State v. Taylor

2020 Ohio 3481

Opinion

[Cite as State v. Taylor, 2020-Ohio-3481.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28463 : v. : Trial Court Case No. 2018-CR-4239/1 : JERMICHAEL TAYLOR : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 26th day of June, 2020.

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Jermichael Taylor appeals his conviction for the

following offenses: Count I: felonious assault (deadly weapon), in violation of R.C.

2903.11(A)(2), a felony of the second degree; Count II: felonious assault (serious physical

harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree; Count III: burglary

(habitation/person present or likely to be present), in violation of R.C. 2911.12(A)(2), a

felony of the second degree; and Count IV: having a weapon while under disability (prior

offense of violence), in violation of R.C. 2923.13(A)(2), a felony of the third degree.

Counts I, II, and IV were each accompanied by a mandatory three-year firearm

specification and a specification that the offender displayed, brandished, indicated

possession of, or used a firearm and had a prior conviction. Taylor filed a timely notice

of appeal on July 15, 2019.

{¶ 2} The incidents which formed the basis for charges against Taylor occurred on

the night of November 26, 2017, when Taylor and his friend, Jamariyo Drane, met with

Marqisa Goode and her friend, Davon Williams. 1 Goode testified that she was not

familiar with Drane, but she knew Taylor from high school. After meeting at around 10:00

p.m., Goode transported the men in her own vehicle, a silver Chevrolet Monte Carlo, to a

bar called Club Plush, where they all drank alcohol. Goode testified that after they had

been at the club for a while, a fight broke out, and they decided to leave. Goode, who

was intoxicated at this point, testified that she handed her car keys to Davon and told him

to meet her at her vehicle.

{¶ 3} Goode testified that, when she reached her vehicle, she observed that Drane

1 More than one participant in the events at issue had the last name Williams, so we will refer to them by their first names. -3-

had taken the car keys from Davon and was sitting in the driver’s seat. Davon, who was

also intoxicated, was seated in the backseat, and Taylor was seated in the front

passenger seat. Goode and Drane briefly argued over the car keys before Drane exited

the vehicle and “slammed” Goode to the ground. Drane then got back into the vehicle

and drove away with Taylor and Davon in tow. Goode testified that she immediately

walked up to a nearby Montgomery County Sheriff’s Deputy and reported that her car had

been stolen. Because Drane could still be seen driving away at this point, the deputy

drove off in pursuit of the stolen vehicle.

{¶ 4} The record further establishes that, while these events were taking place at

Club Plush, Shavoria Williams was driving to her residence after dropping off an

acquaintance at another location. Shavoria testified that, as she was traveling on

Siebenthaler Avenue, she came to a stop at a red light. Shavoria testified that she then

saw “flashes” and heard what she knew to be gunshots coming from a vehicle located

behind her, a silver Monte Carlo containing multiple individuals. Shavoria testified that

she ran the red light because she was being shot at and eventually turned left onto Arlene

Avenue in order to escape the shooters. At this point, Shavoria stopped her vehicle and

turned on her interior light in an effort to show the individuals shooting at her that she was

not who they thought. Shavoria testified, however, that after the shooters passed her in

the Monte Carlo, they performed a U-turn and drove back toward her. When she saw

the shooters coming back, Shavoria quickly turned down another side street; she then

stopped, exited her vehicle, and continued on foot. While she was walking, Shavoria

called 911 to report the car chase and shooting. Shortly thereafter, police and

emergency personnel arrived at the scene, and she was transported to Miami Valley -4-

Hospital. After an examination, it was found that Shavoria had been shot in the leg.

{¶ 5} Shortly thereafter, Drane crashed Goode’s vehicle into a garage on Arlene

Avenue. Davon, who had been sitting in the back seat, exited the vehicle through the

driver’s side window only to be tackled by the owner of the residence, Darrell Daniel.

Daniel testified that he observed another individual climb out of the passenger side of the

vehicle, jump over the hood of the vehicle, and flee the scene. Daniel held Davon down

on the ground until the police arrived and took him into custody. Taylor and Drane were

both able to flee the scene, but both men had suffered significant injuries in the crash.

During a later search of the vehicle by police, a .380 semi-automatic handgun was found

with an empty magazine. Notably, Goode testified that Drane later offered to pay for the

damage done to her vehicle in exchange for her not testifying against him.

{¶ 6} In an attempt to clean themselves up after the car accident and evade the

police, Taylor and Drane broke into the residence of 70-year-old Leslie Cox. Taylor and

Drane used Cox’s towels to clean their injuries. Evidence also indicated that Taylor

vomited while inside Cox’s residence, and one of Taylor’s boots was found under Cox’s

bed. Eventually, the two men forced Cox to call Drane’s mother and Taylor’s girlfriend

on her cellphone. Cox then called her granddaughter, who came to Cox’s residence,

Cox testified that her granddaughter called the police, at which point Taylor and Drane

left Cox’s residence.

{¶ 7} Taylor’s girlfriend, Angela Lovett, picked him up near Cox’s house and took

him to his mother’s house. In light of the severity of his injuries, an ambulance was

called, and Taylor was transported to the hospital. After his release from the hospital,

Taylor was advised to remain at a rehabilitation center, but he left against his doctor’s -5-

orders and disappeared for approximately eight months; he was eventually taken into

custody on June 25, 2018. After being informed of his rights and interviewed by Dayton

Police Detective Joshua Campbell, Taylor claimed that he had been with his girlfriend the

entire time and had not been involved in the shooting.

