State v. Mize

• Decision Date: 09 September 2022
• Docket Number: 29135
• Citation: 195 N.E.3d 574
• Parties: STATE of Ohio, Plaintiff-Appellee v. Re'Shawn Markese MIZE, Defendant-Appellant
• Court: Ohio Court of Appeals

195 N.E.3d 574

STATE of Ohio, Plaintiff-Appellee

v.Re'Shawn Markese MIZE, Defendant-Appellant

No. 29135

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on September 9, 2022

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.

CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419, Attorney for Defendant-Appellant.

OPINION

WELBAUM, J.

{¶ 1} Defendant-Appellant, Re'Shawn Markese Mize, appeals from his convictions in two cases: Montgomery C.P. No. 2016-CR-1315 and Montgomery C.P. No. 2016-CR-2046 (respectively, "Case 1315" and "Case 2046"). According to Mize, the trial court violated his constitutional and statutory rights to a speedy trial, and his right to a fair trial in both cases was violated due to various cumulative errors.

{¶ 2} After reviewing the record, we find no error on the trial court's part, as the court did not violate Mize's speedy trial rights under R.C. 2941.401, which was the applicable statute. First, Mize's guilty plea waived any appealable errors as to his statutory rights. And even if this were not the case, Mize failed to demonstrate that he was precluded from entering a knowing, voluntary, and intelligent plea. Furthermore, even if the merits of Mize's statutory argument were considered, the speedy trial rights in R.C. 2941.401 were never triggered because Mize failed to make the request for final disposition that the statute requires.

{¶ 3} In addition, even if Mize could assert a claim based on his constitutional right to a speedy trial, the balancing test that applies in evaluating such a claim does not weigh in his favor. Finally, there were no cumulative errors, or even any errors, that violated Mize's right to a fair trial. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} Because two cases are involved, we will summarize the facts and proceedings separately, beginning with Case 1315.

A. Case 1315

{¶ 5} On October 11, 2016, an indictment was filed charging Mize with one count of felonious assault (serious harm), in violation of R.C. 2903.11(A)(1), and one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2). Both charges were second-degree felonies and were accompanied by firearm specifications. The crimes allegedly occurred on April 19, 2016. On the day the indictment was filed, the court filed an order requiring Mize to appear in court on October 25, 2016; a warrant on the indictment was also issued, providing that Mize was "at large." The extradition radius was listed as "adjacent states." On November 1, 2016, the court set bail in the amount of $50,000 (surety bond).

{¶ 6} There was no return of service, and the next event that occurred was on July 30, 2019, when the court issued an entry ordering the Montgomery County Sheriff to transport Mize to court for arraignment on August 20, 2019. At that time, Mize was incarcerated at North Central Correctional Institution ("NCCI") in Marion, Ohio. The sheriff was also ordered to re-convey Mize back to NCCI after the hearing ended.

{¶ 7} At the August 20, 2019 arraignment, Mize pled not guilty, and the court set a scheduling conference for August 30, 2019. On August 21, 2019, the court filed an entry setting set bail of $50,000 (surety bond) and recalling the warrant. The sheriff's return of service on the warrant on the indictment was filed on August 22, 2019.

{¶ 8} On August 28, 2019, Mize filed a motion to suppress evidence. During the August 30, 2019 scheduling conference, Mize informed the court that he intended to file a suppression motion in Case 2046 as well. In response, the court said that while the cases were separate, both motions could both be heard on October 7, 2019. Transcript of Proceedings ("Tr.") p. 4. At that time, Mize's counsel noted that Mize was currently serving time in Mansfield after being sentenced in Hamilton County Common Pleas Court. The trial court commented that Mize had an "out date" of August 11, 2021, and agreed that Mize could return to Mansfield rather than staying locally until the date for the suppression hearing. Tr. p. 5.

{¶ 9} Beginning on August 30, 2019, both cases in which Mize had been charged were considered together (although not consolidated), and the same judge was handling both cases.

{¶ 10} On August 30, 2019, the defense acknowledged having received the State's discovery packet on August 28, 2019. The packet included 44 printed pages ((a)-(u), which included reports and photospreads administered to two witnesses) and electronic media containing 48 photographs, a crime scene video, a diagram of the crime scene, and 9 Facebook screenshots.

