[Cite as State v. Bayer,
2015-Ohio-4138.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 14-CA-55
CHRISTOPHER B. BAYER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield Court of
Common Pleas, Case No. 2011-CR-0491
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 2, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX SCOTT WOOD
DARREN L. MEADE 144 East Main Street
239 West Main Street, Ste. 101 Lancaster, OH 43130
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-55 2
Gwin, P.J.
{¶1} Appellant, Christopher B. Bayer, II ["Bayer"] appeals his convictions and
sentences after a jury trial in the Fairfield County Court of Common Pleas for one count
of aggravated vehicular homicide, a felony of the second degree, one count of
vehicular homicide, a first degree misdemeanor, and two counts of operating a motor
vehicle while under the influence of alcohol, misdemeanors of the first degree.
Facts and procedural History
{¶2} On October 15, 2011, Bayer was driving a motor vehicle that struck and
killed 69-year-old Mary Nutter while she was walking home on West Fair Avenue, in
Lancaster, Ohio. A subsequent breath test revealed Bayer's blood alcohol content to be
0.115.1
{¶3} On October 17, 2011, Bayer was charged by Complaint in the
Fairfield County Municipal Court with one count of aggravated vehicular
homicide, a felony of the second degree, in violation of R.C. 2903.06(A)(1)(a),
and one count of reckless homicide, a felony of the third degree, in violation of
R.C. 2903.041. On that same date, Bayer was arraigned and entered pleas of not
guilty. Bayer was placed on bond with a number of conditions, including a
requirement that he wear an alcohol monitor.
{¶4} On October 28, 2011, Bayer waived his right to a preliminary hearing
and agreed to be bound over to the Grand Jury. Bayer remained under the
conditions of his bond.
{¶5} On November 3, 2011, the transcript from the Fairfield County
1A Statement of the Facts underlying Bayer’s conviction is unnecessary to our disposition of this
appeal. Any facts needed to clarify the issues addressed in Bayer's assignment of error shall be
contained therein.
Fairfield County, Case No. 14-CA-55 3
Municipal Court was filed in the Fairfield County Common Pleas Court and assigned
Case Number 2011-CR-491.
{¶6} Case number 2011-CR-491 was dismissed by the state via a nolle
prosequi filed on June 20, 2012. The entry reads,
This day comes the Assistant Prosecuting Attorney, on behalf of
the State of Ohio, and in open Court, for good cause shown, hereby
dismisses this case for the reason that the charge in this case will be
presented to the Grand Jury for Indictment.
Leave of Court is hereby granted to enter the above dismissal.
Nolle Prosequi (R.C.2941.33) June 12, 2012, filed June 20, 2012. The prosecuting
attorney and the trial judge signed the entry.
{¶7} On August 22, 2014, Bayer was indicted in Case Number 2014-CR-345
for aggravated vehicular homicide, a felony of the second degree, in violation of R.C.
2903.06(A)(1)(a), aggravated vehicular homicide, a felony of the third degree, in
violation of R.C. 2903.06(A)(2)(1), and two counts of operating a motor vehicle while
under the influence of alcohol, misdemeanors of the first degree, in violation of R.C.
4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d).
{¶8} On August 26, 2014, a jury trial commenced.
{¶9} On August 27, 2014, one day after the jury trial began, the trial court
ordered that Case Number 2014-CR-345 be consolidated with Case Number 2011-CR-
491 and that Case Number 2011-CR-491 be "reopened" for trial purposes.
{¶10} On August 29, 2014, the jury returned a verdict of guilty on the charge
of aggravated vehicular homicide, a felony of the second degree, not guilty on the
Fairfield County, Case No. 14-CA-55 4
charge of aggravated vehicular homicide, a felony of the third degree, but guilty
of the lesser included offense of vehicular homicide, a first degree misdemeanor,
and guilty on both counts of operating a motor vehicle while under the influence of
alcohol, misdemeanors of the first degree.
{¶11} On September 25, 2014, Bayer was sentenced to four years in a state
penal institution on the aggravated vehicular homicide charge. Bayer was not sentenced
on the lesser-included offense of vehicular homicide, a first-degree misdemeanor, as it
merged with the aggravated vehicular homicide charge. For sentencing purposes, the
trial court merged the two OVI charges together and sentenced Bayer to, among other
conditions, five years of community control.
