DocketNumber: CASE NO. CA98-01-008.
Judges: POWELL, P.J.
Filed Date: 10/19/1998
Status: Non-Precedential
Modified Date: 4/18/2021
Defendant-appellant, Eddie Schnitzler, appeals from his conviction in the Clermont County Court of Common Pleas for grand theft in violation of R.C.
On June 26, 1996, appellant was indicted by a Clermont County Grand Jury and charged with one count of grand theft. On February 10, 1997, appellant filed a "Request For Disposition" with the Clermont County Court of Common Pleas. A notation on the request indicates that a copy was also sent to the Clermont County Prosecutor. The request stated that appellant was being held at the Lawrenceburg County Jail in Indiana and requested final disposition of the grand theft charge that was pending in Clermont County. The request was made pursuant to R.C.
On February 11, 1997, the Clermont County Prosecutor sent a form entitled "Prosecutor's Acceptance of Temporary Custody Offered In Connection With A Prisoner's Request For Disposition Of A Detainer" to the Dearborn County Sheriff in Lawrenceburg, Indiana. The form stated that the Clermont County Prosecutor would accept temporary custody of appellant in order to bring him to trial within the time period specified in Article III(a) of the IAD.
On March 26, 1997, the Clermont County Prosecutor sent a form entitled "Request For Temporary Custody" to the superintendent of the Diagnostic Reception Center in Plainfield, Indiana. This form requested temporary custody of appellant pursuant to Article IV(a) of the IAD so appellant could be brought to trial for grand theft in Clermont County within the time period set forth in Article IV(c).
On June 3, 1997, the release coordinator of the Indiana Department of Corrections sent a letter to the Clermont County Prosecutor stating that the "Request For Temporary Custody" had been received. The letter stated that appellant was currently incarcerated at the Wabash Valley Correctional Institution in Carlisle, Indiana and requested that the Clermont County Prosecutor respond with the date when custody of appellant would be taken. The Clermont County Prosecutor responded that custody of appellant would be taken on July 2, 1997. However, because appellant was transferred to the custody of officials in Hamilton County, Ohio to resolve outstanding charges there, the Clermont County Prosecutor did not actually obtain custody of appellant until August 13, 1997.
On August 12, 1997, appellant filed a motion to dismiss. Appellant asserted that Clermont County failed to bring him to trial within one hundred eighty days after he filed his "Request For Disposition" as required by Article III of R.C.
On November 26, 1997, appellant entered a plea of no contest to grand theft. On December 10, 1997, appellant filed a motion to be sentenced under the recently amended sentencing provisions of Am.Sub.S.B. No. 2 ("Senate Bill 2"). However, since appellant's offense was committed prior to the effective date of Senate Bill 2, July 1, 1996, the trial court denied the motion and sentenced appellant according to the former sentencing provisions.
On appeal, appellant assigns two assignments of error:
Assignment of Error No. 1:
THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF MR. SCHNITZLER BY FAILING TO DISMISS THE INDICTMENT WHEN HE WAS NOT BROUGHT TO TRIAL WITHIN ONE HUNDRED EIGHTY DAYS.
Assignment of Error No. 2:
THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT-APPELLANT BY NOT SENTENCING HIM TO A REDUCED PUNISHMENT ACCORDING TO OHIO'S NEW SENTENCING LAW ENACTED IN SENATE BILL 2.
In the first assignment of error, appellant asserts that the trial court erred by denying his motion to dismiss. Appellant argues that the "Request For Disposition" that he filed on February 10, 1997, substantially complied with the requirements set forth in Article III of the IAD, as codified in R.C.
Indiana and Ohio are parties to the IAD. See R.C.
Article III of R.C.
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment * * * on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment * * *. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time 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 state parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
The existence of a detainer is a prerequisite to the applicability of the IAD. State v. Wells (1994),
In the present case, our review of the record fails to reveal that a detainer that was filed by the Clermont County Prosecutor before appellant filed his "Request For Disposition" with the Clermont County Court of Common Pleas on February 10, 1997. Moreover, when appellant sent his "Request For Disposition," he was still being temporarily held at the Lawrenceburg County Jail and had not yet "entered upon a term of imprisonment" in an Indiana correctional institution. In fact, appellant did not enter upon a term of imprisonment until he started serving his sentence at the Wabash Valley Correctional Institution several months after he made his "Request For Disposition." Therefore, we find that appellant's "Request For Disposition" was premature, and the one hundred eighty day time period in Article III was never triggered. See State v. Holt (1992),
A review of the record also reveals that even if appellant had timely filed his "Request For Disposition," the trial court properly determined that appellant's request failed to satisfy the requirements set forth in Article III of R.C.
The United States Supreme Court issued a decision shortly after Mourey which held that the one hundred eighty day time period in Article III(a) of the IAD does not begin until a prisoner's request for disposition is actually delivered to the court and the prosecuting officer that lodged the detainer against him. See Fex v. Michigan (1993),
Moreover, the record reveals that appellant's "Request For Disposition" failed to even substantially comply with the requirements of Article III(a) and (b). Unlike the prisoner in Mourey, appellant's request was never delivered to the officials who had custody of him as required by Article III(b). Thus, appellant's request, which preceded the Clermont County Prosecutor's detainer, did not contain the certification and the information from prison officials specified in Article III(a).1 Accordingly, we find that appellant failed to comply, even substantially, with the requirements of Article III and the one hundred eighty day time period contained therein was never triggered. See Meyer v. Ohio (June 27, 1997), Ashtabula App. No. 96-A-0074, unreported.
The prosecution asserts that since appellant failed to properly invoke Article III of R.C.
In the present case, Article IV of R.C.
In the second assignment of error, appellant asserts that the trial court erred by refusing to sentence him in accordance with the amended sentencing provisions of Am.Sub.S.B. No. 2 ("Senate Bill 2"). Appellant argues that since he was sentenced after the effective date of Senate Bill 2, July 1, 1996, R.C.
The Supreme Court of Ohio recently resolved a conflict among Ohio's appellate courts and held that the sentencing provisions of Senate Bill 2 do not apply to a defendant who committed an offense prior to July 1, 1996, even if the defendant was sentenced on or after that date. See State v. Rush (1998),
In the present case, appellant's offense was committed on May 22, 1996. Accordingly, the trial court properly determined that the sentencing provisions of Senate Bill 2 were not applicable and appellant's second assignment of error is overruled.
Judgment affirmed.
KOEHLER and WALSH, JJ., concur.
(a) The appropriate officer of the jurisdiction in which an untried indictment * * * is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated * * *.
(c) In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.