[Cite as State v. Wells, 2014-Ohio-1855.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : CHRISTOPHER G. WELLS, JR. : Case No. 13 CAA 07 0057 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 13 CR I 01 0019
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 1, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK C. SLEEPER STEPHEN P. HARDWICK 140 North Sandusky Street 250 East Broad Street Third Floor Suite 1400 Delaware, OH 43015 Columbus, OH 43215 Delaware County, Case No. 13 CAA 07 0057 2
Farmer, J.
{¶1} On January 18, 2013, the Delaware County Grand Jury indicted appellant,
Christopher Wells, on five counts of burglary in violation of R.C. 2911.12, eighteen
counts of theft in violation of R.C. 2913.02, three counts of breaking and entering in
violation of R.C. 2911.13, and one count of criminal damaging in violation of R.C.
2909.06. One of the theft counts was subsequently dismissed.
{¶2} On April 17, 2013, appellant filed a motion to dismiss on speedy trial rights
under R.C. 2945.71. Hearings were held on April 22, and May 1, 2013. By judgment
entry filed May 1, 2013, the trial court denied the motion.
{¶3} On May 2, 2013, appellant pled no contest to five counts of burglary. The
remaining counts were dismissed. By judgment entry filed May 16, 2013, the trial court
found appellant guilty. By judgment entry filed June 14, 2013, the trial court sentenced
appellant to an aggregate term of seven and a half years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED BY DENYING MR. WELLS'S MOTION TO
DISMISS."
{¶6} Appellant claims the trial court erred in denying his motion to dismiss on
speedy trial violations. We disagree. Delaware County, Case No. 13 CAA 07 0057 3
{¶7} R.C. 2945.71 governs time within which hearing or trial must be held.
Subsection (C)(2) states 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."
{¶8} Appellant was arrested on June 22, 2012 and charged in the municipal
court with breaking and entering. Appellant was held in jail until July 2, 2012 when the
charge was dismissed without prejudice because it was going to be presented to the
Delaware County Grand Jury. On January 18, 2013, the indictment was filed charging
appellant with five counts of burglary, eighteen counts of theft, three counts of breaking
and entering, and one count of criminal damaging. One of the breaking and entering
charges was the offense from the municipal court case. Appellant was arrested on the
indictment on February 21, 2013. Appellant argues the time between the dismissal of
the offense in the municipal court and the subsequent indictment of the same offense
cannot be tolled.
{¶9} It is undisputed that 234 days lapsed between the dismissal of the
municipal court offense and appellant's arrest after indictment. The gravamen of this
appeal is whether these 234 days can be tolled against the time for which appellant
should have been brought to trial.
{¶10} Appellant acknowledges the Supreme Court of Ohio's holding in State v.
Broughton, 62 Ohio St.3d 53 (1991), but argues it has been modified by their dicta in
State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904.
{¶11} In its syllabus at paragraphs one and two, the Broughton court specifically
addressed the tolling time between dismissed and subsequently indicted offenses: Delaware County, Case No. 13 CAA 07 0057 4
1. For purposes of computing how much time has run against the
state under R.C. 2945.71 et seq., the time period between the dismissal
without prejudice of an original indictment and the filing of a subsequent
indictment, premised upon the same facts as alleged in the original
indictment, shall not be counted unless the defendant is held in jail or
released on bail pursuant to Crim.R. 12(I).
2. The arrest of a defendant, under a subsequent indictment which
is premised on the same underlying facts alleged in a previous indictment,
is the proper point at which to resume the running of the speedy-trial
period. (R.C. 2945.71 et seq., construed and applied.)
{¶12} The Broughton court at 259 explained the following:
In considering which of the above approaches to adopt, we
recognize "the public's interests not only in the prompt adjudication of
criminal cases, but also in obtaining convictions of persons who have
committed criminal offenses against the state." Bonarrigo, supra, 62 Ohio
St.2d at 11, 16 O.O.3d at 6-7, 402 N.E.2d at 534; see, also, State v.
Calhoun (1985), 18 Ohio St.3d 373, 376, 18 OBR 429, 432, 481 N.E.2d
624, 627. We explained in Bonarrigo that "[i]t was not the General
Assembly's sole purpose in enacting the speedy trial statutes to reward
those accused of criminal conduct for a prosecutor's lack of diligence."
Id., 62 Ohio St.2d at 10, 16 O.O.3d at 6, 402 N.E.2d at 534. Therefore, Delaware County, Case No. 13 CAA 07 0057 5
we are persuaded that the majority view (tolling the speedy-trial statute
between dismissal and reindictment) is sound in light of our previous
holdings in Bonarrigo, supra, Cougill, supra, and Spratz, supra, and the
legislative intent behind the speedy-trial statute.
{¶13} Appellant argues the Supreme Court of Ohio in Ramey, supra, in
reviewing the issue of tolling time because of a co-defendant's pre-trial motions,
modified and rejected the syllabus law of Broughton:
R.C. 2945.72 does not include the filing of pretrial motions by a co-
defendant as an event that automatically extends a defendant's speedy-
trial time. In construing a statute, we may not add or delete words. State
ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148,
556 N.E.2d 467 (1990). We are, therefore, compelled to conclude that a
co-defendant's filing of pretrial motions does not automatically toll the time
in which a defendant must be brought to trial.
{¶14} R.C. 2945.72 language has not changed since the Broughton opinion. In
Ramey, there was no time when the criminal charge was not pending against the
defendant, including the time of the pretrial motions filed by the co-defendant. The
Ramey court specifically addressed R.C. 2945.72(H) which states: "The time within
which an accused must be brought to trial, or, in the case of felony, to preliminary
hearing and trial, may be extended only by the following:***The period of any Delaware County, Case No. 13 CAA 07 0057 6
continuance granted on the accused's own motion, and the period of any reasonable
continuance granted other than upon the accused's own motion."
{¶15} The facts and dicta of Ramey are completely opposite to the facts sub
judice. We find Ramey has no effect on the syllabus law of Broughton.
{¶16} Our decision is further supported by the unambiguous statutory language
of R.C.
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[Cite as State v. Wells, 2014-Ohio-1855.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : CHRISTOPHER G. WELLS, JR. : Case No. 13 CAA 07 0057 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 13 CR I 01 0019
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 1, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK C. SLEEPER STEPHEN P. HARDWICK 140 North Sandusky Street 250 East Broad Street Third Floor Suite 1400 Delaware, OH 43015 Columbus, OH 43215 Delaware County, Case No. 13 CAA 07 0057 2
Farmer, J.
{¶1} On January 18, 2013, the Delaware County Grand Jury indicted appellant,
Christopher Wells, on five counts of burglary in violation of R.C. 2911.12, eighteen
counts of theft in violation of R.C. 2913.02, three counts of breaking and entering in
violation of R.C. 2911.13, and one count of criminal damaging in violation of R.C.
2909.06. One of the theft counts was subsequently dismissed.
{¶2} On April 17, 2013, appellant filed a motion to dismiss on speedy trial rights
under R.C. 2945.71. Hearings were held on April 22, and May 1, 2013. By judgment
entry filed May 1, 2013, the trial court denied the motion.
{¶3} On May 2, 2013, appellant pled no contest to five counts of burglary. The
remaining counts were dismissed. By judgment entry filed May 16, 2013, the trial court
found appellant guilty. By judgment entry filed June 14, 2013, the trial court sentenced
appellant to an aggregate term of seven and a half years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED BY DENYING MR. WELLS'S MOTION TO
DISMISS."
{¶6} Appellant claims the trial court erred in denying his motion to dismiss on
speedy trial violations. We disagree. Delaware County, Case No. 13 CAA 07 0057 3
{¶7} R.C. 2945.71 governs time within which hearing or trial must be held.
Subsection (C)(2) states 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."
{¶8} Appellant was arrested on June 22, 2012 and charged in the municipal
court with breaking and entering. Appellant was held in jail until July 2, 2012 when the
charge was dismissed without prejudice because it was going to be presented to the
Delaware County Grand Jury. On January 18, 2013, the indictment was filed charging
appellant with five counts of burglary, eighteen counts of theft, three counts of breaking
and entering, and one count of criminal damaging. One of the breaking and entering
charges was the offense from the municipal court case. Appellant was arrested on the
indictment on February 21, 2013. Appellant argues the time between the dismissal of
the offense in the municipal court and the subsequent indictment of the same offense
cannot be tolled.
{¶9} It is undisputed that 234 days lapsed between the dismissal of the
municipal court offense and appellant's arrest after indictment. The gravamen of this
appeal is whether these 234 days can be tolled against the time for which appellant
should have been brought to trial.
{¶10} Appellant acknowledges the Supreme Court of Ohio's holding in State v.
Broughton, 62 Ohio St.3d 53 (1991), but argues it has been modified by their dicta in
State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904.
{¶11} In its syllabus at paragraphs one and two, the Broughton court specifically
addressed the tolling time between dismissed and subsequently indicted offenses: Delaware County, Case No. 13 CAA 07 0057 4
1. For purposes of computing how much time has run against the
state under R.C. 2945.71 et seq., the time period between the dismissal
without prejudice of an original indictment and the filing of a subsequent
indictment, premised upon the same facts as alleged in the original
indictment, shall not be counted unless the defendant is held in jail or
released on bail pursuant to Crim.R. 12(I).
2. The arrest of a defendant, under a subsequent indictment which
is premised on the same underlying facts alleged in a previous indictment,
is the proper point at which to resume the running of the speedy-trial
period. (R.C. 2945.71 et seq., construed and applied.)
{¶12} The Broughton court at 259 explained the following:
In considering which of the above approaches to adopt, we
recognize "the public's interests not only in the prompt adjudication of
criminal cases, but also in obtaining convictions of persons who have
committed criminal offenses against the state." Bonarrigo, supra, 62 Ohio
St.2d at 11, 16 O.O.3d at 6-7, 402 N.E.2d at 534; see, also, State v.
Calhoun (1985), 18 Ohio St.3d 373, 376, 18 OBR 429, 432, 481 N.E.2d
624, 627. We explained in Bonarrigo that "[i]t was not the General
Assembly's sole purpose in enacting the speedy trial statutes to reward
those accused of criminal conduct for a prosecutor's lack of diligence."
Id., 62 Ohio St.2d at 10, 16 O.O.3d at 6, 402 N.E.2d at 534. Therefore, Delaware County, Case No. 13 CAA 07 0057 5
we are persuaded that the majority view (tolling the speedy-trial statute
between dismissal and reindictment) is sound in light of our previous
holdings in Bonarrigo, supra, Cougill, supra, and Spratz, supra, and the
legislative intent behind the speedy-trial statute.
{¶13} Appellant argues the Supreme Court of Ohio in Ramey, supra, in
reviewing the issue of tolling time because of a co-defendant's pre-trial motions,
modified and rejected the syllabus law of Broughton:
R.C. 2945.72 does not include the filing of pretrial motions by a co-
defendant as an event that automatically extends a defendant's speedy-
trial time. In construing a statute, we may not add or delete words. State
ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148,
556 N.E.2d 467 (1990). We are, therefore, compelled to conclude that a
co-defendant's filing of pretrial motions does not automatically toll the time
in which a defendant must be brought to trial.
{¶14} R.C. 2945.72 language has not changed since the Broughton opinion. In
Ramey, there was no time when the criminal charge was not pending against the
defendant, including the time of the pretrial motions filed by the co-defendant. The
Ramey court specifically addressed R.C. 2945.72(H) which states: "The time within
which an accused must be brought to trial, or, in the case of felony, to preliminary
hearing and trial, may be extended only by the following:***The period of any Delaware County, Case No. 13 CAA 07 0057 6
continuance granted on the accused's own motion, and the period of any reasonable
continuance granted other than upon the accused's own motion."
{¶15} The facts and dicta of Ramey are completely opposite to the facts sub
judice. We find Ramey has no effect on the syllabus law of Broughton.
{¶16} Our decision is further supported by the unambiguous statutory language
of R.C. 2945.71(A) which states: "Subject to division (D) of this section, a person
against whom a charge is pending in a court not of record, or against whom a charge of
minor misdemeanor is pending in a court of record, shall be brought to trial within thirty
days after the person's arrest or the service of summons."
{¶17} The statute speaks of charges pending. In this case, charges were not
pending against appellant during the 234 days hiatus, and appellant was not imprisoned
on any of the offenses. In State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, ¶ 21-
27, Justice O'Donnell in his concurring opinion emphasized that the statutory language
speaks of charges pending and essentially concurs with the majority opinion:
R.C. 2945.71 sets forth the statutory right to a speedy trial in Ohio
and catalogs three classifications of persons against whom a charge is
pending, dependent upon the degree of the offense with which the person
is charged. Subdivision (A) pertains to "a person against whom a charge
is pending in a court not of record, or against whom a charge of minor
misdemeanor is pending in a court of record." (Emphasis added.)
Subdivision (B) pertains to "a person against whom a charge of
misdemeanor, other than a minor misdemeanor, is pending in a court of Delaware County, Case No. 13 CAA 07 0057 7
record." (Emphasis added.) And, thirdly, insofar as is relevant here,
subsection (C) specifies:
"A person against whom a charge of felony is pending:
"* * *
"(2) Shall be brought to trial within two hundred seventy days after
the person's arrest." (Emphasis added.)
Reading the statute in its entirety in order to discern the legislative
intent, it is apparent to me that this statute applies only to persons against
whom charges are pending.
{¶18} Accordingly, we find the trial court did not err in denying appellant's motion
to dismiss on speedy trial violations.
{¶19} The sole assignment of error is denied. Delaware County, Case No. 13 CAA 07 0057 8
{¶20} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
SGF/sg 4/11