State v. Brown, 13CA3585.

• Decision Date: 25 March 2016
• Docket Number: No. 13CA3585.,13CA3585.
• Citation: 63 N.E.3d 509
• Parties: STATE of Ohio, Plaintiff–Appellee, v. James E. BROWN, Defendant–Appellant.
• Court: Ohio Court of Appeals

63 N.E.3d 509

STATE of Ohio, Plaintiff–Appellee,

v.James E. BROWN, Defendant–Appellant.

No. 13CA3585.

Court of Appeals of Ohio, Fourth District, Scioto County.

March 25, 2016.

Angela Wilson Miller, Jupiter, Florida, for appellant.¹

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

ABELE

, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. A jury found James E. Brown, defendant below and appellant herein, guilty of (1) two counts of trafficking in drugs in violation of R.C. 2925.03(A)(2), and (2)

four counts of possession of drugs in violation of

R.C. 2925.11(A)

. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES AGAINST APPELLANT BROWN WHEN HE WAS DENIED HIS RIGHT TO A SPEEDY TRIAL PURSUANT TO R.C. 2945.71

. ADDITIONALLY, THIS FAILURE TO PROVIDE A SPEEDY TRIAL IS A VIOLATION OF BROWN'S FUNDAMENTAL RIGHTS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DENYING APPELLANT'S BROWN MOTION TO SUPPRESS AS THE STATEMENTS MADE BY BROWN AND THE ITEMS OBTAINED FROM THE SEARCH WERE ELICITED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”

{¶ 2} On February 27, 2013, Ohio State Highway Patrol Trooper Nick Lewis observed the driver of a car look away from him. Suspicious of this behavior, Lewis followed the driver (appellant) and observed him cross the white “fog lane” by at least a tire width for a distance of thirty to forty yards. Trooper Lewis stopped the car. During his contact with appellant, Trooper Lewis detected the odor of marijuana. Subsequently, the officer took appellant into custody and eventually found drugs in the vehicle.

{¶ 3} The Scioto County Grand Jury returned an indictment that charged appellant with the aforementioned offenses, as well as one count of tampering with evidence. See R.C. 2921.12(A)(1)

. Appellant pled not guilty. At the conclusion of the trial, the jury found appellant guilty of all charges, except for a not guilty verdict on the tampering with evidence charge. The trial court sentenced appellant to serve eight years on each trafficking charge (with two of the possession charges merged with the trafficking counts), and one hundred eighty days on the two possession charges. The court further ordered that the trafficking sentences be served consecutively to one another, and that the possession charges also to be served consecutively for an aggregate prison sentence of sixteen years. This appeal followed.

I

{¶ 4} In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to dismiss the charges against him for a violation of his R.C. 2945.71²

right to a speedy trial.

{¶ 5} Our analysis begins with the premise that appellate review of a trial court's decision on a motion to dismiss for a speedy trial violation involves a mixed question of law and fact. State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, 2014 WL 1949588, at ¶ 23

; State v. Smith, 4th Dist. Ross No. 10CA3148, 2011-Ohio-602, 2011 WL 486906, at ¶ 18. Generally, an appellate court will defer to a trial court's factual findings if competent and credible evidence supports those findings. However, an appellate court will review de novo a trial court's application of the law to those facts. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, 2013 WL 6388440, at ¶ 12 ; State v. Fisher, 4th Dist. Ross No. 11CA3292, 2012-Ohio-6144, 2012 WL 6712087, at ¶ 8.

{¶ 6} R.C. 2945.71

states that a person against whom a felony charge is pending shall be brought to trial within two hundred seventy days of his arrest. Id. at (C)(2). If an accused is incarcerated in lieu of bail solely on the pending charge, the statute mandates that each day count as three days. Id. at (E). If an accused is not brought to trial within the statutory time limit, he must be discharged. R.C. 2945.73(B). Also, the R.C. 2945.71 time limits may be extended for reasons set out in R.C. 2945.72, but those extensions will be strictly construed against the state. State v. Alexander, 4th Dist. Scioto No. 08CA3221, 2009-Ohio-1401, 2009 WL 795212, at ¶ 17 ; State v. Monroe, 4th Dist. Scioto No. 05CA3042, 2007-Ohio-1492, 2007 WL 942095, at ¶ 27.

{¶ 7} Although the original papers are unclear as to the precise date on which appellant was arrested and incarcerated, the October 13, 2015 transcript reveals that the state conceded it “would probably stipulate [appellant] was arrested on—and incarcerated on 2–27, February 27th of 2013.” Both parties apparently agree that appellant remained jailed from that time to the date of the trial. Thus, the triple-count provision should apply.

