[Cite as State v. Penn, 2015-Ohio-3473.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 101982
STATE OF OHIO PLAINTIFF-APPELLANT
vs.
RAHEEM J. PENN DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-582136-A
BEFORE: S. Gallagher, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 27, 2015 ATTORNEYS FOR APPELLANT
Timothy J. McGinty Cuyahoga County Prosecutor By: Anthony Thomas Miranda Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Mark B. Marein Michael I. Marein Marein and Bradley Leader Building 222 526 Superior Avenue Cleveland, OH 44114 SEAN C. GALLAGHER, J.:
{¶1} Appellant state of Ohio appeals the judgment of the trial court that granted
appellee’s motion to dismiss on speedy trial grounds. Upon review, we reverse and
remand the matter to the trial court.
{¶2} On August 14, 2012, appellee Raheem J. Penn was arrested by Beachwood
police as a result of an incident occurring at Beachwood Place Mall. He was found to be
in possession of numerous gift cards and a counterfeit Pennsylvania driver’s license.
{¶3} Within 48 hours of his arrest, Penn was placed on a felony investigative hold
because of the possession of the gift cards. Thereafter, Penn posted bond.
{¶4} As a result of the incident at Beachwood Mall, Penn was charged with
obstruction of official business, a second-degree misdemeanor, in Shaker Heights
Municipal Court on or about August 17, 2012. He pled no contest and entered a
first-offender program.
{¶5} In the days following Penn’s arrest, the investigating officer, Det. Kevin
Owens, swiped the gift cards through a MagTek reader and discovered that a number of
the gift cards had been recoded with “some other unsuspecting person’s actual credit card
number.” Det. Owens contacted the various credit card institutions, verified the credit
card numbers, and made fraud inquiries. The credit card companies were reluctant to
provide cardholder names. Det. Owens checked to see if the credit card companies
would be seeking restitution or become involved as victims in the case. {¶6} Det. Owens learned that most of the credit card numbers coded to the gift
card magnetic strips had been reported as “fraud use” and closed. Nine of the credit card
numbers were considered active and were able to be charged for purchases. Det. Owens
learned that on the day of Penn’s arrest, several of the stolen credit card numbers were
charged or attempted to be charged to make purchases in five stores in Beachwood Place
Mall. Others had been used in Northeast Ohio. Penn was positively identified by a
cashier in a photo lineup administered on or about September 13, 2012. The final entry
on the investigative report, dated September 14, 2012, states as follows: “The case will be
submitted for review by prosecutors regarding charging Penn for his purchases and
attempted purchases using gift cards recoded with stolen credit card numbers.” Det.
Owens testified that as of September 14, 2012, which was 30 days following Penn’s
arrest, he had verified that the gift cards were fraudulent and had actually been used to
make purchases.
{¶7} Subsequently, in April and May 2013, the Beachwood police received
verification letters from the credit card institutions Det. Owens had contacted. These
letters from the credit card institutions verified that the gift cards confiscated from Penn
had stolen credit data recoded on them.
{¶8} Det. Michael McFadden, who was assigned to the case after Det. Owens
received a promotion to sergeant, conceded that within 30 days of Penn’s initial arrest on
August 14, 2012, the investigation had resulted in the identification of all of the credit
card institutions whose credit cards were being used as fraudulent by Penn. He further confirmed that a warrant was not issued for Penn’s arrest on charges related to those
credit cards until “500 plus days later[.]”
{¶9} It was not until January 2014 that a warrant was issued for Penn’s arrest for
the charges in this case. He was arrested on January 27, 2014, and indicted on February
10, 2014. The indictment charged Penn with six fifth-degree felony counts of receiving
stolen property, six first-degree misdemeanor counts of petty theft, six first-degree
misdemeanor counts of misuse of credit cards, one fifth-degree felony count of
possessing criminal tools, and one first-degree misdemeanor count of falsification.