{¶ 11} The court did not hear the suppression motion on October 7, 2019; instead, it filed an order setting a scheduling conference for October 21, 2019. Mize was not present for the October 21, 2019 conference, but his attorney stated that, "from discussions we had in chambers, I believe we're continuing to work on a resolution to the case that doesn't involve litigation, and [sic] but it's set on the Court's docket for the 18th." Tr. p. 5-6. At that time, Mize and his counsel both waived Mize's appearance at that day's scheduling conference. Tr. p. 6. The court then reset the scheduling conference for November 18, 2019. In addition, the court said if the potential resolution of Cases 1315 and 2046 were not achieved by then, the court would set a suppression hearing. On October 21, 2019, the defense also filed a motion for a continuance, and the court granted it until November 18, 2019.

{¶ 12} On November 18, 2019, the court set a suppression hearing for December 17, 2019. The court then rescheduled that hearing for January 16, 2020, at which time evidence was presented. Tr. p 8-66.

At the end of the hearing, the court took the suppression motion in Case 1315 under advisement, since the testimony on that matter was finished. Tr. p. 73. However, the court also said it would issue a decision on both suppression motions at the same time. Id. The court then set a February 27, 2020 hearing to take the Skype testimony of a retired officer, Det. Ritchey, who had been involved in photo identification of witnesses in Case 2046 but now lived out of state. Tr. p. 68-72.

{¶ 13} On February 27, 2020, the court heard the testimony of Det. Ritchey. Id. at p. 73-99. On March 18, 2020, the court ordered that a detainer be placed against Mize (who was then at Mansfield Correctional Institution) until the charges in Case 1315 were resolved. Bond was continued at $50,000 plus COR/EHDP.

{¶ 14} On June 30, 2020, the court filed an order denying both motions to suppress and setting a scheduling conference for July 27, 2020. That conference did not occur, but a scheduling conference did take place on August 3, 2020. Mize had apparently not been transported from the institution for the August 3 scheduling conference. Because the matter simply involved scheduling, Mize's attorney waived his appearance for both cases. Tr. p. 99-101. The waiver was based on Mize's concern over being transported to Montgomery County during the COVID-19 pandemic. Tr. p. 101. The court found the waiver had been knowingly, voluntarily, and intelligently made due to the ongoing health crisis and the need to reduce the number of people in the courtroom. Tr. p. 101-102.

{¶ 15} The court set a January 19, 2021 trial date for Case 1315 and a February 2, 2021 trial date for Case 2046. Tr. p. 103-104. Before doing so, the court noted that the speedy trial dates for these cases were March 4, 2021 and March 12, 2021. Tr. p. 100. On August 5, 2020, a written waiver of Mize's attendance for non-critical matters like status and scheduling conferences and selection of trial dates was filed, based on emergency measures related to the spread of COVID-19.

{¶ 16} On January 11, 2021, the court filed an order vacating the trial date for Case 1315 due to the COVID-19 emergency and the fact that Mansfield Correctional was a "CODE RED" facility. The court also continued Mize's speedy trial date pursuant to R.C. 2945.72(H). See Order Vacating the Trial and Continuing Defendant's Speedy Trial (Jan. 11, 2021), p. 1-3.

{¶ 17} On February 1, 2021, the court held a conference, noting that the trial on Case 2046 was scheduled for the next day. However, the parties were "in a full-throated discussion about trying to resolve both cases." Tr. p. 105. At that time, defense counsel said he had met with Mize about both cases, and Mize had agreed that a continuance was necessary. Id. Due to the need to allow time for resolution and scheduling issues, the court set a new trial date for Case 2046 for May 4, 2021. Tr. p. 106-107. The court noted this continuance was at Mize's request. Tr. p. 107-108. At that time, Mize's counsel also agreed to a continuance in Case 1315. The court set a May 4, 2021 trial for that case as well and ordered that the speedy trial date would be continued until that date for both cases. Tr. p. 108-110. Mize was present for this conference. Tr. p. 110. A written defense motion for continuances in both cases was then filed the same day.

{¶ 18} On April 26, 2021, Mize asked for another continuance of the trial in both cases, and the court set a scheduling conference for May 17, 2021. Tr. p. 113. Again, Mize was present. Tr. p. 113. On May 17, 2021, the parties again appeared in court and said they had reached a plea agreement that the court would impose a total sanction in both cases of four years, which would run concurrently to each other and with the prison time Mize was currently serving in Case B16044577. Tr. p. 114-115. The court then conducted a plea hearing, during which Mize signed a written plea form and agreement and waived his right to a presentence investigation. Tr. p....