# State v. Brown

> Ohio Court of Appeals · November 19, 2019 · 2019 Ohio 4753

URL: https://www.frixlaw.com/law-library/cases/4457009

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** November 19, 2019
- **Citations:** 2019 Ohio 4753
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Klatt
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4457009

## Opinion text

[Cite as State v. Brown, 2019-Ohio-4753.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee/ :
[Cross-Appellant], No. 19AP-40
: (C.P.C. No. 16CR-5580)
v.
: (REGULAR CALENDAR)
Ronald E. Brown,
:
Defendant-Appellant/
[Cross-Appellee]. :

D E C I S I O N

Rendered on November 19, 2019

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for plaintiff-appellee. Argued: Michael P. Walton.

On brief: Todd W. Barstow, for defendant-appellant.
Argued: Todd W. Barstow.

APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.

{¶ 1} Defendant-appellant/cross-appellee, Ronald E. Brown ("defendant"),
appeals from the December 20, 2018 judgment of the Franklin County Court of Common
Pleas. Plaintiff-appellee/cross-appellant, State of Ohio ("the state"), appeals from the same
judgment. For the reasons set forth below, we affirm in part, reverse in part, and remand
the matter with instructions.
{¶ 2} Shortly before 5:00 a.m. on May 1, 2015, Columbus Police Officers Pennell
and Johnson were dispatched to an apartment at 6216 Lowridge on a report of a burglary
No. 19AP-40 2

in progress. Upon arrival, the officers were met at the door by the woman who had reported
the burglary, who averred that the man who was trying to break in was now inside the
apartment. The officers found the man, later identified as defendant, in the
kitchen/hallway area. Defendant was ordered into the living room, and he complied
without incident. Because he had been dispatched to the scene on a reported burglary,
Pennell handcuffed defendant and conducted a pat-down search of his outer clothing to
determine if he was carrying a weapon. During the pat-down, defendant spontaneously
stated that he had a baggie of powder cocaine in his right pocket. Pennell searched
defendant's right pocket and recovered the cocaine. Defendant was placed under arrest.
Shortly after he was arrested, defendant informed the officers that he lived at the apartment
on at least a part-time basis.
{¶ 3} On October 7, 2016, defendant was indicted on one count of possession of
cocaine in violation of R.C. 2925.11, a felony of the second degree. He initially entered a not
guilty plea. On June 27, 2017, defendant filed a motion to suppress the cocaine recovered
during the pat-down search. Following a September 5, 2017 evidentiary hearing, the trial
court orally denied the motion. On October 10, 2017, defendant filed a motion to dismiss
the indictment on speedy trial grounds. Following a hearing on November 16, 2017, the
trial court denied the motion.
{¶ 4} On the same day, November 16, 2017, the trial court conducted a plea hearing
during which defendant entered a no contest plea to possession of cocaine as charged in the
indictment; the trial court found him guilty. Following a sentencing hearing on
December 19, 2018, the trial court imposed a prison term of five years and determined that
defendant was entitled to 199 days of jail-time credit. The trial court memorialized its
judgment in an entry filed December 20, 2018.
{¶ 5} Defendant timely appeals, advancing the following three assignments of
error for this court's review:
I. The trial court erred to the prejudice of appellant by
overruling his motion to suppress evidence.

II. The trial court erred to the prejudice of appellant by
overruling his motion to dismiss.
No. 19AP-40 3

III. Appellant's trial counsel was ineffective, thereby
depriving him of his [right] to effective assistance of counsel
under the United States and Ohio Constitutions.

{¶ 6} In his first assignment of error, defendant contends the trial court erred in
denying his motion to suppress. We disagree.
{¶ 7} Appellate review of a trial court's disposition of a motion to suppress presents
a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8. When considering a motion to suppress, the trial court assumes the role of trier of fact
and is thus in the best position to resolve factual questions and evaluate witness credibility.
Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). As such, an appellate court must
accept the trial court's findings of fact if they are supported by competent, credible
evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). "Accepting these facts as
true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id.,
citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
{¶ 8} Defendant challenges the constitutionality of the detention and pat-down
search, specifically claiming that the state failed to demonstrate that Pennell had a
reasonable, articulable suspicion of criminal activity sufficient to detain him and conduct a
pat-down search. Defendant maintains that because the pat-down search was
constitutionally impermissible, the evidence (cocaine) discovered during that search was
inadmissible. We note that defendant's argument does not include a challenge to the
evidence establishing that during the pat-down search he spontaneously admitted to having
cocaine on his person.
{¶ 9} "In general, '[t]he Fourth Amendment of the United States Constitution,
applied to the states through the Fourteenth Amendment, protects persons against
unreasonable searches and seizures.' " State v. Richardson, 10th Dist. No. 15AP-870, 2016-
Ohio-5801, ¶ 18, quoting State v. Jones, 9th Dist. No. 12CA010270, 2013-Ohio-2375, ¶ 8.
For a search or seizure to be reasonable, it must be based upon probable cause and executed
pursuant to a warrant, unless an exception to the warrant requirement applies. State v.
Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 26, citing State v. Moore, 90 Ohio St.3d
47, 49 (2000). "One such exception, recognized by the United States Supreme Court in
Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to 'stop or detain an individual
No. 19AP-40 4