{¶10} Penn filed a motion to dismiss on speedy trial grounds and a motion to
dismiss on double jeopardy grounds. Following an evidentiary hearing, the trial court
granted the motion to dismiss on speedy trial grounds. The court stated on the record as
follows:
Based upon the testimony of witnesses, sufficient information was available at the time that the defendant was charged with obstruction that the theft and misuse of credit cards should have been brought in the case as well.
The case was subsequently not indicted for close to two years, I believe. 500-some days.
{¶11} The state of Ohio has appealed the trial court’s decision. Under its sole
assignment of error, the state claims the trial court erred in granting Penn’s motion to
dismiss on speedy trial grounds.
{¶12} Appellate review of a trial court’s decision on a motion to dismiss for a
speedy trial violation involves a mixed question of law and fact. State v. Loder, 8th Dist.
Cuyahoga Nos. 93242 and 93865, 2010-Ohio-3085, ¶ 9. Although we accord due deference to a trial court’s findings of fact if supported by competent, credible evidence,
we must determine independently if the trial court correctly applied the law to the facts of
the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial
claim, we must strictly construe the relevant statutes against the state. Id.
{¶13} Pursuant to R.C. 2945.71(C)(2), a person charged with a felony “[s]hall be
brought to trial within two hundred seventy days after the person’s arrest.” In
considering multiple indictments, the Ohio Supreme Court has held:
“When new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.”
State v. Baker, 78 Ohio St.3d 108, 111, 1997-Ohio-229, 676 N.E.2d 883, quoting State v.
Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Conversely, the Ohio Supreme
Court has held:
In issuing a subsequent indictment, 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 at syllabus. “‘The holding in Baker is disjunctive and specifically sets forth two
scenarios, either of which will reset the speedy-trial timetable for charges arising from a
subsequent indictment.’” State v. Mohamed, 10th Dist. Franklin No. 08AP-960,
2009-Ohio-6658, ¶ 30, quoting State v. Thomas, 4th Dist.
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[Cite as State v. Penn, 2015-Ohio-3473.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 101982
STATE OF OHIO PLAINTIFF-APPELLANT
vs.
RAHEEM J. PENN DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-582136-A
BEFORE: S. Gallagher, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 27, 2015 ATTORNEYS FOR APPELLANT
Timothy J. McGinty Cuyahoga County Prosecutor By: Anthony Thomas Miranda Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Mark B. Marein Michael I. Marein Marein and Bradley Leader Building 222 526 Superior Avenue Cleveland, OH 44114 SEAN C. GALLAGHER, J.:
{¶1} Appellant state of Ohio appeals the judgment of the trial court that granted
appellee’s motion to dismiss on speedy trial grounds. Upon review, we reverse and
remand the matter to the trial court.
{¶2} On August 14, 2012, appellee Raheem J. Penn was arrested by Beachwood
police as a result of an incident occurring at Beachwood Place Mall. He was found to be
in possession of numerous gift cards and a counterfeit Pennsylvania driver’s license.
{¶3} Within 48 hours of his arrest, Penn was placed on a felony investigative hold
because of the possession of the gift cards. Thereafter, Penn posted bond.
{¶4} As a result of the incident at Beachwood Mall, Penn was charged with
obstruction of official business, a second-degree misdemeanor, in Shaker Heights
Municipal Court on or about August 17, 2012. He pled no contest and entered a
first-offender program.
{¶5} In the days following Penn’s arrest, the investigating officer, Det. Kevin
Owens, swiped the gift cards through a MagTek reader and discovered that a number of
the gift cards had been recoded with “some other unsuspecting person’s actual credit card
number.” Det. Owens contacted the various credit card institutions, verified the credit
card numbers, and made fraud inquiries. The credit card companies were reluctant to
provide cardholder names. Det. Owens checked to see if the credit card companies
would be seeking restitution or become involved as victims in the case. {¶6} Det. Owens learned that most of the credit card numbers coded to the gift
card magnetic strips had been reported as “fraud use” and closed. Nine of the credit card
numbers were considered active and were able to be charged for purchases. Det. Owens
learned that on the day of Penn’s arrest, several of the stolen credit card numbers were
charged or attempted to be charged to make purchases in five stores in Beachwood Place
Mall. Others had been used in Northeast Ohio. Penn was positively identified by a
cashier in a photo lineup administered on or about September 13, 2012. The final entry
on the investigative report, dated September 14, 2012, states as follows: “The case will be
submitted for review by prosecutors regarding charging Penn for his purchases and
attempted purchases using gift cards recoded with stolen credit card numbers.” Det.