Assignments of error
{¶12} Bayer raises two assignments of error,
{¶13} "I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL.
{¶14} "II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT."
I.
{¶15} In his first assignment of error, Bayer contends that his trial counsel was
ineffective for failing to file a motion to dismiss on speedy trial grounds.
{¶16} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364,
113 S.Ct. 838, 122
Fairfield County, Case No. 14-CA-55
5
L.Ed.2d 180(1993); Strickland v. Washington,
466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d
674(1984); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373(1989).
{¶17} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and
Bradley. Knowles v. Mirzayance, 556 U.S. 111,
129 S.Ct. 1411, 1419,
173 L.Ed.2d
251(2009).
{¶18} Recently, the United States Supreme Court discussed the prejudice prong
of the Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the
errors had some conceivable effect on the outcome of the proceeding.”
Id., at 693,
104 S.Ct. 2052. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at
687,
104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485,
176 L.Ed.2d 284
(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and
so the Strickland standard must be applied with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity of the very adversary
Fairfield County, Case No. 14-CA-55 6
process the right to counsel is meant to serve. Strickland, 466 U.S., at
689–690, 104 S.Ct. 2052. Even under de novo review, the standard for
judging counsel’s representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to “second-guess
counsel’s assistance after conviction or adverse sentence.” Id., at 689,
104 S.Ct. 2052; see also Bell v. Cone,
535 U.S. 685, 702,
122 S.Ct. 1843,
152 L.Ed.2d 914 (2002); Lockhart v. Fretwell,
506 U.S. 364, 372,
113
S.Ct. 838,
122 L.Ed.2d 180 (1993). The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional
norms,” not whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690,
104 S.Ct. 2052.
Harrington v. Richter, __U.S.__,
131 S.Ct. 770, 777-778,
178 L.Ed.2d 624(2011).
{¶19} In cases involving a failure to make a motion on behalf of the defendant or
oppose a motion by the state, a defendant is required to: (1) show that the motion or
opposition thereto was meritorious, and (2) show that there was a reasonable
probability that the verdict would have been different had the motion been made or
opposed. State v. Santana, 90 Ohio St.3d 513,
739 N.E.2d 798(2001); State v. Lott,
51
Ohio St.3d 160,
555 N.E.2d 293(1990).
{¶20} An appellant’s failure to file a motion to dismiss on speedy trial grounds
prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue on
appeal. See State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017,
781 N.E.2d 72, ¶37;
Fairfield County, Case No. 14-CA-55 7
State v. Talley, 5th Dist. Richland No. 06 CA 46-D,
2007-Ohio-2902, ¶ 41; State v.
Thompson,
97 Ohio App.3d 183, 186-187,
646 N.E.2d 499(6th Dist 1994).
Speedy trial.
{¶21} The right to a speedy trial is a fundamental right of a criminal defendant
that is guaranteed by the United States and Ohio Constitutions. Sixth Amendment to the
U.S. Constitution; Ohio Constitution, Article I, Section 10; State v. Ramey, 132 Ohio St
.3d 309, 2012–Ohio–2904, ¶14. In Ohio, an accused has a statutory right to a speedy
trial. State v. Jackson, 9th Dist. Lorain No. 11 CA010012, 2012–Ohio–3524, ¶ 8.
Speedy trial statutes “constitute a rational effort to enforce the constitutional right to a
public speedy trial of an accused charged with the commission of a felony or a
misdemeanor.” State v. Pachay, 64 Ohio St.2d 218,
416 N.E.2d 589 (1980), syllabus.
Accordingly, “[t]he prosecution and the trial courts have a mandatory duty to try an
accused within the time frame provided by the statute” and “[s]trict compliance with the
statute is required.” Ramey at ¶14. A person charged with a felony must be brought to
trial within 270 days of his or her arrest and each day the accused is held in jail in lieu of
bail will be counted as three days. R.C. 2945.71(C)(2); R.C. 2945.71(E). The accused’s
speedy trial clock begins to run on the day after arrest or service of summons. State v.
Szorady, 9th Dist. Lorain No. 02CA008159, 2003–Ohio–2716, ¶ 12. “However, R.C.
2945.72 lists various events that will toll the running of the speedy-trial clock.” State v.