without probable cause when the officer has a reasonable suspicion, based on specific,
articulable facts, that criminal activity is afoot.' " State v. Pinckney, 10th Dist. No. 14AP-
709, 2015-Ohio-3899, ¶ 18, quoting State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854,
¶ 16 (10th Dist.). "Reasonable suspicion entails some minimal level of objective
justification, 'that is, something more than an inchoate and unparticularized suspicion or
"hunch," but less than the level of suspicion required for probable cause.' " Jones at ¶ 17,
quoting State v. Jones, 70 Ohio App.3d 554, 556-57 (2d Dist.1990), citing Terry at 27.
{¶ 10} "The propriety of an investigative stop [or detention] by a police officer must
be viewed in light of the totality of the surrounding circumstances." State v. Bobo, 37 Ohio
St.3d 177 (1988), paragraph one of the syllabus. "[T]he circumstances surrounding the stop
[or detention] must 'be viewed through the eyes of a reasonable and cautious police officer
on the scene, guided by his experience and training.' " Id. at 179, quoting United States v.
Hall, 525 F.2d 857, 859 (D.C.Cir.1976); State v. Michael, 10th Dist. No. 12AP-508, 2013-
Ohio-3889, ¶ 12.
{¶ 11} Thus, Terry permits a law enforcement officer who suspects criminal activity
to lawfully stop or detain an individual and make a limited search of that person based on
grounds less than probable cause. State v. Andrews, 57 Ohio St.3d 86, 89 (1991). The
standard to perform an investigative search, like the standard for an investigatory stop or
detention, is an objective one based on the totality of the circumstances. Terry at 27. The
legal justification for such a search is the protection of the police officer and others nearby,
and the permissible scope of the search is limited to a search reasonably designed to
discover concealed "guns, knives, clubs, or other hidden instruments for the assault of the
police officer." Id. at 29. Thus, an officer must have a reasonable individualized suspicion
that the subject is armed and dangerous before the officer may conduct a pat-down for
weapons. Id.
{¶ 12} Here, the testimony presented by Pennell at the suppression hearing
established that the detention and subsequent pat-down search of defendant were legally
justified under Terry. Pennell, a 10-year veteran of the Columbus Police Department,
testified that police officers typically approach the scene of a burglary in progress "with high
awareness." (Sept. 5, 2017 Tr. at 6.) Pennell acknowledged that he was aware, via
information provided in the dispatch, that the alleged burglar was the father of the woman's
No. 19AP-40 5

child; however, when the woman met the officers at the door, she stated only that the man
who was trying to break in was now inside the apartment. She then directed the officers to
where defendant was located inside the apartment. The woman provided no information
to the officers regarding her relationship, if any, with defendant and did not recant her
statement to the police dispatcher that defendant was breaking into her house.
{¶ 13} Pennell further testified that once defendant emerged from the kitchen area,
Pennell immediately detained him "[b]ecause the facts that we had at the time was that he
had just broken into that apartment." Id. at 7. He then conducted a pat-down search of
defendant's outer clothing "[f]or my protection, for the protection of other people within
the residence." Id. Pennell described his motivation for, and the mechanics of, the pat-
down search, stating "[p]hysically you're outside of the clothing and you're patting and
you're feeling for things like weapons because an offense like a burglary typically comes
with some sort of weapon. And we're just * * * making sure that the suspect doesn't have
any weapons readily available." Id. at 8.
{¶ 14} Thus, under the totality of the surrounding circumstances in this case,
Pennell's detention and subsequent pat-down search of defendant was not based on a mere
suspicion or hunch but on articulable facts that would permit a reasonably prudent police
officer to believe that defendant had broken into the apartment and that he could be armed
and dangerous.
{¶ 15} We do not agree with defendant's contention that the detention and
subsequent pat-down search were illegal because Pennell testified on cross-examination
that upon approaching the apartment, he heard nothing indicating a disturbance inside and
did not observe any damage to the door; that the woman inside had no visible signs of
injury; that defendant made no furtive or suspicious movements, was not angry or
combative, made no attempt to flee or hide, and immediately complied with the officers'
orders. Defendant further argues that Pennell did not testify that he saw any suspicious
bulges or other signs of a weapon on defendant's person prior to patting him down.
Defendant also maintains that Pennell's testimony that he had no reason to believe that
defendant "had anything illegal on him * * * other than the fact that a lot of times crimes go
with weapons" is "not a specific and articulable fact that was present in this situation."
(Defendant's brief at 3.)
No. 19AP-40 6

