State v. Hiatt
| Decision Date | 26 March 1997 |
| Docket Number | No. 95,95 |
| Citation | 697 N.E.2d 1025,120 Ohio App.3d 247 |
| Parties | The STATE of Ohio, Appellee, v. HIATT, Appellant. CA 609. Fourth District, Adams County |
| Court | Ohio Court of Appeals |
McIlwain & McIlwain and Douglas W. McIlwain, Cincinnati, for appellant. 1
Rocky A. Coss, Special Prosecuting Attorney, Hillsboro, for appellee.
This is an appeal from a judgment of conviction and sentence entered by the Adams County Common Pleas Court. The court found William A. Hiatt, defendant below and appellant herein, guilty of one count of failure to appear in violation of R.C. 2937.29.
Appellant assigns the following errors:
First Assignment of Error:
"The trial court erred by finding the appellant guilty after appellants no contest plea to an agreed upon statement of facts to an alleged violation of R.C. 2937.29, failure to appear."
Second Assignment of Error:
"The trial court erred in overruling appellant's pro se motion to dismiss the indictment on the charge of failure to appear in that the statute is unconstitutionally vague, overbroad and indefinite, in violation of the United States Constitution and the Constitution of the State of Ohio."
Third Assignment of Error:
"The trial court erred in overruling appellant's motion to dismiss the indictment which was improperly brought by the Adams County Prosecuting Attorney's office, which was disqualified by the Code of Professional Responsibility from prosecuting the appellant."
Fourth Assignment of Error:
"The trial court erred in overruling appellant's motion to dismiss based on a speedy trial provision under R.C. 2945.71 and subsequently failing to dismiss the indictment for violation of appellant's rights under R.C. 2945.71."
On December 17, 1993, appellant pleaded guilty in the Adams County Common Pleas Court to kidnapping in violation of R.C. 2905.01(A)(5) and to gross sexual imposition in violation of R.C. 2907.05. The trial court accepted the guilty pleas and sentenced appellant. The court then stayed execution of sentence to January 19, 1994, at 9:00 a.m. and granted appellant bail on a $10,000 cash surety or real property bond along with appellant's own recognizance bond. The court ordered appellant to report to the Adams County Sheriff's Office on January 19, 1994 for execution of sentence. Appellant failed to report to the Adams County Sheriff's Office at the appointed time.
During the January 1994 term, Adams County Prosecuting Attorney Greg Carroll presented to the Adams County Grand Jury evidence concerning appellant's failure to report to the sheriff's office as ordered. The grand jury returned an indictment against appellant for failing to appear in violation of R.C. 2937.29. On February 10, 1994, Carroll notified the court that his office was disqualified from prosecuting the case. On the same day, the court appointed Highland County Prosecuting Attorney Rocky Coss to serve as special prosecuting attorney for the case. On October 16, 1995, appellant entered a no contest plea to the charge of failure to appear. On November 3, 1995, the trial court sentenced appellant. Appellant filed a timely notice of appeal.
In his first assignment of error, appellant asserts that the trial court erred when it found him guilty based on his no contest plea to a stipulated set of facts. 2 Appellant argues that he could not be found guilty based on the agreed upon facts because those facts did not involve an appearance before a court. In his second assignment of error, appellant asserts that the trial court erred when it overruled appellant's pro se motion to dismiss the R.C. 2937.29 charge. Appellant asserts that the motion alleges that R.C. 2937.29 is unconstitutionally vague and overbroad, and that the trial court should have dismissed the charge on that basis. We will address these two assignments of error together.
Regarding appellant's first assignment of error, appellant asserts that the Ohio General Assembly wrote R.C. 2937.29 intending to punish only those who fail to make a required court appearance, not those who fail to appear when the court has ordered them to appear as a condition of their release. Thus, appellant argues that because he was ordered to appear at the Adams County Sheriff's Office to begin the execution of his prison sentence and not at the Adams County Common Pleas Court, he did not violate R.C. 2937.29 when he jumped bond and failed to appear at the sheriff's office.
Appellant cites State v. Pounds (1993), 85 Ohio App.3d 207, 619 N.E.2d 487, in support of his argument. In Pounds, the Second District Court of Appeals found that the defendant, who had been ordered to keep an appointment for pretrial services as a condition of his own recognizance bond and had failed to attend, could not be found guilty of R.C. 2937.29 because the only appearances contemplated by R.C. 2937.29 are court appearances. Thus, the Pounds court concluded that the appointment for pretrial services was not an appearance within the meaning of R.C. 2937.29. See, also, State v. Hayes (Jan. 14, 1983), Hancock App. No. 5-82-11, unreported, 1983 WL 7178.
When interpreting statutes and their application, an appellate court conducts a de novo review, without deference to the trial court's determination. State v. Sufronko (1995), 105 Ohio App.3d 504, 664 N.E.2d 596; State v. Boso (Sept. 11, 1996), Washington App. No. 95 CA 10, unreported, 1996 WL 530007. In Boso, we wrote as follows:
Thus, courts interpreting a statute must give effect to the words explicitly used in the statute. They may not delete words used or insert words not used. State v. Taniguchi (1995), 74 Ohio St.3d 154, 656 N.E.2d 1286; State v. Waddell (1995), 71 Ohio St.3d 630, 646 N.E.2d 821. Additionally, penal laws must be "strictly construed against the state, and liberally construed in favor of the accused." R.C. 2901.04(A); see, also, State v. Quisenberry (1994), 69 Ohio St.3d 556, 634 N.E.2d 1009.
R.C. 2937.29 provides as follows:
We decline to follow the Pounds decision. The Pounds court based its ruling on its reading of the pertinent provisions of R.C. Chapter 2937. The court reasoned that when writing R.C. 2937.29, the Ohio General Assembly intended the word "appearance" to mean only appearances before the court. Thus, the Second District takes a very narrow view of the provision's language. (See, also, State v. Hayes [Jan. 14, 1983], Hancock App. No. 5-82-11, unreported, 1983 WL 7178, a Third District case cited by the Pounds court excluding from the statute's scope a failure to appear for an appointment with a probation officer.) We, however, construe the language of R.C. 2937.29 to encompass the facts at bar. The trial court released appellant from custody on a recognizance bond after he was convicted and sentenced. Appellant had requested time to put his affairs in order before beginning his prison sentence. The court ordered him to report to the Adams County Sheriff's Office to begin serving that sentence. Crim.R. 46 provides the method by which a court may release a defendant after a criminal conviction. Thus, unlike an appointment for pretrial services or with a probation officer, appellant's obligation to present himself at the date and time specified was very clear. Whereas the appellant in Pounds may have been unsure of his responsibilities while going through the pretrial process, appellant in the case at bar knew with certainty that the trial court had ordered him to appear. The execution of appellant's sentence constitutes the final step of the criminal proceedings. Appellant did not appear as required by the court, and by failing to do so, he violated R.C. 2937.29.
We will now address appellant's second assignment of error, which asserts that the trial court erred by failing to find that R.C. 2937.29 is unconstitutionally vague and overbroad. We note first that appellant claims to have raised these issues to the trial court in a pro se motion to dismiss the indictment against appellant. Our review of the record indicates that in fact appellant did not raise either a vagueness or overbreadth challenge in that motion. It is axiomatic that a litigant's failure to raise an issue in the trial court waives the litigant's right to raise that issue on appeal. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220, 574 N.E.2d 457, 463. To allow appellants to waive a venue argument at trial and then revive it on appeal would frustrate...
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