State v. Moore

23 N.E.3d 206

STATE of Ohio, Plaintiff–Appellee

v.Hezekiah M. MOORE, Defendant–Appellant.

State of Ohio, Plaintiff–Appellee

v.Hezekiah M. Moore, Defendant–Appellant.

State of Ohio, Plaintiff–Appellee

v.Hezekiah M. Moore, Defendant–Appellant.

State of Ohio, Plaintiff–Appellee

v.Hezekiah M. Moore, Defendant–Appellant.

State of Ohio, Plaintiff–Appellee

v.Hezekiah M. Moore, Defendant–Appellant.

Nos. 14–14–06

14–14–07

14–14–08

14–14–11

14–14–12.

Court of Appeals of Ohio, Third District, Union County.

Nov. 3, 2014.

Alison Boggs, Marysville, for Appellant.

John M. Eufiner, for Appellee.

OPINION

WILLAMOWSKI, P.J.

{¶ 1} In this consolidated action, Defendant-appellant Hezekiah Moore (“Moore”) appeals the judgments of the Marysville Municipal Court of Union County, Ohio, overruling his motions for speedy trial and finding him guilty of multiple charges, as listed below, upon his entry of no contest pleas in five separate cases, labelled as CRB 1200323 (App. # 06), TRC 1202111 (App. # 07), TRC 1201397 (App. # 08), CRB 1200324 (App.# 11), and CRB 1200206 (App. # 12). For the reasons that follow, we reverse the trial court's judgments.

{¶ 2} The procedural facts relevant to this opinion indicate that on March 15, 2012, Moore was charged with multiple traffic offenses, including OVI (operation of a vehicle under the influence), speeding, operation without a license, and a lane violation, in Union County case number TRC 1201397 (App. # 08). On the same date, Moore was charged with failure to comply with an order of a police officer (fleeing and eluding), in case number CRB 1200206 (App. # 12). On March 21, Moore filed a plea of not guilty and he was released on a personal recognizance bond. A jury trial for these two cases was scheduled for May 25, 2012.

{¶ 3} On April 20, 2012, Moore was charged with another OVI, as well as operation with a suspended license, operation without a license, and noncompliance with suspension, in case number TRC 1202111 (App. # 07). On the same day, Moore was charged with assault, a misdemeanor of the first degree, in violation of R.C. 2903.13(A), in case number CRB 1200323 (App. # 06). He was further charged with the use or possession of drug paraphernalia, a misdemeanor of the fourth degree, in violation of R.C. 2925.14, in case number CRB 1200324 (App. # 11). He pled not guilty to all charges, and a jury trial for these three cases was scheduled for July 13, 2012.

{¶ 4} It appears that the scheduled jury trials did not take place. A filing in one of the five cases, TRC 1201397, indicates that on May 17, 2012, Moore failed to appear in court for a pretrial and the trial court issued a bench warrant for his arrest. No other filings appear in the cases until January 2013.

{¶ 5} On January 23, 2013, Moore filed a motion for speedy trial pursuant to R.C. 2941.401, in each of the five cases relevant to this appeal.¹ The motion indicated that Moore was at the time incarcerated “at Southeastern Correctional Institution located in Lancaster, OH 43130–9606.” (See R. in case CRB 1200323,² at 9.) Moore requested a “hearing within the time frame” set out by the statute and asked the trial court to “grant the Defendant to [sic] a speedy trial.” (Id. ) The motion was filed by Moore pro se, although he had been previously represented by counsel, Perry Parsons, in all these cases. The following documents were attached to the motion: sworn affidavit of indigency, in which Moore attested that he was “incarcerated at the Southeastern Correctional Institution located in Lancaster Ohio”; certificate of service, indicating that the motion and the affidavit were sent to the office of the Union County Prosecutor by regular mail; and a printout of the “Offender Search” page from the Ohio Department of Rehabilitation and Correction website with Moore's information, indicating that he had been incarcerated there on unrelated charges since May 8, 2012. (Id. ) The printout was not authenticated or notarized, but it listed Moore's name, number, date of birth, race, admission date, institution, status, offense information, stated prison term, and the expiration date for the stated term. (Id. )

