State v. Donald, 2004 Ohio 6848 (OH 12/16/2004)
| Decision Date | 16 December 2004 |
| Docket Number | Case No. 81570.,Case No. 83947. |
| Citation | 2004 Ohio 6848 |
| Parties | State of Ohio, Plaintiff-Appellee. v. Terrance Donald, Defendant-Appellant. |
| Court | Ohio Supreme Court |
William D. Mason, Cuyahoga County Prosecutor, George Rukovena, Kristen Lusnia, Assistant County Prosecutors, Justice Center — 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, for Plaintiff-Appellee.
Robert L. Tobik, Chief Public Defender, John T. Martin, Assistant Public Defender, 1200 West Third Street 100 Lakeside Place, Cleveland, Ohio 44113, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} These consolidated appeals arise from a jury verdict following convicting Terrance Donald of aggravated murder1 and aggravated robbery.2 He appeals on speedy trial grounds and challenges, among other errors, the sufficiency and manifest weight of the evidence, the judge's refusal to admit the testimony of a material witness, prosecutorial misconduct, and failure to advise of post-release control. We affirm the conviction, but vacate the sentence and remand for resentencing.
{¶ 2} From the record we glean the following: Sometime around midnight in early December 2001, Terrance Donald and Lamar Brooks picked up James Marzett and Marcus Andrews and proceeded to drive around the area of East 116th Street and Miles in Garfield Heights, smoking marijuana and stopping at houses where Brooks, a purported drug dealer, appears to have sold drugs.
{¶ 3} Marzett claimed that, during the course of the evening and while the two were alone in the car, Donald showed him a gun and suggested that they rob Brooks. Marzett refused, Brooks returned to the car, and the group continued to drive around the neighborhood. Shortly thereafter, Andrews asked to be dropped off at home, as did Marzett. Brooks, however, asked Marzett to stay, apparently to avoid being alone with Donald; Marzett agreed, laid down in the backseat, and dozed off.
{¶ 4} Sometime around 2:00 a.m., Marzett claimed the car was stopped in Brooks' driveway and he was awakened by the sound of Donald striking Brooks in the face with a gun.3 He pretended to be sleeping and said he heard Donald demand that Brooks give him everything or he would kill him. Apparently Brooks complied, begged for his life, and offered to give him more from his home. When the two got out of the car and headed for Brooks' front door, Marzett purportedly ran.
{¶ 5} Marzett claimed he looked back at the house, saw Brooks push Donald off of the porch, jump over the bannister and into the driveway, and then he heard a gunshot. Marzett ran until he stopped at the front yard of his next door neighbor, Reuben Terry. Terry, who said he was awake because he was checking on his son, came out of the house and asked what was wrong. Marzett explained what he had witnessed, and the two began walking to Brooks' house to investigate.
{¶ 6} On their way, they saw Brooks' car abandoned in the street, and they got in and drove it to Brooks' house to look for him. Although they searched some portions of his backyard, they did not
{¶ 7} find him, so they drove to two other locations he was known to frequent. They eventually gave up their search and returned to Terry's home around 2:30 a.m.
{¶ 8} Marzett claimed he awoke around noon the next day and told his mother about the previous night's events. She drove him to Brooks' home to search in the daylight and, when they failed to find him, they knocked on the back door but no one answered, so they returned home. Mrs. Marzett phoned Brooks' mother to tell her about what her son had said and to ask her to look around her backyard. Brooks' body was found behind the house near the driveway. When the police came to Brook's house to investigate, Marzett gave a statement implicating Donald, who was then arrested.
{¶ 9} In his only statement to police, Donald stated that Marzett approached him about robbing Brooks and, after he refused to help him, Marzett said he was joking. He then claimed that when they arrived at Brooks' house, he saw Marzett argue with Brooks and saw him point a gun at Brooks' head. He decided not to approach them because things seemed to calm down but, as he returned to the car, he heard a gunshot and saw Marzett running from the back of the house toward him and telling him that he fired the gun, but did not hit Brooks.
{¶ 10} Donald and Marzett were indicted in December 2001 on one count of aggravated murder4 and one count of aggravated robbery,5 each with one-6 and three-year7 firearm specifications and, shortly thereafter, a warrant was issued for Donald's arrest for a parole violation in an unrelated federal case.8
{¶ 11} Donald was found guilty on both counts and was sentenced to concurrent sentences of twenty years to life in prison for aggravated murder, and eight years for aggravated robbery, with firearm specifications to run prior and consecutive to both counts. His assignments of error are set forth in the appendix to this opinion.
{¶ 12} In his sole assignment of error under Case No. 83947, and in his first two assignments of error in Case No. 81570, Donald challenges his conviction on speedy trial grounds and asserts that he was not brought to trial within the statutorily proscribed period, and that a failure of service of a federal warrant prevented the tolling of the triple-count provision under R.C. 2945.71(E).
{¶ 13} The right to a speedy trial is guaranteed by the Sixth Amendment to the U.S. Constitution, and is made obligatory on the states by the Fourteenth Amendment.9 Failure to adhere to the speedy trial statutory time limits requires reversal.10 R.C. 2945.71(C)(2) mandates that a person charged with a felony must be brought to trial within 270 days of his arrest, but under 2945.71(E), if a person is held in jail in lieu of bail, then each day is to be counted as three days, otherwise known as a "triple count." The triple count provision, however, only applies when the person is being held in jail solely on the pending case.11
{¶ 14} In the instant case, the judge found that the triple count did not apply because Donald was being held on both State charges, along with a federal holder for a parole violation. Donald claims that, because he was not properly served with notice of the federal holder, the triple-count provision is applicable and he was therefore denied his right to a speedy trial.
{¶ 15} The requirement that a detainee be served with the underlying notice of charge is inapplicable to the parole holder situation.12 Where the State shows that there is a valid parole or probation holder, the pertinent speedy trial statutory time-frame is tolled as long as the defendant is not being held solely on the charge in the pending case.13 A parole violation is a separate offense and does not relate to the pending charge as contemplated by R.C. 2945.71(E).14 On December 14, 2001, a federal warrant was issued for Donald's arrest for parole violations and, three days later, he was arrested. Almost two weeks later,15 he was booked by the Cuyahoga County Sheriff on the charges arising out of Brooks' death. The formal federal detainer was not issued until January 10, 2002, at which time Donald was being held on both parole violations and on the indictment. Because he was not being held solely on the charges against him in the instant case, the triple-count provision is inapplicable.
{¶ 16} But, Donald claims that service on him was required to effectuate a valid holder regardless of his status as a parole violator, and cites to State v. Rembert16 where this court held that an unissued hold order did not toll the triple-count provisions of the speedy trial statute. Rembert, however, involved a bench warrant for a traffic violation, not a parole violation, which resulted in a federal hold order, as is the case here. "The existence of a valid probation violation holder serves to prevent the triggering of the triple-count provision."17
{¶ 17} Regardless of the inapplicability of the triple-count provision, and that service was not required, the State still bears the burden of proof that Donald was brought to trial within speedy trial guidelines. Although he claims that the State failed to meet this burden and that the judge erred in denying his motion to dismiss on these grounds, R.C. 2945.72 provides several exceptions to the 270-day rule; , R.C. 2945.72(H) provides that "the period of any reasonable continuance granted on the accused's own motion." Donald, nonetheless, contends that continuances of pretrials do not toll the time frame for a speedy trial and, even if they did, there was no delay since the judge sua sponte continued the trial date to April 17, although it was originally scheduled for March 11.
{¶ 18} On January 10, 2002, Donald requested a continuance until January 24, 2002. On January 23, 2002, Donald moved for a second continuance until January 31, 2002. On the date of this newly scheduled hearing, he requested a third continuance until February 12, 2002. Again, on February 12, 2002, he requested another continuance until February 22, 2002. Two months later, on April 17, 2002, he waived his right to a speedy trial to July 15, 2002. Moreover, in State v. Gowe,18 this court held that pretrial continuances at a defendant's request toll the speedy trial time.
{¶ 19} As recognized by the state, Donald was in jail for 121 days before he waived his right to a speedy trial, and 42 days were tolled due to his requests for continuances. Therefore, only 79 days were credited to Donald before he waived his right to a speedy trial. Any claim for ineffective assistance of counsel is moot because R.C. 2945.71 was not violated. The sole assignment of error under Case...
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