State v. Kadunc

[Cite as State v. Kadunc, 2016-Ohio-4637.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 15AP-920

v. : (C.P.C. No. 14CR-6279)

Michael J. Kadunc, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on June 28, 2016

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie

Swanson, for appellee. Argued: Valerie Swanson.

On brief: The Tyack Law Firm Co., LPA, and Jonathan T.

Tyack, for appellant. Argued: Jonathan T. Tyack.

APPEAL from the Franklin County Court of Common Pleas

SADLER, J.

{¶ 1} Defendant-appellant, Michael J. Kadunc, appeals from a judgment of

conviction and sentence entered by the Franklin County Court of Common Pleas pursuant

to a jury verdict finding him guilty of one count of possession of heroin, a fourth-degree

felony. Appellant now contends on appeal that the delay between his original arrest and

the commencement of trial violated his constitutional and statutory right to a speedy trial.

{¶ 2} Columbus police stopped appellant, who was driving a rental vehicle, on

August 5, 2013, for a minor traffic violation. After receiving his traffic citation, appellant

left his vehicle parked in the street and entered a nearby home. Based on appellant's

demeanor and the recent history of the house he had entered, the citing officers called for

a canine search unit. The dog gave an alert indication on the rental vehicle. Police

No. 15AP-920 2

impounded the vehicle and obtained a search warrant, which when executed yielded

apparent heroin in small packages. Although investigators immediately sent the

suspicious material for analysis by the Columbus police crime lab, the lab did not return

its positive report until some eight months later on April 10, 2014. The report specified

that 1.238 grams of material in seven small plastic bags tested as heroin. Based on this

result and the relative amounts under Ohio sentencing guidelines, the lab did not test an

additional 18 plastic bags containing 2.736 grams of material.

{¶ 3} Police arrested appellant on August 22, 2013, and charged him with one

count of possession of heroin in the amount of 5.5 grams, an amount slightly greater than

the subsequent lab-determined weight. The complaint specified a violation of R.C.

2925.11, a felony of the fourth degree. Appellant posted bond the following day. On

September 4, 2013, appellant waived his right to a preliminary hearing and Franklin

County Municipal Court transferred the matter to the Franklin County Court of Common

Pleas under case No. 13CR-4666. The grand jury, however, returned a "no bill" on

September 16, 2013, declining to indict. Other than the grand jury's report that it

declined to indict appellant, the trial court took no formal action to enter a dismissal in

accordance with Crim.R. 48.

{¶ 4} After the grand jury returned its no bill, more than one year passed without

action from appellee. Appellant then filed a motion to dismiss case No. 13CR-4666 on

September 23, 2014, alleging that the case had been pending since his arrest on

August 22, 2013, that appellee had taken no further action, and that the delay violated

appellant's constitutional and statutory right to a speedy trial. The trial court did not rule

on this motion.

{¶ 5} Appellee re-presented the matter to the grand jury under new case No.

14CR-6279, repeating the possession charge but specifying only an amount between one

and five grams and adding a second charge of trafficking under R.C. 2925.03, also a

fourth-degree felony. On November 21, 2014, the grand jury returned indictments on

both charges. A warrant issued for appellant on January 2, 2015, and appellant

voluntarily presented himself into custody on January 6, 2015, entering his not-guilty plea

and posting bond the following day.

No. 15AP-920 3

{¶ 6} Appellant moved to consolidate case Nos. 13CR-4666 and 14CR-6279 on

January 21, 2015. Appellee opposed the motion on the basis that case No. 13CR-4666

terminated on the grand jury's issuance of a no bill and that, as a result, the court of

common pleas lacked jurisdiction to entertain motions under that case number or

consolidate the terminated case with an active one. The court denied appellant's motion

to consolidate on those grounds.

{¶ 7} On April 20, 2015, appellant again filed a motion to dismiss on speedy trial

grounds, this time under the new case No. 14CR-6279. The trial court denied the motion

on May 20, 2015. The matter went to trial on August 4, 2015, with a jury rendering a

guilty verdict on the possession count and a not-guilty verdict on the trafficking count.

The court sentenced appellant to five years of community control. Appellant brings the

following assignment of error on appeal:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S

MOTION TO DISMISS IN VIOLATION OF APPELLANT'S

RIGHTS UNDER OHIO REVISED CODE § 2945.71

THROUGH § 2945.73, ARTICLE I, SECTION 10 OF THE

OHIO CONSTITUTION, AND THE SIXTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

{¶ 8} The heart of appellant's assignment of error is the question of whether the

period between the grand jury's return of a no bill under case No. 13CR-4666 and his

ultimate indictment under case No. 14CR-6279 is countable for speedy trial purposes.