Stevens, 9th Dist. Lorain No. 11 CA009995, 2012–Ohio–4095, ¶ 5. “In addition to
meticulously delineating the tolling events, the General Assembly jealously guarded its
judgment as to the reasonableness of delay by providing that time in which to bring an
accused to trial ‘may be extended only by’ the events enumerated in R.C. 2945.72(A)
Fairfield County, Case No. 14-CA-55 8
through (I).” Ramey at ¶ 24, quoting R.C. 2945.72. Thus, the “‘extensions are to be
strictly construed, and not liberalized in favor of the state.’" Ramey at ¶ 24, quoting
State v. Singer,
50 Ohio St.2d 103, 109,
362 N.E.2d 1216 (1977).
{¶22} In the case at bar, Bayer was originally charged on October 17, 2011. The
initial charges were dismissed by Judgment Entry filed on June 20, 2012. Pursuant to
the express dictates of R.C. 2945.71, the speedy-trial statute shall run against the state
only during the time in which an indictment or charge of felony is pending. See R.C.
2945.71(C). Accordingly, 247 days is chargeable against the state for speedy trial
purposes.
{¶23} Bayer was subsequently indicted on August 22, 2014. In State v.
Bonarrigo, the Ohio Supreme Court noted,
In State v. Spratz (1979), 58 Ohio St.2d 61, 62, at fn. 2,
388 N.E.2d
751, we expressly noted that the entry of a nolle prosequi on a felony
charge tolled the running of statutory speedy trial time until such time as
the accused was re-indicted. Similarly, in Westlake v. Cougill (1978), 56
Ohio St.2d 230,
383 N.E.2d 599, we excluded from the computation of
speedy trial time a period between a nolle prosequi of misdemeanor
charges and the service of summons of a second filing of misdemeanor
charges arising out of the same conduct. In both cases, credit was given
the accused for the period of time the charges based on the same conduct
were pending prior to entry of the nolle prosequi.
62 Ohio St.2d 7, 9-10,
402 N.E.2d 530(1980). It is well-established that for purposes of
computing how much time has run against the state under R.C. 2945.71 et seq., the
Fairfield County, Case No. 14-CA-55 9
time period between the dismissal without prejudice of an original indictment and the
filing of a subsequent indictment, premised upon the same facts as alleged in the
original indictment, shall not be counted unless the defendant is held in jail or released
on bail pursuant to Crim.R. 12(I). State v. Broughton,
62 Ohio St.3d 253,
581 N.E.2d
541 (1991), paragraph one of the syllabus.
{¶24} Bayer's trial commenced on August 26, 2014. Thus, 5 days are
chargeable against the state for speedy trial purposes. However, upon indictment, the
247 days chargeable to the state in the original case is added to the speedy-trial time.
Thus, a total of 252 days of the 270 days had expired prior to the commencement of
Bayer's trial. Thus, there was no speedy trial violation.
Release from bond.
{¶25} However, Bayer contends that the speedy trial time continued to run
following the dismissal on June 20, 2012 because the court never officially released him
from bond.
{¶26} In State v. Broughton 62 Ohio St.3d 253, 258,
581 N.E.2d 541, the Ohio
Supreme Court stated “the speedy trial statute shall run against the state only during the
time in which an indictment or charge of felony is pending.” Thus, the Broughton Court
held:
For purposes of computing how much time has run against the
state under R.C. 2945.71 et seq., the time period between the dismissal
without prejudice of an original indictment and the filing of a subsequent
indictment, premised upon the same facts as alleged in the original
Fairfield County, Case No. 14-CA-55 10
indictment, shall not be counted unless the defendant is held in jail or
released on bail pursuant to Crim.R. 12(I).
Id. at syllabus para. 1. (Footnote omitted).
{¶27} Further, Broughton noted that solely because a defendant may have
suffered anxiety or apprehension during the period between the dismissal of the first
indictment and reindictment does not mean the time period must be counted and
attributed to the State for speedy trial purposes. 62 Ohio St.3d at 258,
581 N.E.2d 541.
(Citations omitted).
{¶28} Appellate districts, included our own, interpreting Broughton have
subsequently found that a trial court’s failure to explicitly declare that a defendant is
released from bail in the entry of dismissal pursuant to Crim.R. 48(A) does not
necessarily mean that the defendant’s bail is continued pursuant to Crim.R. 12(J).2
{¶29} In State v. Buck, 4th Dist. Ross No. 98CA2438, 1999 WL 253485( Aug.
