State v. Phipps
This text of 2024 Ohio 4832 (State v. Phipps) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Phipps, 2024-Ohio-4832.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Appellee, : CASE NOS. CA2024-04-006 CA2024-04-007 : - vs - OPINION : 10/7/2024
JAMES PHIPPS, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case Nos. CRI 20230100 and CRI 20230115
Jess C. Weade, Fayette County Prosecuting Attorney, and Rachel S. Martin, Assistant Prosecuting Attorney, for appellee.
Shannon M. Treynor, for appellant.
PIPER, J.
{¶ 1} Appellant, James Phipps, appeals his convictions in the Fayette County
Court of Common Pleas for two counts of aggravated trafficking in drugs and one count
of engaging in a pattern of corrupt activity. The instant appeal centers on appellant's
claim that his speedy trial rights were violated. Fayette CA2024-04-006 CA2024-04-007
Procedural History
{¶ 2} Appellant was indicted on April 7, 2023, and again on May 5, 2023, for his
participation in a major drug enterprise involving the sale of methamphetamine. Appellant
has been in custody since April 25, 2023.
{¶ 3} The indictments were consolidated, and the trial court set a jury trial date
for June 29, 2023. Appellant retained counsel who filed a motion for a bill of particulars
and demand for discovery on May 15, 2023. On June 23, 2023, appellant filed a motion
to continue, which the trial court granted and rescheduled the trial for August 23, 2023.
On July 17, 2023, the state issued a bill of particulars and provided a response to
appellant's discovery request. Appellant moved for another continuance on July 24, 2023,
and the trial court continued the trial until October 10, 2023.
{¶ 4} On October 2, 2023, appellant filed a motion to dismiss arguing the state
lacked evidence to pursue the case. On October 5, 2023, the parties appeared for a
pretrial hearing where appellant informed the trial court that he intended to fire his trial
counsel. Appellant told the court that he had been talking to an "out of town" lawyer and
that he would hire them in the next few days. Appellant specifically asked the court for a
continuance "until I can get a notice of appearance from uhh . . . my new representation."
The next day, the trial court issued an entry continuing the trial until November 16, 2023.
Within the same entry, the trial court denied appellant's motion to dismiss.
{¶ 5} On October 20, 2023, the trial court noted that appellant had yet to obtain
substitute counsel, so it issued an entry appointing substitute counsel, noting that the trial
date was fast approaching. Appointed counsel moved for continuances in November
2023 and again in January 2024. The trial court ultimately set the matter for a jury trial
beginning on March 14, 2024.
-2- Fayette CA2024-04-006 CA2024-04-007
{¶ 6} On March 12, 2024, appointed counsel filed a motion to withdraw from the
case. Appointed counsel indicated that appellant refused to communicate and had filed
a grievance against her. The trial court denied the motion to withdraw after concluding
that the filing of the grievance was a delay tactic to avoid trial. The trial court stated that
this was the seventh trial date and there was no indication counsel had committed any
legitimate acts of misconduct.
{¶ 7} On March 14, 2024, appellant entered a no contest plea. The trial court
accepted appellant's plea following a full colloquy and found appellant guilty as charged.
The trial court sentenced appellant to a prison term of 25 to 30.5 years. 1 Appellant now
appeals, raising one assignment of error for review.
Appeal
{¶ 8} THE DEFENDANT WAS NOT BROUGHT TO TRIAL WITHIN NINETY
DAYS AS REQUIRED BY O.R.C. § 2945.71.
{¶ 9} In his sole assignment of error, appellant argues that his speedy trial rights
were violated. The Sixth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution guarantee the right to a speedy trial. The statutory
speedy trial provisions set forth in R.C. 2945.71 through 2945.73 are coextensive with the
constitutional speedy trial provisions. State v. Kolle, 2022-Ohio-2459, ¶ 10 (12th Dist.).
{¶ 10} R.C. 2945.71(C)(2) provides that a person charged with a felony must be
brought to trial within 270 days after his or her arrest.2 However, R.C. 2945.72 lists
various reasons why the time to bring a defendant to trial may be tolled, including a
1. Appellant was sentenced to 7 years for aggravated trafficking in drugs, 7 years for engaging in a pattern of corrupt activity, and 11-16.5 years for another count of aggravated tracking in drugs in which appellant was found to be a major drug offender. The trial court ordered the terms to be served consecutively.
2. A defendant may need to be brought to trial sooner, for example, if the "triple count provision" applies. R.C. 2945.71(E); State v. Sanchez, 2006-Ohio-4478, ¶ 7.
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defendant's request for a continuance, and resolution of motions made by the defendant.
Demands for discovery or a bill of particulars are also tolling events. State v. Morren,
2024-Ohio-4528, ¶ 24 (12th Dist.).
{¶ 11} The "burden" of bringing a defendant to trial within the speedy trial period
lies with the state. State v. Cummings, 2024-Ohio-3356, ¶ 14 (12th Dist.). However,
speedy trial provisions are not self-executing. A criminal defendant must file a motion to
dismiss at or before the beginning of trial to assert the right to a speedy trial has been
violated. Id; State v. Trammell, 2017-Ohio-8198, ¶ 28 (12th Dist.). In other words, an
accused must take some affirmative action in order to preserve his rights. Cummings at
¶ 14. "'[T]here can be no denial where there has been no demand.'" Id., quoting Partsch
v. Haskins, 175 Ohio St. 139, 140 (1963). Part of the reason for this is that a speedy trial
claim typically requires the trial court to decide whether certain delays were attributable
to the state or the defendant. By failing to broach the issue with the trial court, the
defendant deprives the court of the opportunity to make those often record-intensive
determinations. State v. Kendrick, 2023-Ohio-1763, ¶ 12 (1st Dist.).
{¶ 12} In the present case, appellant failed to file a motion to dismiss on speedy
trial grounds. While it appears the extensive delays in the actual trial date were directly
attributable to appellant, we need not consider the arguments for the first time on appeal.
Trammel at ¶ 28; Kendrick at ¶ 13. Appellant did not attempt to preserve his right to a
speedy trial, nor did he meet his burden establishing his right to a speedy trial was
violated.
{¶ 13} Moreover, we note appellant makes no attempt to discuss the multiple
tolling events apparent from a review of the record. Appellant's argument relies upon
conclusory assertions that the state did not provide timely discovery. Appellant then
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glosses over multiple tolling events, and simply offers the conclusion that appellant's
speedy trial rights were violated. However, as we have repeatedly stated, an appellant
has the burden of demonstrating error on appeal through an argument that is supported
by citations to legal authority and facts in the record. See App.R.
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