{¶ 16} In support of his contention, defendant cites two cases from other appellate
districts, both of which are factually distinguishable from the present case. In State v.
Locklear, 8th Dist. No. 90429, 2008-Ohio-4247, the police responded to an address on a
citizen complaint of drug activity, fighting, and loud music. When police arrived, several
men, including Locklear, were standing outside the house on the porch and the lawn.
Concerned that someone in the group might have weapons, the officers patted-down all the
men before checking their identifications. During the pat-down, the police recovered a gun
from Locklear's pants pocket. The appellate court concluded that the trial court
erroneously denied Locklear's motion to suppress, reasoning that the police did not have a
reasonable suspicion that he was armed and dangerous when he was searched, as the record
established that Locklear and the others were searched within the first three minutes of the
officers' arrival on the scene, without any assessment by the police of any suspicious
criminal conduct or whether the individuals posed a risk to the officers' safety. Id. at ¶ 27.
{¶ 17} In State v. Gilmer, 5th Dist. No. 2009 CA 00283, 2010-Ohio-4631, police
officers entered a bar pursuant to a complaint alleging that a bar employee had a gun and
several bags of pills in the bar the preceding night. There were eight male patrons in the
bar at the time the police entered. The police asked all eight men to produce identification
to prove they were over the age of twenty-one. After Gilmer was unable to produce
identification, one of the officers patted him down for weapons. Pursuant to the pat-down,
the officer recovered a bag of marijuana from Gilmer's pocket. At the suppression hearing,
the officer admitted that he never saw Gilmer with a gun or any item that looked like a
weapon, and that he patted Gilmer down only because he appeared to be very nervous. The
appellate court concluded that the trial court erroneously denied Gilmer's motion to
suppress, reasoning that Gilmer's detention was unconstitutional because the officer did
not have a reasonable suspicion based on specific and articulable facts that criminal
behavior had occurred or was imminent. Id. at ¶ 37. The court further determined that the
pat-down search was unconstitutional, as the police did not have a reasonable
individualized suspicion that Gilmer was armed and dangerous. Id. at ¶ 41. In so holding,
the court noted that the officer who conducted the pat-down testified that he did not go to
the bar to find Gilmer, that he had no reports that Gilmer was involved in any criminal
No. 19AP-40 7

activity, that he never saw Gilmer with a gun, that he did not see a bulge of any metal object
that looked like a weapon or any other suspicious objects on Gilmer. Id.
{¶ 18} Both Locklear and Gilmer were part of a large group of individuals the police
detained and patted down without specific and articulable facts demonstrating that any of
the individuals, including Locklear and Gilmer, were presently involved in criminal activity
or that criminal activity was imminent. In addition, Locklear and Gilmer were patted down
without specific and articulable facts demonstrating a reasonable individualized suspicion
that they were armed and dangerous. In contrast, the officers in the instant case were
investigating extant criminal activity, i.e., a burglary in progress, and defendant was the
sole subject of that investigation. Further, Pennell testified that a burglary situation is one
the police approach with "high awareness" due to the possibility that the burglar may be
armed and dangerous. Indeed, Pennell testified that "an offense like a burglary typically
comes with some sort of weapon." (Sept. 5, 2017 Tr. at 8). Unlike the circumstances in
Locklear and Gilmer, the totality of the surrounding circumstances in the present case
demonstrated specific, articulable facts warranting the detention and subsequent pat-down
search of defendant. Accordingly, the trial court did not err in denying defendant's motion
to suppress.
{¶ 19} Appellant's first assignment of error is overruled.
{¶ 20} In his second assignment of error, defendant maintains the trial court erred
in denying his motion to dismiss the indictment for failure to bring him to trial within 180
days of his demand for final disposition pursuant to R.C. 2941.401.1 We disagree.
{¶ 21} An appellate court's review of a trial court's disposition of a motion to dismiss
based upon a violation of speedy trial provisions involves a mixed question of law and fact.
State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 12, citing State v. Fultz, 4th
Dist. No. 06CA2923, 2007-Ohio-3619, ¶ 8, citing State v. Brown, 131 Ohio App.3d 387,
391 (4th Dist.1998). A reviewing court must give due deference to the trial court's findings
of fact if they are supported by competent, credible evidence, but will independently review

1 Although defendant's motion to dismiss referenced both his constitutional and statutory speedy trial

rights, he did not advance an argument with respect to his constitutional rights, nor has he developed one
on appeal. Accordingly, we address only whether his statutory speedy trial rights were violated. See App.R.
16(A)(7).
No. 19AP-40 8