20, 1999), the Fourth Appellate District found no evidence in the record indicating that
the trial court continued the defendant’s bail following the dismissal of the original
indictment pursuant to Crim.R. 12(J). Further, the appellate court noted that the
defendant’s recognizance form required him to comply with the bond terms “until such
case is finally disposed of,” and concluded that once the criminal charges were
dismissed, the bail obligations were also extinguished. Accordingly, the appellate court
concluded that the trial court had intended for the defendant’s bail obligation to
terminate upon dismissal of the indictment and, pursuant to Broughton, found that the
time period between the dismissal and the refilling was tolled. Accord, State v. Biser, 5th
Dist. Licking No. 06CA00045,
2007-Ohio-1960, ¶23; State v. Gearhart, 5th Dist Licking
2 Formerly Crim.R. 12(I).
Fairfield County, Case No. 14-CA-55 11
No. 99CA107, 2000WL329670 (Mar. 10, 2000); State v. Heft, 3rd Dist. Logan No. 8-09-
08, 2009-Ohio-5908, ¶45; State v. Alexander, 4th Dist. Scioto No. 08CA3221, 2009-
Ohio-1401, ¶27.
{¶30} In the case at bar, we find nothing in the record before us that the trial
court ordered Bayer's bond continued subsequent to the entry for the dismissal. A nolle
prosequi concludes a prosecution and it cannot be reinstated at a later date. Any action
taken subsequent to the filing of a nolle prosequi is a nullity. Indian Hill v. Ledgerwood,
1st Dist. Hamilton No. C-120448, 2013-Ohio-1812, ¶13 (citing State v. Eubank, 6th Dist.
No. L–11–1211, 2012–Ohio–3512, ¶ 7; Gates Mills v. Yomtovian, 8th Dist. No. 88942,
2007–Ohio–6303, ¶ 21–22).
Nolle prosequi not properly entered.
{¶31} Bayer further contends that the nolle prosequi was not properly entered;
therefore, time continued to run from the date of his initial arrest for speedy trial
purposes.
{¶32} R.C. 2941.33, Nolle prosequi, which was enacted October 1, 1953 states,
"The prosecuting attorney shall not enter a nolle prosequi in any cause without leave of
the court, on good cause shown, in open court. A nolle prosequi entered contrary to this
section is invalid."(Emphasis added). In State v. Mucci, the Court noted,
These rules and statutes have been promulgated and enacted in
order to curb abuses of executive prerogative. Under the common-law
rule, a prosecutor had unlimited discretion to enter a nolle prosequi
without any court involvement; however, the legislators and courts of this
state and the federal government have acted to take this unlimited
Fairfield County, Case No. 14-CA-55 12
postindictment discretion away from the prosecutor. See 1944 Advisory
Committee Notes to Fed.Crim.R. 48(A). See, also, Restatement of the
Law, Contracts (1932), Section 549 (the prosecutor can bargain to
recommend dismissal but not to secure dismissal). Therefore, a court in
this state functions as a check and balance to the discretion of a
prosecutor to dismiss an indictment.
150 Ohio App.3d 493,
2002-Ohio-6896,
782 N.E.2d 133, ¶27. Accord, State v. Neely,
11th Dist. Lake No. 2004-L-197,
2005-Ohio-7045, ¶42.
{¶33} Crim.R. 48(A) provides, “The state may by leave of court and in open
court file an entry of dismissal of an indictment, information, or complaint and the
prosecution shall thereupon terminate.” (Emphasis added). Crim.R. 48 was adopted
July 1, 1973, nearly 20 years after R.C. 2941.333.
{¶34} In State v. Pendleton, this Court found,
[T]he term ‘open court’ means that court is in session and the judge
is on the bench.” State v. Monroe, (June 14, 2000) 4th Dist. No. 99CA632,
(citing Linden v. Bates Truck Lines Inc., (1982) 4 Ohio App.3d 178, 180,
446 N.E.2d 1139).
5th Dist. Licking Nos. 10 CA 81, 10 CA 82,
2011-Ohio-2024, ¶39. We note in the case
at bar the trial court approved the state's dismissal of the charges by Judgment Entry
filed June 20, 2012. The reason for the dismissal was that the state was going to
present the case to the grand jury for indictment.