Owens testified that as of September 14, 2012, which was 30 days following Penn’s
arrest, he had verified that the gift cards were fraudulent and had actually been used to
make purchases.
{¶7} Subsequently, in April and May 2013, the Beachwood police received
verification letters from the credit card institutions Det. Owens had contacted. These
letters from the credit card institutions verified that the gift cards confiscated from Penn
had stolen credit data recoded on them.
{¶8} Det. Michael McFadden, who was assigned to the case after Det. Owens
received a promotion to sergeant, conceded that within 30 days of Penn’s initial arrest on
August 14, 2012, the investigation had resulted in the identification of all of the credit
card institutions whose credit cards were being used as fraudulent by Penn. He further confirmed that a warrant was not issued for Penn’s arrest on charges related to those
credit cards until “500 plus days later[.]”
{¶9} It was not until January 2014 that a warrant was issued for Penn’s arrest for
the charges in this case. He was arrested on January 27, 2014, and indicted on February
10, 2014. The indictment charged Penn with six fifth-degree felony counts of receiving
stolen property, six first-degree misdemeanor counts of petty theft, six first-degree
misdemeanor counts of misuse of credit cards, one fifth-degree felony count of
possessing criminal tools, and one first-degree misdemeanor count of falsification.
{¶10} Penn filed a motion to dismiss on speedy trial grounds and a motion to
dismiss on double jeopardy grounds. Following an evidentiary hearing, the trial court
granted the motion to dismiss on speedy trial grounds. The court stated on the record as
follows:
Based upon the testimony of witnesses, sufficient information was available at the time that the defendant was charged with obstruction that the theft and misuse of credit cards should have been brought in the case as well.
The case was subsequently not indicted for close to two years, I believe. 500-some days.
{¶11} The state of Ohio has appealed the trial court’s decision. Under its sole
assignment of error, the state claims the trial court erred in granting Penn’s motion to
dismiss on speedy trial grounds.
{¶12} Appellate review of a trial court’s decision on a motion to dismiss for a
speedy trial violation involves a mixed question of law and fact. State v. Loder, 8th Dist.
Cuyahoga Nos. 93242 and 93865, 2010-Ohio-3085, ¶ 9. Although we accord due deference to a trial court’s findings of fact if supported by competent, credible evidence,
we must determine independently if the trial court correctly applied the law to the facts of
the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial
claim, we must strictly construe the relevant statutes against the state. Id.
{¶13} Pursuant to R.C. 2945.71(C)(2), a person charged with a felony “[s]hall be
brought to trial within two hundred seventy days after the person’s arrest.” In
considering multiple indictments, the Ohio Supreme Court has held:
“When new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.”
State v. Baker, 78 Ohio St.3d 108, 111, 1997-Ohio-229, 676 N.E.2d 883, quoting State v.
Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Conversely, the Ohio Supreme
Court has held:
In issuing a subsequent indictment, 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 at syllabus. “‘The holding in Baker is disjunctive and specifically sets forth two
scenarios, either of which will reset the speedy-trial timetable for charges arising from a
subsequent indictment.’” State v. Mohamed, 10th Dist. Franklin No. 08AP-960,
2009-Ohio-6658, ¶ 30, quoting State v. Thomas, 4th Dist. Adams No. 06CA825,
2007-Ohio-5340, ¶ 17. “The key questions that must be considered are whether the
additional criminal charges arise from facts different from the original charges, and whether the state knew of these facts at the time of the initial charge.” State v.