{¶ 8} On November 20, 2018, Taylor was indicted for the following offenses: Count

I: felonious assault (deadly weapon); Count II: felonious assault (serious physical harm);

Count III: burglary; and Count IV: having a weapon while under disability. As previously

stated, Counts I, II, and IV were each accompanied by a mandatory three-year firearm

specifications and by a second specification that the offender displayed, brandished,

indicated possession of, or used a firearm and had a prior conviction with a firearm

specification. Drane was a co-defendant in the case (Montgomery C.P. No. 2018 CR

4239/2.).

{¶ 9} Because Taylor had been imprisoned for a violation of post-release control

stemming from a prior conviction, he was transported from Lebanon Correctional

Institution to the Montgomery County Common Pleas Court for his arraignment on

February 5, 2019.2 At his arraignment, Taylor stood mute, and the trial court entered a

plea of not guilty on his behalf. On February 19, 2019, Taylor requested a continuance

for medical reasons, and the trial court continued the case until March 6, 2019. At a

hearing on March 6, 2019, the trial court scheduled a trial date for June 3, 2019. Based

upon a discussion held with counsel during the hearing, the trial court issued an “Order

Setting Trial Date Beyond Statutory Period.”3

2 Taylor had been appointed counsel by the trial court on January 22, 2019. 3 The trial court issued the order on March 29, 2019. -6-

{¶ 10} On March 20, 2019, Taylor was inadvertently brought before the trial court

since his original pretrial hearing had been scheduled for that day. Taylor appeared

before the court without counsel; the trial court simply informed him again that a final

pretrial hearing had been scheduled for May 2019, and the jury trial was scheduled to

begin on June 3, 2019.

{¶ 11} On May 30, 2019, a hearing was held before the trial court to address

certain pretrial motions and evidentiary issues. Specifically, the trial court addressed two

motions filed by Taylor’s co-defendant, Drane: a motion to sever and a motion to exclude

DNA evidence. At the hearing, Taylor orally moved to join in both of the motions filed by

Drane. The trial court granted the motion to sever Drane’s and Taylor’s cases. With

respect to the DNA evidence, the trial court held that the DNA evidence would not be

admissible at trial against Taylor because the State had failed to disclose the reports to

defense counsel in a timely manner.

{¶ 12} On May 31, 2019, only three days before the trial was scheduled to begin,

defense counsel made an oral motion to have Taylor evaluated for competency. We

note that the driving force for Taylor’s request for a competency evaluation was that he

purportedly did not understand his counsel’s explanation with respect to his speedy trial

rights. After conducting a hearing and questioning Taylor, the trial court overruled the

motion for a competency evaluation. The trial court also stated that it believed Taylor’s

right to a speedy trial had not been violated. Notably, Taylor never filed a formal motion

to dismiss based on a speedy trial violation. On June 2, 2019, Taylor filed a

memorandum in support of his oral motion for a competency evaluation, which was also

overruled by the trial court. -7-

{¶ 13} Before the jury was selected, Taylor waived his right to a jury trial with

respect to the having a weapon while under disability charge (Count IV) and its

specifications, as well as the second specification to Counts I and II. 4 The jury trial

regarding the remaining counts took place from June 3-6, 2019. The jury found Taylor

guilty on all counts. In an entry filed on June 13, 2019, the trial court also found Taylor

guilty of Count IV, having a weapon while under disability, and the specifications.

{¶ 14} At sentencing on June 19, 2019, the trial court merged the two felonious

assault convictions, and the State elected to proceed with sentencing on Count II,

felonious assault (serious physical harm). The trial court also merged the firearm

specifications attached to Count II, with the State electing to proceed with sentencing on

the second specification. The trial court also merged the firearm specifications attached

to Count IV, having a weapon while under disability, with the State electing to proceed

with sentencing on the second specification. Thereafter, Taylor was sentenced as

follows: eight years for felonious assault, eight years for burglary, and three years for

having a weapon while under disability. Additionally, Taylor was sentenced to 54 months

in prison for the firearm specification to Count II and an additional 54 months for the

firearm specification to Count IV. The trial court ordered all of the sentences to be served

consecutively, for an aggregate sentence of 28 years in prison. Taylor was awarded 122

days of jail time credit.

{¶ 15} It is from this judgment that Taylor now appeals.

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION

4 As previously stated, the second specification to Counts I, II, and IV stated that the offender displayed, brandished, indicated possession of, or used a firearm and had a prior conviction. -8-

TO DISMISS A JUROR DUE TO HIS POSSIBLE PRIOR KNOWLEDGE OF

THE CASE AT HAND.

{¶ 16} In his first assignment, Taylor contends that the trial court erred when it

refused to remove Juror #10 from the jury, based on the fact that he “possibly had

information that came from outside the trial.”

{¶ 17} “Crim.R. 24(G) and R.C. 2945.29 address removal of jurors during criminal

trials.” State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, ¶ 45. R.C.

2945.29 permits a court to replace a juror with an alternate “[i]f, before the conclusion of

the trial, a juror becomes sick, or for other reason is unable to perform his duty[.]”