{¶ 6} On March 27, 2013, the State filed a response in opposition to Moore's motion, requesting the trial court “to deny action” upon the motion, because it “failed to comport with the requirements of R.C. § 2941.401.” (R. at 10.) In particular, the State cited failure to attach “a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner,” as required by R.C. 2941.401. (Id. )

{¶ 7} On May 22, 2013, the trial court issued a “finding and order.” (R. at 11.) Although the State did not raise this issue, the trial court noted that Moore served his motions upon an improper party. “The Union County Prosecutor does not represent the State of Ohio in the cases cited by Defendant. Rather, the State of Ohio is represented by the Marysville Law Director's Office.” (R. at 11.) Because the Marysville Law Director's Office responded to Moore's motion with objections, they were apparently provided with Moore's motions, in spite of the improper service by Moore. (See R. at 10.) The trial court gave Moore an opportunity to respond to the challenges that the State had raised to his motion, setting a deadline for the response of June 13, 2013. (R. at 11.) Moore did not file anything within the deadline, and no action was taken on the cases until February 27, 2014.

{¶ 8} On February 27, 2014, a notice of hearing was filed, indicating that all cases had been assigned for a hearing. (R. at 12.) The hearing took place on March 6, 2014. Moore was represented by his attorney Mr. Parsons, who started with an argument regarding the January 2013 motion for speedy trial. (Tr. of Proceedings (“Tr.”) at 3, Mar. 6, 2014.) Through his counsel, Moore argued that he substantially complied with the requirements of R.C. 2941.401, and asked the trial court “to grant his motion and dismiss these [cases] for lack of being tried within 180 days.” (Id. at 5:18–19.) Moore asserted that he “did what he was required to do” and that he “can't be held liable for the warden not doing what they're required to do.” (Id. at 5:9–15.) The State replied that there was no proof that Moore “had made any kind of written or verbal request to the warden” to attempt to comply with the statute and that the motion should be overruled for failure to substantially comply with the statute. (Id. at 6:18–20.)

{¶ 9} The trial court refused to dismiss the cases for violation of speedy trial rights, stating, “I don't think the statute was complied with even substantially in the case.” (Id. at 7:1–4.) Following the trial court's decision, Moore entered pleas of no contest to each of the charges. (Id. at 8–14.) The trial court found him guilty of OVI in case TRC 1201397, fleeing and eluding in case CRB 1200206, assault in case CRB 1200323, driving under suspension in case TRC 1202111, and possession of drug paraphernalia in case CRB 1200324. The remaining charges have been dismissed. (Id. ) {¶ 10} Moore now appeals raising one assignment of error.

APPELLANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT OVERRULED HIS MOTION TO BRING HIS CASES TO TRIAL WITHIN 180 DAYS AFTER HE NOTIFIED THE COURT AND PROSECUTOR THAT HE WAS INCARCERATED.

Legal Framework for Review of this Case

{¶ 11} “Appellate review of speedy-trial issues involves a mixed question of law and fact.” State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, 876 N.E.2d 1007, ¶ 11 (3d Dist.) ; accord State v. Hansen, 3d Dist. Seneca No. 13–12–42, 2013-Ohio-1735, 2013 WL 1799939, ¶ 20. Therefore, we must give “due deference to the trial court's findings of fact if they are supported by competent, credible evidence.” Masters at ¶ 11; Hansen at ¶ 20. But we conduct an independent review of “whether the trial court correctly applied the law to the facts of the case.” Id.

{¶ 12} Moore's request for speedy trial was based on R.C. 2941.401, which allows an incarcerated defendant to request a speedy disposition of other charges pending against him in Ohio courts “in a timely manner.” State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 25. This statute provides, in relevant parts:

When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.

The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested.

The warden or superintendent having custody of the prisoner shall promptly

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