State v. Gutierrez

[Cite as State v. Gutierrez, 2010-Ohio-4549.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-10-01
v.
FELIPE GUTIERREZ, JR. OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2001 CR 99
Judgment Affirmed
Date of Decision: September 27, 2010
APPEARANCES:
John E. Hatcher for Appellant
Gary L. Lammers for Appellee
Case No. 12-10-01
ROGERS, J.
{¶1} Defendant-Appellant, Felipe Gutierrez, Jr., appeals the judgment of
the Court of Common Pleas of Putnam County convicting him of complicity to
trafficking in drugs and engaging in a pattern of corrupt activity, and sentencing
him to an aggregate seven-year prison term. On appeal, Gutierrez argues that the
trial court erred as a matter of law by overruling his motion to dismiss the charges
due to violation of the speedy trial statute. Based upon the following, we affirm
the judgment of the trial court.
{¶2} In November 2001, the Putnam County Grand Jury indicted
Gutierrez on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten,
Eleven, and Twelve, all complicity to trafficking in drugs in violation of R.C.
2923.03(A)(2) and 2925.03(A)(1),(2),(C)(3)(f), felonies of the second degree; and,
Count Thirteen, engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(1). The indictment arose after Gutierrez allegedly participated in a
Putnam County marijuana-trafficking enterprise from November 1999 until
November 2001 with multiple codefendants. On November 30, 2001, a warrant
for Gutierrez’s arrest was issued to the address of 1911 Lissner Street, Donna,
Texas (hereinafter “Lissner Street address”).
{¶3} On August 21, 2009, Gutierrez was returned from Texas to Ohio on
the Putnam County warrant.
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{¶4} On September 29, 2009, Gutierrez moved for extension of time to
file pretrial motions, which the trial court granted until October 8, 2009.
{¶5} On October 6, 2009, Gutierrez moved for a continuance on the
motion hearing scheduled for October 9, 2009, and the jury trial scheduled for
November 2, 2009. Shortly thereafter, on October 7, 2009, Gutierrez filed a
motion to dismiss the indictment on the basis that his speedy trial rights were
violated under the mandates of R.C. 2945.71(C)(2). To his motion to dismiss,
Gutierrez attached a “Verification of Incarceration Form” from the Sheriff’s
Office of Hidalgo County, Texas, reflecting that he was arrested on a fugitive
warrant on June 25, 2002, and released on July 13, 2002, and was rearrested on
August 7, 2003, and released on September 10, 2003. Additionally, Gutierrez
attached a document from the 139th District Court of Hidalgo County, Texas,
reflecting that he had appealed an order of extradition dated August 25, 2003,
which the Texas Court of Appeals affirmed on January 24, 2007. Gutierrez also
attached his own affidavit, attesting that he was indicted in Putnam County in
November 2001; that he had always been a resident of Donna, Texas; that he
never fled Ohio because of the 2001 warrant; that he was arrested on the warrant
on June 25, 2002, in Texas and was released on July 13, 2002; that he was again
arrested in Texas on the warrant on August 7, 2003, appealed the extradition
proceedings, and was released after posting bond on September 10, 2003; that the
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extradition proceedings were affirmed on appeal, and, on January 24, 2007, he was
ordered to be extradited to Ohio; that, since January 24, 2007, he never received a
court date or summons to appear on the 2001 indictment; that he made no effort to
conceal his whereabouts; and, that, from January 24, 2007, until his arrest in Texas
for driving while under the influence of alcohol on July 12, 2009, he heard nothing
about the case.
{¶6} On October 13, 2009, the State filed a reply to Gutierrez’s motion to
dismiss. To its reply, the State attached a warrant for Gutierrez’s arrest in Texas
on the Ohio warrant dated September 5, 2002; an order from the District Court of
Hidalgo, Texas, dated August 25, 2003, authorizing extradition to Putnam County,
Ohio; an order dated September 10, 2003, reflecting that Gutierrez was released on
bond pending appeal of the extradition order; and, a document dated January 24,
2007, reflecting that the Texas court’s judgment authorizing extradition was
affirmed by the Texas Court of Appeals on August 17, 2006, and was filed on
February 7, 2007.
{¶7} On October 20, 2009, Gutierrez filed another motion to dismiss on
the basis that he was not brought to trial within 270 days of his initial arrest or
service of summons as required by R.C. 2945.71(C)(2). Shortly thereafter, the
trial court granted Gutierrez’s motion for a continuance and rescheduled the jury
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trial for December 14, 2009. Additionally, the trial court held a hearing on
Gutierrez’s motion to dismiss, at which the following was heard.
