State v. Edward Dunlap
| Decision Date | 18 June 2002 |
| Docket Number | 01 CA 124,02-LW-2712 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLANT v. EDWARD DUNLAP, DEFENDANT-APPELLEE CASE NO.01 CA 124 |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court, Case No. 00CR1288.
Hon Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite
For Plaintiff-Appellant: Attorney Paul Gains, Prosecuting Attorney, Attorney Jan O'Halloran, Assistant Prosecuting Attorney, 120 Market Street, Youngstown, Ohio 44503
For Defendant-Appellee: Attorney Jeff Adler, 807 Southwestern Run, Youngstown, Ohio 44514
OPINION
Plaintiff-appellant State of Ohio appeals the decision of the Mahoning County Court of Common Pleas granting defendant-appellee Edward Dunlap's motion to dismiss the indictment for speedy trial violations. This court is asked to determine whether an accused must have the consultation of an attorney prior to the execution of a waiver of speedy trial rights. This court is also asked to determine if Dunlap's right to a preliminary hearing was violated for holding a preliminary hearing over ten months after his arrest. For the following reasons, the decision of the trial court is hereby affirmed.
A complaint was filed with the police department against Dunlap on October 27, 1999. The complaint alleged that Dunlap, who contracted with the victim to perform roofing services to the victim's house, stole over $1,000 from the victim and did not perform any work on the victim's house.
On February 24, 2000, Dunlap was arrested and charged with felony theft, R.C. 2913.02(B)(2). On February 25, 2000 Dunlap waived his U.S. and Ohio constitutional and statutory speedy trial rights, including the time period in which to have a preliminary hearing. That same day, Dunlap was arraigned in Struthers Municipal Court.
On December 18, 2000, upon the state's motion, the trial court dismissed the complaint without prejudice. However, later that same day the state refiled the charges, R.C. 2913.02(B)(2). The trial court set a preliminary hearing for December 22, 2000.
On December 22, 2000, Dunlap waived his right to a preliminary hearing. An indictment was issued on January 18, 2001. Dunlap failed to appear at the scheduled arraignment on February 6, 2001. A bench warrant was issued the next day. On May 15, 2001, Dunlap was arraigned. Trial was set for May 23, 2001.
On the day of trial, Dunlap filed a motion to dismiss for violation of his speedy trial rights. On July 10, 2001, the trial court granted the motion to dismiss. The trial court held that Dunlap's waiver of his speedy trial rights were invalid. The court stated that Dunlap was not represented by counsel at the time he executed the waiver, therefore, the waiver was not knowingly, voluntarily, and intelligently entered into. The trial court went further to state that even if the waiver was valid, the ten month period from the time of the arrest to the preliminary hearing is unreasonable and a violation of Dunlap's speedy trial rights. The state timely appeals the decision.
The state raises two assignments of error. The first of which contends:
"THE TRIAL COURT ERRED WHEN IT DISMISSED THE INDICTMENT FOR A SPEEDY TRIAL VIOLATION AFTER A WRITTEN WAIVER OF UNLIMITED DURATION OF SPEEDY TRIAL RIGHTS IN THE ABSENCE OF THE REVOCATION OF THAT WAIVER OR A FORMAL WRITTEN DEMAND FOR TRIAL."
The state argues that despite the dismissal of the first charge the waiver that was executed in response to that charge is valid as to the re-filing of the identical charge. The state claims that Dunlap's waiver of the time limits to the preliminary hearing are valid and the state did not violate Dunlap's rights.
The right to a speedy trial is a fundamental right guaranteed to every person who is charged with an offense for which he may be deprived of his liberty or property. State v. Carter (Mar. 31, 1998), 10th Dist. No. 97APA08-976; Sixth Amendment to the U.S. Constitution; Section 10, Article I, Ohio Constitution. The courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not acquiesce in the loss of fundamental rights. State v. Adams (1989), 43 Ohio St.3d 67, 69, citing Johnson v. Zerbst (1938), 304 U.S. 458.
