IN THE SUPREME COURT OF OHIO
STATE OF OHIO, Case No. 2007-0923 Plaintiff-Appellee, On Appeal from the Licking County Court of Appeals, V. Fifth Appellate District
HAROLD T. BIESER, Court of Appeals Case No. 06 CA 00045 Defendant-Appellant.
MEMORANDUM OF DEFENDANT-APPELLANT HAROLD T. BIESER IN SUPPORT OF JURISDICTION
Tricia M. Klockner (0077414) John J. Kulewicz (0008376) Assistant Law Director (Counsel of Record) City of Newark Alexandra T. Schimmer (0075732) 40 West Main Street Vorys, Sater, Seymour and Pease LLP Newark, Ohio 43055 52 East Gay Street (740) 349-6663 P.O. Box 1008 Columbus, Ohio 43216-1008 Attorney for Plaintiff-Appellee (614) 464-5634 State of Ohio (614) 719-4812 (Facsimile) [email protected] [email protected]
Attorneys for Defendant-Appellant Harold T. Bieser
JUN A 1 IOQY MARCIA J. MENGEL; CLERK SUPREME COURT OF OHIO TABLE OF CONTENTS
Page
I. THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND RAISES QUESTIONS OF PUBLIC OR GREAT GENERAL INTEREST ...... 1
II. STATEMENT OF THE CASE AND FACTS ...... 4
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... 7
PROPOSITION OF LAW NO. 1: The rule announced in State v. Broughton (1991), 62 Ohio St.3d 253, 581 N.E. 2d 541 -- that speedy-trial time ordinarily stops running in the interim between a nolle prosequi dismissal and refiling of the same charges -- does not apply where the defendant was not notified of the dismissal and the bond was retained after dismissal ...... 7
PROPOSITION OF LAW NO. 2: The State violates the Sixth and Fourteenth Amendments of the United States Constitution, as well as Section 10, Article I, of the Ohio Constitution and the Ohio Speedy Trial Act (R.C. 2945.71) when it fails to bring a defendant charged with a first-degree misdemeanor to trial within ninety days of the original charge, in the absence of any justification for either tolling or enlarging the speedy-trial period ...... 9
PROPOSITION OF LAW NO. 3: The requirements of R.C. 2941.33, Ohio Crim. R. 48(A) and Ohio Crim. R. 49 that nolle prosequi dismissals take place only "in open court," upon a judicial fmding of "good cause" and with service on all parties prohibit exparte dismissals and render them invalid for tolling speedy-trial time under the Speedy Trial Act ...... 10
PROPOSITION OF LAW NO. 4: Where a defective traffic complaint could have been amended pursuant to Ohio Traffic Rule I 1(H) and Ohio Crim R. 7(D) rather than dismissed, dismissal of the complaint does not toll the speedy-trial period ...... l l
CONCLUSION ...... 12
CERTIFICATE OF SERV ICE ...... 13
i TABLE OF AUTHORITIES
Page
CASES
Douglas v. Allen (1897), 56 Ohio St. 156, 46 N.E. 707 ...... 4
Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 ...... 9
Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47, 613 N.E.2d 1079 ...... 4
State v. Bonarrigo (1980), 62 Ohio St.2d 7, 402 N.E.2d 530 ...... 1, 7
State v. Broughton (1991), 62 Ohio St.3d 253, 581 N.E.2d 541 ...... passim
State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 ...... 11
State v. Ladd (1978), 56 Ohio St.2d 197, 383 N.E.2d 579 ...... 9
State v. Monroe (June 14, 2000), Pike App. No. 99CA632, 2000 WL 807228 ...... 2, 10, 11
State v. Pachay (1980), 64 Ohio St. 2d 218, 221, 416 N.E.2d 589 ...... 9, 11
State v. Parker, 113 Ohio St. 3d 207, 2007-Ohio-1534, 863 N.E.2d 1032 ...... 11
State v. Singer (1977), 50 Ohio St.2d 103, 362 N.E.2d 1216 ...... 11
State v. Watkins, 99 Ohio St. 3d 12, 2003-Ohio-2419, 788 N.E.2d 635 ...... 12
U.S. v. MacDonald (1982), 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 ...... 8, 9