whether the trial court correctly applied the law to the facts of the case. Id., citing Fultz.
Because the trial court orally denied defendant's motion to dismiss without issuing a
decision, the record does not include any findings of fact. Thus, we are free to make an
independent factual review. State v. Brooks, 4th Dist. No. 17CA3, 2018-Ohio-2210, ¶ 22.
{¶ 22} " 'An accused is guaranteed the constitutional right to a speedy trial pursuant
to the Sixth and Fourteenth Amendments of the United States Constitution and Ohio
Constitution, Article I, Section 10.' " State v. Irish, 3d Dist. No. 10-18-13, 2019-Ohio-2765,
¶ 11, quoting State v. Dahms, 3d Dist. No. 13-16-16, 2017-Ohio-4221, ¶ 102. " 'In Ohio, the
right to a speedy trial is implemented by statutes that impose a duty on the state to bring
the defendant to trial within a specified time.' " Id. at ¶ 11, quoting State v. Melampy, 12th
Dist. No. CA2007-04-008, 2008-Ohio-5838, ¶ 9.
{¶ 23} The speedy trial statute at issue in this case is R.C. 2941.401, which is a
"specific" speedy trial statute applicable only to defendants who are imprisoned in
correctional institutions in the state of Ohio and face charges for crimes separate from those
for which they are already imprisoned. Irish at ¶ 13, citing Melampy at ¶ 9. R.C. 2941.401
provides in pertinent part:
When a person has entered upon a term of imprisonment in a
penal or correctional institution of this state, and when during
the continuance of the term of imprisonment there is pending
in this state any untried indictment, information, or complaint
against the prisoner, he shall be brought to trial within one
hundred eighty days after he causes to be delivered to the
prosecuting attorney and the appropriate court in which the
matter is pending, written notice of the place of his
imprisonment and a request for final disposition to be made of
the matter, except that for good cause shown in open court,
with the prisoner or his counsel present, the court may grant
any necessary or reasonable continuance.

{¶ 24} R.C. 2941.401 further provides:
If the action is not brought to trial within the time provided,
subject to continuance allowed pursuant to this section, no
court any longer has jurisdiction thereof, the indictment,
information, or complaint is void, and the court shall enter an
order dismissing the action with prejudice.

{¶ 25} R.C. 2941.401 places the initial duty on the accused to notify the prosecutor
and the court of his place of incarceration and to request final disposition of outstanding
No. 19AP-40 9

charges. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 20. "In its plainest
language, R.C. 2941.401 grants an incarcerated defendant a chance to have all pending
charges resolved in a timely manner, thereby preventing the state from delaying
prosecution until after the defendant has been released from his prison term." Id. at ¶ 25.
"R.C. 2941.401 is mandatory and must be strictly complied with by the trial court." Irish at
¶ 13, citing State v. Smith, 140 Ohio App.3d 81, 86 (3d Dist.2000). The 180-day period set
forth in R.C. 2941.401 within which a criminal defendant imprisoned on another charge
must be tried does not commence until the defendant files notice of his request for
disposition of the untried indictment. State v. Logan, 71 Ohio App.3d 292, 296 (10th Dist.),
citing State v. Turner, 4 Ohio App.3d 305 (9th Dist.1982).
{¶ 26} Here, defendant was arrested on May 1, 2015. The charges were dismissed
and he was not indicted until October 7, 2016. At that time, defendant was serving a prison
term at the Noble Correctional Institution for a prior unrelated conviction. On October 12,
2016, defendant completed and signed a form entitled "Inmate's Notice of Place of
Imprisonment and Request for Disposition of Indictments, Information or Complaints"
("Notice"), indicating his desire for a disposition of the untried indictment within 180 days
pursuant to R.C. 2941.401. The Franklin County Prosecutor's Office received a copy of the
Notice on October 20, 2016.2 The 180-day period set forth in R.C. 2941.401 thus
commenced on October 21, 2016.3
{¶ 27} In the present case, 396 days elapsed between delivery of defendant's Notice
to the prosecuting attorney on October 21, 2016 and entry of his no contest plea on
November 20, 2017.4 An accused establishes a prima facie case for dismissal based on a

2 On appeal, defendant contends the speedy trial time period commenced on October 12, 2016, the date he
signed the Notice. The state counters that the speedy trial time period began to run on the date the Notice
was received by the prosecutor. At the November 16, 2017 hearing on defendant's motion to dismiss the
indictment, the state asserted that it received a copy of the Notice on October 20, 2016. Defendant did not
challenge this assertion; thus, we will accept this procedural fact as true for purposes of appeal. Moreover,
at least one appellate court has determined that the speedy trial time period begins to run on the date the
prosecutor receives the notice, not the date of mailing. State v. McIntire, 6th Dist. No. H-10-004, 2011-
Ohio-1544, ¶ 23.

3 The speedy trial time calculation begins on the day following delivery to the prosecuting attorney, in this
case, October 21, 2016. State v. Shepherd, 11th Dist. No. 2003-A-0028, 2006-Ohio-4315, ¶ 39.

4The plea form itself is dated November 16, 2017; however, the form was not filed until November 20,
2017.
No. 19AP-40 10