Crim.R. 24(G)(1) similarly provides that alternate jurors “shall replace jurors who, prior to

the time the jury retires to consider its verdict, become or are found to be unable or

disqualified to perform their duties.” Moreover, “[a]s of 2008, Crim.R. 24(G)(1) allows the

court to replace a juror after deliberations have begun.” State v. Hunt, 10th Dist. Franklin

No. 12AP-103, 2013-Ohio-5326, ¶ 71. “However, ‘[i]f an alternate replaces a juror after

deliberations have begun, the court must instruct the jury to begin its deliberations anew.’

” Id., quoting Crim.R. 24(G)(1).

{¶ 18} “A trial judge is empowered to exercise ‘sound discretion to remove a juror

and replace him with an alternate juror whenever facts are presented which convince the

trial judge that the juror's ability to perform his duty is impaired.’ ” State v. Brown, 2d Dist.

Montgomery No. 24541, 2012-Ohio-1848, ¶ 46, quoting State v. Hopkins, 27 Ohio App.3d

196, 198, 500 N.E.2d 323 (11th Dist.1985). (Other citations omitted.) “Absent a record

showing that the court abused that discretion which resulted in prejudice to the defense,

the regularity of the proceedings is presumed.” Id., citing Beach v. Sweeney, 167 Ohio -9-

St. 477, 150 N.E.2d 42 (1958). (Other citation omitted.)

{¶ 19} “A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135

Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be expected that most

instances of abuse of discretion will result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). “A decision is unreasonable if there is no sound reasoning process that would

support that decision.” Id.

{¶ 20} In the instant case, during jury selection, Juror #10 stated that he worked

as an information technologies specialist and sometimes retrieved video footage of

criminal acts and provided the footage to the Dayton Police Department. When Juror

#10 was questioned by the State, the following exchange occurred:

Juror #10: * * * Yes. Yes, I assist sometimes retrieving video from crimes.

The State: Okay.

A: And we may discuss the, you know. I’m too busy doing IT work to really

follow all of the cases that the department has, but you know, I work with

Detective Statzer and assist him.

Q: Okay.

A: You know, when he needs IT help. But…..

Q: Okay. Based on the fact you are assisting with certain investigations,

let me ask you this. Did you assist in any investigation that you can recall

that stems from the date of November 26th of 2017? -10-

A: No.

Tr. 76-77. When voir dire was concluded, Juror #10 was chosen to serve on the jury.

{¶ 21} After three of the State’s witnesses had testified, Juror #10 informed the

bailiff that he believed that he had assisted with retrieving a video taken on the night of

the shooting. Thereafter, the following exchange with Juror #10 occurred outside the

presence of the rest of the jury:

The Court: All right. And our deputy’s here, and counselor here

[sic], and Mr. Taylor’s here, and our State’s rep is here, and my staff is here.

* * * And my understanding, * * * Juror #10, is that you had occasion during

the break to indicate to the bailiff something along the lines that you are

wondering, I gather, whether or not it might’ve been you that – I’ll use the

phrase – pulled the 911 call, or calls that we’ve heard in this case.

Juror #10: No, sir. The video – there may be video of the shooting

at the intersection of the car that drove by. I assisted Dayton Police

Department. I don’t know. The car looks familiar, but I pull so much video.

But seeing a picture of the car, it might be that.

The Court: Let me ask – let me ask State’s counsel. Do we have

any video at the intersection or elsewhere that might have memorialized the

shooting, or shootings at issue here?

The State: We do not.

The Court: Okay.

The State: That was part of the sheriff’s investigation. Dayton was

the crash and the burglary. And that was part of the sheriff’s investigation. -11-

And Detective Statzer says, * * * no, he’s unaware of anything. He doesn’t

have anything. I know we don’t have anything. There’s been no video.

It may be a different incident that has occurred that may sound similar, but

not in this case, Your Honor.

The Court: All right? So that makes that easy, in that sense. Now,

let me ask you the next question. I would assume – but you know, when I

assume things, I get in trouble –

Juror #10: Yes, sir.

The Court: -- like assuming I have my wife’s permission to do

something. That generally gets me in trouble because to hear her tell it, I

never have permission to do anything. But here, I assume that – first of all,

you’re to be commended for bringing your concern to the bailiff. That’s

exactly what I want you to do. So thank you very much.

Juror #10: Okay.

The Court: I know the lawyers feel that way, and certainly Mr. Taylor

does as well. We don’t need to do that – suffer in silence. And we need

to do just what you did, okay? Secondly, I assume that now having been

given this assurance by State’s counsel and the detective that no, there is

no video that was pulled by you or anybody else that they would have been

able to harvest.

And I’m pretty sure they were looking, because that’s part of what

they do. But there is no such video here. So, does that assuage any

concerns that you have about whether or not you can continue to serve on -12-

this jury?

Juror #10: Yeah, it’s that – I just wanted to make sure that there was

no conflict.

The Court: Well, I don’t perceive one. Do the lawyers think, in any

way, this is a conflict for [Juror #10]? I don’t see it as one personally.

The State: I don’t at this point. If we had a video, I could understand,

but we don’t have a video of such. So no, the only thing we have to present

in the form of any audio or video are these 911 calls. So –

The Court: Right, and no, you had no – you had no involvement in

harvesting those 911 calls.