Wenzel v. Enright (1993), 68 Ohio St.3d 63, 623 N.E.2d 69 ...... 8
STATUTES
Ohio Rev. Code § 2305.11(A) ...... 4
Ohio Rev. Code § 2941.33 ...... 3, 5, 10
Ohio Rev. Code § 2945.71 ...... 2, 9
Ohio Rev. Code § 2945.71(B)(2) ...... 4, 6, 9
Ohio Rev. Code § 2945.72 ...... 11
Ohio Rev. Code § 2945.73(B) ...... 9
ii Ohio Rev. Code § 2945.75(A)(1) ...... 12
Ohio Rev. Code § 4511.19(A)(1) ...... 5
Ohio Rev. Code § 4511.25 ...... 5
Ohio Rev. Code §§ 2945.72(A) through (I) ...... 9
RULES
Ohio Crim. R. 46(H) ...... 8
Ohio Crim. R. 48(A) ...... 3, 10
Ohio Crim. R. 49 ...... 10
Ohio Crim. R. 49(A) ...... 3, 10
Ohio Crim. R. 49(C) ...... 3, 10
Ohio Crim. R. 7(D) ...... :...... 5, 11, 12
Ohio Traffic Rule 11(H) ...... 5, 11, 12
Ohio Traffic Rule 2 ...... 12
CONSTITUTIONAL PROVISIONS
Ohio Constitution, § 10, Article I ...... 9
Ohio Constitution, § 2(B)(2)(a)(ii), Article IV ...... 4
Ohio Constitution, § 2(B)(2)(e), Article IV ...... 4
United States Constitution, Fourteenth Amendment ...... 2, 9
United States Constitution, Sixth Amendment ...... 2, 9
TREATISES
Supreme Court of Ohio, 2006 OHIO COURTS SUMMARY § E , at 70-71 ...... 3
111 I. THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND RAISES QUESTIONS OF PUBLIC OR GREAT GENERAL INTEREST.
This case presents important speedy-trial questions. More than ninety days elapsed between the original arrest of Mr. Bieser on O.V.I. and left-of-center charges and his arraignment
several months later on refiled charges. In the meantime, unbeknownst to him, the State had
dismissed the original charges without notice or refund of the bond. The Licking County
Municipal Court ultimately entered a conviction on the renewed O.V. I. charge, but recognized
thnt °° > orne9rle-dFgpped_the_ba11 nn ±hie racn somewhere hrtwrPn the fwn
prosecutors office [sic] somebody messed up so you may have a speedy trial issue." The Fifth
District Court of Appeals affirmed, but likewise noted that "[t]he failure to notify the defendant
of the dismissal of the [original] charges against him may warrant further review by the Ohio
Supreme Court concerning possible limitation of the law as announced in [State v.] Broughton
[(1991), 62 Ohio St.3d 253, 581 N.E.2d 541]." 2007-Ohio-1960, at ¶ 23 n.6.
This Court should heed these calls for clarification. In State v. Broughton, the Court held
that speedy-trial time stops in the interim between dismissal and refiling of criminal charges,
unless the defendant remains in jail or is released on bail. 62 Ohio St. 3d at 259-60. That ruling
reflects the psychological and physical liberty that are presumed to exist following a dismissal
and prior to the State's decision, if any, to refile charges. Suspension of the speedy-trial count is
appropriate under those circumstances, the Court explained, because the defendant is "no longer
under any of the restraints associated with arrest and the pendency of criminal charges against
him. He was free to come and go as he pleased. He was not subject to public obloquy,
disruption of his employment or more stress than any citizen who might be under investigation
but not charged with a crime." Id. at 258 (quoting State v. Bonarrigo (1980), 62 Ohio St.2d 7,
11, 402 N.E.2d 530). In this case, by contrast, neither Mr. Bieser nor his counsel received notice that the initial charges were dismissed. Nor did Mr. Bieser receive a refund of the security that he had posted for the bond that had governed his release after his arrest on the initial charges. Thus, he and his counsel continued to believe that the original charges -- and the conditions of his bond -- remained pending. (In fact, the same bond and security remained operative after refiling of the charges and pending appeal.) They learned of the dismissal only when the charges were refiled several months later.
The Court of Appeals allowed the conviction to stand despite acknowledgement of the need to tailor Broughton to these circumstances. Hence Ohio law now includes the proposition that Broughton should apply intact even where there has been no notice of the dismissal and no release from the bond imposed with the initial charge. The defendant remains under the duress of a pending change in his or her livelihood and family life, but the speedy-trial clock stops ticking. This is an unconstitutional infringement on the rights of Mr. Bieser and other defendants under the Sixth Amendment and Fourteenth Amendment as well as the Ohio Constitution and
Ohio Speedy Trial Act, Ohio Rev. Code § 2945.71, et seq.
The conclusion of the Fifth District conflicts not only with these constitutional and statutory precepts, but also with the Fourth District Court of Appeals decision on the same issue.
In State v. Monroe (June 14, 2000), Pike App. No. 99CA632, 2000 WL 807228, the Fourth
District held that a nolle prosequi dismissal that the prosecution had requested and obtained without notice to the defendant was invalid, and that the speedy-trial clock therefore continued to
run during the period between the State's dismissal and refiling of charges.
This Court accordingly should accept jurisdiction of this appeal and provide uniform
statewide guidance on the proper way to compute speedy-trial time in these situations. Beyond
2 the unconstitutionality of this particular conviction, several additional reasons warrant review
and reversal of the Court of Appeals decision.
