[Cite as State v. Kasler, 2013-Ohio-2632.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-124 JOHNNIE KASLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas Court, Case No. 11 CR 147/404
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS Prosecuting Attorney Box 40 By: Jocelyn S. Kelly W. Jefferson, Ohio 43162 Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main St., Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 12-CA-124 2
Hoffman, J.
{¶1} Defendant-appellant Johnnie Kasler appeals the September 25, 2012
Judgment Entry entered by the Fairfield County Court of Common Pleas denying his
petition for post conviction relief. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant filed a direct appeal from his conviction and sentence in State v.
Kasler, Fairfield App. 11 CA 59, 2012-Ohio-6073. Appellant then filed a petition for
post-conviction relief in the trial court, which was denied via Judgment Entry of
September 25, 2012.
{¶3} Appellant appeals that denial, assigning as error:
{¶4} “I. THE DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO A
SPEEDY TRIAL CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.”
{¶5} On direct appeal to this Court in State v. Kasler, 5th Dist. No. 11CA59,
2012-Ohio-6073, Appellant argued his right to a speedy trial had been violated. This
Court held “only 92 days elapsed of the 270 days within which appellant had to be
brought to trial even if the time following the mistrial is counted.” This Court also held
the triple-count provision did not apply once the charges of the indictment were severed
upon Appellant’s motion.
{¶6} This Court’s December 20, 2012 Opinion reads,
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Fairfield County, Case No. 12-CA-124 3
{¶7} “Appellant argues that because the felonious assault charges arose out of
the same set of facts as the original rape and attempted rape charges, the time within
which he should be brought to trial began to run with the original indictment.
{¶8} “Subsequent charges made against an accused are subject to the same
speedy-trial constraints as the original charges, if the additional charges arose from the
same facts as the first indictment. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E .2d
1025, 1027 (1989). However, the state is not subject to the speedy-trial timetable of the
initial indictment when additional criminal charges arise from facts different from the
original charges, or the state did not know of these facts at the time of the initial
indictment. Baker, supra, at syllabus.
{¶9} “The State argues that it was not aware of the permanent damage to
C.B.'s lip until 2011 when C.B. returned from Florida, where she had moved subsequent
to the incident, to testify at the first trial, and thus could not have charged appellant with
felonious assault in the original indictment.
{¶10} “***
{¶11} “The evidence presented at trial demonstrates that on the night of the
rape, appellant punched C.B. in the lip when she refused to consent to sex with him.
C.B. went to the hospital later that night to have her lip stitched. Dr. Mark Darnell saw
C.B. and noted that her lip was completely severed. The inside, outside and muscular
layers of the lip were all split. He called in a plastic surgeon, something he had done
only a handful of times in nineteen years of practice. A plastic surgeon stitched her lip.
When the police interviewed appellant several days after the incident, they showed him
pictures of C.B.'s lip and he expressed shock at the severity of the injury. The incident Fairfield County, Case No. 12-CA-124 4
occurred in April of 2008, but appellant was not indicted until three years later in April of
2011. Although the State may not have seen C.B. until she appeared for the first trial
because she had moved to Florida, the State had access to information concerning the
potential severity of the injury at the time it occurred and could have inquired of C.B.
about the lingering effects of the injury prior to her appearance at trial. We therefore find
that for speedy trial purposes, the felonious assault charge dates back to the date of the
original indictment.
{¶12} “However, in calculating the time within which a criminal defendant must
be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by
the defendant in a previous case also apply in a subsequent case in which there are
different charges based on the same underlying facts and circumstances of the previous
case. State v. Blackburn, 118 Ohio St.3d 163, 887 N.E.2d 319, 2008–Ohio–1823,
syllabus. We therefore must determine if the time was tolled in the proceedings under
the first indictment, and whether appellant was brought to trial within 270 days as
required by statute.
{¶13} “Appellant was served with a warrant on the indictment on April 11, 2011.
At that time, he was held in prison and so the triple count provision of R.C. 2945.71(E)
applies. On April 13, 2011, he filed a motion for a bill of particulars and a discovery
request. A demand for discovery or a bill of particulars is a tolling event pursuant to R.C.
