State v. King, 2007 Ohio 335 (Ohio App. 1/29/2007)
| Decision Date | 29 January 2007 |
| Docket Number | No. 9-06-18.,9-06-18. |
| Citation | 2007 Ohio 335 |
| Parties | State of Ohio, Plaintiff-Appellee v. Dale Edward King, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Robert C. Nemo, Attorney at Law, Reg. #0001938, 495 South State Street, Marion, OH 43302, for Appellant.
Jason D. Warner, Assistant City Prosecutor, Reg. #0066451, 233 West Center Street, Marion, OH 43302, for Appellee.
{¶1} Defendant-Appellant, Dale Edward King, appeals the judgment of the Marion Municipal Court, convicting him of obstructing official business, sentencing him to ninety days in jail, and ordering him to pay a four hundred dollar fine. On appeal, King asserts that he did not waive his right to a speedy trial; that the trial court erred in allowing a law enforcement officer to give an expert opinion about his credibility; that the trial court erred by denying his Crim.R. 29 motion for judgment of acquittal; that the jury's verdict was against the manifest weight of the evidence; and, that the trial court erred and/or abused its discretion by sentencing him excessively. Based on the following, we reverse King's conviction and remand the matter for further proceedings consistent with this opinion.
{¶2} On June 21, 2005, King was charged with complicity to theft in violation of R.C. 2923.03, a misdemeanor of the first degree, and obstructing official business in violation of R.C. 2921.31, a misdemeanor of the second degree.
{¶3} On July 5, 2005, King pled not guilty to both charges and the trial court scheduled a pretrial conference for July 20, 2005.
{¶4} At the July pretrial conference, King requested an appointment of counsel, and the parties agreed to reschedule the pretrial conference for August 8, 2005. Subsequently, the court appointed an attorney to represent King.
{¶5} On July 22, 2005, the trial court tolled the computation of time for speedy trial purposes from July 20, 2005 to August 8, 2005.
{¶6} On August 8, 2005, King's counsel filed a "Waiver of Time" on behalf of King, waiving the time requirements for which a trial must be held under R.C. 2945.71. The "Waiver of Time" did not specify its duration, and it is undisputed that King did not sign it.
{¶7} On August 19, 2005, King's counsel also filed a "Time Waiver and Jury Demand" without specifying the duration of the time waiver, and it is undisputed that King did not sign it. Subsequently, the trial court scheduled a jury trial for October 19, 2005.
{¶8} On October 19, 2005, King's counsel requested a continuance due to family circumstances and formally filed a motion for continuance on October 21, 2005, which the trial court granted. In addition to moving for a continuance, the motion also provided that King "has previously voluntarily waived his right to trial within the time provided by law" and that "in the event this Motion is granted, [King] is willing to knowingly and voluntarily waive his right to trial within the time provided by law, if he has not done so before." (Motion for Continuance, ¶¶ 3-4).
{¶9} Subsequently, the trial was rescheduled for December 7, 2005. However, on December 6, 2005, the trial court, at King's request, converted the trial into a final pretrial hearing in order to allow the parties to discuss a possible settlement. The trial was rescheduled for February 1, 2006.
{¶10} On February 1, King submitted a letter to the court,1 which provided that he had learned from an "outside source" that his counsel had "filed for a continuance and waived his rights to full jury" without his permission or signature; that his counsel was working "in alliance with the prosecution"; and, that all documents filed without his signature were not authentic and done solely "to do harm." (King Letter, pp. 1-2). King also requested new counsel. The trial court appointed new counsel and scheduled a pretrial conference for February 8, 2006.
{¶11} On February 8, 2006, King's newly appointed counsel explained that the State had offered King a plea bargain in exchange for a no contest plea to the obstructing official business charge, but that King had declined the offer and requested that the case proceed to a jury trial.2 The following exchange then occurred:
The Court: Has time previously been waived, or...
