State v. Richard, 9-20-36
| Decision Date | 30 August 2021 |
| Docket Number | 9-20-36 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. GREGORY RICHARD, JR., DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
William T. Cramer for Appellant
Nathan R. Heiser for Appellee
{¶1} Defendant-appellant, Gregory Richard, Jr. ("Richard"), appeals the September 23, 2020 judgment entry of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a series of drug-related events including the April 2016 overdose of Halee Hull ("Hull") and the October 17, 2017 overdose death of Todd Thompson ("Thompson") in Marion County.[1] On April 5, 2018, the Marion County Grand Jury indicted Richard on Count One of trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6), a fifth-degree felony, and Count Two of involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree felony. (Doc. No. 1). However, because he was incarcerated in federal prison on another case, he did not appear for arraignment in Marion County until June 17, 2019. (Doc. No. 19). When he appeared for arraignment, he entered pleas of not guilty to the indictment. (Id.).
{¶3} On June 19, 2019, under a superseding indictment, the Marion County Grand Jury indicted Richard on an additional count of corrupting another with drugs in violation of R.C. 2925.02(A)(3), a second-degree felony. (Doc. No. 21). The superseding indictment also included a forfeiture specification as to the corrupting-another-with-drugs count and the trafficking-in-heroin count. (Id.). On June 24, 2019, Richard appeared for arraignment and entered pleas of not guilty to the new indictment. (Doc. No. 32).
{¶4} On July 11, 2019, under a second superseding indictment, the Marion County Grand Jury indicted Richard on twenty-five counts: Count One of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a first-degree felony; Counts Two, Five through Fourteen, Sixteen through Twenty, and Twenty-Two of trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6), fifth-degree felonies; Counts Three, Fifteen, and Twenty-Three of corrupting another with drugs in violation of R.C. 2925.02(A)(3), second-degree felonies; Counts Four and Twenty-Four of involuntary manslaughter in violation of R.C. 2903.04(A), first-degree felonies; Count Twenty-One of trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6), a fourth-degree felony; and Count Twenty-Five alleging that Richard was previously convicted of a federal-drug offense. (Doc. No. 65). Richard appeared for arraignment on July 15, 2019 and entered pleas of not guilty to the second superseding indictment. (Doc. No. 102).
{¶5} On July 17, 2019, under a supplemental indictment, the Marion County Grand Jury indicted Richard on forfeiture specifications as to Counts One through Three and Five through Twenty-Five. (Doc. No. 108). Richard appeared for arraignment on July 22, 2019 and entered pleas of not guilty to the supplemental indictment. (Doc. No. 127). Also that day, Richard filed motions to dismiss the second superseding indictment. (Doc. Nos. 120, 121).
{¶6} On July 23, 2019, Richard filed a motion to dismiss Counts Five through Thirteen and Counts Sixteen through Twenty-One, which the State opposed. (Doc. Nos. 129, 131, 132, 144). On July 26, 2019, the trial court granted Richard's motion to dismiss Counts Five through Thirteen and Counts Sixteen through Twenty-One of the second superseding indictment, and dismissed those counts. (Doc. No. 148). Also that day, Richard filed a motion for separate trials under Crim.R. 14, which the State opposed. (Doc. Nos. 136, 137). After a hearing on July 29, 2019, the trial court denied Richard's motion to dismiss the second superseding indictment and Richard's motion to separate trials that same day. (Doc. Nos. 154, 155, 156).
{¶7} On August 10, 2020, the State filed a motion to dismiss Counts One and Twenty-Five. (Doc. No. 392). (See also Aug. 14, 2020 Tr., Vol. IV, at 736). The next day, the trial court (by agreement of the parties) dismissed Counts One and Twenty-Five and amended the indictment as follows: Counts One, Four, and Six to trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6), fifth-degree felonies; Counts Two, Five, and Eight to corrupting another with drugs in violation of R.C. 2925.02(A)(3), second-degree felonies; and Counts Three and Nine to involuntary manslaughter in violation of R.C. 2903.04(A), first-degree felonies. (Doc. No. 402).