{¶ 8} Our review further reveals that the first tolling event occurred on May 7, 2013 when appellant filed a waiver of time. Thus, from appellant's arrest to May 7, sixty-nine days elapsed. That waiver, as originally typed, set forth no end date. However, a handwritten sentence states that it “is for a period of 30 additional days to June 27, 2013.” Thus, June 27, 2013 is the date specified in the time waiver. This sentence appears to be somewhat contradictory, however, as it appears that a thirty day time period would have expired earlier than the specified date of June 27, 2013.

{¶ 9} If we use June 27, 2013 as the date that the speedy trial clock re-started³ , the next tolling event is appellant's July 3, 2013 motion to continue the trial date. Thus, five days elapsed between the end of appellant's previous waiver and appellant's motion for a continuance. The trial date was then continued to October 15, 2013, when the trial actually occurred. We believe that this time is properly chargeable to appellant. Thus, by our calculation, seventy-four of the ninety days elapsed for speedy trial purposes and appellant's trial occurred within the statutory time limit.

{¶ 10} We recognize that the thrust of appellant's argument centers upon the state's June 19, 2013 motion for a continuance of the scheduled trial date due to the unavailability of an expert witness. The trial court granted the state's request on June 25, 2013 and rescheduled the trial to July 22, 2013. Further, in the entry granting the request, the trial court stated that speedy trial time would be tolled during this delay and concluded that the continuance was reasonable and necessary under R.C. 2945.72

.(H). However, this new date apparently conflicted with appellant's trial counsel's schedule and, on July 3, 2013, counsel requested a continuance of the July 22, 2013 trial date. The trial court granted that request and rescheduled the trial date to October 15, 2013.

{¶ 11} Appellant argues that the state's continuance violated his statutory right to a speedy trial. We, however, disagree with appellant for two reasons. First, as we pointed out above, appellant's July 3, 2013 request for a continuance tolled the speedy trial clock. Thus, it makes no difference whether the state's June 19, 2013 request for a continuance tolled the speedy trial time because appellant's trial occurred within the prescribed time limit.

{¶ 12} Second, we believe that the trial court's granting of the state's request for a continuance due to the unavailability of an expert witness did, in fact, properly toll the speedy trial clock. R.C. 2945.72(H)

tolls the running of speedy trial time for “the period of any reasonable continuance granted other than upon the accused's own motion.” Therefore, the speedy trial time runs against the state if a continuance is unreasonably granted. The Ohio Supreme Court has held that continuances granted on the state's motion will toll the running of speedy trial time if the continuance is reasonable and necessary under the circumstances of the case. State v. Saffell (1988), 35 Ohio St.3d 90, 91, 518 N.E.2d 934. Again, the record must affirmatively demonstrate that the continuance was reasonable and necessary. Id. The reasonableness of a continuance is determined by examining the purpose and length of the continuance as specified in the record. State v. Lee (1976), 48 Ohio St.2d 208, 210, 357 N.E.2d 1095. The Ohio Supreme Court has stated that “it is difficult, if not unwise, to establish a per se rule of what constitutes ‘reasonableness' beyond the ninety-day stricture of R.C. 2945.71. Invariably resolution of such a question depends on the peculiar facts of a particular case.” State v. Saffell (1988), 35 Ohio St.3d 90, 91, 518 N.E.2d 934.

{¶ 13} In the case sub judice, we do not believe that the trial court's decision to grant the state's June 19, 2013 request to continue the trial date due to the unavailability of its expert witness is either unreasonable or unnecessary under the circumstances of this case. The state advised the court that its expert witness had scheduling conflicts with other criminal trials and would not be available to testify. Many courts have concluded that reasonable continuances are appropriate, and may toll the time for speedy trial, in order to accommodate the schedule of a witness or a prosecutor. Saffell, State v. Crocker, 2015-Ohio-2528, 38 N.E.3d 369

; State v. Watson, 10th Dist. Franklin No. 13AP–148, 2013-Ohio-5603, 2013 WL 6726951 ; State v. Carmon, 10th Dist. Franklin No. 11AP–818, 2012-Ohio-1615, 2012 WL 1247173.

{¶ 14} Accordingly, based upon the foregoing reasons, we hereby overrule appellant's first assignment of error.

II

{¶ 15} In his second assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. We disagree.

{¶ 16} Generally, appellate review of a decision on a motion to suppress evidence involves mixed questions...