[Cite as State v. Large,
2016-Ohio-4900.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-15-025
Appellee Trial Court No. CRB 1401586 A/B
v.
Joshua T. Large DECISION AND JUDGMENT
Appellant Decided: July 8, 2016
…
Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
David R. Boldt, Assistant Prosecuting Attorney, for appellee.
Michael W. Sandwisch, for appellant.
…
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Joshua T. Large, appeals the July 8, 2015 judgment of
the Ottawa County Municipal Court which, after denying his motion to dismiss on speedy
trial grounds, sentenced him to 30 days in jail and a fine for aggravated menacing,
Because we find that the court erred when it denied appellant’s motion to dismiss without
a hearing, we reverse.
{¶ 2} On November 20, 2014, two separate complaints were filed against
appellant charging him with one count each of aggravated menacing, first degree
misdemeanors. The charges stemmed from an incident on May 29, 2014, involving a
Port Clinton, Ohio, police officer. On January 7, 2015, appellant entered not guilty pleas
and waived the time requirement under R.C. 2945.71. A trial was tentatively set for July.
{¶ 3} On April 10, 2015, appellant filed a motion to dismiss based on speedy trial
grounds. Appellant argued that the state failed to prosecute him within 90 days of the
date of the May 29, 2014 offense. Appellant argued that the state was aware of the
alleged acts due to its initial May 30, 2014 filing of felonious assault charges against him
based on the same incident. The charges were amended to aggravated menacing and then
ultimately dismissed. A reckless operation charge was also filed and dismissed.
According to the motion, appellant did enter a no contest plea to driving under
suspension; again, based on the same May 29, 2014 incident. In support, appellant
attached docket sheets from the referenced cases.
{¶ 4} On April 16, 2015, the court denied the motion noting:
The Defendant generally references previous filing dates of related
charges, and simply submits a list of case authority without connecting the
list to the previous filings. Defendant (apparently) expects the Court to
make the necessary legal arguments for him.
In addition, the Court notes that the Defendant filed a waiver of his
right to a speedy trial on January 7, 2015.
2.
{¶ 5} Following the trial court’s ruling, appellant entered a no contest plea to one
count of aggravated menacing. This appeal followed with appellant raising one
assignment of error for our review:
1. The trial court erred to the prejudice of the defendant in denying
the defendant a hearing on his motion to dismiss on speedy trial grounds.
{¶ 6} Appellant, in his sole assignment of error, contends that the trial court erred
in summarily denying his motion without first conducing a hearing. We review a trial
court’s ruling on denying a motion to dismiss for an abuse of discretion.
{¶ 7} The right to a speedy trial is guaranteed by the United States and Ohio
Constitutions. State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017,
781 N.E.2d 72, ¶ 32.
Aggravated menacing is a first degree misdemeanor. One accused of a first degree
misdemeanor must be brought to trial within 90 days of arrest or service of summons.
R.C. 2945.71.
{¶ 8} Appellant argues that because the state was aware of the charges when it
commenced the initial action on May 30, 2014, the 90-day time limit accrued prior to the
refiling of the charges in the instant case; thus, the waiver executed on January 7, 2015,
has no bearing on the speedy trial violation. Conversely, the state, relying on State v.
Adams, 43 Ohio St.3d 67,
538 N.E.2d 1025 (1989), suggests that for “tactical” reasons
appellant may have decided to waive his speedy trial rights to the subsequent charges.
The state does not dispute appellant’s recitation of the facts.
3.
{¶ 9} In Adams, the Supreme Court of Ohio addressed whether a time waiver in an
initial, dismissed case applied to a refiled case. The court held: “When an accused
waives the right to a speedy trial as to an initial charge, this waiver is not applicable to
additional charges arising from the same set of circumstances that are brought subsequent
to the execution of the waiver.” Id. at syllabus.
{¶ 10} Akin to the current facts, the Second Appellate District addressed a case
where the accused argued that the speedy-trial days in related, dismissed and then refiled
cases should have been applied to the limit under R.C. 2945.71(B)(1). State v. Dillon,
181 Ohio App.3d 69,
2009-Ohio-530,
907 N.E.2d 1226 (2d Dist.). In Dillon, the accused
filed a motion to dismiss based on speedy-trial grounds; the court denied the motion to
dismiss without explanation. Id. at ¶ 5-7.
{¶ 11} Acknowledging that a hearing was not required under Crim.R. 12(F), the
court then stated that because the record of the prior cases was not before the lower court,
the court:
could not know from the record before it when it denied defendant’s motion
(1) whether or when a prior menacing charge had been filed and dismissed,
(2) if that was true, whether the dismissed menacing charge arose from the
same set of circumstances as the pending charges which defendant’s motion
asked the court to dismiss, Adams, 43 Ohio St.3d 67,
538 N.E.2d 1025, or
(3) whether the state was unaware of additional facts on which the
disorderly-conduct charge was based when it filed the menacing charge it
4.
subsequently dismissed. [State v.] Baker, 78 Ohio St.3d 108,
676 N.E.2d
883 [1997]. Defendant’s motion implicated those issues of fact, and he was
entitled to an evidentiary hearing on those issues in order to prevail on his
motion. The court’s failure to conduct a hearing also prevented it from
stating its essential findings on which it denied defendant’s motion,
contrary to the requirements of Crim.R. 12(F). Id. at ¶ 18.
{¶ 12} Accord State v. Clark, 107 Ohio App.3d 141,
667 N.E.2d 1262 (2d
Dist.1995); State v. James, 8th Dist. Cuyahoga No. 69075,
1996 WL 50840 (Feb. 8,
1996).
{¶ 13} Here, as in Dillon, appellant was charged on multiple occasions with
crimes stemming from the May 29, 2014 incident. The trial court did not indicate that it
had or reviewed the records in the prior cases in denying the motion to dismiss.
Accordingly, we find that appellant’s assignment of error is well-taken.
{¶ 14} On consideration whereof, we find that appellant was prejudiced or
prevented from having a fair proceeding and the judgment of the Ottawa County
Municipal Court is reversed and the matter is remanded to conduct a hearing on
appellant’s motion to dismiss. Pursuant to App.R. 24, appellee is ordered to pay the costs
of this appeal.
Judgment reversed.
5.
State v. Large
C.A. No. OT-15-025
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.