2945.72(E). State v. Brown, 98 Ohio St.3d 121, 781 N.E.2d 159, 2002–Ohio–7040,
syllabus. Because of the triple count provision, the two days that elapsed before the
clock was tolled count as six days. Fairfield County, Case No. 12-CA-124 5
{¶14} “On May 20, 2011, appellant filed a motion to sever the charges from the
rape charges involving three other victims. This motion is another tolling event. The
court granted the motion to sever the charges on June 17, 2011. At this point, appellant
was no longer held in jail on solely the charges in the instant case as the charges were
severed from the remaining charges. The triple count provision applies only when the
defendant is being held in jail solely on the pending charge. State v. Sanchez, 110 Ohio
St.3d 274, 277, 853 N.E.2d 283, 2006–Ohio–4478. Thus, the triple-count provision does
not apply when a defendant is being held in custody pursuant to other charges. Id.
Therefore, once the instant charges in which C.B. was the victim were severed from the
charges involving the other three victims, appellant was no longer held in jail solely on
the instant charges and the triple count provision no longer applied.
{¶15} “The speedy trial clock began to run again on June 17, 2011. Four days
elapsed between the judgment granting the motion to sever and the start of appellant's
first trial. At this point, a total of 10 days had elapsed of the 270 days in which the State
must bring appellant to trial.
{¶16} “Appellant's first trial resulted in a mistrial on June 24, 2011. Ordinarily, the
interval between the declaration of a mistrial and a retrial does not count toward a
defendant's statutory speedy trial time, as long as the defendant is retried within a
reasonable time. State v. Morris, 2nd Dist. No.
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[Cite as State v. Kasler, 2013-Ohio-2632.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-124 JOHNNIE KASLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas Court, Case No. 11 CR 147/404
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS Prosecuting Attorney Box 40 By: Jocelyn S. Kelly W. Jefferson, Ohio 43162 Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main St., Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 12-CA-124 2
Hoffman, J.
{¶1} Defendant-appellant Johnnie Kasler appeals the September 25, 2012
Judgment Entry entered by the Fairfield County Court of Common Pleas denying his
petition for post conviction relief. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant filed a direct appeal from his conviction and sentence in State v.
Kasler, Fairfield App. 11 CA 59, 2012-Ohio-6073. Appellant then filed a petition for
post-conviction relief in the trial court, which was denied via Judgment Entry of
September 25, 2012.
{¶3} Appellant appeals that denial, assigning as error:
{¶4} “I. THE DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO A
SPEEDY TRIAL CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.”
{¶5} On direct appeal to this Court in State v. Kasler, 5th Dist. No. 11CA59,
2012-Ohio-6073, Appellant argued his right to a speedy trial had been violated. This
Court held “only 92 days elapsed of the 270 days within which appellant had to be
brought to trial even if the time following the mistrial is counted.” This Court also held
the triple-count provision did not apply once the charges of the indictment were severed
upon Appellant’s motion.
{¶6} This Court’s December 20, 2012 Opinion reads,
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Fairfield County, Case No. 12-CA-124 3
{¶7} “Appellant argues that because the felonious assault charges arose out of
the same set of facts as the original rape and attempted rape charges, the time within
which he should be brought to trial began to run with the original indictment.
{¶8} “Subsequent charges made against an accused are subject to the same
speedy-trial constraints as the original charges, if the additional charges arose from the
same facts as the first indictment. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E .2d
1025, 1027 (1989). However, the state is not subject to the speedy-trial timetable of the
initial indictment when additional criminal charges arise from facts different from the
original charges, or the state did not know of these facts at the time of the initial
indictment. Baker, supra, at syllabus.
{¶9} “The State argues that it was not aware of the permanent damage to
C.B.'s lip until 2011 when C.B. returned from Florida, where she had moved subsequent
to the incident, to testify at the first trial, and thus could not have charged appellant with
felonious assault in the original indictment.
{¶10} “***
{¶11} “The evidence presented at trial demonstrates that on the night of the
rape, appellant punched C.B. in the lip when she refused to consent to sex with him.
C.B. went to the hospital later that night to have her lip stitched. Dr. Mark Darnell saw
C.B. and noted that her lip was completely severed. The inside, outside and muscular
layers of the lip were all split. He called in a plastic surgeon, something he had done
only a handful of times in nineteen years of practice. A plastic surgeon stitched her lip.