{¶8} Gutierrez testified that, prior to his July 2009 arrest, he resided at
600 South Border Road, in Alamo, Texas (hereinafter “South Border Road
address”); that, when he was released from jail following his arrest in Texas in
2003, Texas authorities put an electronic monitoring device on his leg, but
removed it soon after; that he was not informed in January 2007 that his appeal
regarding extradition had been decided; that he was employed at Harley Davidson
and Suzuki in Texas from 2002 or 2003 until 2009; that he filed Texas income tax
returns in 2007, 2008, and 2009; that no one contacted him after June 2007 to tell
him that there was a warrant for his arrest in Ohio; that, to his knowledge, no one
contacted his friends or relatives to inquire as to his whereabouts; that he did not
know if his bond required him to notify the court of any change of address; that he
moved from the Lissner Street address approximately eight or nine years ago; that,
the first time he was arrested back in 2002, he was residing at the South Border
Road residence; and, that his previous affidavit indicating that he had always been
a resident of Donna, Texas, did not conflict with his statement that he lived in
Alamo, Texas, for the last eight or nine years because “something happened to the
county * * * it used to be Donna where I lived at 600, but they moved it to
Alamo.” (Hearing Tr., p. 20).
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{¶9} Deputy Roy Sargent of the Putnam County Sheriff’s Office testified
that he was involved in the investigation of Gutierrez; that he was aware that
Gutierrez was indicted in 2001 and arrested in Texas in 2002; that, thereafter, a
governor’s warrant was issued for his arrest; that an order of extradition was
issued as a result of the governor’s warrant; that Gutierrez appealed the extradition
order; that he monitored the progress of the appeal by contacting the attorney
handling the case for the state of Texas; that the attorney would always tell him
that the appeal “was still in proceedings, and he would let me know when it was
done and over with” (hearing tr., p. 22); that he would check with the attorney
approximately once every six months; that he believed he received notification
that the appeal was concluded in 2008; that, because the investigation involved
more than one defendant, he occasionally had the opportunity to speak with Texas
authorities about some of Gutierrez’s codefendants that had contacts with Texas;
that, while in Texas regarding the codefendants, he made inquiries of Texas
authorities as to Gutierrez’s whereabouts; that he travelled to Texas approximately
five times while the appeal was pending and inquired about Gutierrez; that, at one
point, Gutierrez was incarcerated when he travelled to Texas, however he had filed
an appeal and was then bonded out; that, after that point, Gutierrez was no longer
in custody of Texas authorities, and they did not know for certain where he was;
that he did not receive notification that Gutierrez was in Texas authorities’ custody
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until July or August 2009, and Putnam County authorities took custody of him
soon after; that he had travelled to the Lissner Street residence in Donna, Texas,
because that was the address listed in the Putnam County Court files; and, that he
attempted to talk to a Texas relative of Gutierrez regarding his whereabouts, but
that he would not talk to him.
{¶10} In November 2009, the trial court made the following findings of
fact pursuant to Crim.R. 12(F):
(1) An Indictment was issued on November 28, 2001.
(2) A Warrant was issued effective November 30, 2001.
(3) The Defendant was arrested on June 25, 2002 in the State
of Texas.
(4) The Defendant was released on bond on July 13, 2002.
(5) A Governor’s Warrant from the State of Ohio was issued
on September 5, 2002.
(6) The Defendant was arrested on the Governor’s Warrant on
August 7, 2003.
(7) An order of extradition was issued on August 23, 2003.
(8) The Defendant filed an Appeal from the Texas Extradition
Order on September 9, 2003.
(9) Bond was posted and provided for the Defendant’s release
on September 10, 2003.
(10) A decision by the Appellate Court of the State of Texas was
filed on January 24, 2007. The Texas Court of Appeals issued a
mandate ordering extradition to the state of Ohio on February
7, 2007.
(11) A capias was issued by the State of Texas on June 15, 2007.
The Defendant was arrested on an unrelated charge on July 12,
2009 and an extradition order was concluded. The Defendant
was extradited and brought to Putnam County, Ohio on August
21, 2009. Subsequent Motions were filed by the Defendant on
September 30, 2009.
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(Nov. 19, 2009 Judgment Entry, pp. 1-2). Without discussing its specific
calculations, the trial court concluded that the speedy trial period under R.C.
2945.71 through 2945.73 had not been exhausted, and overruled Gutierrez’s
motion to dismiss.