3 Statutes in conflict with the rules promulgated by the Ohio Supreme Court have been declared
invalid and to have no force and effect. Hiatt v. Southern Health Facilities, Inc., 68 Ohio St.3d 236,
626
N.E.2d 71(1994); In re Coy,
67 Ohio St.3d 215,
616 N.E.2d 1105(1993).
Fairfield County, Case No. 14-CA-55 13
{¶35} Under Article I, Section 10 of the Ohio Constitution, “no person shall be
held to answer for a capital, or otherwise infamous, crime, unless on presentment or
indictment of a grand jury.” The Constitution of Ohio requires, except in rare cases, that
felonies be prosecuted by indictment. Constitution, Article I, Section 10. “There can be
no trial, conviction, or punishment for a crime without a formal and sufficient accusation.
In the absence thereof the court acquires no jurisdiction whatever, and if it assumes
jurisdiction, a trial and conviction are a nullity.” Stewart v. State, 41 Ohio App. 351,
181
N.E. 111(4th Dist. 1932), (citing Doyle v. State,
17 Ohio 222,
1848 WL 101 (Ohio
1848)). Accord, State v. Manns, 5th Dist. Richland No. 11-CA-28,
2012-Ohio-234, ¶31.
{¶36} In addressing this issue in the context of the federal counterpart to Civ.R.
48(A) the Fifth Circuit has stated,
[I]t seems altogether proper to say that the phrase “by leave of
court” in Rule 48(a) was intended to modify and condition the absolute
power of the Executive, consistently with the Framer’s concept of
Separation of Powers, by erecting a check on the abuse of Executive
prerogatives. But this is not to say that the Rule was intended to confer on
the Judiciary the power and authority to usurp or interfere with the good
faith exercise of the Executive power to take care that the laws are
faithfully executed. The rule was not promulgated to shift absolute power
from the Executive to the Judicial Branch. Rather, it was intended as a
power to check power. The Executive remains the absolute judge of
whether a prosecution should be initiated and the first and presumptively
the best judge of whether a pending prosecution should be terminated.
Fairfield County, Case No. 14-CA-55 14
The exercise of its discretion with respect to the termination of pending
prosecutions should not be judicially disturbed unless clearly contrary to
manifest public interest.
United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975).
{¶37} In Rinaldi v. United States, 434 U.S. 22, 29–30,
98 S.Ct. 81,
54 L.Ed.2d
207 (1977), the Supreme Court observed,
The words “leave of court” were inserted in Rule 48(a) without
explanation. While they obviously vest some discretion in the court, the
circumstances in which that discretion may properly be exercised have not
been delineated by this Court. The principal object of the “leave of court”
requirement is apparently to protect a defendant against prosecutorial
harassment, e.g., charging, dismissing, and recharging, when the
Government moves to dismiss an indictment over the defendant’s
objection....But the Rule has also been held to permit the court to deny a
Government dismissal motion to which the defendant has consented if the
motion is prompted by considerations clearly contrary to the public
interest.
Rinaldi, 434 U.S. at 30, note 15,
98 S.Ct. 81 (internal citations omitted).
{¶38} Crim.R. 48 does not require that the state file a motion; rather the rule
dictates that the state request leave of court to file "an entry of dismissal." The state is
not required to obtain the defendant's consent prior to dismissing the case. U.S. v.
Delagarza, 650 F.2d 1166, 1167(10th Dist. 1981); U.S. v. Valencia,
492 F.2d 1071,
1074(9th Cir. 1974); U.S. v. Manbeck,
514 F.Supp. 152(S.C. 1981). Rather the
Fairfield County, Case No. 14-CA-55 15
question that the court must consider when the state requests leave to file an entry of
dismissal is whether the prosecutor has abused the prosecutorial discretion afforded
him or whether the dismissal is clearly contrary to the public interest. Accordingly, in the
case at bar, it cannot be said that the state's motivation for dismissing the charges while
awaiting grand jury indictment discloses an improper motive on the state's part or that
the dismissal is contrary to manifest public interest. Bayer has neither argued nor
suggested either in his brief. Bayer has failed to assert before this Court any legal
argument, meritorious or otherwise, in opposition to the granting of the nolle prosequi.
{¶39} On August 17, 2012, Bayer did file a motion to release his motor vehicle.