speedy trial violation pursuant to R.C. 2941.401 when the accused demonstrates that more
than 180 days elapsed before trial. Id. " 'Once a defendant establishes a prima facie case
for dismissal, the state bears the burden to prove that time was sufficiently tolled and the
speedy trial period extended.' " State v. Jones, 10th Dist. No. 11AP-1123, 2012-Ohio-3767
at ¶ 17, quoting State v. Carmon, 10th Dist. No. 11AP-818, 2012-Ohio-1615, ¶ 15. " '[T]he
time period in which to bring a defendant to trial may be extended for any of the reasons
enumerated in R.C. 2945.72.' " Id., quoting Carmon at ¶ 14. The tolling provisions set forth
in R.C. 2945.72 apply to R.C. 2941.401. State v. Colon, 5th Dist. No. 09-CA-232, 2010-
Ohio-2326, ¶ 27; State v. Shepherd, 11th Dist. No. 2003-A-2008, 2006-Ohio-4315, ¶ 42-
44; State v. Patterson, 6th Dist. No. WD-17-045, 2018-Ohio-4672, ¶ 19. Hence, the proper
standard of review in speedy trial cases is to simply count the number of days passed, while
determining to which party the time is chargeable, as directed in R.C. 2945.72. Jones at
¶ 15. "In considering the appeal of a trial court's denial of a motion to dismiss based upon
a statutory speedy trial violation, the appellate court independently calculates whether the
time to bring a defendant to trial expired." Columbus v. LaMarca, 10th Dist. No. 15AP-
440, 2015-Ohio-4467, ¶ 18.
{¶ 28} Two key concepts direct how a court must charge the days when calculating
a potential speedy trial violation: waiver and tolling. Watson, 10th Dist. No. 13AP-148,
2013-Ohio-5603, at ¶ 16, citing State v. Gonzalez, 10th Dist. No. 08AP-716, 2009-Ohio-
3236, ¶ 11. An accused may waive speedy trial rights, and those days for which the accused
waives the right do not count toward the state's deadline. Id., citing Gonzalez at ¶ 12.
Tolling occurs by operation of R.C. 2945.72 under certain circumstances. Id. at ¶ 16, citing
Gonzalez at ¶ 12. "Because the tolling of time occurs by operation of the statute, the
defendant does not have to agree to the tolling of time." Id., citing Gonzalez. In addition,
" '[i]t is well-established that a defendant is bound by the actions of counsel in waiving
speedy trial rights by seeking or agreeing to a continuance, even over the defendant's
objections.' " Id. at ¶ 22, quoting State v. Glass, 10th Dist. No. 10AP-558, 2011-Ohio-6287,
¶ 17.
{¶ 29} "R.C. 2945.72 contains an exhaustive list of events and circumstances that
extend the time within which a defendant must be brought to trial." State v. Ramey, 132
Ohio St.3d 309, 2012-Ohio-2904, ¶ 24. The pertinent tolling provisions applicable to this
No. 19AP-40 11

case are R.C. 2945.72(E) and (H). R.C. 2945.72(E) provides that speedy trial time may be
tolled by "[a]ny 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(H) states that
speedy trial time may be tolled by "[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." "Pursuant to R.C. 2945.72(H), the only continuances which must
be reasonable in order to toll the statutory time limits are those requested by the state or
sua sponte by the trial court." Watson at ¶ 19, citing State v. Kist, 173 Ohio App.3d 158,
2007-Ohio-4773, ¶ 35 (11th Dist.)
{¶ 30} As previously noted, the speedy trial time period commenced on October 21,
2016. No tolling events occurred until November 14, 2016; thus, the 24 days between
October 21, 2016 and November 13, 2016 are chargeable to the state. The next day,
November 14, 2016, defendant filed a demand for discovery. A defendant's demand for
discovery tolls the statutory speedy trial period pursuant to R.C. 2945.72(E). State v. Truitt,
10th Dist. No. 10AP-473, 2010-Ohio-5972, ¶ 11. However, the state's response time must
be reasonable under the circumstances. State v. Lair, 10th Dist. No. 05AP-1083, 2006-
Ohio-4109, ¶ 19, citing State v. Risner, 3d Dist. No. 13-03-40, 2004-Ohio-186 (noting that
defendant's right to a speedy trial was tolled by 16 days due to defendant's discovery
request, as the state's response time of 16 days was reasonable). Here, the state provided
discovery on November 30, 2016. Thus, none of the days from November 14, 2016 to
November 30, 2016 are chargeable to the state, as its 16-day response time was reasonable
under Risner.
{¶ 31} On the same day it provided discovery, the state filed a reciprocal demand for
discovery. Defendant did not respond. A defendant's failure to respond to a reciprocal
demand for discovery tolls the speedy trial period for a reasonable period of time. State v.
Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, paragraph one of the syllabus. Local rules of
court may be considered in determining a reasonable amount of time to respond to a
discovery request. Id. at paragraph three of the syllabus. Loc.R. 75.03 of the Franklin
County Court of Common Pleas provides that "[u]pon demand for discovery, it shall be the
duty of a party to promptly respond to the request. In any event, discovery should be
provided in 21 days from the date of receipt of the demand, except in capital cases." While
No. 19AP-40 12