First, review is necessary because the Fifth District Court of Appeals decision squarely
conflicts with the decision of the Fourth District on the same issue. Uniformity in computing
speedy-trial time is vital to the fair and consistent administration of justice throughout the State.
But speedy-trial rights now vary depending upon the county of prosecution, due to this split
among the appellate courts. Moreover, this conflict is likely to arise again because nolle prosequi dismissals are commonplace throughout Ohio. See The Supreme Court of Ohio, 2006
OHIO COURTS SUMMARY § E, at 70-71.
Second, the Court of Appeals has made new law -- and, most problematically, law that is
contrary to the criminal statutes and rules. It is common in Ohio for a prosecutor to dismiss a
criminal charge without prejudice, through a nolle prosequi dismissal, and then refile it based on
the same facts. However, both Ohio Rev. Code § 2941.33 and Ohio Crim. R. 48(A) require that
nolle prosequi dismissals be presented in "open court." Pursuant to Ohio Rev. Code § 2941.33, a
"nolle prosequi entered contrary to this section is invalid." Moreover, Ohio Crim. R. 49(A)
requires that motions (except valid exparte motions) be served on all parties. Ohio Crim. R.
49(C) prohibits a court from even deciding a motion filed without proof of service. Hence the
law compels the conclusion that nolleprosequi dismissals cannot be moved or entered exparte
or without notice to defendants. Yet the appellate decision in this case condones an ex parte
process in proceedings that must take place in open court and with notice.
Third, this is a matter of public or great general interest because of the broad implications
of what the Court of Appeals has decided. Notice is crucial to nolle prosequi dismissals for all
defendants. For instance, a defendant has a right to challenge the State's claim of "good cause"
3 and to proceed to trial because he or she feels that his or her defense will prevail. See, e.g.,
Lakewood v. Pfetfer (1992), 83 Ohio App.3d 47, 52, 613 N.E.2d 1079. Similarly, if the speedy- trial period has expired before the State files for a nolle prosequi dismissal, a defendant may have a right to have his or her charge dismissed with prejudice, and thus to avoid refiling -- a right that would be lost if courts allow nolle prosequi dismissals to be implemented ez parte and
without notice to defendants. Furthermore, abandonment of a proceeding is a basis for a
malicious prosecution claim. See Douglas v. Allen ( 1897), 56 Ohio St. 156, 46 N.E. 707.
However, an action for malicious prosecution must be brought within one year after dismissal of
the case. Ohio Rev. Code § 2305.11(A). Without notice, a defendant would not know if or
when his or her rights have accrued, and could miss the deadline for bringing suit on a valid
claim through no fault of his or her own.
In sum, the Court of Appeals decision has far-reaching effects on the speedy-trial rights
of defendants in Ohio. The Court should accept this case as an appeal of right under Article IV,
§ 2(B)(2)(a)(ii), and as a discretionary appeal under Article IV, § 2(B)(2)(e), of the Ohio
Constitution because the judgment of the Court of Appeals erodes fundamental constitutional
principles and conflicts with the decision of another appellate district on the same issue, because
nolle prosequi dismissals affect defendants throughout Ohio each year and because defendants
and prosecutors alike have a vital interest in clarification of the proper computation of speedy-
trial time under these circumstances.
H. STATEMENT OF THE CASE AND FACTS
The State violated the speedy-trial rights of Mr. Bieser by belatedly prosecuting him on
misdemeanor O.V.I. and left-of-center charges. Section 2945.71(B)(2) of the Ohio Revised
Code provides that a defendant charged with a first-degree misdemeanor must be brought to trial
4 within ninety days after arrest or service of the summons. In this case, however, 92 days elapsed between the filing of the original charges (which the State dismissed ex parte and without notice or refund of the bond) and the arraignment on the same charges after the State refiled them several months later.
Mr. Bieser was arrested on August 8, 2005, and cited for misdemeanor O.V.I. and left-of- center violations (Oliio Rev. Code § 4511.19(A)(1) and § 4511.25). He posted $250 as security for a $2,500 appearance bond to obtain his release from the Licking County Jail, and appeared in the Licking County Municipal Court for arraignment the next day. The county prosecutor, who was reviewing the file for possible enhancement to felony charges, agreed to continue the bond pending action by a grand jury.
On August 26, 2005, the prosecutor advised the Municipal Court that he was unable to seek enhancement. Instead of amending the complaint under Ohio Traffic Rule 11(H) to reflect misdemeanor charges, the prosecutor moved for a nolle prosegui dismissal. No certificates of service were attached to the motion and draft entry. In addition, although Traffic Rule 11(H) precludes a court from dismissing a traffic ticket based on a defect where the ticket can be amended pursuant to Ohio Crim. R. 7(D), neither the prosecutor nor the Municipal Court indicated why dismissal, rather than amendment, was warranted.
The Municipal Court granted the prosecutorial motion to dismiss on August 29, 2005.