The court heard that motion on September 5, 2012. Clearly Bayer could have, but did
not, object to the state's dismissal of the charges against him. Bayer neither filed an
objection in the trial court to the dismissal nor appealed the trial court’s dismissal entry.4
{¶40} If consent of a defendant prior to dismissal is not necessary, Bayer cannot
show he was prejudiced by the failure of the court to notify him prior to dismissing the
charges. Bayer did not lose his right to raise his speedy trial challenge when the
indictment was subsequently issued. Bayer has not separately briefed and argued that
any delays, other than those attributable to the "failure to release from bail" argument is
chargeable to the state under the statute. Nor has Bayer briefed and argued that his
constitutional right to a speedy trial under the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution, his right to due process
under the Fifth Amendment to the United States Constitution and Article I, Section 16 of
the Ohio Constitution have been abrogated by the delay between his initial arrest and
4 Bayer could have sought leave to file a delayed appeal from the trial court's June 20, 2012
dismissal entry pursuant to App.R. 5.
Fairfield County, Case No. 14-CA-55 16
eventual indictment. See generally, Barker v. Wingo, 407 U.S. 514,
92 S.Ct. 2182,
33
L.Ed.2d 101(1972).
{¶41} In State v. Biser, this Court noted,
Like the Court in Buck, we find no evidence in the record from
which we can conclude the trial court continued appellant’s bail pursuant
to Crim. R.12 (I) following the August 29, 2005 dismissal entry. We
recognize Broughton and Buck, as well as other cases reviewed by this
Court appear distinguishable from the instant action, as it appears the
defendants in those cases were on notice of the dismissal of the original
charges against them, whereas appellant herein was not provided with
either notice of the motion to dismiss not the actual dismissal. Despite the
State’s failure to serve appellant with the motion to dismiss and the trial
court’s subsequent failure to serve appellant with the dismissal entry, we,
nevertheless, find Broughton controls and further find the speedy trial time
was tolled during the period from August 30, 2005, to November 8, 2005.
Thus, we find no violation of appellant’s right to a speedy trial.
5th Dist. Licking No. 06CA00045, 2007-Ohio-1960, ¶23 (footnote omitted).
Conclusion
{¶42} The state sought and obtained leave of court to dismiss the original
charges against Bayer on June 20, 2012. Therefore, time was tolled for speedy trial
considerations until Bayer was indicted on August 22, 2014. Accordingly, only 252 of
the 270 days mandated by R.C. 2845.71 had expired prior to the commencement of trial
on August 26, 2014. There was no speedy trial violation.
Fairfield County, Case No. 14-CA-55 17
{¶43} Bayer has not asserted any argument that an objection to nolle prosequi
would have been meritorious or that there was a reasonable probability the trial court
would have denied the state leave to file a nolle prosequi. Therefore, Bayer cannot
show prejudice under the second prong of Strickland.
{¶44} Accordingly, trial counsel was not ineffective by failing to file a motion to
dismiss on speedy trial grounds.
{¶45} Bayer's first assignment of error is overruled
II.
{¶46} In his second assignment of error, Bayer argues the OVI charges should
have merged with the aggravated vehicular homicide charge because the OVI's are a
lesser-included offense. Accordingly, Bayer submits, the trial court erred in sentencing
him to the underlying OVI charge after sentencing him on the charge of aggravated
vehicular homicide.
{¶47} In State v. Dunham, 5th Dist. Richland No. 13CA26, 2014–Ohio–1042,
this Court concluded that even if the offenses were allied offenses of similar import,
“R.C. 2929.41(B)(3) creates an exception to the general rule provided in R .C. 2941.25
that allied offenses must be merged [and] the trial court had the discretion, pursuant to
R.C. 2929.419(B)(3), to enter convictions … and to sentence [defendant] to serve
consecutive sentences for” these crimes. Id. at ¶¶76-77(citing State v. Bayer, 10th Dist.
Franklin No. 11AP–733, 2012–Ohio–5469): Accord, State v. Bigerton, 5th Dist. Fairfield
No. 14-CA-59, 2015-Ohio-2565, ¶6; State v. Demirci, 11th Dist. Lake No.2011–L–142,
2013–Ohio–2399; State v. Earley, 8th Dist. Cuyahoga No. 100482, 2014–Ohio–2643, ¶
7–21. However, several districts have found the offenses to be allied offenses of similar
Fairfield County, Case No. 14-CA-55 18
import. State v. West, 2d Dist. Montgomery No. 23547, 2010–Ohio–1786, ¶ 43; State v.