a local rule may not undermine the purpose of speedy trial statutes, the local rule, applied
to the facts of this case, sets a reasonable time period, and nothing in the record
demonstrates other circumstances that would require adjusting the time period set forth in
the rule to achieve reasonableness. See Lair at ¶ 20-21. Thus, the time between
November 30, 2016 and December 21, 2016 is not chargeable to the state.
{¶ 32} No tolling events occurred between December 22, 2016 and January 12, 2017;
thus, the state is chargeable with those 22 days. In the meantime, on December 23, 2016,
the Supreme Court of Ohio, in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319
("Gonzales I"), held that in prosecuting cocaine-possession offenses under R.C.
2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the
weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory
threshold. The state of Ohio applied for reconsideration of that judgment on January 3,
2017.
{¶ 33} On January 13, 2017 and March 7, 2017, the state requested continuances to
March 1, 2017 and March 13, 2017, respectively, pending the Supreme Court of Ohio's
reconsideration of Gonzales I. On March 6, 2017, the court vacated its decision in Gonzales
I, holding that "the entire compound, mixture, preparation, or substance, including any
fillers that are part of the usable drug, must be considered for the purpose of determining
the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4)." State v.
Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, ¶ 3 ("Gonzales II"). In examining the
reasonableness of state-requested continuances, we look to the particular facts and
circumstances of the case. State v. Madden, 10th Dist. No. 04AP-1228, 2005-Ohio-4281,
¶ 35, citing State v. Saffell, 35 Ohio St.3d 90, 91 (1988). Given that Gonzales I would have
required the state to seek additional testing to effectively prosecute defendant for cocaine
possession, along with the possibility that the court would reconsider and vacate its
decision in Gonzales I, we conclude these continuances were reasonable under R.C.
2945.72(H) and tolled the speedy trial time. Thus, the period between January 13, 2017
and March 6, 2017, the date the court decided Gonzales II, is not chargeable to the state.
{¶ 34} No tolling events occurred between March 7, 2017 and March 13, 2017; thus,
those 7 days are chargeable to the state. Defendant's speedy trial rights were again tolled
on March 13, 2017, when defendant was granted a continuance to April 20, 2017 to file a
No. 19AP-40 13

motion to suppress. The continuance entry included a waiver of defendant's speedy trial
rights. Pursuant to R.C. 2945.72(H) and defendant's waiver, none of those days are
chargeable to the state. No tolling events occurred between April 20, 2017 and April 23,
2017; thus, those 4 days are chargeable to the state. The next tolling event occurred on
April 24, 2017, when the parties jointly moved for a continuance to June 8, 2017. "A
continuance granted upon the joint motion of the parties tolls time pursuant to R.C.
2945.72(H) because the motion is made, in part, by the defendant." Watson, 10th Dist. No.
13AP-148, 2013-Ohio-5603, at ¶ 19, citing State v. Dillon, 10th Dist. No. 05AP-679, 2006-
Ohio-3312, ¶ 35. Moreover, the continuance entry included a waiver of defendant's speedy
trial rights. Therefore, none of the days from April 24, 2017 to June 8, 2017 are chargeable
to the state.
{¶ 35} Defendant's speedy trial rights were again tolled on June 8, 2017 when he
sought a continuance to July 12, 2017. Pursuant to R.C. 2945.72(H) and defendant's waiver
of speedy trial rights, none of those days are chargeable to the state. During the period of
this continuance, defendant filed his motion to suppress on June 27, 2017. Pursuant to R.C.
2945.72(E), the filing of a motion to suppress tolls speedy trial time until the court rules on
the motion. LaMarca, 10th Dist. No. 15AP-440, 2015-Ohio-4467, at ¶ 22.
{¶ 36} Hearing on the motion to suppress was set for July 12, 2017. However, on
that day, the parties jointly moved to continue the hearing to August 23, 2017 for the stated
purpose that "[defendant was] not conveyed, set for motion hearing, state to respond."
(July 12, 2017 Entry 1.) At the hearing on the motion to dismiss, defendant contended that
the state should be charged with the 42 days between July 12, 2017 and August 23, 2017
because it was the state's fault that he was not conveyed from prison for the July 12, 2017
hearing on the motion to suppress. The state responded that the continuance tolled speedy
trial time because it was made upon motion of both parties, counsel for defendant signed
the entry, and the entry included language waiving defendant's speedy trial rights for the
period of the continuance. Defendant's counsel argued that without defendant's consent,
he did not effectively waive defendant's speedy trial rights because the continuance was
necessitated by the state's failure to transport defendant for the suppression hearing. In
response, the state argued that it relied upon the waiver, and, even if defendant's counsel
did not effectively waive defendant's speedy trial rights, the time was tolled because it was
No. 19AP-40 14

