State v. Meeker

• Decision Date: 31 March 1971
• Docket Number: No. 69-838,69-838
• Citation: 26 Ohio St.2d 9,55 O.O.2d 5,268 N.E.2d 589
• Parties: , 55 O.O.2d 5 The STATE of Ohio, Appellee, v. MEEKER, Appellant.
• Court: Ohio Supreme Court

Page 9

26 Ohio St.2d 9

268 N.E.2d 589, 55 O.O.2d 5

The STATE of Ohio, Appellee, v. MEEKER, Appellant.

No. 69-838.

Supreme Court of Ohio.

March 31, 1971.

Syllabus by the Court

1. The provisions of Section 10, Article I of the Ohio Constitution and of the Sixth Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment, guarantee to a defendant in a criminal case the right to a speedy trial.

2. Where it appears that there has been a violation of a defendant's constitutional right to a speedy trial as to some of the charges contained in an indictment, a motion to quash the counts of the indictment containing such charges should be sustained.

3. The constitutional guarantees of a speedy trial are applicable to unjustifiable delays in commencing prosecution, as well as to unjustifiable delays after indictment.

4. Where a defendant, at the same time and place in April 1963, commits acts which would constitute four separate crimes and where the state with knowledge thereof elects in June 1963 to charge the defendant with but one of such crimes those counts of an indictment returned in April 1969, charging the defendant with the other three crimes, are violative of the defendant's right to a speedy trial. Such delay in prosecution is not legally justified by the fact that defendant pleaded guilty in 1963 to a lesser included offense under the original charge, was sentenced to penal confinement thereunder, and in 1969 secured a postconviction order voiding his 1963 guilty plea.

5. Where a defendant, at the same time and place, commits acts which would constitute four separate crimes and the state with knowledge thereof initially chooses to charge him with but one crime, such defendant does not waive his constitutional right to a speedy trial as to the other three by failing to make a demand or request for trial.

By a four-count indictment returned by the Grand Jury of Lake County in April 1969, defendant, appellant herein, was charged with (1) armed robbery (R.C. 2901.13), (2) stealing a motor vehicle (R.C. 4549.04(A)), (3) cutting with intent to wound (R.C. 2901.23), and (4) assault with intent to commit robbery (R.C. 2901.24). All these crimes are alleged to have been committed on April 26, 1963, and it appears that all of such offenses are connected with the alleged robbery of a filling station owned and operated by one William Balch.

Defendant was apprehended in June 1963, and by affidavit was charged in the Painesville Municipal Court with armed robbery. Upon entering a plea of 'guilty' in that court, he was bound over to the Grand Jury. A few days later, in the Common Pleas Court, he waived indictment and entered a plea of guilty to an information charging him with armed robbery.

For reasons not clearly shown in the record, in November 1963 defendant was permitted to withdraw his plea of guilty to armed robbery, as charged in the information, and to plead guilty to the lesser included offense of robbery. He was then sentenced to the Ohio Reformatory at Mansfield. During all of such time defendant was not represented by counsel.

On March 3, 1969, in a postconviction proceeding, defendant's motion for vacation of sentence and for new trial was granted by the Court of Common Pleas on the ground that defendant had not been advised of his right to court-appointed counsel and that there had been no knowing and willing waiver of his right to counsel.

The order of the Common Pleas Court gave defendant the option of waiving indictment by the Grand Jury or requiring indictment. ¹

Defendant chose not to waive indictment. The Grand Jury, in April, 1969, returned the four-count indictment. Defendant, represented by counsel, then filed a motion in the Common Pleas Court seeking an order prohibiting the state from trying him on any charge other than unarmed robbery. The court treated the motion as a motion to quash all four counts of the indictment, overruled it as to count one (armed robbery), and sustained it as to the other three counts, 19 Ohio Misc. 198, 251 N.E.2d 162.

At the same time, defendant also filed a motion for an order 'crediting him with time served in prison under the vacated sentence.' While stating that 'defendant's request for credit against any future sentence is premature, as the mere statement of it shows,' the court's opinion and journal entry also stated that 'credit must be ordered for prison time served upon the original sentence,' and that 'I will order it * * *.'

The state appealed to the Court of Appeals the action of the Common Pleas Court quashing the counts of the indictment charging theft of a motor vehicle, cutting with intent to wound, and assault with intent to commit robbery, and the action of the Common Pleas Court in stating that it 'will order' a credit against any future sentence.

The Court of Appeals reversed the judgment quashing the three counts of the indictment and remanded the cause 'for proceedings under all four counts of the indictment.' It further concluded that the question of credit on any future sentence did not appear to be 'directed to a final appealable order.'

This cause is now before this court upon appeal pursuant to the allowance of defendant's motion for leave to appeal.

Fred V. Skok, Prosecuting Atty., and Leo J. Talikka, Painesville, for appellee.

James A. Readey, James W. Carpenter, Columbus, and William Weaver, Willoughby, for appellant.

LEACH, Justice.

Defendant has renewed in this court his claim that under the first count of the indictment he may not be tried for armed robbery but can only be tried for unarmed robbery. ² That issue, however, was never before the Court of Appeals. While the ruling of the Common Pleas Court as to count one of the indictment would not appear to be a final order, subject at the time to appeal by defendant, in any event no attempt was made by defendant to cross-appeal as to such ruling. ³

Any appellate review of the order of the Common Pleas Court refusing to quash count one of the indictment must await appeal from conviction, if there be a conviction.

Defendant also asks this court to find that the Court of Appeals erred when it 'failed to affirm' the decision of the Common Pleas Court that credit for time served must be given on any future sentence. Such a statement was but the expression by the court as to its future intent in the event of conviction. It is not an appealable order, nor is the comment by the Court of Appeals that the issue of credit is one for the Adult Parole Authority and not for the trial court an appealable order. ⁴

We turn now to the principal question presented by this appeal. Should the lower court have dismissed the three counts of the 1969 indictment charging offenses which were not charged in 1963. Defendant asserts that dismissal of those three counts is compelled for two reasons.

The first claim of defendant is that the potentiality of an increased sentence from a multiple-count indictment is violative of the constitutional principles enunciated by the United States Supreme Court in North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and that 'the fear of an extra barrage of counts at a new trial casts as real a chilling effect on the assertion of constitutional rights (by appeal or by postconviction relief) as the fear of a longer sentence on the same count.'

In Pearce, the court said that:

'Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

'In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. * * *'

Specifically, Pearce was directed at 'vindictiveness' or 'retaliatory motivation' on the part of the sentencing judge. For a discussion as to whether its rationale would necessarily invalidate actions taken by others than the sentencing judge where such actions might lead to the possibility of increased sentence, see Aplin, Sentence Increases On Retrial After North Carolina v. Pearce, 39 University of Cincinnati L.Rev. 427, 451.

Pearce does not hold that there is an absolute bar to imposing a more severe sentence on reconviction. Whether 'vindictiveness' or 'retaliatory motivation' is present would appear to be essentially a question of fact. Here the ruling of the trial court was made without any evidentiary hearing as to such a question of fact. Under these circumstances, and concluding that counts two, three, and four of the indictment must be dismissed for another reason, we express no opinion as to the 'chilling effect' assertion as applied to the facts before us.

The second claim of defendant as to the constitutional invalidity of counts two, three and four is that to first charge defendant with these offenses in 1969, when the crimes allegedly were committed in 1963, is in violation of the constitutional right of the defendant to a speedy trial. Section 10 of Article I of the Ohio Constitution guarantees such right. The Sixth Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment, also guarantees such right. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Dickey...