Phelps, 12th Dist. Butler No. CA2009–09–243, 2010–Ohio–3257, ¶ 28–32; State v.
Mendoza, 6th Dist. Wood No. WD–10–008, 2012–Ohio–5988, ¶ 10–11.
{¶48} As the Second District Court of Appeals has noted,
In October 2014, the Supreme Court of Ohio accepted a certified
conflict between the decision in Earley and the decisions in West, Phelps,
and Mendoza. See State v. Earley, 140 Ohio St.3d 1450, 2014–Ohio–
4414, 17 N.E.3d 597 (Table). The court described the certified question as
follows:
When the offense of operating a motor vehicle while under the
influence in violation of R.C. 4511.19(A)(1) is the predicate conduct for
aggravated vehicular assault in violation [of] R.C. 2903 .08(A)(1), are the
two offenses allied, and if so, does R.C. 2929.41(B)(3) create an
exception that allows a trial court to impose a sentence for both offenses?
State v. Schidecker, 2nd Dist. Montgomery No. 26334, 2015-Ohio-1400, ¶27.
{¶49} We shall adhere to our previous analysis that R.C. 2929.41(B)(3) creates
an exception to the general rule provided in R .C. 2941.25 that allied offenses must be
merged and, therefore, the trial court had the discretion, pursuant to R.C.
2929.419(B)(3), to enter convictions and to sentence Bayer for these crimes until further
instruction from the Ohio Supreme Court.
Fairfield County, Case No. 14-CA-55 19
{¶50} Bayer's second assignment of error is overruled.
{¶51} The judgment of the Court of Common Pleas, Fairfield County, Ohio is
affirmed.
By Gwin, P.J., and
Wise, J., concur;
Baldwin, J., dissents
Baldwin, J., dissenting
{¶52} I respectfully dissent from the majority's disposition of the first assignment
of error. I would find that the time was not tolled from June 20, 2012 to August 22,
2014, because the nolle prosequi was not properly entered.
Fairfield County, Case No. 14-CA-55 20
{¶53} Crim. R. 48(A) provides that, “[t]he state may by leave of court and in open
court file an entry of dismissal of an indictment, information, or complaint and the
prosecution shall thereupon terminate.” Similarly, R.C. 2941.33 provides, “The
prosecuting attorney shall not enter a nolle prosequi in any cause without leave of the
court, on good cause shown, in open court. A nolle prosequi entered contrary to this
section is invalid.”
{¶54} Under both the rule and the statute, a hearing on a motion of this type,
made by the prosecution, is available upon request by the defense for such a hearing.
State v. Monroe, 4th Dist. Pike No. 99CA 632, 2000 WL 807228 (June 14, 2000). In
most cases, the defendant is not prejudiced by the dismissal of charges against him,
and dismissal may be entered in chambers, or by entry, with the knowledge of
defendant, or defendant's counsel.
Id. Therefore, when the defendant does not have
notice of the nolle prosequi, the dismissal is invalid and the speedy trial time continues
to run.
Id. Based on the reasoning in Monroe, the Ninth District similarly concluded that
a nolle prosequi entered without notice to the defendant is null and void, and the
dismissal does not toll the time within which the defendant must be brought to trial for
speedy trial purposes. State v. Davis, 9th Dist. Lorain No. 08CA009412, 2008-Ohio-
6741, ¶20.
{¶55} In order for the "open court" requirement set forth in the statute and the
rule to have meaning, the defendant must be notified of the motion and be given an
opportunity respond or to request a hearing. The record does not reflect that appellant
was so notified in the instant case, and I would therefore conclude that the nolle
prosequi was invalid and the speedy trial time continued to run. Appellant was not
Fairfield County, Case No. 14-CA-55 21
brought to trial until August 26, 2014, well beyond the 270 day time limit imposed by
R.C. 2945.71(C). Accordingly, I would find that counsel was ineffective for failing to file
a motion to dismiss based on violation of appellant's right to a speedy trial and sustain
the first assignment of error.
HON. CRAIG R. BALDWIN