Juror #10: That’s a –

The Court: Is that fair?

A: Yes, sir. That’s a –

A: -- different department that takes those, not here.

Q: Sure. So would – do you agree with me that, now that we’ve

resolved this, we’ve answered your questions, that you feel perfectly

comfortable continuing to serve on this jury?

A: Yes, sir.

Q: Do you continue to believe, as you’ve believed all along that you

don’t favor one side or the other? You don’t favor the State of Ohio, nor do

you favor Mr. Taylor at this point? -13-

A: Yes.

Q: Is that fair to say?

Q: Can you think of any reason at all that you shouldn’t continue on

A: No, sir.

(Emphasis added.) Tr. 223-226.

{¶ 22} After Juror #10 returned to the jury room, the following exchange occurred

between defense counsel and the trial court:

Defense Counsel: * * * All right, Your Honor, my client wishes to

have [Juror #10] excused from the jury.

Trial Court: Why?

A: He’s concerned that he may have seen some video that is similar

to this situation and that may taint his perceptions, taint his judgment about

what happened, or did not happen in this case.

Q: Well, I understand your concern, Mr. Taylor. I don’t think it’s well-

founded at all. The detective has flat-out – the detective – the witness has

flat-out said, based now on the fact that the State says there’s no such video

of this incident, they looked for the – whether they were, if they found it, they

damn sure were going to use it. But they didn’t find it, doesn’t exist.

This man, having been given that assurance, indicated it was not he

that had anything to do with pulling or harvesting the 911 calls, and that

there further, upon inquiry from the Court, he has given the Court no -14-

concern at all that he is in any way biased against anybody in this case,

including you.

And the one thing I know about him, he might be the one honest man

in this whole trial. And that is that he came forward with a concern that he

had, and as far as I’m concerned, we put it to rest. So I note your objection;

it’s overruled. * * *

Tr. 227-228.

{¶ 23} As previously stated, after three of the State’s witnesses testified, Juror #10

informed the bailiff that there may have been a conflict because he might have pulled

surveillance video of the shooting in the instant case. However, both the prosecutor and

the lead detective informed the trial court that no video of the shooting existed Taylor’s

case. Therefore, Juror #10 could not have pulled any video surveillance related to the

instant case. Furthermore, upon inquiry by the trial court, Juror #10 agreed that he was

perfectly capable of continuing to serve on the jury and held no bias against either party.

{¶ 24} Taylor argues that Juror #10 “may have seen some video that is similar to

this situation and that may taint his perceptions, taint his judgment about what happened,

or did not happen in this case.” Taylor’s counsel, however, did not ask Juror #10 a single

question when invited to do so by the trial court. Hence, this argument is wholly

speculative. By all accounts, Juror #10’s responses to the trial court’s inquiries

established that he was not biased against either party and was able to impartially weigh

Taylor’s guilt or innocence based upon the evidence submitted at trial. To argue that

Juror #10’s perceptions were somehow tainted by viewing video surveillance in a

separate but similar case simply finds no support in the record. -15-

{¶ 25} In support of his argument, Taylor cites City of Cleveland Heights v. Corlew,

8th Dist. Cuyahoga No. 64845, 1994 WL 144532 (April 21, 1994). Corlew, however,

involved a claim of juror misconduct because several of the jurors traveled to the scene

of a car accident in a vehicular homicide case. Corlew held that the voir dire of the jurors

established that they had not gained any new information about the case by the viewing

the scene of the accident; thus, there was no juror misconduct. Unlike the decision in

Corlew, the instant case does not involve a suggestion of juror misconduct. The trial

court questioned Juror #10 and reasonably concluded that he did not view any video

surveillance involved with Taylor’s case because there was none to view. Corlew is

further distinguishable from the instant case because Juror #10 did nothing to investigate,

such as traveling to scene of the shooting.

{¶ 26} Significantly, Juror #10 informed the State during voir dire that as part of his

job duties, he routinely pulled surveillance videos for Dayton Police detectives. If Taylor

had been concerned about Juror #10’s potential for bias based on similar cases, he could

have so inquired or used a peremptory challenge to remove Juror #10, but he did not.

Here, there was no misconduct on the part of Juror #10, and the record establishes that

Juror #10 did not view any surveillance footage which could have possibly compromised

his ability to fairly and impartially weigh the merits of this case. Rather, the record

indicates that Juror #10 was qualified to continue service on the jury and held no bias

against either party. Thus, the trial court did not abuse its discretion when it overruled

Taylor’s objection and allowed Juror #10 to remain on the jury for the duration of the trial.

{¶ 27} Taylor’s first assignment of error is overruled.

{¶ 28} Taylor’s second assignment of error is as follows: -16-

THE TRIAL COURT ERRED WHEN IT VIOLATED THE APPELLANT’S

RIGHT TO A SPEEDY TRIAL.

{¶ 29} In his second assignment, Taylor argues that the trial court erred when it

violated his right to a speedy trial.

