State v. Turner

2011 Ohio 4348

Opinion

[Cite as State v. Turner, 2011-Ohio-4348.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-11-01

v.

DAVID L. TURNER, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR20100276

Judgment Affirmed

Date of Decision: August 29, 2011

APPEARANCES:

David L. Turner, Appellant

Jana E. Emerick for Appellee ROGERS, P.J.

{¶1} Defendant-Appellant, David Turner, appeals from the judgment of the

Court of Common Pleas of Allen County sentencing him to a twenty-year prison

term. On appeal, Turner contends that his statutory right to a speedy trial was

violated; that holding his jury trial on November 2, 2010, a legal holiday, rendered

the trial null and void; and, that the criminal complaint was not properly endorsed

with a state seal or attested to by a notary. Based on the following, we affirm the

judgment of the trial court.

{¶2} On June 4, 2009, Officer John Butler filed a criminal complaint in the

Lima Municipal Court against Turner for an armed robbery of a local convenience

store that occurred on June 3, 2009. (Docket Entry No. 1). On June 4, 2010,

Officer W.S. Patterson received an arrest warrant for Turner. (Docket Entry No.

2). Turner was arrested by Officer Patterson on August 6, 2010. Id.

{¶3} In September 2010, the Allen County Grand Jury indicted Turner on

Count One: aggravated robbery in violation of R.C. 2911.01(A)(1), with a firearm

specification as listed in R.C. 2941.145(A), and with a specification that he is a

repeat offender, as defined in R.C. 2929.01(CC) and as listed in R.C. 2941.149(A),

a felony of the first degree; Count Two: abduction in violation of R.C.

2905.02(A)(2), a felony of the third degree; and, Count Three: having a weapon while under disability in violation of R.C. 2923.13(A)(2), a felony of the third

degree.

{¶4} On November 1, 2010, Turner filed a motion to dismiss the indictment

based on his statutory right to a speedy trial. Turner maintained that he was

arrested on August 3, 2010. Turner argued that the scheduled trial date of

November 2, 2010 fell outside the two hundred seventy day period provided in

R.C. 2945.71(C)(2), and that pursuant to R.C. 2945.73(B) he should be

discharged. That same day, the trial court filed its judgment entry denying

Turner’s motion to dismiss on three alternate grounds. First, the trial court found

that Turner was arrested on August 6, 2010, a fact which placed the November 2,

2010 trial date within the two hundred seventy day period provided in R.C.

2945.71(C)(2). Second, the trial court found that had Turner been arrested on

August 3, 2010, the November 2, 2010 trial date still fell within the two hundred

seventy day period provided in R.C. 2945.71(C)(2). Last, the trial court found that

even if the November 2, 2010 trial date fell outside the two hundred seventy day

period provided in R.C. 2945.71(C)(2), the statutory time period had been

extended by virtue of Turner’s requests for discovery and a bill of particulars as

well as his motion for a bifurcated trial.

{¶5} On November 2, 2010, the matter proceeded to a jury trial. The jury

returned verdicts of guilty on all counts in the indictment. {¶6} On December 13, 2010, the matter proceeded to sentencing. The trial

court sentenced Turner to a ten-year prison term on Count One, a five-year prison

term on Count Two, and a five-year prison term on Count Three. The trial court

ordered Counts One, Two, and Three to be served consecutively for a total prison

term of twenty years. The trial court further ordered Turner to pay $2,500.00 in

restitution to Christopher Nutt, the victim of the armed robbery.

{¶7} It is from this judgment Turner appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERROD (sic) IN DENYING THE DEFENDANT-APPELLANT’S DAVID L. TURNER’S MOTION TO DISMISS ON GROUNDS THAT HIS STATUTORY RIGHT TO A SPEEDY TRIAL WAS VIOLATED PURSUANR (sic) TO R.C. §2945.71 ET SEQ.

Assignment of Error No. II

DEFENDANT-APPELLANT WAS DENIED A “FAIR TRIAL” SIXTH U.S.C.A. FIFTH U.S.C.A. “DUE PROCESS” AND FOURTEENTH “EQUAL PROTECTION OF LAW” U.S.C.A. AND ALL COMPARABLE OHIO CONSTITUTIONAL RIGHTS, AS TRIAL WAS HELD ON 2ND NOVEMBER 2010, GENERAL ELECTION WHICH IS A LEGAL HOLIDAY, SAID TRIAL IS THEN NULL AND VOID.1

Assignment of Error No. III

A FALSE “FAKE” ARREST WARRENT (sic) AND COMPLAINT MANUFACTURED BY: DEPUTY JOHN 1 It is this Author’s practice to reproduce appellant’s assignments of error verbatim, regardless of misspellings, grammatical mistakes, misstatements of the law, or incoherency. BUTLER A,C.S.O. (sic) THAT IS NOT INDORCED (sic) WITH A STATE SEAL OR ATTESTED TO BY NOTARY.