Robertson, 8th Dist. Cuyahoga No. 93396, 2010-Ohio-2892, ¶ 18, citing Baker.
{¶14} A review of the record reflects that the municipal charge for obstruction of
official business arose from Penn’s conduct in lying to the police about his identity and
using a fake driver’s license. Although the gift cards were confiscated on the same date,
the charges related thereto arose from distinct facts. Further, although police suspected
fraudulent conduct relating to the gift cards, which resulted in a felony investigative hold
being placed on Penn, their suspicions were not confirmed until a further investigation
was conducted, which was beyond the August 17, 2012 date of the obstruction charge.
{¶15} This case is distinguishable from State v. Williams, 8th Dist. Cuyahoga Nos.
52297 to 52301, 1987 WL 13024 (June 18, 1987), wherein the police arrested a defendant
for possessing one stolen credit card that she attempted to use at a department store.
Upon searching the defendant, the police found two other credit cards bearing another
person’s name in the defendant’s possession that they suspected were stolen. Id. The
defendant was not indicted for possessing the three stolen credit cards until over a year
after her arrest, and she successfully moved to dismiss the indictment for failure to
provide a speedy trial. Id. Under those circumstances, the court found the state arrested
the defendant with knowledge of the additional offenses involving the same facts and
circumstances as the charge for which she was arrested, and the state had a duty to try the
defendant for those offenses within the same speedy- trial time limits. Id. {¶16} Unlike Williams, there was no personal identifying information on the face
of the gift cards found in Penn’s possession and the additional charges arose from facts
different from the original charge. It was not until after Penn was charged with
obstruction of official business that the police determined that many of the confiscated
gift cards were connected with stolen credit card numbers that were used to make
purchases at the mall. The police did not have knowledge of these pertinent facts at the
time of the initial indictment. This situation is similar to traffic-stop cases in which
laboratory drug-testing results that were not known at the time of the original indictment
have been deemed to constitute “additional facts” warranting the triggering of a new
speedy trial clock. See State v. Vasquez, 10th Dist. Franklin No. 13AP-366,
2014-Ohio-224, ¶ 27-41; State v. Brown, 10th Dist. Franklin No. 12AP-292,
2012-Ohio-5903, ¶ 11-13.
{¶17} In this case, the record shows that additional facts, which formed the basis
of the subsequent charges brought in this case, became known upon the ensuing
investigation into the gift cards. Det. Owens obtained a MagTek card reader and
determined that some of the gift cards had been recoded. He contacted the credit card
institutions to determine if the credit cards connected to the gift cards had been stolen.
He also investigated whether the cards were used to make purchases. Det. Owens
testified that within 30 days of Penn’s initial arrest, he verified that the gift cards were
fraudulent. Det. McFadden confirmed that within 30 days of Penn’s initial arrest, the
investigation had resulted in the identification of all of the credit card institutions whose credit cards were being used as fraudulent by Penn. Subsequently, the police obtained
verification letters in April and May 2013.
{¶18} The record reflects that the additional criminal charges that were brought
against Penn arose from facts different from the original charge. Simply put, the
subsequent charges did not arise from facts that related to the original charge but, rather,
involved different facts relating to the gift cards that were confiscated from Penn, which
facts were not known at the time of the initial indictment.
{¶19} Accordingly, the speedy trial clock for the underlying charges herein did not
arise until Penn’s arrest on January 27, 2014, and Penn’s statutory and constitutional
rights to a speedy trial were not violated. We find the trial court erred in dismissing the
case on speedy trial grounds. Appellant’s first assignment of error is sustained.
{¶20} Judgment reversed; case remanded.
It is ordered that appellant recover from appellee costs herein taxed. The
court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
further proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE KATHLEEN ANN KEOUGH, P.J., and EILEEN A. GALLAGHER, J., CONCUR