{¶ 30} As this Court has noted:

The right to a speedy trial is guaranteed by the United States and

Ohio Constitutions. State v. Adams (1989), 43 Ohio St.3d 67, 68, 538

N.E.2d 1025. The speedy trial provisions of the Ohio statutes must be

strictly construed against the State. Brecksville v. Cook (1996), 75 Ohio

St.3d 53, 55, 661 N.E.2d 706. A defendant can establish a prima facie

case for a speedy trial violation by demonstrating that the trial was held past

the time limit set by statute for the crime with which the defendant is

charged. State v. Price (1997), 122 Ohio App.3d 65, 68, 701 N.E.2d 41. If

the defendant can make this showing, the burden shifts to the State to

establish that some exception[s] applied to toll the time and to make the trial

timely. Id. If the State does not meet its burden, the defendant must be

discharged. R.C. § 2945.73. See, also, State v. Coatoam (1975), 45 Ohio

App.2d 183, 185-186, 341 N.E.2d 635.

State v. Gray, 2d Dist. Montgomery No. 20980, 2007-Ohio-5449, ¶ 15.

{¶ 31} Initially, we note that Taylor never filed a motion to dismiss based upon an

alleged speedy trial violation. The only time that an alleged speedy trial violation was

discussed was three days before Taylor’s trial was scheduled to begin. At his

competency hearing on May 31, 2019, in response to inquiries from the trial court -17-

regarding his understanding of the court’s pronouncements, Taylor stated that he

believed that the trial court had violated his right to speedy trial. However, Taylor never

filed a motion to dismiss on this basis, nor did the trial court make a formal ruling with

respect to his speedy trial rights. Since the hearing related to Taylor’s request for a

competency evaluation, the issues raised at that time were confined to Taylor’s overall

competency and understanding of his rights.

{¶ 32} An appellant's “failure to file a motion to dismiss on speedy trial grounds

prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue on

appeal.” State v. Humphrey, 2d Dist. Clark No. 02-CA-25, 2003-Ohio-2825, ¶ 17, citing

State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 37.

{¶ 33} In any event, the record establishes that Taylor was brought to trial within

the required time period. R.C. 2945.71 provides that “[a] person against whom a charge

of felony is pending * * * [s]hall be brought to trial within two hundred seventy days after

the person's arrest.” R.C. 2945.71(C)(2). This 270-day period may be extended for one

or more of the reasons listed in R.C. 2945.72(A)-(I). Absent any such extension, failure

to bring a defendant to trial within the 270-day period subjects the case to dismissal upon

motion of the defendant. R.C. 2945.73(B). “When an accused is discharged pursuant to

[R.C. 2945.73(B)] * * *, such discharge is a bar to any further criminal proceedings against

[the defendant] based on the same conduct.” R.C. 2945.73(D). The “triple-count”

provision set forth in R.C. 2945.71(E) reduces to 90 days the time for bringing to trial an

accused who is incarcerated the entire time preceding trial. See also State v. Dankworth,

172 Ohio App.3d 159, 2007-Ohio-2588, 873 N.E .2d 902, ¶ 31 (2d Dist.).

{¶ 34} However, the rule is that triple counting applies “only when the defendant is -18-

being held in jail solely on the pending charge.” State v. Sanchez, 110 Ohio St.3d 274,

2006-Ohio-4478, 853 N.E.2d 283, 286, ¶ 7; see also State v. MacDonald, 48 Ohio St.2d

66, 357 N.E.2d 40 (1976), paragraph one of the syllabus (construing former R.C.

2945.71(D), now (E)). Therefore, the triple-count provision does not apply when a

defendant is being held in custody on other charges. Id. Nor does it apply when the

accused is being held on a parole- or probation-violation holder. State v. Brown, 64 Ohio

St.3d 476, 479, 597 N.E.2d 97 (1992) (parole-violation holder); State v. Martin, 56 Ohio

St.2d 207, 211, 383 N.E.2d 585 (1978) (probation-violation holder). Additionally, the

triple-count provision does not apply when the accused is simultaneously serving a prison

sentence for a separate offense. State v. Steele, 8th Dist. Cuyahoga App. Nos. 101139,

101140, 2014-Ohio-5431, ¶ 19.

{¶ 35} Speedy trial time may be waived by the defendant or tolled by operation of

law, namely R.C. 2945.72. State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823,

887 N.E.2d 319, ¶ 11. The tolling of speedy trial time under R.C. 2945.72 is automatic

and extends the speedy trial time “whether or not a waiver has been executed.” Id. at

¶ 18. For instance, time may be tolled for “[t]he period of any continuance granted on

the accused's own motion, and the period of any reasonable continuance granted other

than upon the accused's own motion.” R.C. 2945.72(H). Unlike a waiver, which serves

the defendant's interests in obtaining additional time, “the automatic tolling of time * * *

operates to protect the state's ability to adequately prosecute persons who have

committed crimes.” Id. at ¶ 21.

{¶ 36} The record establishes that, at the time Taylor committed the instant

offenses, he was on post-release control (PCR) supervision in a separate case. Taylor -19-

was not arrested by police initially because of the severe nature of the injuries he suffered

in the car accident after the shooting on November 26, 2017. As previously stated,

Taylor left treatment early against medical advice and was not located until approximately

eight months later. When he was located, however, the record indicates that Taylor was

taken into custody on the parole warrant in the separate case, not the arrest warrant

issued in this case. Thereafter, Taylor attended a parole violation hearing, his PCR was

revoked, and he was sent to prison.

