State v. Michael D. Ulmer, 81-LW-0675
| Decision Date | 19 November 1981 |
| Docket Number | 81-LW-0675,43444 |
| Parties | STATE OF OHIO APPELLEE, v. MICHAEL D. ULMER APPELLANT. |
| Court | Ohio Court of Appeals |
For plaintiff-appellee: John T. Corrigan.
For defendant-appellant: Gordon T. Canning, Jr.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:
In this appeal from the Court of Common Pleas defendant-appellant, Michael Ulmer, appeals the overruling of his pretrial motion to dismiss for lack of a speedy trial and the entry of judgment against him on a jury verdict for receiving stolen property and possession of criminal tools.
Defendant was arrested and jailed on March 26, 1980, on charges of receiving stolen property and possession of criminal tools. He was indicted for these offenses on April 30, 1980. On March 27, 1980, a parole hold order was placed on him because of this arrest (Tr. 21). This hold order was lifted on May 19, 1980, and defendant was released from jail on bond on May 20, 1980 (Tr. 22).®1¯
Footnote 1 Although both prosecution and defense counsel contend that defendant was in jail continuously from March 26, 1980 until May 20, 1980 (Tr. 5, 10), a letter found in the file from the Cuyahoga County Sheriff's Department indicates that defendant was incarcerated in the Cuyahoga County Jail from March 31, 1980 until May 20, 1980. The record is unclear as to whether defendant was jailed elsewhere from March 26 to March 30, or released after arrest and rejailed. In either case, our disposition of the first assignment of error would be the same. If defendant had been released and rejailed, he would not receive triple count credit for March 27, reducing his credited days by two.
The indictment on the above charges was nolled at the prosecutor's request, the order being journalized on August 19, 1980. Defendant was then re-indicted on September 2, 1980, on the same charges. He was arrested on October 7, 1980, on both the re-indictment and on an unrelated grand theft indictment handed down in August (Tr. 11-13, 26). A second parole hold order was placed on him on October 24, 1980, which continued in effect until January 7, 1981, the date of trial.
Defendant was found guilty on January 12, 1981, and sentenced to concurrent terms of two to five years on each of the two counts.
In this timely-filed appeal, defendant assigns three errors.
This assignment of error is well taken.
It is provided under R.C. 2945.71(C) that "[a] person against whom a charge of felony is pending. . . shall be brought to trial within two hundred seventy days after his arrest." For the purposes of computing time under this provision, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. R.C. 2945.71(E).
The triple-count provision applies only when the accused is held in jail solely on the pending charge. State v. MacDonald (1976), 48 Ohio St. 2d 66.
In the present case, defendant was arrested and jailed on charges stemming from the incident in Middleburg Heights on March 26, 1980, and released on bond on May 20, 1980. However, a parole violation hold order was placed on defendant which was not lifted until May 19, 1980.
It has been held that an accused is not detained in jail solely on a pending charge when he is also being held for a probation violation. State v. Martin (1978), 56 Ohio St. 2d 207. We see no reason why the result should be different in the case of a parole violation. See State v. Walker (1974), 42 Ohio App. 2d 41 (concurring opinion). Therefore, the triple-count provision would not apply to the time in which the parole violation hold order was in effect.
Nor is any time counted between the dismissal of the indictment on August 19, 1980 and the re-indictment on September 2, 1980, because during that period no felony charge was "pending." State v. Spratz (1979), 58 Ohio St. 2d 61, 62 at fn. 2; State v. Bonarrigo (1980), 62 Ohio St. 2d 7, 9; State v. Stephens (1977), 52 Ohio App. 2d 361.
Since defendant's arrest on October 7, 1980, was on both the re-indictment and unrelated grand theft charges, in addition to which a second parole violation hold order was effected on October 24, 1980, during his second stay in jail defendant was not held solely on the pending charge.
While the Supreme Court has announced that the speedy trial statutes are tolled from the time of the nolle prosequi of an indictment to the time of re-indictment on the same charges, an argument can be made that the statutes are further tolled where, after re-indictment, and pursuant to Crim. R. 9, a summons has been served on the accused in lieu of a warrant and he has failed to appear for arraignment and trial, see Westlake v. Cougill (1978), 56 Ohio St. 2d 230, or where the record clearly demonstrates that the accused became aware of his re-indictment and evaded service of a warrant or summons and secreted himself until after the expiration of the speedy trial statutes. R.C. 2945.72(D). However, there is no evidence contained in the record of this case that the appellant was so notified or became aware of his re-indictment until the date of his rearrest. In any event, we are not called upon to decide that issue. Hence, the pronouncements of the Supreme Court in State v. Spratz, supra, and State v. Bonarrigo, supra, control our determination on the speedy trial issue in this case.
Keeping in mind that the speedy trial provisions of R.C. 2945.71 et seq. must be strictly construed, State v. Pachay (1980), 64 Ohio St. 2d 218, it remains for us to calculate the number of credited days which passed since defendant's arrest. For this purpose, reference must be made to Criminal Rule 45(A). State v. Smith (1976), 47 Ohio App. 2d 317, 322-323, fn. 2; State v. Dozier (Cuy. Cty. Ct. App., January 18, 1979), Unrep. Case No. 37794.
From the date of defendant's arrest on March 26, 1980, until the indictment was dismissed on August 19, 1980, 146 days passed, not counting the date of arrest but counting the date of the nolle, as per Crim. R. 45(A).®2¯ The parole violation hold order was in effect 53 days, not counting March 27, 1980, the first day of the hold, but including May 19, 1980. Therefore, during the latter period, defendant was not held solely on the pending charge. However, he was held solely on the pending charges on March 27 and on May 20. Therefore, these two days must be counted as three days each, adding four more days and giving a total of 150 days credited to the defendant until the indictment was nolled.
Footnote 2 This 146-day period includes the following days: March - 5 days; April - 30 days; May - 31 days; June - 30 days; July - 31 days; August - 19 days.
This left a 120-day period which began to run upon re-indictment on September 2, 1980. There being no triple count credits during this period, defendant should have been brought to trial on December 31, 1980.®3¯ Since he was not brought to trial until January 7, he was denied his right to a speedy trial.
Footnote 3 This 120-day period includes the following days: September - 28 days; October - 31 days; November - 30 days; December - 31 days.
Though our resolution of the first assignment of error is dispositive of this case, we address the remaining assignments of error because of the requirement of App. R. 12(A).
These assignments of error are without merit.
On March 26, 1980, a report was received by the Middleburg Heights Police Department that defendant and an associate were engaging in suspicious behavior in an automobile showroom. Following up on this report, the police soon thereafter arrested defendant as a passenger in a stolen automobile after a high-speed chase during which defendant was observed to be tossing objects out of the car window. These objects included an apparently stolen or falsified identification card and a set of keys (Tr. 55, 79-80). Neither this set of keys nor two other sets which were confiscated fit the automobile in which defendant was riding (Tr. 101-102).
The ignition on this automobile was disconnected and the steering column was peeled so that an elongated object would have to be inserted to start it (Tr. 59-60). A screwdriver was found on the front floor of the vehicle. When arrested, defendant was lying back-down on the front floor of the automobile, with his head almost under the steering wheel (Tr. 60). He was in the process of throwing a set of keys out of the open window at the time, according to the testimony of a police officer at the scene (Tr. 55).
Upon consideration of the record as a whole, we are convinced that the evidence was sufficient to support convictions on counts of receiving stolen property, i.e., the automobile, and possession of of criminal tools, i.e., a screwdriver, and that the verdict was not manifestly against the weight of the evidence.
By reason of our...
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