Appellant argues that a return of a no bill by the grand jury does not qualify as a dismissal

under Crim.R. 48 or any other provision and does not toll the running of the Ohio

statutory period for speedy trial rights set forth in R.C. 2945.71 through 2945.73.

Appellant further argues that, apart from his statutory right to a speedy trial, the 15-

month delay between his original arrest and subsequent indictment on November 24,

2014 under case No. 14CR-6279 and the two-year interval between his original arrest and

his trial, violate his right to a speedy trial under Article I, Section 10 of the Ohio

Constitution and the Sixth Amendment to the United States Constitution.

{¶ 9} R.C. 2945.71(C)(2) requires the state to bring a felony defendant to trial

within 270 days. Under R.C. 2945.71(E), each day that the defendant is incarcerated in

lieu of bond on the pending charge counts as three days. Under R.C. 2945.72, the time to

No. 15AP-920 4

bring the defendant to trial may be extended for various reasons with counting against the

speedy trial limit:

(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;

(B) Any period during which the accused is mentally

incompetent to stand trial or during which his mental

competence to stand trial is being determined, or any period

during which the accused is physically incapable of standing

trial;

(C) Any period of delay necessitated by the accused's lack of

counsel, provided that such delay is not occasioned by any

lack of diligence in providing counsel to an indigent accused

upon his request as required by law;

(D) Any period of delay occasioned by the neglect or

improper act of the accused;

***

(H) 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.

{¶ 10} "For purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C),

a charge is not pending until the accused has been formally charged by a criminal

complaint or indictment, is held pending the filing of charges, or is released on bail or

recognizance." State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, syllabus. On appeal,

we calculate the number of days chargeable to either party under the statute and

determine whether the accused was brought to trial within the period required. State v.

Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 41 (10th Dist.). When computing time

under the statute, the date of arrest is not included. State v. Miller, 10th Dist. No. 06AP-

36, 2006-Ohio-4988, ¶ 7; Crim.R. 45(A); R.C. 1.14. If the accused has demonstrated a

prima facie case that his prosecution was pending for a time exceeding the statutory

limits, the burden shifts to the state to show that the time limit was extended under the

No. 15AP-920 5

various tolling provisions or otherwise should not be counted against the statute. State v.

Butcher, 27 Ohio St.3d 28, 30-31 (1986).

{¶ 11} In arguing the statutory issue, appellant does not dispute appellee's position

that the lapse of time between the indictment under case No. 14CR-6279 and his trial is

attributable to his own motions or other tolling events and is, therefore, waived or tolled

for speedy trial purposes. As a result, we approach this discussion by postulating that

without the 14-month interval between no bill and indictment, no cumulation of the time

between arrest and no bill, or indictment and trial, can reach the statutory limit.

{¶ 12} Appellee proposes that our decisions in State v. Woods, 10th Dist. No.

87AP-736 (June 16, 1988), and State v. Montgomery, 10th Dist. No. 89AP-1355 (Aug. 30,

1990), are guiding precedent for our treatment of the post-no-bill time. The latter is not

fully on point: in Montgomery, the initial charges against the defendant appear to have

been formally dismissed, rather than no billed by the grand jury. Woods did involve a no

bill and delayed indictment but was reviewed in this court primarily under a due process

challenge under the Fourteenth Amendment. We did summarily dispose of the

defendant's claim that time after his no bill should count under R.C. 2945.71, observing

without explanation that the speedy trial statute is "not applicable when no charges are

pending against an accused." Id., citing United States v. Marion, 404 U.S. 307 (1971), a

delayed-indictment case that did not involve any preceding arrest or complaint.

{¶ 13} While we did not address in Woods the detailed arguments raised by

appellant here regarding the relevant criminal rules, the Fourth District of Ohio has

thoroughly examined and discussed the matter in State v. Alexander, 4th Dist. No.

08CA3221, 2009-Ohio-1401. In Alexander, a complaint charged the defendant with

murder, but the grand jury returned a no bill. After a two-year delay, the state again

presented the matter to the grand jury, which returned an indictment for aggravated

murder, leading to a subsequent conviction. On appeal, the Fourth District concluded

that the charges against the defendant were not "pending" for purposes of speedy trial

time.