{¶11} On December 4, 2009, pursuant to a plea agreement, Gutierrez
withdrew his pleas of not guilty and entered a plea of no contest to Count One,
complicity in trafficking in drugs in violation of R.C. 2923.03(A)(2), a felony of
the second degree, and Count Thirteen, engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1), a felony of the first degree. The trial court
dismissed the remaining counts at the State’s request.
{¶12} In February 2010, the trial court sentenced Gutierrez to a seven-year
prison term on Count One and a seven-year prison term on Count Thirteen, to be
served concurrently. Additionally, the trial court ordered Gutierrez to pay a
$7,500 fine.
{¶13} It is from this judgment that Gutierrez appeals, presenting the
following assignment of error for our review.
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
OVERRULING DEFENDANT’S MOTION TO DISMISS DUE
TO VIOLATION OF THE SPEEDY TRIAL STATUTE.
{¶14} In his sole assignment of error, Gutierrez argues that the trial court
erred when it overruled his motion to dismiss due to violation of his speedy trial
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rights. Specifically, he argues that he was not timely brought to trial because a
minimum of 360 days should be charged against the State in calculating the
speedy trial period. Alternately, he contends that, although Ohio’s speedy trial
statute does not generally apply to extradition proceedings, the State failed to
demonstrate that it exercised reasonable diligence in securing his availability as
required by R.C. 2945.72(A). To his appellate brief, Gutierrez attached an
affidavit stating that he was first arrested in June 2002 at the South Border Road
address on the November 2001 Putnam County indictment; that, in June 2002, he
was informed of the charges by the U.S. Marshals, but was never provided with a
copy of the indictment; that, in July 2002, he posted bond and was released; that
he continually resided at that address until his arrest in Texas on unrelated charges
in June 2009; and, that he did not attempt to conceal his identity or change his
social security number.
{¶15} “Our standard of review upon an appeal raising a speedy trial issue
is to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3d
Dist. No. 9-06-18, 2007-Ohio-335, ¶30, citing State v. DePue (1994), 96 Ohio
App.3d 513, 516. If any ambiguity exists, this Court will construe the record in
the defendant’s favor. King, 2007-Ohio-335, at ¶30, citing State v. Mays (1996),
108 Ohio App.3d 598, 609.
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{¶16} “Both the United States and Ohio Constitutions guarantee a criminal
defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666,
2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-
229. In addition, Ohio statutes set forth specific time requirements necessary for
compliance with the speedy trial guarantee. The applicable statutory speedy trial
provision, R.C. 2945.71(C)(2), 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.”
{¶17} Additionally, R.C. 2945.73(B) provides that “[u]pon motion made at
or prior to the commencement of trial, a person charged with an offense shall be
discharged if he is not brought to trial within the time required by sections 2945.71
and 2945.72 of the Revised Code.” Both R.C. 2945.71 and 2945.73 are
mandatory, and strict compliance is required by the State. King, 2007-Ohio-335,
at ¶32, citing State v. Pudlock (1975), 44 Ohio St.2d 104, 105. “Therefore, when a
criminal defendant shows that he was not brought to trial within the proper period,
the burden shifts to the State to demonstrate that sufficient time was tolled or
extended under the statute.” State v. Maisch, 173 Ohio App.3d 724, 2007-Ohio-
6230, ¶24, citing Masters, 172 Ohio App.3d 666, at ¶10, citing State v. Butcher
(1986), 27 Ohio St.3d 28, 31.
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{¶18} The statutory time period begins to run on the date the defendant is
arrested; however, the date of arrest is not counted when computing the time
period. Masters, 172 Ohio App.3d 666, at ¶12, citing State v. Stewart (1998), 12th
Dist. No. CA98-03-021, 1998 WL 640909. Additionally, the triple-count statute,
R.C. 2945.71(E), provides that, for computation purposes, each day an accused
spends in jail in lieu of bond on the pending charge shall count as three days.
State v. Euton, 3d Dist. No. 2-06-35, 2007-Ohio-6704, ¶24. Time extensions are
permitted in limited circumstances under R.C. 2945.72, including:
(A) Any period during which the accused is unavailable for
hearing or trial, by reason of other criminal proceedings against
him, within or outside the state, by reason of his confinement in
another state, or by reason of the pendency of extradition
proceedings, provided that the prosecution exercises reasonable
diligence to secure his availability;
***
(D) Any period of delay occasioned by the neglect or improper
act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar
or abatement, motion, proceeding, or action made or instituted
by the accused;
R.C. 2945.72(A), (D), (E). Therefore, where the accused is unavailable for
hearing or trial due to the pendency of extradition proceedings, the State must
exercise reasonable diligence to secure his availability, or the time will still be
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charged to the State. State v. Tullis, 10th Dist. No. 04AP-333, 2005-Ohio-2205,
¶22.
{¶19} Initially, we will discuss Gutierrez’s argument that the State failed to
demonstrate that it exercised reasonable diligence in securing his availability as
required by R.C. 2945.72(A).
{¶20} Courts have found that the State exercised reasonable diligence in
securing a defendant’s availability where the police promptly issued a warrant for
a defendant’s arrest, repeatedly attempted to interview the defendant’s family in
Ohio, contacted New York authorities where the defendant also had family,
mailed a copy of the warrant to the defendant’s New York relatives, and aired the
case on “America’s Most Wanted,” Tullis, supra; and, where, at the time the
indictment was issued, the defendant was not a resident of the charging county, the
defendant changed residences twice between the date of the indictment and his
arrest, the defendant had no directory listing in the charging county, and,
immediately upon receiving the indictment, summons, and warrant, the authorities
sent copies to the sheriff’s office in the county of the defendant’s last known
residence, State v. Packard (1988), 52 Ohio App.3d 99.
{¶21} In contrast, courts have found that the State failed to exercise
reasonable diligence where there was no evidence that the defendant attempted to
avoid prosecution or changed residences, and where the sheriff’s office simply
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entered the arrest warrant into the NCIC database and took no further action, State
v. Baker, 12th Dist. No. CA2008-03-008, 2009-Ohio-674; where the defendant
was living at the address of record, the record contained no evidence that any
affirmative action was taken to serve or arrest the defendant, and the State did not
attempt to serve the defendant via mail, State v. Hayman, 3d Dist. No. 13-09-22,
2010-Ohio-1264; and, where the charging county sent a teletype and letter
advising authorities in Michigan, where the defendant was incarcerated on another
charge, of its warrant and then took no action for over a ten-year period, State v.
Major, 180 Ohio App.3d 29, 2008-Ohio-6534.
{¶22} Here, the evidence demonstrated that Putnam County authorities
obtained a governor’s warrant for Gutierrez’s arrest in 2002; that a Texas court
ordered Gutierrez’s extradition, which he appealed; that the extradition appeal was
pending in Texas for several years, during which Putnam County authorities
contacted the Texas state attorney every six months to monitor the case, and
learned that Texas authorities had released Gutierrez on bond and did not know his
whereabouts; that, while Gutierrez’ appeal was pending, Putnam County
authorities spoke with Texas authorities about his whereabouts approximately five
times while in Texas regarding his codefendants; that Putnam County authorities
travelled to the Lissner Street address, the address of record with the court for
Gutierrez; that Putnam County authorities attempted to speak with Gutierrez’s
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relative in Texas; and, that Putnam County authorities mailed two copies of the
summons to Gutierrez at the Lissner Street address, which were returned to the
trial court marked “Return to Sender, Not Deliverable as Addressed, Unable to
Forward.” Additionally, we note that, although numerous Texas court documents
appear in the record, none list Gutierrez’s address. We find that, in light of the
preceding case law, the State demonstrated it exercised reasonable diligence in
attempting to secure Gutierrez’s availability, and, consequently, the time period
during which Gutierrez’s extradition proceedings were pending should be tolled.
{¶23} Further, where a defendant challenges extradition, the speedy trial
period will not begin until the charging state obtains custody of the defendant.
State v. Adkins (1982), 4 Ohio App.3d 231, 232; State v. Godley, 3d Dist. No. 13-
91-31, 1992 WL 52760; State v. Hirsch (1998), 129 Ohio App.3d 294, 316, citing
R.C. 2945.72(A); Tullis, 2005-Ohio-2205, at ¶22. Here, despite his multiple
previous arrests in Texas, Gutierrez was not actually arrested and returned to the
custody of Ohio authorities until August 21, 2009. Consequently, the speedy trial
period began to run on that date.
{¶24} We find that the speedy trial period ran from Gutierrez’s
apprehension in Ohio on August 21, 2009, until his filing of a motion for a
continuance on September 29, 2009. This 40 day period is subject to triple-count
computation pursuant to R.C. 2945.71(E), as Gutierrez was not released on bond,
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which constitutes a total period of 120 days charged to the state. We find the
remainder of time, from Gutierrez’s filing of a motion for a continuance on
September 29, 2009, until his no contest plea on December 4, 2009, to be charged
to Gutierrez due to the pendency of his two motions to dismiss and his subsequent
request for a continuance of the trial date until December 14, 2009. Accordingly,
only 120 days of the 270 day statutory period elapsed, and we find that Gutierrez’s
speedy trial rights were not violated.
{¶25} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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