a reasonable continuance to allow the state to prepare for the suppression hearing. The
trial court determined that the continuance was reasonable, stating: "The fact that he was
not conveyed was outside the hands of anyone, including the Court, the prosecutor and the
defense attorney. And * * * I agree with [the prosecutor] when he says you can't unwaive a
waiver, especially after it's been relied on." (Nov. 16, 2017 Tr. at 14.)
{¶ 37} We need not resolve the controversy regarding the July 12, 2017 continuance,
however, because during the period of the continuance, defendant's June 27, 2017 motion
to suppress remained pending. As noted above, the filing of a motion to suppress tolls
speedy trial time until the court rules on the motion. LaMarca at ¶ 22. The trial court did
not rule on the motion to suppress until September 5, 2017. Accordingly, the July 12, 2017
continuance was essentially irrelevant. Thus, the state is not chargeable with the time
between July 12, 2017 and September 5, 2017.
{¶ 38} Moreover, even if defendant's motion to suppress was not still pending, we
conclude the continuance was reasonable for the reasons articulated by the trial court at
the hearing on the motion to suppress. The request for continuance was made jointly by
the parties, was signed by defendant's counsel, and included language waiving defendant's
speedy trial rights for the period of the continuance. Although defendant did not sign the
continuance, he was bound by the actions of his counsel in waiving his speedy trial rights
by agreeing to the continuance. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, at ¶ 22.
{¶ 39} The next tolling event occurred on September 5, 2017, when, following the
denial of his motion to suppress, defendant moved to continue the case to October 2, 2017.
The period between September 5, 2017 and October 2, 2017 is not chargeable to the state
pursuant to R.C. 2945.72(H) and the defendant's waiver of his speedy trial rights. The
speedy trial period was again tolled from October 2, 2017 to October 11, 2017 pursuant to
the parties' joint motion for continuance and defendant's waiver of his speedy trial rights.
Thus, none of these days are chargeable to the state.
{¶ 40} On October 10, 2017, defendant filed his motion to dismiss the indictment.
Pursuant to R.C. 2945.72(E), the filing of a motion to dismiss tolls speedy trial time until
the court rules on the motion. Watson at ¶ 18, citing State v. King, 3d Dist. No. 9-06-18,
2007-Ohio-335, ¶ 39 (noting that "King's filing of a motion to dismiss [based on a speedy
trial violation] tolled speedy trial time until the * * * hearing and ruling on the motion to
No. 19AP-40 15

dismiss."). Thus, defendant's October 10, 2017 motion to dismiss tolled the speedy trial
time until the court denied the motion following a hearing on November 16, 2017. On the
same day, defendant entered his no contest plea, which was not filed until November 20,
2017. Thus, the state is chargeable with the 5 days between November 16, 2017 and
November 20, 2017.
{¶ 41} Pursuant to our independent calculation, the state was only chargeable with
62 days total: the 24 days between October 21, 2016 and November 13, 2016; the 22 days
between December 22, 2016 and January 12, 2017; the 7 days between March 7, 2017 and
March 13, 2017; the 4 days between April 20, 2017 and April 23, 2017; and the 5 days
between November 16, 2017 and November 20, 2017. Accordingly, final disposition of the
charge for which defendant was indicted occurred well within the 180-day time limit
imposed by R.C. 2941.401. Because defendant's statutory speedy trial rights were not
violated, the trial court did not err in denying his motion to dismiss.
{¶ 42} Defendant's second assignment of error is overruled.
{¶ 43} In his third assignment of error, defendant contends his trial counsel was
ineffective based upon the manner in which he pursued the motion to dismiss. Defendant
specifically contends that trial counsel miscalculated the speedy trial time.
{¶ 44} To establish ineffective assistance of counsel, an accused must demonstrate
that counsel's performance was deficient and that the deficient performance prejudiced the
accused. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133 (2005), citing
Strickland v. Washington, 466 U.S. 668-87 (1984). The failure to make either showing is
fatal to the claim. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at
697 ("[T]here is no reason for a court deciding an ineffective assistance claim to approach
the inquiry in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.").
{¶ 45} Defendant cannot demonstrate prejudice resulting from trial counsel's
alleged deficient performance. As resolved in the second assignment of error, final
disposition of the offense for which defendant was indicted occurred well within the 180-
day time limit required by R.C. 2941.401. Thus, neither the manner in which trial counsel
argued the motion to dismiss nor any alleged miscalculation of speedy trial time prejudiced
defendant.
No. 19AP-40 16

{¶ 46} Defendant's third assignment of error is overruled.
{¶ 47} We turn now to the state's motion for leave to file a cross-appeal challenging
the trial court's grant of jail-time credit. "[T]he state's authority to pursue an appeal from
the decision of the trial court granting jail time credit, as well as the calculation of the
number of days to be credited, is not by right under R.C. 2945.67, but rather may only be
appealed by leave of court." State v. Olmstead, 5th Dist. No. 2007-CA-119, 2008-Ohio-
5884, ¶ 10. In so holding, the court noted that R.C. 2945.67(A), which governs appeals by
the state in criminal matters, permits appeals as of right only in specified circumstances,
i.e., orders granting: (1) motions to dismiss all or any part of an indictment, complaint, or
information; (2) motions to suppress; (3) motions for the return of seized property; and,
(4) postconviction relief. However, the statute further provides that, with the exception of
final verdicts, the state may appeal "any other decision" in a criminal matter "by leave of
the court to which the appeal is taken."
{¶ 48} The present action does not fall under any of the categories set forth in R.C.
2945.67(A) providing the state an appeal by right. Accordingly, the state's proper course
was to file a motion for leave to appeal to this court,5 which it did on January 22, 2019. We
now grant the state's motion for leave to pursue a cross-appeal.
{¶ 49} The state assigns as error the following:
The trial court erred by granting defendant jail time credit to
which he was not entitled.