{¶ 37} During the time he was serving a prison sentence for the PCR violation,

Taylor was indicted in this case and transferred to the Montgomery County Jail. We note

that the warrant for removal from prison stated, “[t]his is a continuing order and shall have

continuing effect until the termination of all proceedings in this case.” Accordingly,

because Taylor was serving a prison sentence stemming from a separate case at the

same time he was being held in custody in the instant case, he was not entitled to the

triple-count provision. Absent any tolling events, the State therefore had 270 days to

bring Taylor to trial. The record establishes that only 119 days passed between the day

Taylor was booked into the Montgomery County Jail (February 4, 2019) and when his trial

began (June 3, 2019), and thus there was no speedy trial violation.

{¶ 38} Moreover, on February 19, 2019, Taylor filed a motion to continue a hearing

originally scheduled for February 20, 2019, for “medical reasons.” In an entry filed on

February 20, 2019, the trial court granted the continuance and rescheduled the hearing

for March 6, 2019. Permissible reasons for extending the trial date include “[a]ny period

of delay necessitated by reason of a * * * motion * * * made or instituted by the accused”

and “[t]he period of any continuance granted on the accused's own motion, and the period -20-

of any reasonable continuance granted other than upon the accused's own motion[.]” R.C.

2945.72(E) and (H). Thus, Taylor’s motion for continuance tolled speedy trial time from

February 19, 2019, until March 6, 2019. Where an accused requests a continuance of

a pretrial hearing, the request tolls the statutory speedy trial period from the date of the

request until the date of the rescheduled hearing. See State v. Wilson, 2d Dist. Clark No.

2018-CA-2, 2020-Ohio-2962, ¶ 32-33.

{¶ 39} Furthermore, prior to trial, Taylor orally moved to join in two motions filed by

his co-defendant, a motion to sever filed on May 21, 2019, and a motion to exclude

evidence filed on May 28, 2019. As previously stated, on May 30, 2019, the trial court

held a hearing on these motions and granted both motions as they related to Taylor.

R.C. 2945.72(H) permits the speedy-trial clock to be tolled for the “period of any

continuance granted on the accused's own motion, and the period of any reasonable

continuance granted other than upon the accused's own motion.” While the co-

defendant’s motions did not automatically toll Taylor’s speedy trial time, the fact that he

joined his co-defendant with respect to both motions tolled Taylor’s speedy trial time from

May 21, 2019, until May 30, 2019. See State v. Smith, 2d Dist. Clark No. 2003-CA-93,

2004-Ohio-6062, ¶ 20 (a motion by a co-defendant may operate to extend speedy trial

time for another); but see State v. Ramey, 2d Dist. Clark No. 2010-CA-19, 2012-Ohio-

6187 (the record did not support a finding that co-defendant's motion to suppress acted

to toll defendant's speedy trial time because the motion did not relate to or affect

defendant in any way).

{¶ 40} Additionally, the time within which an accused must be brought to trial may

be tolled by any period during which the accused’s mental competence to stand trial is -21-

being determined. R.C. 2945.72(B). On May 31, 2019, Taylor made an oral motion for

a competency evaluation, only three day before the trial was scheduled to begin. The

trial court held a hearing during which it found Taylor competent to stand trial. On June

2, 2019, Taylor filed a written motion for a competency evaluation, and the trial court filed

a written decision overruling Taylor’s motion for a competency evaluation on June 3.

Accordingly, Taylor’s speedy trial time was also tolled from May 31 until June 3, 2019.

{¶ 41} Lastly, during the hearing on March 6, 2019, the trial court set forth its

explanation on the record for scheduling the trial date for June 3, 2019. As is apparent

from the record, the trial court and the parties erroneously believed that the speedy trial

deadline was May 10, 2019. Perhaps, this was the source of Taylor’s own confusion.

During the hearing the trial court stated the following:

Trial Court: The Court began by throwing out some trial dates to the

parties. We threw out, I think, a date of April the 22nd. I think that date –

I don’t mean to speak for Mr. Lennen [Counsel for Co-Defendant] – I think

Mr. Gramza [Counsel for Taylor] indicated that date would be acceptable to

him.

I think State’s counsel indicated that would not be acceptable to

them, given their schedules and given conflicts – trials already scheduled in

other courts in this courthouse.

I threw out the date – I didn’t, the bailiff did – of April the 29th. That

was acceptable to State’s counsel. Mr. Gramza indicated that date was –

would not work for him, that he had a previously scheduled matter in another

court. -22-

We then talked about May the 13th. That date was unacceptable to

State’s counsel, owing to a conflict in another court.

We then threw out a date of May the 20th. Mr. Gramza indicated

again that date would not work for him, owing to his conflicts on a previously

scheduled matter in another court.

And that’s what happens when you’ve got multiple lawyers – good

lawyers that represent any number of people and invariably, conflicts arise.

We finally reached a date that works for everybody, and that was

June the 3rd. That, on its face, lies outside the May 10th speedy trial

calculation, as I understand it for Mr. Taylor; but nevertheless, certainly is

within a reasonable earshot, shall we say of that date. It’s also the only

date that works for all the lawyers, including Mr. Gramza, Mr. Taylor’s

counsel; and that is the date, then, that the Court selects.

The Court believes, and I think the statute bears this out regarding

speedy trial, that when the Court gets into trouble, it’s when the speedy trial

comes and goes and then a date is selected outside the speedy trial date.

And I think when that happens, we all understand the implications of that.

Here, we had dates that would have worked inside speedy trial, but not for

all the lawyers. The Court has discretion to set this matter at a time that

works for all the lawyers and takes into consideration Mr. Taylor’s speedy

trial rights.

I have selected, then, the date of June the 3rd for the reasons that

I’ve indicated. I believe that comports with the Court’s obligations under -23-

the laws of the State of Ohio and the Revised Code.

Tr., March 6, 2019 Hearing, p. 4-5.

{¶ 42} In State v. Ramey, 2012-Ohio-6187, 986 N.E.2d 462 (2d Dist.), we noted

that to satisfy the reasonableness standard, “ ‘when sua sponte granting a continuance

under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons

therefor by journal entry prior to the expiration of the time limits prescribed in R.C. 2945.71

for bringing a defendant to trial.’ ” (Italics sic.) Id. at ¶ 12, quoting State v. Mincy, 2 Ohio

St.3d 6, 9, 441 N.E.2d 571 (1982). Consistent with this standard, the trial court stated

its reasons during the hearing and also entered its reasons in an entry filed on March 29,

2019. “The reasonableness of a continuance is determined by examining the purpose

and length of the continuance.” (Citation omitted.) State v. Gavin, 2d Dist. Montgomery

Nos. 24284, 24285, 2011-Ohio-4665, ¶ 34. Significantly, the record establishes that

both Taylor and his counsel were present at the hearing on March 6, 2019.

{¶ 43} “When defense counsel merely acquiesces to a trial date set by the court

but does not affirmatively lodge a motion for a continuance, the continuance is entered

‘other than upon the accused's own motion’ and, under the second clause of R.C.

2945.72(H), must be reasonable.” Ramey at ¶ 16, citing State v. Davis, 46 Ohio St.2d

444, 449, 349 N.E.2d 315 (1976). Here, Taylor’s defense counsel did not “merely

acquiesce” to the trial date of June 3, 2019, but rather assisted in selecting it based upon

conflicts in his work schedule. We also find the explanation provided by the trial court

regarding its decision to ostensibly schedule the trial outside of the speedy trial limit to be

reasonable and supported by the record. Therefore, the record establishes that the trial

court complied with R.C. 2945.72(H) when it decided to toll Taylor’s speedy trial time until -24-

June 3, 2019.

{¶ 44} Taylor’s second assignment of error is overruled.

{¶ 45} Taylor’s third and final assignment of error is as follows:

THE TRIAL COURT ERRED IN NOT PROVIDING THE DEFENDANT A

FORMAL COMPETENCY HEARING AND DEEMING HIM COMPETENT

TO STAND TRIAL.

{¶ 46} In his final assignment, Taylor contends that the trial court erred when it

found him to competent to stand trial without first providing him a formal competency

hearing. In the alternative, Taylor argues that if we find that the trial court did conduct a

proper hearing regarding his motion for a competency evaluation, the trial court still erred

in finding Taylor competent as he provided evidence that he did not understand “essential

parts of the case or the proceedings, nor could he provide assistance to his attorney.”

Appellant’s Brief, p. 10.

{¶ 47} “Fundamental principles of due process require that a criminal defendant

who is legally incompetent shall not be subjected to trial.” State v. Berry, 72 Ohio St.3d

354, 359, 650 N.E.2d 433 (1995). If a defendant “lacks the capacity to understand the

nature and object of the proceedings against him, to consult with counsel, and to assist

in preparing his defense[,]” he may not stand trial. State v. Skatzes, 104 Ohio St.3d 195,

2004-Ohio-6391, 819 N.E.2d 215, ¶ 155.

{¶ 48} This due process right has been codified at R.C. 2945.37, which provides

in pertinent part:

B) In a criminal action in a court of common pleas, * * * [the] defense may

raise the issue of the defendant's competence to stand trial. If the issue is -25-

raised before the trial has commenced, the court shall hold a hearing on the

issue as provided in this section. * * *

(C) The court shall conduct the hearing required or authorized under

division (B) of this section within thirty days after the issue is raised, unless

the defendant has been referred for evaluation in which case the court shall

conduct the hearing within ten days after the filing of the report of the

evaluation * * *.

{¶ 49} R.C. 2945.371 provides that if the issue of a defendant's competence to

stand trial is raised under R.C. 2945.37, the court may order one or more, but not more

than three, evaluations of the defendant's present mental condition. Further, R.C.

2945.37(E) states that “[t]he prosecutor and defense counsel may submit evidence on

the issue of the defendant's competence to stand trial.

{¶ 50} The use of the word “may” in these statutes indicates that the decision

whether to order an examination is a matter within the trial court's discretion. “Taken as

a whole, the provisions of R.C. 2945.37 and 2945.371 support the inference that when

the initial hearing on a competency motion is held, the trial court is only required to give

the defendant, or his counsel, the chance to submit evidence on the issue.” State v.