The dismissal was entered on an exparte basis, despite the requirement of Ohio Rev. Code
§ 2941.33 that such dismissals take place only "in open court" and upon a judicial finding of
"good cause," and despite the requirement of Ohio Crim. R. 49 that a motion be served upon all
parties. Neither Mr. Bieser nor his counsel received notice. Moreover, the security that Mr.
5 Bieser had posted for his bond was never tendered back. It remained on deposit in the custody of the Clerk throughout the dismissal period, and Mr. Bieser remained subject to its restraints.
On November 2, 2005, the Newark Law Director refiled the misdemeanor charges. The
new ticket, which bore a traffic-docket prefix, was served upon Mr. Bieser at his residence. It
was identical to the original. At the arraignment on November 8, 2005 -- 92 days after the arrest
-- Mr. Bieser entered a not-guilty plea. The Municipal Court, which still possessed the security
that Mr. Bieser originally had posted in August 2005, did not require any additional security or
impose any additional bond conditions.
Because Mr. Bieser's arraignment took place beyond the ninety-day period set by Ohio
Rev. Code § 2945.71(B)(2), he moved to dismiss the refiled charges on speedy-trial grounds.
The Municipal Court denied that motion on January 20, 2006.
After Mr. Bieser converted his pleas to no-contest, the Municipal Court entered judgment
on the O.V.I. charge on March 3, 2006, and sentenced him to 180 days incarceration, a $700 fine
and costs. (Nothing in the record indicates that the Municipal Court took any action on the left-
of-center charge.) The court acknowledged at the hearing that "obviously, someone dropped the
ball on this case,... somewhere between the two prosecutors office [sic] somebody messed up
so you may have a speedy trial issue."
Mr. Bieser appealed on speedy-trial grounds. The original bond remained in the custody
of the Municipal Court and served as the appellate bond as well. In an Opinion and Judgment
Entry dated Apri120, 2007, the Fifth District Court of Appeals affirmed the conviction, but noted
that "[t]he failure to notify the defendant of the dismissal of the charges against him may warrant
further review by the Ohio Supreme Court concerning possible limitation of the law as
announced in Broughton." 2007-Ohio-1960, at ¶ 23 n.6.
6 On May 10, 2007, the Municipal Court continued the imposition-of-sentence hearing to
June 18, 2007. Mr. Bieser filed a timely notice of appeal to this Court, as well as a motion to
stay the Court of Appeals judgment and suspend execution of his sentence pending this appeal,
on May 17, 2007.
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
PROPOSITION OF LAW NO. 1: The rule announced in State v. Broughton (1991), 62 Ohio St.3d 253, 581 N.E. 2d 541 -- that speedy-trial time ordinarily stops running in the interim between a nolle prosequi dismissal and refiling of the same charges -- does not apply where the ..,... ucremuixi_vvmiioarz^vc.irea of th°^'^; alandthe-bend-was-retaixiedafter-^lrsmzssa Ri1
In State v. Broughton (1991), 62 Ohio St.3d 253, 259-60, 581 N.E.2d 541, this Court held
that the speedy-trial clock stops during the dismissal period where a case is dismissed without
prejudice and later refiled under the same facts. As this Court has explained, a defendant in that
position is "no longer under any of the restraints associated with arrest and the pendency of
criminal charges against him. He was free to come and go as he pleased. He was not subject to
public obloquy, disruption of his employment or more stress than any citizen who might be
under investigation but not charged with a crime." 62 Ohio St. 3d at 258 (quoting State v.
Bonarrigo (1980), 62 Ohio St.2d 7, 11, 402 N.E.2d 530).
In light of that rationale, the Court of Appeals erred in mechanically applying Broughton.
The court disregarded the fact that Mr. Bieser was never actually relieved of the distress and
restraints associated with pending criminal charges, because he was neither notified of the
dismissal nor discharged from the bond that governed his release after his arrest on the original
charges. Rote application of Broughton is directly at odds with the constitutional underpinnings
of the speedy-trial rule under these circumstances. As courts have long held, the speedy-trial
guarantee serves, among other purposes, to "minimize the ... substantial[] impairment of liberty
imposed on an accused while released on bail, and to shorten the disruption of life caused by
7 arrest and the presence of unresolved criminal charges." U.S. v. MacDonald (1982), 456 U.S. 1,
7, 102 S.Ct. 1497, 71 L.Ed.2d 696. Thus there can be no constitutional justification for stopping speedy-trial time from running in cases, such as this, in which the defendant continued to believe that the original charges remained pending.
Broughton makes it particularly clear that the clock continues to run against the State where the defendant is released on bond during the dismissal period. Broughton, 62 Ohio St.3d at 260. That rule properly accounts for the well-recognized restraint that a bond imposes on an individual's liberty. As this Court has stated, "[i]t is not necessary that a person be in actual physical custody to be restrained of his liberty. He is `restrained of his liberty' even when he is free on bail or on his own recognizance pending trial. The terms of bail bonds, even
recognizance bonds, limit the freedom to come and go as one pleases. A person released on bail
or recognizance is in the constructive custody of the state." Wenzel v. Enright (1993), 68 Ohio
St.3d 63, 69, 623 N.E.2d 69.
The Court of Appeals erroneously ruled that there was no evidence that Mr. Bieser's bail
had been continued following the dismissal on August 29, 2005. That conclusion is wrong as a
matter of fact and law. Nothing in the record indicates that Mr. Bieser was released from his
bond. On the contrary, the original bond and security remained in the custody of the Municipal
Court and served as the bond and security both for the refiled charges and the appeal. Ohio
Crim. R. 46(H), which governs bail in traffic cases, makes clear that an undischarged bond
continues until further notice. The Broughton rule thus required continued running of the
speedy-trial time during the period between the dismissal and refiling of the charges against Mr.
Bieser.
8 PROPOSITION OF LAW NO. 2: The State violates the Sixth and Fourteenth Amendments of the United States Constitution, as well as Section 10, Article I, of the Ohio Constitution and the Ohio Speedy Trial Act (R.C. 2945.71) when it fails to bring a defendant charged with a first- degree misdemeanor to trial within ninety days of the original charge, in the absence of any justification for either tolling or enlarging the speedy-trial period.
The Sixth and Fourteenth Amendments to the United States Constitution, and Section 10,
Article I, of the Ohio Constitution guarantee a defendant the right to a speedy and public trial.
Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; State v. Ladd
(1978), 56 Ohio St.2d 197, 383 N.E.2d 579. Among other purposes, the speedy-trial guarantee
serves "to minimize the ... substantial[] impairment of liberty imposed on an accused while
released on bail, and to shorten the disruption of life caused by arrest and the presence of
unresolved criminal charges." U.S. v. MacDonald (1982), 456 U.S. at 7. The right to a speedy
trial is "one of the most basic rights preserved by our Constitution." Klopfer, 386 U.S. at 226.
The Ohio speedy-trial requirements are codified in Ohio Rev. Code § 2945.71, et seq.
Because these statutes are the primary safeguard of the constitutional speedy-trial right, they are
mandatory and must be construed strictly against the State. State v. Pachay (1980), 64 Ohio
St.2d 218, 416 N.E.2d 589. Pursuant to Ohio Rev. Code § 2945.71(B)(2), a defendant charged
with a first-degree misdemeanor must be tried within ninety days of arrest or service of
summons. Unless time is extended under one of the limited grounds set forth in Ohio Rev. Code
§§ 2945.72(A) through (I), a defendant must be discharged if not brought to trial within that
time. Ohio Rev. Code § 2945.73(B).
By the time that Mr. Bieser was arraigned on the refiled charges on November 8, 2005, a
total of 92 days had passed since his arrest. Accordingly, the State failed to bring him to trial
within the statutory period. Moreover, and prejudicially, during the period after the charges were
dismissed, Mr. Bieser remained under the belief and anxiety that they remained pending, and that
9 he remained subject to the bond conditions imposed with the initial charges, including the threat of prosecution for failure to comply with those conditions. Because there is no basis for tolling speedy-trial time in a case, such as this, where a purported dismissal was invalid and where the defendant remained subject to bond, the Court of Appeals should have reversed the judgment of the Licking County Municipal Court and ordered the discharge of Mr. Bieser.
PROPOSITION OF LAW NO. 3: The requirements of R.C. 2941.33, Ohio Crim. R. 48(A) and Ohio Crim. R. 49 that nolle prosequi dismissals take place only "in open court," upon a judicial finding of "good cause" and with service on all parties prohibit exparte dismissals and render aneune e ^!, eedy Trial Act
The nolle prosequi dismissal in this case took place on an unauthorized ex parte basis.
Pursuant to Ohio Crim. R. 48(A) and Ohio Rev. Code § 2941.33, a criminal charge may be dropped before trial or up until the time of verdict through a nolle prosequi dismissal. However,
Rule 48(A) specifies that the dismissal application can be made only "by leave of court and in open court." Ohio Crim. R. 49(A) requires service of all motions, except legitimate ex parte motions, on all parties. If the motion is not served, Ohio Crim. R. 49(C) prohibits a court from even considering it. See Ohio R. Crim. P. 49(C) ("Papers filed with the court shall not be considered until proof of service is endorsed thereon or separately filed."). Similarly, Ohio Rev.
Code § 2941.33 provides that a nolle prosequi dismissal may be entered only with "leave of the court," and "on good cause shown" and "in open court." The statute leaves no guesswork as to the consequences of noncompliance. Section 2941.33 provides that a "nolle prosequi entered contrary to this section is invalid." Accordingly, defendants must be given notice of nolle prosequi motions.
In State v. Monroe, the Fourth District Court of Appeals made clear that a nolle prosequf
dismissal applied for and entered ex parte and without notice to the defendant is invalid, and
cannot operate to stop the clock under the Speedy Trial Act. The county prosecutor had obtained
10 a dismissal of a felony involuntary manslaughter charge before trial and refiled the case as a misdemeanor based on the same facts. The State claimed that speedy-trial time stopped in the interim. However, the defendant was never notified of the dismissal and there was no evidence that the nolle prosequi application was heard in open court. Accordingly, the Fourth District held that the dismissal was null and void and, consequently, insufficient to stop speedy-trial time from running. "Once the prosecution has been initiated...," the court explained, "the prosecutor is not possessed with the same unbridled authority to terminate the proceedings, as he was to initiate them." 2000 WL 807228, at *4.
That conclusion is sound. Where the statutory period for bringing an accused to trial has expired, the State bears the burden of showing that time was properly extended under Ohio Rev.
Code § 2945.72. State v. Butcher (1986), 27 Ohio St.3d 28, 500 N.E.2d 1368. Extensions of time are strictly construed against the State. State v. Singer (1977), 50 Ohio St.2d 103, 362
N.E.2d 1216. "The statutory speedy-trial limitations are mandatory and... the state must strictly comply with them." State v. Parker, 113 Ohio St. 3d 207, 2007-Ohio-1534, 863 N.E.2d
1032, at ¶ 15. Indeed, "[t]hroughout the long history of litigation involving application of the speedy trial statutes, this court has repeatedly announced that the trial courts are to strictly enforce the legislative mandates evident in these statutes." State v. Pachay (1980), 64 Ohio St.
2d 218, 221, 416 N.E.2d 589. Under Ohio law, such a thoroughly defective dismissal thus should not operate to extend the State's speedy-trial time.
PROPOSITION OF LAW NO. 4: Where a defective traffic complaint could have been amended pursuant to Ohio Traffic Rule 11(H) and Ohio Crim. R. 7(D) rather than dismissed, dismissal of the complaint does not toll the speedy-trial period.
Dismissal of the initial charges was invalid for the additional reason that the only option of the prosecutor and the trial court under the Ohio Traffic Rules was to amend the original
11 complaint, not dismiss it. The original complaint set forth none of the statutory or factual predicates of a felony charge, despite the requirements of Ohio Rev. Code § 2945.75(A)(1). It was a standard O.V.I. ticket and "traffic case" within the meaning of Ohio Traffic Rule 2.
Accordingly, the Ohio Traffic Rules govern. See State v. Watkins, 99 Ohio St. 3d 12,
2003-Ohio-2419, 788 N.E.2d 635. Traffic Rule 11(H) precludes a court from dismissing a traffic ticket based on a defect where the ticket can otherwise be amended under Ohio Crim. R. 7(D).
The refiled ticket was identical to the original one. Neither the prosecutor nor the Municipal
Court indicated why a dismissal, rather than amendment, was warranted. Because the Ohio
Traffic Rules and Criminal Rules required amendment rather than dismissal of the initial
charges, the dismissal was invalid and cannot operate to toll speedy-trial time.
CONCLUSION
For these reasons, Mr. Bieser respectfully urges the Court to assume jurisdiction of this
case and to reverse the judgment of the Fifth District Court of Appeals.
Respectfully submitted,
VORYS, SATER, SEYMOUR AND PEASE LLP
B hn J. I^?ulewicz V (0008376) ounsel of Record) Alexandra T. Schimmer (0075732)
52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-5634 (614) 719-4812 (Facsimile) [email protected] [email protected]
Attomeys for Defendant-Appellant Harold T. Bieser
12 CERTIFICATE OF SERVICE
I served a copy of this memorandum on Tricia M. Klockner, Assistant Law Director, City of Newark, 40 West Main Street, Newark, Ohio 43055, by first-class U.S. mail on June
2007.
13
06/0112007 Columbus 10169819 LVVI/ara. IJ/ IvL UV LJ atiYl LV VLL11A Vl VVVll10 1'tlA 1VU• (yU JYJ UJ`IJ 1. VUL
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B, Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 08 a45 HAROLD T. BIESER
Defendant-Appellant O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Criminal Case No. 05TRC12214
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY;
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRICIA L. KLOCKNER YAVITCH & PALMER CO., LPA Assistant Law Director 511 South High St 40 West Main St. Columbus, Ohio 43215 Newark, Ohio 43055
a^,o^^ uv vuyaap v^ yyy,aav 4 14` „v. ITV J'IJ UJTJ I. UUJ
Licking County, Case No. 06CA00045 2
Hoffman, J.
{11} Defendant-appellant Harold Bieser appeals his convictions and sentence entered by the Licking County Municipal Court, on one count of operating a motor vehicle while intoxicated, in violation of R.C. 4511.191(A)(1 ); and traveling left of center, in violation of R.C. 4511.25, following the trial court's flnding him guilty upon acceptance of his no contest plea. Plaintiff-appelfee is the State of Ohio.
