State v. Pugh, 76-1023

• Decision Date: 01 March 1978
• Docket Number: No. 76-1023,76-1023
• Citation: 372 N.E.2d 1351,53 Ohio St.2d 153
• Parties: , 7 O.O.3d 238 The STATE of Ohio, Appellee, v. PUGH, Appellant.
• Court: Ohio Supreme Court

Page 153

53 Ohio St.2d 153

372 N.E.2d 1351, 7 O.O.3d 238

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

No. 76-1023.

Supreme Court of Ohio.

March 1, 1978.

On August 28, 1975, appellant, John Pugh, Jr., was arrested and incarcerated following an altercation and alleged stabbing in an Akron restaurant. Pugh was held in jail until September 8, 1975, on which date he was released on bond on the pending charge.

A preliminary hearing was conducted in the Akron Municipal Court on September 16, 1975. At the outset thereof appellant moved, pursuant to R.C. 2945.71(C) (1) and (D), ¹ and R.C. 2945.73, ² to dismiss the felony charge on the ground that he had not been afforded a preliminary hearing within the appropriate time period, as designated in the above Revised Code sections. The court overruled this motion, and at the close of the preliminary hearing the court found reasonable and probable cause to bind appellant over to the Summit County Grand Jury.

On November 3, 1975, an indictment was filed in the Court of Common Pleas of Summit County. Pugh subsequently plead not guilty at his arraignment and, in accordance with the statutory time limitations for speedy trial set out in R.C. 2945.71(C) and (D), a trial date of January 5, 1976, was set.

At the outset of the trial, appellant moved to dismiss the indictment, stating the same grounds advanced at the preliminary hearing. The court overruled the motion and the trial proceeded. On January 6, 1976, the jury found appellant guilty of felonious assault and appellant was thereafter sentenced to the penitentiary for a period of from four to fifteen years.

On appeal, the Court of Appeals found that the charge against appellant should have been dismissed by the Municipal Court, but it declined to hold that the indictment against appellant should also have been dismissed. The judgment of the trial court was affirmed.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Stephen M. Gabalac, Pros. Atty., and Carl M. Layman, III, Akron, for appellee.

Koerber, Nostwich & Ufholz Co., L. P. A., and L. Terrence Ufholz, Akron, for appellant.

PER CURIAM.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

HERBERT, CELEBREZZE, PAUL W. BROWN and LOCHER, JJ., concur.

C. WILLIAM O'NEILL, C. J., and WILLIAM B. BROWN and SWEENEY, JJ., dissent.

HERBERT, Justice, concurring.

I believe this case represents an appropriate fact pattern to test the propriety of a legislative fixing of so-called speedy hearing time limits. Our review should touch upon the separation of powers doctrine, as was done in United States v. Howard (D.C.1977), 440 F.Supp. 1106, and upon the issue of a possible conflict between the statutes and the Criminal Rules of Procedure. Section 5(B) of Article IV of the Constitution of Ohio.

Under the law stated by the dissenting opinion, persons charged with serious crimes and released on bond must be discharged unless they are accorded either a preliminary hearing or are indicted, both within 15 days of their arrest. It must be emphasized that this result would obtain even though an accused has never been incarcerated upon the pending charge and despite the fact that there has been no showing of any prejudice to his position. Furthermore, the dissenting opinion would cause appellant to be discharged from custody, even though his trial was free of error. He could not be retried because of constitutional proscriptions against double jeopardy. It would be a mistake for this court to permit itself to be forced to establish such a rule of law.

As stated in Howard, supra :

"The court is cognizant of the defendants' right to a speedy trial, just as it is cognizant of all their rights under the Constitution, and it is satisfied that the even-handed scrutiny of the appellate courts will not only preserve those rights but will do it without legislative interference. * * * " The concurring opinions, in my judgment, would require either the overlooking of the clear mandate of the statutes involved or the ignoring of appellant's persistent motions to dismiss.

When statutes pertaining to criminal proceedings cause immense problems in the administration of justice, foster the release of felons convicted in error-free trials and splinter the studied opinions of the members of the state's highest court, it is apparent that something has gone awry in the way in which our institutions of government are functioning. In my opinion, what has occurred in the present case is quite clear. In its zeal to serve the people, one branch of government has engaged in activity which, in modern times, is the obvious responsibility of another branch. Although the effort to help is certainly laudable, the result has been predictably unfortunate.