{¶8} In his first assignment of error, Turner contends that his statutory right

to a speedy trial was violated, as he was brought to trial beyond the two hundred

seventy day period provided in R.C. 2945.71(C)(2). We disagree.

{¶9} “Our standard of review upon an appeal raising a speedy trial issue is

to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3d

Dist. No. 9-06-18, 2007-Ohio-335, ¶30, citing State v. DePue (1994), 96 Ohio

App .3d 513, 516. If any ambiguity exists, this Court will construe the record in

the defendant’s favor. King, 2007-Ohio-335, at ¶30, citing State v. Mays (1996),

108 Ohio App.3d 598, 609.

{¶10} “Both the United States and Ohio Constitutions guarantee a criminal

defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666,

2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-

229. In addition, Ohio statutes set forth specific time requirements necessary for

compliance with the speedy trial guarantee. The applicable statutory speedy trial

provision, R.C. 2945.71(C)(2), 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.” {¶11} Additionally, R.C. 2945.73(B) provides that “[u]pon motion made at

or prior to the commencement of trial, a person charged with an offense shall be

discharged if he is not brought to trial within the time required by sections 2945.71

and 2945.72 of the Revised Code.” Both R.C. 2945.71 and 2945.73 are

mandatory, and strict compliance is required by the State. King, 2007-Ohio-335,

at ¶32, quoting State v. Pudlock (1975), 44 Ohio St.2d 104, 105. “Therefore,

when a criminal defendant shows that he was not brought to trial within the proper

period, the burden shifts to the State to demonstrate that sufficient time was tolled

or extended under the statute.” State v. Maisch, 173 Ohio App.3d 724, 2007-

Ohio-6230, ¶24, citing Masters, 2007-Ohio-4229, at ¶10, citing State v. Butcher

(1986), 27 Ohio St.3d 28, 31.

{¶12} “The statutory time period begins to run on the date the defendant is

arrested; however, the date of arrest is not counted when computing the time

period.” Maisch, 2007-Ohio-6230, at ¶26, citing Masters, 172 Ohio App.3d 666,

at ¶12, citing State v. Stewart, 12th Dist. No. CA98-03-021, 1998 WL 640909.

Additionally, the triple-count statute, R.C. 2945.71(E), provides that, for

computation purposes, each day an accused spends in jail in lieu of bond solely on

the pending charge shall count as three days. State v. Euton, 3d Dist. No. 2-06-35,

2007-Ohio-6704, ¶24; State v. Pishok, 3d Dist. No. 13-03-43, 2003-Ohio-7118,

¶7, citing State v. Brown (1992), 64 Ohio St.3d 476, 479. {¶13} Turner was indicted on three felony counts. Therefore, the State was

required to bring him to trial within two hundred seventy days of his arrest. R.C.

2945.71(C)(2). Review of the record reveals that Turner was arrested on August

6, 2010, not August 3, 2010 as Turner contends. (Docket Entry No. 2). Turner’s

trial was held on November 2, 2010. During the time between his arrest and trial

Turner was held in jail in lieu of bond, thus the triple-count provision applies.

R.C. 2945.71(E) Calculating the number of days between August 7, 2010 and

November 2, 2010, we find that only two hundred sixty four (264) days of the

statutory speedy trial period had elapsed. Accordingly, we find that Turner’s

statutory right to a speedy trial was not violated.

{¶14} Accordingly, we overrule Turner’s first assignment of error.

{¶15} In his second assignment of error, Turner contends that his trial was

null and void as it was held during the November 2, 2010 general election.

Specifically, Turner contends that November 2, 2010 was a legal holiday, and that

any court business, including his trial, conducted on that day was null and void.

We disagree.

{¶16} Both the United States and Ohio governments statutorily recognize

particular days as legal holidays. The United States and Ohio governments jointly

recognize the following as legal holidays: New Year’s Day, the first day of January; Martin Luther King, Jr.’s Birthday, the third Monday in January;

President’s Day, the third Monday in February; Memorial Day, the last Monday in

May; Independence Day, the fourth day of July; Labor Day, the first Monday in

September; Columbus Day, the second Monday in October; Veterans Day, the

eleventh day of November; Thanksgiving Day, the fourth Thursday of November;

and, Christmas Day, the twenty-fifth day of December. 5 U.S.C. § 6103; R.C.