{12} On August 8, 2005, Trp. Pollard of the Ohio State Patrol, Granvilie Post, cited appellant on the aforementioned charges. The trooper placed appellant under arrest because appellant refused to perform any field sobriety tests. Appellant was transported to the Licking County Jail. Appellant posted bond the following day. The
OMVI charge was filed as a felony in Licking County Court of Common Pleas Case No.
05CRA1681. The State dismissed the felony charge on August 29, 2005.
{13} On November 2, 2005, the original citation was re-filed, charging appellant with a misdemeanor third offense OMV{. The matter was assigned Licking County
Municipal Court Case No. 05TRC12214. Appellant appeared before the trial a,ourt for arraignment on November 8, 2005, entered a plea of not guilty to the charges, and filed a ttme waiver. On January 20, 2006, appellant filed a Motion to Dismiss, alleging his
Constitutional and statutory rights to a speedy trial were violated. The State filed a response thereto, Via Judgment Entry filed January 31, 2006, the trial court denied
appellant's motion without conducting a hearing. The trial court scheduled the matter for trial on March 6, 2006. Appellant appeared befnre the trial court on March 3, 2006,
' A Statement of the Facts is not necessary to our disposition of this appeal.
C1d0 llll, IvV, I"fV JYJ VJTJ . vvi
Licking Gounty, Case No, 06CA00045 3 withdrew his pleas of not guilty and entered pleas of no contest to the charges. The trial
court found appellant guilty of both charges and proceeded to sentencing. The trial
court memorialized appellant's convictions and sentence via Judgment Entry of
Canviction filed March 3, 2006. The trial court stayed appeilant's sentence pending this
appeal.
{14} It is from his convictions and sentence appellant appeals, raising as h!s
sole assignment of error:
{Q5} "!. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO A SPEEDY
TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION, SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION, AND R.C. 2945.79:"
{V6} In his sole assignment of error, appellant asserts the trial court erred in
denying his motion to dismiss. Appellant maintains the trial court violated his right to a
speedy trial as guaranteed by the Ohio and United States Constitutions and R.C.
2945.71. We dlsagree.
{17} The right to a speedy triai is guaranteed by the Sixth Amendment to the
United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to
these constitutional mandates, R.C. 2945.71 through R.C- 2945.73 prescribe specific
time requirements within which the State must bring an accused to trial, SYat® v. 8aker,
78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883,
{18} As relevant to the Instant action, R.C. 2945.71(B)(2) requires a person,
against whom a.first degree misdemeanor is pending, be brought to trial within 90 days ...... " -1 11 avu VV JV l11.1 LV VL1:11p Vl 1lVVp1o rHA 1VO, 5u 35y OU47 r, UUU
Licking County, Case No. 06CA00045 4
after the person's arrest or service of summons. However,.this time limit can be tolled,
or extended pursuant to R.C. 2945.72, Which states:
{¶9} '"Che time within which an accused must be brought to trial, "** may be
extended only by the following:
{1110} "(A) Any period during which the accused is unavailable for hearing or
trial, by reason of other criminal proceedings against him, within or outside the state, by
reason of his confinement in another state, or by reason of the pendency of extradition
proceedings, provided that the prosecution exercises reasonable diligence to seeure his
availability;
-M11} "(B) Any period during which the accused is mentally incompetent bo stand
trial or during which his mental competence to stand t(al is being determined, or any
period during which the accused is physically incapable of standing trial;
{j12} "(C.) Any period of delay necessitated by the accused's lack of counsel,
provided that such delay is not occasioned by any lack of diligence in providing counsel
to an indigent accused upon his request as required by law;
{n13} "(D) Any period of delay occasioned by the neglect or improper act of the'
accused;
{194} "(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the accused;
(115) "(H) The period of any continuance granted on the accused's own nmtion,
and the period of any reasonable continuance granted other than upon the accused's
own motion * * * " (1116) Speedy trial statutes are to be strictly construed against the State. State v.
aQ4 uv vuvyaa) VI VVV111u 1•ttn 14V, (YU JYJ UJYJ
Licking County, Case No. 06GA00045 5
Miller (1996), 113 Ohio App.3d 606, 681 N.E.2d 976. In reviewing a speedy trial claim, an appellate court must count days chargeable to either side and determine whether the case was tried within time fimits set by the statute goveming the time within which a hearing or trial must be held. City of Oregon v. Kohne (1997), 117 Ohio App.3d 179,
690 N.E.2d 66.
{117} In order to provide a ciear analysis, we will examine the relevant time neriods separately Z The first period is that between appeilant's August 8 2005 arrest on the original felony OMVI charge and the trial court's August 29, 2005 Entry, dismissing the same without prejudice. The partles do not dispute this period is chargeable to the State. We find the State is charged with twenty one days for this time period.3 {J[18} We must now analyze the effect of the trial court's August 29, 2005 dismissal entry on the time period between August 30, 2005, and November 8, 2005, the date on which appellant was arraigned on the new citation charging him with a misdemeanor ON1Vl" Appellant contends the State should be charged with 69 days for this period, for a total of 93 days having lapsed of the 90 days within which the State was required to bring appellant to trial. Appellant concedes, generally, a dismissal would toll speedy trial time until the re-filing and service of the new summons. Appellant
2 Pursuant to Crim.R. 45(A), when computing these time periods, "the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included **•," (Emphasis added),
3 The day of arrest is not included when computing the time within which a defendant must be brought to trial. State v, Steiner (1991), 71 Ohio App.3d 249.