The Ohio Supreme Court has held that an appellant's waiver of his right to a speedy trial as to the initial charge cannot be construed as a knowing and intelligent waiver of such a right as to any additional charges arising from the same set of circumstances that are brought subsequent to the execution of the waiver. Adams, 43 Ohio St.3d 67, syllabus . However, when a subsequent charge is identical to the originally dismissed charge, the waiver executed as to the original charge generally retains its validity and is applicable to the succeeding second charge. State v. Luff (1993), 85 Ohio App.3d 785, 797; State v. Clark (1995), 107 Ohio App.3d 141, 152-153.
In Luff, appellant was indicted and executed a valid waiver of his speedy trial rights. Two months later, appellant was indicted again. The second indictment was identical to the first indictment in all respects except that the second indictment added an additional death specification and an additional count of aggravated robbery. The two indictments were joined and the court entered a nolle prosequi for the first indictment because the re-indictment contained the same charges. Later appellant filed speedy trial violations. The trial court held that the waiver was valid as to the charges that were included in the first indictment but not as to the charges that were added in the second indictment. Therefore, the trial court dismissed the additional death specification and the aggravated robbery charge for violation of speedy trial rights. In affirming the trial court's decision, the appellate court followed the reasoning in Adams. In Adams, the court stated that the first indictment and the second indictment contained two different distinct charges. Adams, 43 Ohio St.3d 69-70. The court held that two different charges have the possibility of different defenses at trial. Id. "A knowing and intelligent waiver cannot be made until all the facts are known by the accused, which includes knowing the exact nature of the crime he is charged with." Id. at 70. Therefore, a waiver is only valid as to the charges that were in effect at the time of the waiver. Luff, 85 Ohio App.3d at 797; Clark, 107 Ohio App.3d at 152-153; State v. Sain (Aug. 23, 1993), 2nd Dist. No. 13493, unreported. Re-filing the identical charges, R.C. 2913.02(B)(2) in the case at hand, did not destroy the waiver.
Although Dunlap's waiver was valid and effective as to the refiled charge, the preliminary hearing was not held until approximately 279 days after arrest. Furthermore, it took the court approximately 453 days after the initial arrest to bring Dunlap to trial. The trial court stated that even if the waiver was valid, "setting a felony preliminary hearing nearly ten months in the future is inherently unreasonable, particularly when the judge of the municipal court made no specific findings which could justify such a lengthy delay." (7/10/01 J.E.). Unless waived, both R.C. 2945.71(C)(1) and Crim.R. 5(B)(1) entitle a criminal defendant, in felony cases, to a preliminary hearing. State v. Martin (1978), 56 Ohio St.2d 289, 292. In the case at hand, Dunlap did not initially waive his right to a preliminary hearing, he only waived the time limits for the preliminary hearing and he never revoked his waiver of speedy trial rights including the time waiver of the preliminary hearing.
The Ohio Supreme Court has stated that:
"* * * following an express, written waiver of unlimited duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time." State v. O'Brien (1987), 34 Ohio St.3d 7.
However, previous decisions from our court have looked to see if the amount of time a person was brought to trial/preliminary hearing were constitutionally unreasonable despite a waiver of statutory speedy trial rights. See State v. Kent (Nov. 23, 1998), 7th Dist. No. 97CA102.
In Kent, appellant complained that his speedy trial rights were violated despite his waiver of those rights. Appellant entered a plea to misdemeanor reckless operation. According to the speedy trial statutes, the state was required to bring him to trial within 90 days of his arrest. However, he was not brought to trial until 760 days after his arrest. The trial court held that his speedy trial rights were not violated. We affirmed the trial court's decision stating that from the pleadings and the record it was clear that the trial court was waiting for the Ohio Supreme Court's decision in another case which was needed to appropriately rule on a pending motion regarding appellant's case. Kent, 7t h Dist. No. 97CA102.
Furthermore, in Martin, the Ohio Supreme Court dealt with the issue of a preliminary hearing not being held within the time period. The accused was in jail and waived the time period within which to have a preliminary hearing. The trial court set the preliminary hearing over a month later due to the crowded court docket. Before the set preliminary hearing date, defense counsel asked that the hearing be delayed another week. The trial court granted this request. However, on the...
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