{¶ 14} As in the case before us, the court of common pleas did not formally dismiss

the initial charge against the defendant in Alexander or explicitly release him from his

bond originally set pursuant to the first complaint. The Fourth District began by noting

No. 15AP-920 6

that the grand jury is "under the control and direction of the court of common pleas" and

is "essentially an arm of the court." Id. at ¶ 21. "Chapter 2939 of the Ohio Revised Code

and Crim.R. 6 set forth the duties and responsibilities of the grand jury. Under R.C.

2939.23, the foreman must notify the court of common pleas if the grand jury fails to

return an indictment against an accused. Moreover, Crim.R. 6(F) provides: 'If the

defendant is in custody or has been released pursuant to Rule 46 and seven [grand] jurors

do not concur in finding an indictment, the foreman shall so report to the court

forthwith.' " (Footnote omitted.) Id.

{¶ 15} From this, the court in Alexander concluded that when the state failed to

obtain the initial indictment against the defendant and the grand jury issued its no bill,

the trial court lost jurisdiction of the charge against the defendant. Id. at ¶ 25. Alexander

noted that "if a court assumes jurisdiction over an improperly commenced felony

prosecution, the trial and conviction would be a nullity." Id. at ¶ 24, citing State ex rel.

Flint v. Dinkelacker, 156 Ohio App.3d 595, 2004-Ohio-1695, ¶ 21. In the absence of an

indictment, the trial court could not proceed with jurisdiction over the matter, and,

therefore, the court necessarily lost jurisdiction over the charge that would bound over to

the grand jury, after the grand jury issued its no bill. Id.

{¶ 16} Under this reasoning, the court in Alexander concluded that a formal

dismissal under Crim.R. 48 and a formal release from bond under Crim.R. 46 was not

necessary because "[w]hen the grand jury failed to indict Alexander and the murder

charge was no longer pending against him, his bail obligations were extinguished by

operation of law." Id. at ¶ 28, noting the opposite conclusion reached by State v. Scott,

8th Dist. No. 59485 (Oct. 18, 1990).

{¶ 17} In conjunction with our earlier holding in Woods, the Fourth District's

reasoning in Alexander is persuasive, and we apply it to the facts before us. We conclude

that the time between the issuance of a no bill by the grand jury and subsequent

indictment under a new case number is not chargeable to the state for speedy trial

purposes, and the time computed for the other periods between arrest and trial do not

exceed the 270-day requirement of R.C. 2945.71(C)(2).

{¶ 18} Because we so hold, we do not reach appellee's suggestion that an additional

basis exists to preclude a speedy trial violation. Appellee argues that the later indictment

No. 15AP-920 7

under case No. 14CR-6279 was based on additional evidence or facts in the form of the

eventual laboratory analysis confirming that the seized material was heroin and,

accordingly, would operate independently of any prior arrest or complaint and restart the

speedy trial clock from zero. Because this issue is rendered moot by our application of

Alexander to determine the effect of the grand jury no bill in terminating case No. 13CR-

4666, we expressly make no application here of our holdings in State v. Mohamed, 10th

Dist. No. 08AP-960, 2009-Ohio-6658, ¶ 2, and State v. Brown, 10th Dist. No. 12AP-292,

2012-Ohio-5903, or this aspect of the Supreme Court of Ohio's decision in State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 84, quoting State v. Baker, 78 Ohio St.3d

108, 110 (1997) ("A later indictment is not subject to the speedy-trial timetable of an

earlier indictment or arrest 'when additional criminal charges arise from facts different

from the original charges, or the state did not know of these facts at the time of the initial

indictment' or earlier arrest.").

{¶ 19} We now consider appellant's assertion that, Ohio statutory rights apart, the

two-year delay between arrest and trial presumptively violated his constitutional right to a

speedy trial under the Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution. Under some circumstances, these constitutional

speedy trial guarantees may be broader than the equivalent statutory right. State v.

O'Brien, 34 Ohio St.3d 7, 8-9 (1987). Ohio courts have held that the state and federal

constitutional speedy trial rights, however, are co-extensive. State v. MacDonald, 48

Ohio St.2d 66, 68 (1976); State v. Miller, 10th Dist. No. 04AP-285, 2005-Ohio-518, ¶ 8.

We must balance four factors in assessing a constitutional speedy trial challenge: the

length of delay, the reasons for the delay, the defendant's timely assertion of his speedy

trial right, and resulting prejudice to the defendant from the delay. Barker v. Wingo, 407

U.S. 514, 530 (1972).

{¶ 20} We first note that appellant meets the third prong of the Barker standard

because he has repeatedly and clearly raised his speedy trial challenges through the

course of proceedings in the trial court.