As judges have often stated, courts should always be mindful of the constitutional prerogatives of the General Assembly and should refrain from legislating. We are not equipped to legislate and we are not constitutionally entitled to legislate.

Occasionally, however, we are called upon to reiterate that this doctrine of separation is a two-way street, and when such rare situations arise we should not be loath to point them out.

CELEBREZZE, Justice, concurring.

I believe that appellant's inconsistent conduct, viz., entering a plea to the indictment, constituted a waiver of compliance with the applicable time limitation. Cf. Crider v. Maxwell (1968), 174 Ohio St. 190, wherein it is stated at page 192, 187 N.E.2d 875, at page 876:

"The petitioner urges that he was deprived of his constitutional rights by not having a preliminary hearing. It is his contention that failure to afford a preliminary hearing deprives an accused of being able to confront the state's witnesses and lay evidence before the court as to the degree of accused's guilt and deprives him of other constitutional rights. Such is not the purpose of the preliminary hearing. It is only to determine whether sufficient evidence exists to warrant binding an accused over to the grand jury to determine whether formal charges shall be placed against him. No rights or defenses are lost from a failure to have a preliminary hearing. In this respect, petitioner has been deprived of no constitutional right. Once an indictment has been returned, a plea to such indictment waives any right the accused has to a preliminary hearing. Annotation, 116 A.L.R. 550; 4 Wharton's Criminal Law and Procedure, 290, Section 1619." (Emphasis added.)

I write solely to address the appellate court's holding that, despite the failure to accord the accused a timely preliminary hearing, the subsequent return of an indictment by the grand jury somehow cured the patent error of the Municipal Court. Unless waived, both R.C. 2945.71(C)(1) and Crim.R. 5(B)(1) entitle a criminal defendant, in felony cases, to a preliminary hearing. The rule also provides that: "The preliminary hearing shall not be held, however, if the defendant is indicted." When the statute and the rule are read in pari materia it becomes evident that the reference in the rule is to a direct indictment; i. e., one returned independent of a bindover order (as a result of a preliminary hearing or waiver of same). In that instance the accused is not arrested until after the indictment is returned by the grand jury, and thus there is no danger that an individual will be incarcerated for an indefinite period of time without probable cause for the detention having been established.

In the case sub judice it is not disputed that appellant spent 11 days in jail and another eight days on bond before a determination of probable cause was finally made, at which time appellant was bound over to the grand jury. It is therefore inaccurate to suggest that, under the present circumstances, the indictment could cure the error committed by the Municipal Court when it scheduled appellant's preliminary hearing beyond the prescribed time limits.

I would hold that where an individual has been arrested and charged with a crime, and where there has been no waiver of the preliminary hearing, either express or implied, an indictment charging the same offense must be returned within the time limitations set forth in both the statute and the rule in order to obviate the statutorily-required hearing. ³

LOCHER, Justice, concurs in the foregoing concurring opinion. PAUL W. BROWN, Justice, concurring.

It is my view that a failure to provide a preliminary hearing has no effect upon a conviction resulting from an indictment and trial. Since this, the only question before the Court of Appeals, was properly decided, I agree that the judgment of that court should be affirmed. I do not conclude that the legislature said or intended otherwise.

WILLIAM B. BROWN, Justice, dissenting.

The Court of Appeals ruled (1) that the charge against appellant should have been dismissed pursuant to R.C. 2945.73(A); (2) that such dismissal does not bar further proceedings against appellant based on the same conduct; and (3) that the failure to grant defendant a timely preliminary hearing was cured when he was subsequently indicted and tried within the time limits of the speedy trial statute even though the charges against him were not dismissed and proceedings against him were not reinstituted after he was denied the timely preliminary hearing. The appellate court based its decision on an unnecessarily strained interpretation of R.C. 2945.73(A) and (D) which ignores the statutory mandate that charges be dismissed and which effectively reads the requirement of a timely preliminary hearing out of the statute. Because the majority's affirmance lends this court's imprimatur to such unwarranted judicial legislating, I must dissent.

R.C. 2945.73 provides, in pertinent part:

"(A) A charge of felony shall be dismissed if the accused is not accorded a preliminary hearing within the time required by sections 2945.71 and 2945.72 of the Revised...