° The date of the service of summons is not included in the time caiculation.
CO\ I v •••,,•• i1 vv w.J, nm ", I.LGnn UP l.VV1110 rAd luo, 4u J9y OM r, uu
Licking County, Case No. 06CA00045 6
submits, however, because the trial court held his bond during this period, the time was
not tolled,
{119} In State v. Broughton (1991), 62 Ohio St.3d 253, 258. the Ohio Supreme
Court stated "the speedy trial statute shall run against the state only during the time in
whioh an indictment or charge of felony is pending." See, also, State v. pePue (1994),
96 Ohio App,3d 513, 517. Thus, the Broughton Court held:
^420} "FOr purposes of computing how much tirne has run against the state
under R.G. 2945,71 et seg., 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 indiotment, shall not be counted unless the
defendant is held in jail or released on bail pursuant to Crim.R. 12(1)."5 Id. at syllabus
para. 1.
^M21} In State v. Buck (1999), Ross App. No. 98CA2438, unreported, the Fourth
District Court of Appeals, relying on Broughton, found the municipal court's failure to
explicitly state in Its dismissal entry the defendant was released from bail, did not
necessarily result in the defendant's bail being continued pursuant to Crim.R. 12(1);
therefore, the statutory speedy trial period was tolled. Id, at *6 - 7.
{¶22} In 8uok, the municipal court issued a dismissal entry which, as. started
supra, did not explicitly release the appollant from his bail obligations. The appellant
° Crim. R. (I), now Crim R. (J), provides; "(J) Effect of determination If the court grants a motion to dismiss based on a defect in the institution of the prosecution or in the Indictment, inforrnation, or complaint, it may also order that the defendant be held in custody or that the defendant's bail be continued for a specified time not exceeding fourteen days, pending the filing of a new indictment, information, or complaint. "**"
04 cw;. " vv VV,.Il niv, LV 1iLLl1a ur 1LVu1S1o rnd IIV. Hu J9J uJ4;1 1, uuu
Licking County, Case No. 06CA00045 7
argued such failure resulted in his ball being continued pursuant to Crim_R. 12(i), and
the speedy trial time continued to run against the State. The Buck Court noted there
was no evfdence in the record frorn which it could conclude the municipal court
continued the appellant's bail pursuant to Crim R.12(l) after the original dismissal. The
Court added it found no rationale existed for the municipal court to continue bail as the
underlying case was dismissed in its entirety, and no criminal charges were left pending
against the appellant. 1d. at "B-7. The Court conciuded the dismissal entry tolled the
running of the statutory speedy trial period. Id. at "'7.
(Q23) Like the Court in Buck, we find no evidence in the record from which we
can conclude the tdai court continuesi appellants bail pursuant to Crim. R.12(I) f®llowing
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.s Despite the State's failure to serve
appellant with the motion to dismiss and the trial courrs subsequent failure to serve
appellant with the dismissal entry, we, nevertheless, find sfoughton controls and further
find the speedy tdai time was tolled during the period from August 30, 2006, to
November 8, 2005. Thus, we find no violation of appeliant's right to a speedy tdal,
(¶2q) Accordingly, we find the trial court did not err in denying appeliant's motion
° The failure to notify the defendant of the dismissai of the charges against him may warrant further review by the Ohio Supreme Court conceming possible limitatioti of the law as announced in Broughton. LVV //.+^1/ lJ/ i^' VV•J1 rtlll LV VLLL)R Vl VVVll1V fflA IYV, ITIJ J`IJ VJYJ L. UUJ
Licking County, Case No. 06CA00045 8
to dismiss.
{125} Appellant's sole assignment of error is overruled,
{126} The judgment of the Licking County Municipal Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
HON. WILLIAM B. HO N
HON. PATRICIA A. DELANEY
q^^ FIL.I^D IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT 11D7 APR 20 "M 8; 44 CLEF;` L U 'T OfP^=^^ _; LICKIN_6 C:A,rTv ;r STATE OF OHIO GA,Rv c; ... . ,.
Plaintiff-Appellee
-vs- JUDGMENT ENTRY
HAROLD T. BIESER
Defendant-Appellant . Case No. 06CA00045
For the reason stated in our accompanying Memorandum-Opinion, the judgment
.of the Licking County Municipaf Court is affirmed. Costs assessed to appellant,
HON. W. SCOTT GWIN -
HON. PATRICIA A. DELANEY