[King's Counsel]: Apparently [King] did not approve the waiver of time * * * . It was filed by his previous attorney. I have no knowledge of, you know, all that went down. I know [King] made a record of that, that he did object to the Court not, or you know, taking the time waiver. So that's an issue I guess. That's with his other counsel. Ah, at the present time, you know, the Court has found that the time was waived. It was filed that way by previous counsel. So, uhm, I think [King] has an issue with that. * * * [King] did, uhm, appeared (Sic.) here prior to February 1st, attempted to speak with the Judge about his problems, but she declined to do. He did place that on the record that he was here, that he did try to raise the issue before. He also filed a letter, I would call it, probably accepted as some type of motion on [February 1], 2006, also outlining some of the problems he has with [previous counsel] and certain...
The Court: It looks like the Court has already ruled on all of that so, I don't think there is anything that we need to do at this time.
(Pretrial Conference Tr., pp. 3-5).
{¶12} On March 1, 2006, King moved to dismiss the charges against him based on a violation of his right to a speedy trial under R.C. 2945.71(B)(2) and requested a hearing on the matter, which was scheduled for March 16, 2006.
{¶13} However, on March 10, 2006, the trial court issued a "Ruling on Defendant's Motion to Dismiss", denying King's motion to dismiss. Based on the Ohio Supreme Court's holding in State v. McBreen (1978), 54 Ohio St.2d 315, the trial court found that King was bound by both the August 8th and August 19th time waivers filed by his previous counsel, even though he did not consent to them.
{¶14} On March 16, 2006, the trial court proceeded with the hearing on King's motion to dismiss. At the hearing, King testified that he did not waive his right to a speedy trial at either the July 5, 2005 arraignment or the July 20, 2005 pretrial conference. King stated that the State asked him to sign a time waiver at the July 2005 pretrial conference, but that he declined because he did not know if his "[future] attorney would want [him] to do that." (Hearing Tr., p. 11). King also indicated that he never signed any time waivers, authorized any time waivers, or discussed any time waivers with his previous counsel and that no one advised him that his right to a speedy trial was being waived.
{¶15} King further testified that previous counsel did not inform him of any time waivers until December of 2005, at which time he learned (Hearing Tr., p. 12). King explained that he then attempted to protest his previous counsel's conduct by going to the courthouse on or about December 7, 2005, and telling a judge that he had "problems," but that the judge informed him that she could not answer any legal questions. (Hearing Tr., p. 13). Thereafter, King stated that he wrote the letter filed with the court on February 1, 2006.
{¶16} Following the hearing, the trial court again denied King's motion to dismiss, finding that speedy trial time had been effectively waived based on the reasoning put forth in its March 10, 2006 ruling on King's motion to dismiss.
{¶17} On March 29, 2006, the case proceeded to trial. At the trial, the following testimony was adduced by the State:
{¶18} First, Jennifer Myers, a cashier at Sears, testified that she was working at Sears on June 14, 2005. Myers stated that she observed a young black female carrying a black purse enter Sears and proceed to the children's department located in the back of the store. The female brought some clothing to the sales counter and inquired about pricing. At that point, Myers noticed that the female had a Sears diaper bag over her shoulder. Myers continued that the female informed her that she was waiting for her mother to arrive to purchase the clothing, but that "the next thing I know, I turned my head and [the female] was going out the door" with the diaper bag. (Trial Tr., p. 164). Myers stated that she followed the female outside to try to recover the diaper bag, and observed her walk to a dark colored truck parked in the second or third parking spot from the store, go around to the right side of the truck, open the passenger door, get in the truck, and ride out of the parking lot. Myers recounted that the truck was driven by a black male; that she was standing directly behind the truck as it was being driven away; that she was able to retrieve the truck's license plate number; that she was positive the female got into the same truck from which she retrieved the license plate number; but, that she did not see the driver's face. When Myers went back inside Sears, she and her co-workers found empty hangers and merchandise tags in the area of the store the female had occupied, including a tag from a diaper bag. Myers also indicated that she gave a verbal and written statement regarding the incident to the police.
{¶19} Next, Linda Reese, an assistant sales manager of Sears, testified that she was working on June 14, 2005, and observed a young black female emerge from the children's department with a Sears diaper bag; that she believed the female was going to purchase the diaper bag; that she called the counter phone to inform Myers to check the bag for any items that may...
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