{¶ 50} In the present case, the trial court granted defendant 199 days of jail-time
credit. The state contends that 150 of the 199 days of jail-time credit should not have been
awarded to defendant because he was serving a prison sentence in another case during that
time. We agree.
{¶ 51} " ' Although R.C. 2967.191 mandates that prison authorities credit an inmate
with jail time already served, it is the responsibility of the trial court to make the factual
determination as to the number of days of confinement that a defendant may receive.' "
State v. Williams, 10th Dist. No. 16AP-540, 2017-Ohio-5598, ¶ 34, quoting State v. Doyle,
10th Dist. No. 12AP-567, 2013-Ohio-3262, ¶ 20. A trial court's determination regarding

5 But see State v. Garver, 11th Dist. No. 2016-L-069, 2017-Ohio-1107, ¶ 6 (state's appeal of jail-time credit
permitted pursuant to R.C. 2953.08(B)(2)).
No. 19AP-40 17

jail-time credit is reviewed for an abuse of discretion. State v. Dean, 10th Dist. No. 14AP-
173, 2014-Ohio-4361, ¶ 5. "An abuse of discretion occurs when a trial court's decision is
'unreasonable, arbitrary or unconscionable.' " Id., quoting Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
{¶ 52} R.C. 2967.191 authorizes jail-time credit for "the total number of days that
the prisoner was confined for any reason arising out of the offense for which the prisoner
was convicted and sentenced." Thus, R.C. 2967.191 requires a connection between the jail-
time confinement and the offense for which the offender is sentenced. State v. Chandler,
10th Dist. No. 10AP-972, 2011-Ohio-3485, ¶ 19, citing State v. Slager, 10th Dist. No. 08AP-
581, 2009-Ohio-1804, ¶ 25. Therefore, " '[t]here is no jail-time credit for time served on
unrelated offenses, even if that time served runs concurrently during the pre-detention
phase of another matter.' " Id., quoting State v. Hunter, 10th Dist. No. 08AP-183, 2008-
Ohio-6962, ¶ 17.
{¶ 53} Defendant was arrested on the instant offense and placed in custody on
May 1, 2015. He spent 10 days in jail before the case was dismissed. On October 7, 2016,
he was indicted on the instant offense. On the same day, a warrant was issued as a detainer
to the Noble Correctional Institution. On October 25, 2016, defendant was conveyed to
Franklin County for arraignment on November 2, 2016. Appellant entered a not guilty plea
and "passed on bond." (Nov. 2, 2016 Entry at 1.)
{¶ 54} The record includes multiple warrants to convey defendant from the Noble
Correctional Institution or the Pickaway Correctional Institution to the Franklin County
Correctional Center for various proceedings associated with the instant case. These
warrants to convey reflect that defendant was at times in custody in Noble or Pickaway
County and was at times in custody in Franklin County while this case was proceeding.
{¶ 55} Defendant eventually returned to Franklin County for a plea hearing on
November 16, 2017. Following entry of his plea, defendant sought and was granted a
recognizance bond and placed on house arrest. At the bond hearing, defendant's counsel
noted that defendant would be "on PRC [postrelease control] as of Monday," which, in
context, referred to November 20, 2017. Accordingly, at all times from indictment to plea
in the present case, defendant was serving a prison term on an unrelated matter.
No. 19AP-40 18

{¶ 56} After defendant was granted the recognizance bond, he absconded and a
capias was issued on January 4, 2018. He was arrested on the outstanding capias on
November 11, 2018.
{¶ 57} At the sentencing hearing, the state argued that defendant was entitled only
to 49 days of jail-time credit – 10 days for his initial arrest pre-indictment and 39 days from
the time the capias was served on November 11, 2018 until his sentencing on December 19,
2018. Defendant argued that he was entitled to 199 days of jail-time credit, which included
"the additional 150 days he spent in the Franklin County jail with a pending case and he
was unable to make bond on that." (Dec. 19 2018 Tr. at 27-28.) After confirming that
defendant did not make bond in the present case, the trial court awarded defendant 199
days of jail-time credit.
{¶ 58} It appears that defendant was serving time in Noble or Pickaway County for
an offense unrelated to this Franklin County case. The defendant does not contend
otherwise. Accordingly, because defendant was serving a prison sentence in an unrelated
case during the entire time he was awaiting trial in the present case, he is not entitled to
receive credit for the 150 days he spent in the Franklin County Correctional Center pursuant
to the conveyances. Chandler, 10th Dist. No. 10AP-972, 2011-Ohio-3485. Rather, he is
entitled to only the 49 days of jail-time credit related to the present offense. The trial court
thus abused its discretion in awarding defendant 150 days of jail-time credit to which he
was not entitled.
{¶ 59} The state's cross-assignment of error is sustained.
{¶ 60} Having overruled defendant's three assignments of error and having
sustained the state's cross-assignment of error, we affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas and remand the matter to that
court with instructions to correct its award of jail-time credit in accordance with law and
this decision.
Judgment affirmed in part and reversed in part;
case remanded with instructions.

BROWN and NELSON, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4457009. Public record. Not legal advice.