[Cite as State v. Olmstead,
2024-Ohio-3132.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
BRANDON OLMSTEAD, : Case No. 23-COA-028
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Municipal Court, Case No. 22 CRB
01314
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 15, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD P. WOLFE, II EDWARD CLARK CORLEY
Ashland Law Director 3 North Main Street, Suite 603
1213 East Main Street Mansfield, Ohio 44902
Ashland, Ohio 44805
Ashland County, Case No. 23-COA-028 2
Baldwin, J.
{¶1} The appellant, Brandon Olmstead, appeals his conviction and sentence on
charges of domestic violence, unauthorized use of a vehicle, and disorderly conduct. The
appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On December 9, 2022, the appellant was arrested and charged with
Domestic Violence in violation of R.C. §2919.25, Unauthorized Use of a Vehicle in
violation of R.C. §2913.03(A), and Disorderly Conduct in violation of R.C. §2917.11.
{¶3} On December 12, 2022, at an arraignment, the appellant was cited by the
trial court for contempt and sentenced to thirty (later reduced to fifteen) days in jail.
{¶4} On January 18, 2023, the appellant’s attorney withdrew, and his new
attorney filed for a continuance.
{¶5} On February 27, 2023, the appellant filed a Motion for Discharge due to a
speedy trial violation.
{¶6} On March 8, 2023, the State filed its Response.
{¶7} On July 19, 2023, the trial court denied the appellant’s Motion to Discharge.
{¶8} On November 15, 2023, the appellant entered a plea of guilty to Disorderly
Conduct and a plea of no contest to Unauthorized Use of a Motor Vehicle. The trial court
found the appellant guilty. The appellee dismissed the charge of Domestic Violence.
{¶9} The appellant filed a timely notice of appeal, and his appellate counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493
(1967). In Anders, the Supreme Court of the United States held that if, after a
conscientious examination of the record, a defendant’s counsel concludes the case is
Ashland County, Case No. 23-COA-028 3
wholly frivolous, then counsel should so advise the court and request permission to
withdraw.
Anders at 744. Counsel must accompany the request with a brief identifying
anything in the record that could arguably support the defendant’s appeal.
Id. Counsel
also must: (1) furnish the defendant with a copy of the brief and request to withdraw; and
(2) allow the defendant sufficient time to raise any matters that the defendant chooses.
Id. Once the defendant’s counsel satisfies these requirements, the appellate court must
fully examine the proceedings below to determine if any arguably meritorious issues exist.
If the appellate court also determines that the appeal is wholly frivolous, it may grant the
counsel’s request to withdraw and dismiss the appeal without violating constitutional
requirements or may proceed to a decision on the merits if state law so requires.
Id.
{¶10} The appellant’s brief proposes the following potential assignment of error:
{¶11} “I.THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
TO DISCHARGE.”
{¶12} The appellant’s counsel suggests there are no issues that could be
considered meritorious in the assignments of error. Counsel timely served the appellant
with a copy of the brief, but he has not filed a brief in response to the service of the Anders
brief.
STANDARD OF REVIEW
{¶13} This Court addressed a trial court’s decision regarding a motion to dismiss
based upon a violation of the speedy trial provisions involves a mixed question of law
and fact. State v. Beal, 2021-Ohio-3812 (5th Dist.), ¶¶20-21:
Our review of a trial court’s decision regarding a motion to dismiss
based upon a violation of the speedy trial provisions involves a mixed
Ashland County, Case No. 23-COA-028 4
question of law and fact. State v. Larkin, 5th Dist. Richland No. 2004-CA-
103, 2005-Ohio-3122,
2005 WL 1463255, ¶11. As an appellate court, we
must accept as true any facts found by the trial court and supported by
competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16-CA-
17, 2016-Ohio-5912,
2016 WL 5118653, ¶43, citing
Larkin, supra. With
regard to the legal issues, however, we apply a de novo standard of review
and thus freely review the trial court’s application of the law to the facts. Id.
ANALYSIS
{¶14} In the sole proposed assignment of error, counsel considers whether the
trial court’s denial of the appellant’s Motion to Discharge is reversible error and concludes
there is no merit to that alleged error.
{¶15} R.C. §2945.71 addresses the time within which a trial or hearing must be
held, and with regard to misdemeanor offenses states in pertinent part:
(B) Subject to division (D) of this section, a person against whom a charge
of misdemeanor, other than a minor misdemeanor, is pending in a court of
record, shall be brought to trial as follows:
…
(2) Within ninety days after the person’s arrest or the service of summons,
if the offense charged is a misdemeanor of the first degree or second
degree, or other misdemeanor for which the maximum penalty is
imprisonment for more than sixty days.
{¶16} The trial court scheduled the appellant’s initial trial for January 19, 2023,
well within the statutory time parameters.
Ashland County, Case No. 23-COA-028 5
{¶17} The appellant was arrested on December 9, 2023. Due to his behavior at
his December 12, 2023, arraignment, the trial court cited him for contempt, and he served
fifteen days in jail tolling the speedy trial time. The appellant filed a continuance on
January 18, 2023, again tolling the speedy trial time until the next trial date, March 16,
2023.
{¶18} R.C. §2945.72 provides for the extension of time for hearing or trial, and
states in pertinent part:
The time within which an accused must be brought to trial, or, in the case
of a felony, to preliminary hearing and trial, may be extended only by the
following:
…
(D) Any period of delay occasioned by the neglect or improper act of the
accused;
{¶19} The delays in the scheduling of the appellant’s trial were due to his own
actions. As such, the delays fell within statutorily permitted extensions and did not warrant
dismissal on speedy trial grounds.
{¶20} Accordingly, we agree that the appellant’s proposed assignment of error is
without merit.
Ashland County, Case No. 23-COA-028 6
CONCLUSION
{¶21} For the foregoing reasons, after independently reviewing the record, we
agree with counsel’s conclusion that no arguably meritorious claims exist upon which to
base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant
counsel’s request to withdraw, and affirm the judgment of the Ashland County Municipal
Court.
By: Baldwin, J.
Gwin, P.J. and
King, J. concur.