{¶8} Also on August 10, 2020, Richard filed a motion to dismiss the amended second superseding indictment alleging a violation of his speedy-trial rights, which the trial court denied. (Doc. No. 399); (Aug. 12, 2020 Tr., Vol. II, at 179). The case proceeded to a jury trial on August 11-17, 2020. (Doc. No. 448). On August 17, 2020, the jury found Richard guilty of Counts Four, Five, Eight, but not guilty of Counts One, Two, Three, Six, and Nine of the amended second superseding indictment. (Doc. Nos. 428, 429, 430, 431, 432, 433, 434, 435).
{¶9} On September 22, 2020, the trial court sentenced Richard to 11 months in prison on Count Four, 5 years in prison on Count Five, and 7 years in prison on Count Eight. (Doc. No. 458). The trial court ordered that Richard serve the terms imposed as to Counts Four and Five concurrently, and further ordered that those concurrent terms be served consecutively to the term imposed as to Count Eight, for a total aggregate sentence of 12 years in prison. (Id.).[2] The trial court further ordered the currency identified in the forfeiture specifications forfeited. (Id.). (See also Sept. 22, 2020 Tr. at 19).
{¶10} Richard filed his notice of appeal on October 2, 2020. (Doc. No. 466). He raises five assignments of error for our review. For ease of our discussion, we will review Richard's first and second assignments of error, followed by his third and fourth assignments of error together, then his fifth assignment of error.
{¶11} In his first assignment of error, Richard argues that the trial court erred by denying his motions to dismiss the second superseding indictment (and the amended superseding indictment) alleging a post-indictment delay because his constitutional right to a speedy trial was violated. In particular, Richard contends only that his corrupting-another-with-drugs charge under Count Eight "should be dismissed on speedy trial grounds" since "[t]he original indictment was filed in April 2018 and trial was not held until August 2020, a total of two years and four months," and he was prejudiced by this delay.[3] (Appellant's Brief at 12, 16).
{¶12} "Appellate review of a trial court's decision on a motion to dismiss for a speedy-trial violation involves a mixed question of law and fact." State v. Westerfield, 3d Dist. Crawford No. 3-17-15, 2018-Ohio-2139, ¶ 17, citing State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, ¶ 23. See also State v. Johnson, 4th Dist. Scioto No. 16CA3733, 2016-Ohio-7036, ¶ 19 (). "'Accordingly, a reviewing court must give due deference to the trial court's findings of fact if they are supported by competent, credible evidence but will independently review whether the trial court correctly applied the law to the facts of the case.'" State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 104, quoting State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 20, citing State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 11 (3d Dist.). See also Westerfield at ¶ 17.
{¶13} "An accused is guaranteed the constitutional right to a speedy trial pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Ohio Constitution Article I, Section 10." State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 12, citing State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32. "Although 'statutory and constitutional speedy trial [rights] are [generally] coextensive,' the constitutional right, as embodied in the Ohio Constitution and the United States Constitution, 'may be broader than the * * * statutory right' in some circumstances." State v. Wagner, 2d Dist. Miami No. 2020-CA-6, 2021-Ohio-1671, ¶ 14, quoting State v. Kadunc, 10th Dist. Franklin No. 15AP-920, 2016-Ohio-4637, ¶ 19.
{¶14} "'To determine whether a defendant has been deprived of [their] constitutional speedy-trial rights, a court must balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of a speedy-trial right, and (4) the prejudice to the defendant.'" State v. Irish, 3d Dist. Mercer No. 10-18-13, 2019-Ohio-2765, ¶ 25, quoting State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 88.
{¶15} "However, prior to engaging in any balancing, 'the court must make a threshold determination concerning the length of [the] delay.'" Id. at ¶ 26 quoting Adams at ¶ 89. "'"Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."'" (Emphasis sic.) Id., quoting State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶ 23, quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 (1972). "A delay becomes presumptively prejudicial as it approaches one year in length." Adams at ¶ 90, citing Doggett v. United...
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