When the police interviewed appellant several days after the incident, they showed him
pictures of C.B.'s lip and he expressed shock at the severity of the injury. The incident Fairfield County, Case No. 12-CA-124 4
occurred in April of 2008, but appellant was not indicted until three years later in April of
2011. Although the State may not have seen C.B. until she appeared for the first trial
because she had moved to Florida, the State had access to information concerning the
potential severity of the injury at the time it occurred and could have inquired of C.B.
about the lingering effects of the injury prior to her appearance at trial. We therefore find
that for speedy trial purposes, the felonious assault charge dates back to the date of the
original indictment.
{¶12} “However, in calculating the time within which a criminal defendant must
be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by
the defendant in a previous case also apply in a subsequent case in which there are
different charges based on the same underlying facts and circumstances of the previous
case. State v. Blackburn, 118 Ohio St.3d 163, 887 N.E.2d 319, 2008–Ohio–1823,
syllabus. We therefore must determine if the time was tolled in the proceedings under
the first indictment, and whether appellant was brought to trial within 270 days as
required by statute.
{¶13} “Appellant was served with a warrant on the indictment on April 11, 2011.
At that time, he was held in prison and so the triple count provision of R.C. 2945.71(E)
applies. On April 13, 2011, he filed a motion for a bill of particulars and a discovery
request. A demand for discovery or a bill of particulars is a tolling event pursuant to R.C.
2945.72(E). State v. Brown, 98 Ohio St.3d 121, 781 N.E.2d 159, 2002–Ohio–7040,
syllabus. Because of the triple count provision, the two days that elapsed before the
clock was tolled count as six days. Fairfield County, Case No. 12-CA-124 5
{¶14} “On May 20, 2011, appellant filed a motion to sever the charges from the
rape charges involving three other victims. This motion is another tolling event. The
court granted the motion to sever the charges on June 17, 2011. At this point, appellant
was no longer held in jail on solely the charges in the instant case as the charges were
severed from the remaining charges. The triple count provision applies only when the
defendant is being held in jail solely on the pending charge. State v. Sanchez, 110 Ohio
St.3d 274, 277, 853 N.E.2d 283, 2006–Ohio–4478. Thus, the triple-count provision does
not apply when a defendant is being held in custody pursuant to other charges. Id.
Therefore, once the instant charges in which C.B. was the victim were severed from the
charges involving the other three victims, appellant was no longer held in jail solely on
the instant charges and the triple count provision no longer applied.
{¶15} “The speedy trial clock began to run again on June 17, 2011. Four days
elapsed between the judgment granting the motion to sever and the start of appellant's
first trial. At this point, a total of 10 days had elapsed of the 270 days in which the State
must bring appellant to trial.
{¶16} “Appellant's first trial resulted in a mistrial on June 24, 2011. Ordinarily, the
interval between the declaration of a mistrial and a retrial does not count toward a
defendant's statutory speedy trial time, as long as the defendant is retried within a
reasonable time. State v. Morris, 2nd Dist. No. 19283, 2003–Ohio–1049, ¶ 17, citing
State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). The holding in Fanning is in
accord with the view that the statutory speedy trial requirements apply only until trial on
the charges involved is commenced, and when that trial terminates in a mistrial the
second trial is merely a continuation of the same trial proceeding. Id. However, only 82 Fairfield County, Case No. 12-CA-124 6
days passed between the declaration of a mistrial on June 24, 2011 and the start of
appellant's new trial on September 13, 2011, leaving only 92 days elapsed of the 270
days within which appellant had to be brought to trial even if the time following the
mistrial is counted.”
{¶17} Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceedings, except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant at the trial,
which resulted in that judgment or conviction, or on an appeal from that judgment. State
v. Cole (1982), 2 Ohio St.3d 112. A defendant is barred from appealing issues which
were raised or could have been raised on direct appeal. State v. Fischer (2012), 128
Ohio St.3d 92.
{¶18} Here, Appellant is barred from again raising the issue of the trial court’s
calculation of the discovery period on direct appeal, as the issue was or could have
been raised on direct appeal when this Court considered Appellant’s assigned error of a
speedy trial violation.
{¶19} The sole assignment of error is overruled. Fairfield County, Case No. 12-CA-124 7
{¶20} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Fairfield County, Case No. 12-CA-124 8
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOHNNIE KASLER : : Defendant-Appellant : Case No. 12-CA-124
For the reason stated in our accompanying Opinion, the September 25, 2012
Judgment Entry entered by the Fairfield County Court of Common Pleas is affirmed.
Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER