State v. Olmstead

2024 Ohio 3133

• Court: Ohio Court of Appeals
• Decided: August 15, 2024
• Docket: 23-COA-029
• Status: Published

Opinion

[Cite as State v. Olmstead, 2024-Ohio-3133.]

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-029 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Municipal Court, Case No. 23 CRB 00045

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-029 2

Baldwin, J.

{¶1} The appellant, Brandon Olmstead, appeals his conviction and sentence on

charges of violation of a protection order. 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 January 9, 2022, the appellant was charged with Violation of a

Protection Order in violation of R.C. §2919.27(A)(1).

{¶3} On January 18, 2023, the appellant’s attorney withdrew, and his new

attorney filed for a continuance.

{¶4} On February 27, 2023, the appellant filed a Motion for Discharge due to a

speedy trial violation.

{¶5} On March 8, 2023, the State filed its Response.

{¶6} On July 19, 2023, the trial court denied the appellant’s Motion to Discharge.

{¶7} On November 15, 2023, the appellant entered a plea of no contest to

Violation of a Protection Order in violation of R.C. §2919.27(A)(1). The trial court found the

appellant guilty.

{¶8} 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 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 Ashland County, Case No. 23-COA-029 3

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.

{¶9} The appellant’s brief proposes the following potential assignment of error:

{¶10} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION

TO DISCHARGE.”

{¶11} 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

{¶12} This Court addressed a trial court’s decision regarding a motion to dismiss

based upon a violation of the speedy trial provisions involving 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

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 Ashland County, Case No. 23-COA-029 4

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

{¶13} 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.

{¶14} 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.

{¶15} The trial court scheduled the appellant’s initial trial for January 19, 2023,

well within the statutory time parameters.

{¶16} The appellant was charged with Violation of a Protection Order on January

9, 2023. The appellant filed a continuance on January 18, 2023, again tolling the speedy

trial time until the next trial date, March 16, 2023. Ashland County, Case No. 23-COA-029 5

{¶17} 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;

{¶18} 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.

{¶19} Accordingly, we agree that the appellant’s proposed assignment of error is

without merit. Ashland County, Case No. 23-COA-029 6

CONCLUSION

{¶20} 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.