{¶ 21} The first Barker factor, the length of delay, requires a double inquiry: the

defendant must first make a threshold showing of presumptively prejudicial delay to

trigger further analysis, and a court must then consider the length of delay in conjunction

No. 15AP-920 8

with the other Barker factors. Doggett v. United States, 505 U.S. 647 (1992); Miller,

2005-Ohio-518, at ¶ 11. A delay approaching one year becomes "presumptively

prejudicial" under Barker. Doggett at 652, fn. 1. In the present case, if we omit the 14-

month interval between the grand jury's issuance of a no bill and eventual indictment, the

period to be counted is substantially less than one year; moreover, much of that period is

attributable to motion practice by the defense that may be considered and discounted

under the second prong of Barker, leaving very little room to presume a prejudicial delay

in this case. The constitutional speedy trial claim, therefore, again turns on our treatment

of the post-no-bill interval.

{¶ 22} We find that the post-no-bill period, for reasons that are congruent with our

approach to the statutory speedy trial challenge, will not be counted in assessing the

constitutional challenge. The United States Supreme Court has specifically addressed

treatment given to a period after charges are dismissed and new charges are brought for

the same crime: "Once charges are dismissed, the speedy trial guarantee is no longer

applicable. At that point, the formerly accused is, at most, in the same position as any

other subject of a criminal investigation." United States v. MacDonald, 456 U.S. 1, 8-9

(1982). "[U]nder the rule of MacDonald, when defendants are not incarcerated or

subjected to other substantial restrictions on their liberty, a court should not weigh that

time towards a claim under the Speedy Trial Clause." United States v. Loud Hawk, 474

U.S. 302, 312 (1986).

{¶ 23} The Supreme Court of Ohio recently applied these authorities in Adams to

discount speedy trial time: "Thus, for constitutional speedy-trial purposes, the only time

we count is the period from Adams's arrest [for burglary] on December 30, 1985, to the

grand jury's issuance of a 'no bill' in May 1986, plus his 24 days of incarceration [following

his later arrest for aggravated murder] in October 2007. We hold that this period was not

'presumptively prejudicial,' and we therefore do not need to reach the other elements of

the Barker inquiry." Adams at ¶ 95. Because we have concluded in the present case that

appellant was not subject to a bond or other constraint on his freedom after the grand jury

issued its no bill, we find that the ensuing period is not a basis for a finding of undue

delay. Moreover, appellant has failed to particularize any prejudice under the fourth

No. 15AP-920 9

prong of Barker resulting from the delay, either by inability to produce witnesses or

otherwise contest the material facts of his guilt.

{¶ 24} In summary, we find that appellant has not demonstrated a violation of his

right to speedy trial under either Ohio's speedy trial statute or the constitutions of Ohio

and the United States. Appellant's sole assignment of error is overruled, and the

judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

LUPER SCHUSTER, J., concurs.

HORTON, J., dissents.

HORTON, J., dissenting.

{¶ 25} Because I cannot concur with the majority's disposition of appellant's

speedy trial challenges under either statute or constitution, I respectfully dissent.

{¶ 26} I would include the entire 14-month period between the grand jury's return

of the no bill and the subsequent indictment under a new case number in my R.C.

2945.71(C)(2) computation, and as a result find that the state has failed to rebut

appellant's showing that more than 270 days elapsed between his arrest and trial. This is

true even if we consider the ensuing period from indictment to trial as entirely waived or

tolled.

{¶ 27} In the absence of an express dismissal of the case under Crim.R. 48, I

consider that appellant was continuously under the conditions of his bond as set by the

municipal court after his initial arrest. Crim.R. 46(H) clearly states that "the same bond

shall continue until the return of a verdict or the acceptance of a guilty plea. * * * Any

provision of a bond or similar instrument that is contrary to this rule is void." Because

appellant was subject to the constraints of his bond and resulting " ' "continuing restraint

on [his] liberty imposed in connection with the formal charge on which [he was]

eventually tried," ' " the time must count for speedy trial purposes. State v. Azbell, 112

Ohio St.3d 300, 2006-Ohio-6552, ¶ 13, quoting State v. Weiser, 10th Dist. No. 03AP-95,

2003-Ohio-7034, ¶ 25-26, quoting United States v. Stead, 745 F.2d 1170, 1172 (1984).

{¶ 28} The Fourth District's reasoning in State v. Alexander, 4th Dist. No.

08CA3221, 2009-Ohio-1401, explains no other mechanism by which bond or a pending

criminal case can terminate "by operation of law." Id. at ¶ 2. I conclude to the contrary

No. 15AP-920 10

that it is by operation of rule and statute that a case cannot be terminated by implication.

I, therefore, find no reason to exclude the 14-month period after the no bill for purposes of

computing statutory speedy trial delay in this case.

{¶ 29} Likewise, I would find that State v. Woods, 10th Dist. No. 87AP-736

(June 16, 1988), in which we first held that an interval following a no bill does not count

for speedy trial purposes, is flawed authority. In Woods, we relied without further

explanation on the United States Supreme Court case of United States v. Marion, 404

U.S. 307 (1971). Marion is not a no bill case, nor even a case involving an initial arrest

followed by release or dismissal of charges. Marion addresses only an allegedly

unreasonable delay in prosecution based on the interval between commission of the crime

and a delayed indictment; there was no initial arrest in Marion, only pre-indictment

investigation. As such, it provides no reasonable foundation for Woods' conclusion

regarding the speedy trial effect of a no bill returned after the defendant has been arrested

and arraigned in municipal court.

{¶ 30} I further emphasize that we lack any evidence in the present case that

appellant was actually freed from the restrictions and conditions of his bond after the

grand jury returned its no bill. The majority's holding effectuates an indefinite period of

time in which criminal defendants will remain subject to conditions of bond but see the

time under bond tolled for speedy trial purposes unless the trial court expressly enters an

order terminating the matter.

{¶ 31} With proper consideration of the 14-month period following the grand jury's

return of a no bill, I would also find a violation of appellant's constitutional right to speedy

trial:

" 'We can see little, if any, difference in the dilemma which

unreasonable delay creates for the suspect who was belatedly

charged, the accused named in a warrant promptly issued but

belatedly served, and the indicted defendant whose trial has

been unduly postponed. The same considerations which

impel prompt action in the one situation are equally critical in

the others.' " State v. Meeker (1971) 26 Ohio St.2d 9, 16, 55

O.O.2d 5, 268 N.E.2d 589, quoting State v. Johnson (1969),

275 N.C. 264, 271-272, 167 S.E.2d 274.

No. 15AP-920 11

Azbell at ¶ 39, Moyer, C.J., dissenting. Under the Sixth Amendment authorities cited by

the majority, we should find that the two-year interval between initial arrest and trial in

this case was presumptively prejudicial.

{¶ 32} Finally, because I would include the 14-month period following the no bill

as countable time, I must address the state's contention that under State v. Mohamed,

10th Dist. 08AP-960, 2009-Ohio-6658, ¶ 2, and State v. Brown, 10th Dist. No. 12AP-292,

2012-Ohio-5903, the later indictment in case No. 14CR-6279 operated under its own

speedy trial clock and took no account of earlier time accruing under case No. 13CR-4666.

The bedrock principle in Ohio remains that " 'when new and additional charges arise from

the same facts as did the original charge and the state knew of such facts at the time of the

initial indictment, the time within which trial is to begin on the additional charge is

subject to the same statutory limitations period that is applied to the original charge.' "

State v. Adams, 43 Ohio St.3d 67, 68 (1989), quoting State v. Clay, 9 Ohio App.3d 216

(11th Dist.1983). Brown and Mohamed apply only as exceptions to that rule and are

predicated on the appearance of material new facts that would alter the prosecution's

theory of the case or the charged offense.

{¶ 33} The initial arrest and complaint in this case accused appellant of possession

of heroin. The laboratory report confirming that the seized material was in fact heroin did

not constitute a new fact but merely confirmation of the assumed facts upon which the

initial arrest and complaint were based. If the laboratory report had revealed, instead,

that the substance was not heroin, only then might that constitute new facts that required

dismissal or modification of pending charges. Confirmation of the assumed facts,

however, does not constitute new evidence of a different crime or "facts different from the

original charges," as required by State v. Baker, 78 Ohio St.3d 108 (1997), syllabus, to

restart the speedy trial clock. "The holding in Baker is disjunctive and identifies two

scenarios in which the state is not held to the speedy-trial timetable of an initial complaint

or indictment: (1) when additional criminal charges arise from different facts, or (2) when

the state did not know of these facts at the time of the initial indictment." Brown at ¶ 10,

citing Mohamed at ¶ 30.

{¶ 34} For these reasons, I would find that the 14-month period between no bill

and indictment counts against the state for statutory speedy trial purposes, that the 2-year

No. 15AP-920 12

delay between initial arrest and trial supports a constitutional speedy trial violation, and

that the subsequent indictment represented a mere continuation of the original

complaint. I would sustain appellant's assignment of error and reverse the judgment of

conviction sentence entered by the Franklin County Court of Common Pleas. I

respectfully dissent.

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