1.14. In addition, Ohio recognizes the first Tuesday of November, between the

hours of twelve noon and five-thirty, as a legal holiday. R.C. 5.20. Despite half of

the first Tuesday of November being a legal holiday in the State of Ohio, we find

no law requiring public agencies, including courts, to cease operations during that

time, nor has Turner cited any authority demonstrating such a requirement. See

Norman v. State (1924), 109 Ohio St. 213, 227 (absent a statutory provision

prohibiting court on legal holidays a judicial proceeding on such a day is not

void); Powell v. New York Cent. RR. Corp. (1960), 174 N.E.2d 556, 557 (finding

that it is not unlawful to hold court on a legal holiday). Rather, we find that it is

within a court’s discretion to conduct its business on a legal holiday, which

consequently includes the afternoon of the first Tuesday of November. Dursa v.

Dursa (1958), 150 N.E.2d 306, 308, citing State v. Thomas (1900), 61 Ohio St.

444, and Norman, 109 Ohio St. 213. In considering whether the trial court abused

its discretion in holding court during a legal holiday we look to the regularity of

the court’s proceedings. {¶17} The trial court did not abuse its discretion by holding Turner’s trial

on November 2, 2010, which happened to be the first Tuesday of November. The

trial commenced at 8:47 a.m. on November 2, 2010, and finished at 4:38 p.m. See

Trial Tr., pp. 1, 202. Thus, the trial continued well into the period of time

designated as a legal holiday pursuant to R.C. 5.20. Nevertheless, it was within

the trial court’s discretion to hold trial on November 2, 2010. Upon review of the

record, particularly the trial proceedings, there is nothing to suggest that the trial

proceeded in an inappropriate or irregular manner. Turner cites the docket and the

fact that there were no entries made on November 2, 2010, the date of the trial.

Turner focuses on the entries dated November 3, 2010, to wit: the verdict, calling

jury fee, jury expenses, and the judgment entry of conviction, arguing that the

timing of the entries demonstrates that the court was closed on November 2, 2010.

We find this to be pure unsubstantiated speculation. In the absence of any

evidence suggesting irregularity in the proceedings below, we must presume their

regularity. State v. Rappach, 11th Dist. No. 3361, 1984 WL 7378, citing

Scovanner v. Toelke (1928), 119 Ohio St. 256, at syllabus. Because Turner has

failed to demonstrate any irregularity in his trial, we find that the trial court did not

abuse its discretion in holding trial on November 2, 2010.

{¶18} Accordingly, we overrule Turner’s second assignment of error.

Assignment of Error No. III {¶19} In his third assignment of error, Turner contends that the June 4,

2009 complaint was not endorsed with a state seal or attested to by a notary, thus

depriving the trial court of jurisdiction. We disagree.

{¶20} The filing of a valid complaint is a necessary prerequisite to a court’s

acquisition of jurisdiction. State v. Mdobji, ___ Ohio St.3d ___, 2011-Ohio-2880,

¶12; State v. Thacker, 4th Dist. No. 04CA5, 2004-Ohio-3978, ¶11, citing

Columbus v. Jackson (1952), 93 Ohio App. 516, 518. Particularly, the failure to

present a properly sworn complaint is a defect that deprives a court of subject

matter jurisdiction and cannot be waived by a defendant. State v. Green (1988),

48 Ohio App.3d 121; State v. Miller (1988), 47 Ohio App.3d 113. In Green, the

charging officer signed the complaint, but did not sign the jurat. The Eleventh

District Court of Appeals held that an unsworn complaint “is void and any

conviction resulting therefrom would be void also.” Green, 48 Ohio App.3d at

122; Village of New Albany v. Dalton (1995), 104 Ohio App.3d 307, 311.

{¶21} In the present case, however, Turner was not convicted or prosecuted

upon the allegedly defective complaint presented to the Lima Municipal Court.

Rather, Turner was tried upon the indictment. (Docket Entry No. 3). Where the

accused is initially charged via a complaint, but is subsequently indicted by the

grand jury, the accused is tried upon the indictment not the complaint. State v.

Christian, 7th Dist. No. 02 CA 170, 2005-Ohio-2381, ¶14, citing Thacker, 2004-

Ohio-3978, at ¶12, citing Foston v. Maxwell (1964), 177 Ohio St. 74, 76. Consequently, any alleged defects with the June 4, 2009 complaint are irrelevant

and harmless to Turner’s convictions, as he was tried and convicted on the

indictment. See Thacker, supra, citing State v. Martin, 4th Dist. No. 01CA24,

2002-Ohio-6140, ¶24; State v. Jenkins, 4th Dist. No. 02CA5, 2003-Ohio-1058,

¶24. Furthermore, the indictment filed in Turner’s case gave the trial court subject

matter jurisdiction over the case. See State v. Leigh, 2d Dist. No. 18294, 2001-

Ohio-1700, *2.

{¶22} Accordingly, we overrule Turner’s third assignment of error.

{¶23} Having found no error prejudicial to Turner herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr