
speedy trial, that when the Court gets into trouble, it’s when the speedy trial
comes and goes and then a date is selected outside the speedy trial date.
And I think when that happens, we all understand the implications of that.
Here, we had dates that would have worked inside speedy trial, but not for
all the lawyers. The Court has discretion to set this matter at a time that
works for all the lawyers and takes into consideration Mr. Taylor’s speedy
trial rights.
I have selected, then, the date of June the 3rd for the reasons that
I’ve indicated. I believe that comports with the Court’s obligations under
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the laws of the State of Ohio and the Revised Code.
Tr., March 6, 2019 Hearing, p. 4-5.
{¶ 42} In State v. Ramey, 2012-Ohio-6187, 986 N.E.2d 462 (2d Dist.), we noted
that to satisfy the reasonableness 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.’ ” (Italics sic.) Id. at ¶ 12, quoting State v. Mincy, 2 Ohio
St.3d 6, 9, 441 N.E.2d 571 (1982). Consistent with this standard, the trial court stated
its reasons during the hearing and also entered its reasons in an entry filed on March 29,
2019. “The reasonableness of a continuance is determined by examining the purpose
and length of the continuance.” (Citation omitted.) State v. Gavin, 2d Dist. Montgomery
Nos. 24284, 24285, 2011-Ohio-4665, ¶ 34. Significantly, the record establishes that
both Taylor and his counsel were present at the hearing on March 6, 2019.
{¶ 43} “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.” Ramey at ¶ 16, citing State v. Davis, 46 Ohio St. 2d
444, 449, 349 N.E.2d 315 (1976). Here, Taylor’s defense counsel did not “merely
acquiesce” to the trial date of June 3, 2019, but rather assisted in selecting it based upon
conflicts in his work schedule. We also find the explanation provided by the trial court
regarding its decision to ostensibly schedule the trial outside of the speedy trial limit to be
reasonable and supported by the record. Therefore, the record establishes that the trial
court complied with R.C. 2945.72(H) when it decided to toll Taylor’s speedy trial time until
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June 3, 2019.
{¶ 44} Taylor’s second assignment of error is overruled.
{¶ 45} Taylor’s third and final assignment of error is as follows:
THE TRIAL COURT ERRED IN NOT PROVIDING THE DEFENDANT A
FORMAL COMPETENCY HEARING AND DEEMING HIM COMPETENT
TO STAND TRIAL.
{¶ 46} In his final assignment, Taylor contends that the trial court erred when it
found him to competent to stand trial without first providing him a formal competency
hearing. In the alternative, Taylor argues that if we find that the trial court did conduct a
proper hearing regarding his motion for a competency evaluation, the trial court still erred
in finding Taylor competent as he provided evidence that he did not understand “essential
parts of the case or the proceedings, nor could he provide assistance to his attorney.”
Appellant’s Brief, p. 10.
{¶ 47} “Fundamental principles of due process require that a criminal defendant
who is legally incompetent shall not be subjected to trial.” State v. Berry, 72 Ohio St. 3d
354, 359, 650 N.E.2d 433 (1995). If a defendant “lacks the capacity to understand the
nature and object of the proceedings against him, to consult with counsel, and to assist
in preparing his defense[,]” he may not stand trial. State v. Skatzes, 104 Ohio St. 3d 195,
2004-Ohio-6391, 819 N.E.2d 215, ¶ 155.
{¶ 48} This due process right has been codified at R.C. 2945.37, which provides
in pertinent part:
B) In a criminal action in a court of common pleas, * * * [the] defense may
raise the issue of the defendant's competence to stand trial. If the issue is
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raised before the trial has commenced, the court shall hold a hearing on the
issue as provided in this section. * * *
(C) The court shall conduct the hearing required or authorized under
division (B) of this section within thirty days after the issue is raised, unless
the defendant has been referred for evaluation in which case the court shall
conduct the hearing within ten days after the filing of the report of the
evaluation * * *.
{¶ 49} R.C. 2945.371 provides that if the issue of a defendant's competence to
stand trial is raised under R.C. 2945.37, the court may order one or more, but not more
than three, evaluations of the defendant's present mental condition. Further, R.C.
2945.37(E) states that “[t]he prosecutor and defense counsel may submit evidence on
the issue of the defendant's competence to stand trial.
{¶ 50} The use of the word “may” in these statutes indicates that the decision
whether to order an examination is a matter within the trial court's discretion. “Taken as
a whole, the provisions of R.C. 2945.37 and 2945.371 support the inference that when
the initial hearing on a competency motion is held, the trial court is only required to give
the defendant, or his counsel, the chance to submit evidence on the issue.” State v.
Bailey, 90 Ohio App. 3d 58, 67, 627 N.E.2d 1078 (11th Dist.1992). “If this evidence raises
a genuine question as to the defendant's competency, the court can order that one or
more evaluations be performed.” Id.; State v. Carson, 2d Dist. Greene No. 2002-CA-73,
2003-Ohio-5958, ¶ 30.
{¶ 51} Thus, we review the decision of the trial court regarding competency
determinations/evaluations for an abuse of discretion. State v. Curry, 2d Dist. Greene No.
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2012-CA-50, 2014-Ohio-3836, ¶ 40. In order to find that the trial court abused its
discretion, we must find that the trial court's decision was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 52} In determining whether a defendant is competent to stand trial, the test is
“ ‘ “whether [the defendant] has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well as
factual understanding of the proceedings against him.” ’ ” State v. Neyland, 139 Ohio
St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing State v. Berry, 72 Ohio St. 3d
354, 359, 650 N.E.2d 433 (1995), quoting Dusky v. United States, 362 U.S. 402, 80 S. Ct.
788, 4 L. Ed. 2d 824 (1960). It is with this standard in mind that we review the evidence
in this record to determine whether Taylor raised a genuine question of his competency
to stand trial and whether the trial court abused its discretion by declining to order an
evaluation.
{¶ 53} As previously stated, Taylor’s counsel orally raised the issue of Taylor’s
competency to stand trial and requested a competency hearing on May 31, 2019, only
three days before trial. Therefore, the trial court held a hearing on May 31, 2019, in order
to determine whether Taylor was entitled to a competency evaluation administered by an
appropriate expert. During the hearing, defense counsel informed the trial court that
Taylor indicated that he did not understand what counsel was saying or telling him when
they discussed his case. Defense counsel also stated that he had spoken with Taylor’s
mother, who claimed that Taylor suffered from some unidentified intellectual deficiency
and received Social Security benefits for his disability. Beyond mere conclusory
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assertions, however, defense counsel presented no additional evidence to support his
claims in this regard.
{¶ 54} The competency hearing was held in open court with all parties present and
represented by counsel. Personally addressing Taylor, the trial court reviewed his legal
rights with him, in addition to the offenses that he was charged with and the jury trial
process. Taylor responded that he understood all of his rights and what was going to
happen at trial. At one point during the hearing, Taylor indicated that he believed his
speedy trial rights had been violated because his trial had been scheduled beyond 90
days. Notably, Taylor’s statements in this regard established that he understood that he
had a right to speedy trial, that speedy time in his case was normally 90 days because he
was in custody, and that his trial had been scheduled beyond the 90-day time frame.
While he may have been incorrect and in disagreement with the trial court regarding the
speedy trial issue, that fact, standing alone, did not render him incompetent to stand trial.
{¶ 55} At the time of the hearing, Taylor was 26 years old, had completed school
through the 11th grade, and indicated that he could read and understand the English
language. The record establishes that Taylor had been previously convicted of
aggravated robbery with a firearm specification and of felony escape. Taylor had
received prison sentences for both convictions. The trial court noted that it had reviewed
Taylor’s presentence investigation report and found no evidence supporting a legitimate
competency issue.
{¶ 56} During the hearing, defense counsel also stated that Taylor did not
understand the stipulation regarding his prior conviction. Defense counsel, however,
stated that after he spent approximately one hour explaining the process to him, Taylor
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agreed to the stipulation and signed the document. Simply because defense counsel
took an hour to explain the prior-conviction stipulation to Taylor did not establish that he
was incompetent to stand trial, nor did it require that a psychological evaluation be
ordered. The record establishes that even the trial court and the attorneys were in
disagreement regarding the use of Taylor’s prior convictions at the time of the
competency hearing.
{¶ 57} Significantly, although claiming he was incompetent, Taylor was able to
speak to the trial court on his own behalf on a variety of issues, including a parole officer’s
testimony at another proceeding regarding Taylor’s prior convictions, the lack of DNA
evidence connecting him with the instant offenses, and his speedy trial rights. Although
he claimed he was confused, Taylor affirmatively stated that he understood his rights and
that he understood the purpose of the competency hearing. The record establishes that
at all times Taylor was able to communicate with the trial court clearly and effectively.
{¶ 58} As previously stated, the burden was on Taylor to adduce evidence at the
hearing of his late claim of incompetency. “Incompetency is defined in Ohio as the
defendant's inability to understand ‘ * * * the nature and objective of the proceedings
against him or of presently assisting in his defense.’ R.C. 2945.37(A).” Here, the record
established that Taylor understood his rights, understood the nature of the trial
proceedings, and could assist in his own defense. There was no evidence adduced at
the competency hearing which indicated that he did not understand the nature of the
proceedings or that he could not assist defense counsel in his own defense. Rather, the
transcript of the competency hearing establishes that Taylor was articulate and
knowledgeable of the charges he faced. Taylor had prior convictions, and thus, he had
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pre-existing knowledge and exposure to the criminal legal system. It is noteworthy that
Taylor attempted to assert his incompetence only three days prior to the beginning of his
trial despite multiple prior appearances before the trial court wherein his conduct
suggested that he was competent. Accordingly, the trial court did not err when it found
Taylor to be competent to stand trial without ordering a psychological evaluation.
{¶ 59} Taylor’s third assignment of error is overruled.
{¶ 60} All of Taylor’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Adam J. Arnold
Hon. Steven K. Dankof