Bailey, 90 Ohio App.3d 58, 67, 627 N.E.2d 1078 (11th Dist.1992). “If this evidence raises

a genuine question as to the defendant's competency, the court can order that one or

more evaluations be performed.” Id.; State v. Carson, 2d Dist. Greene No. 2002-CA-73,

2003-Ohio-5958, ¶ 30.

{¶ 51} Thus, we review the decision of the trial court regarding competency

determinations/evaluations for an abuse of discretion. State v. Curry, 2d Dist. Greene No. -26-

2012-CA-50, 2014-Ohio-3836, ¶ 40. In order to find that the trial court abused its

discretion, we must find that the trial court's decision was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 52} In determining whether a defendant is competent to stand trial, the test is

“ ‘ “whether [the defendant] has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he has a rational as well as

factual understanding of the proceedings against him.” ’ ” State v. Neyland, 139 Ohio

St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing State v. Berry, 72 Ohio St.3d

354, 359, 650 N.E.2d 433 (1995), quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct.

788, 4 L.Ed.2d 824 (1960). It is with this standard in mind that we review the evidence

in this record to determine whether Taylor raised a genuine question of his competency

to stand trial and whether the trial court abused its discretion by declining to order an

evaluation.

{¶ 53} As previously stated, Taylor’s counsel orally raised the issue of Taylor’s

competency to stand trial and requested a competency hearing on May 31, 2019, only

three days before trial. Therefore, the trial court held a hearing on May 31, 2019, in order

to determine whether Taylor was entitled to a competency evaluation administered by an

appropriate expert. During the hearing, defense counsel informed the trial court that

Taylor indicated that he did not understand what counsel was saying or telling him when

they discussed his case. Defense counsel also stated that he had spoken with Taylor’s

mother, who claimed that Taylor suffered from some unidentified intellectual deficiency

and received Social Security benefits for his disability. Beyond mere conclusory -27-

assertions, however, defense counsel presented no additional evidence to support his

claims in this regard.

{¶ 54} The competency hearing was held in open court with all parties present and

represented by counsel. Personally addressing Taylor, the trial court reviewed his legal

rights with him, in addition to the offenses that he was charged with and the jury trial

process. Taylor responded that he understood all of his rights and what was going to

happen at trial. At one point during the hearing, Taylor indicated that he believed his

speedy trial rights had been violated because his trial had been scheduled beyond 90

days. Notably, Taylor’s statements in this regard established that he understood that he

had a right to speedy trial, that speedy time in his case was normally 90 days because he

was in custody, and that his trial had been scheduled beyond the 90-day time frame.

While he may have been incorrect and in disagreement with the trial court regarding the

speedy trial issue, that fact, standing alone, did not render him incompetent to stand trial.

{¶ 55} At the time of the hearing, Taylor was 26 years old, had completed school

through the 11th grade, and indicated that he could read and understand the English

language. The record establishes that Taylor had been previously convicted of

aggravated robbery with a firearm specification and of felony escape. Taylor had

received prison sentences for both convictions. The trial court noted that it had reviewed

Taylor’s presentence investigation report and found no evidence supporting a legitimate

competency issue.

{¶ 56} During the hearing, defense counsel also stated that Taylor did not

understand the stipulation regarding his prior conviction. Defense counsel, however,

stated that after he spent approximately one hour explaining the process to him, Taylor -28-

agreed to the stipulation and signed the document. Simply because defense counsel

took an hour to explain the prior-conviction stipulation to Taylor did not establish that he

was incompetent to stand trial, nor did it require that a psychological evaluation be

ordered. The record establishes that even the trial court and the attorneys were in

disagreement regarding the use of Taylor’s prior convictions at the time of the

competency hearing.

{¶ 57} Significantly, although claiming he was incompetent, Taylor was able to

speak to the trial court on his own behalf on a variety of issues, including a parole officer’s

testimony at another proceeding regarding Taylor’s prior convictions, the lack of DNA

evidence connecting him with the instant offenses, and his speedy trial rights. Although

he claimed he was confused, Taylor affirmatively stated that he understood his rights and

that he understood the purpose of the competency hearing. The record establishes that

at all times Taylor was able to communicate with the trial court clearly and effectively.

{¶ 58} As previously stated, the burden was on Taylor to adduce evidence at the

hearing of his late claim of incompetency. “Incompetency is defined in Ohio as the

defendant's inability to understand ‘ * * * the nature and objective of the proceedings

against him or of presently assisting in his defense.’ R.C. 2945.37(A).” Here, the record

established that Taylor understood his rights, understood the nature of the trial

proceedings, and could assist in his own defense. There was no evidence adduced at

the competency hearing which indicated that he did not understand the nature of the

proceedings or that he could not assist defense counsel in his own defense. Rather, the

transcript of the competency hearing establishes that Taylor was articulate and

knowledgeable of the charges he faced. Taylor had prior convictions, and thus, he had -29-

pre-existing knowledge and exposure to the criminal legal system. It is noteworthy that

Taylor attempted to assert his incompetence only three days prior to the beginning of his

trial despite multiple prior appearances before the trial court wherein his conduct

suggested that he was competent. Accordingly, the trial court did not err when it found

Taylor to be competent to stand trial without ordering a psychological evaluation.

{¶ 59} Taylor’s third assignment of error is overruled.

{¶ 60} All of Taylor’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Adam J. Arnold Hon. Steven K. Dankof