 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SPEEDY TRIAL: R.C. 2941.401: OHIO SUPREME COURT NEW CASE. State v. Siniard, No H-03-008 (6th Dist. Ct. App., Huron County, 3-5-04). Charged with receiving stolen property, the defendant was held in the county jail, from which he claimed he sent notice to the prosecuting attorney demanding trial. None of these notices was in the record. He had also requested a number of continuances and waived his right to a speedy trial. While awaiting trial, the defendant was transferred to a state prison on unrelated offenses. The defendant then filed a motion to dismiss his indictment on receiving stolen property, arguing the state had failed to exercise due diligence to locate and bring him to trial. The Sixth District Court of Appeals accepted the general consensus held by Ohio's appellate courts that R.C. 2941.401 puts a duty of due diligence on the state to locate and serve indictments on prisoners, so that those prisoners may demand speedy trial under R.C. 2041.401. However the court of appeals held that the defendant had waived that right by signing the waiver of speedy trial. The court goes so far as to call it "unfortunate" that the defendant "relieved the prosecutor's duty of due diligence to inform him of his pending charges..." The court affirmed his conviction. [Ed. Note: The Sixth District Court of Appeals and all other district courts that have read into R.C. 2941.401 a due diligence requirement on the state to find and serve defendants with pending indictments are wrong. The Ohio Supreme Court in State v. Hariston (2004) 101 Ohio St.3d 308, decided on March 5, 2004, the same day as Siniard, held that R.C. 2941.401 places no duty at all on the state. Although the Ohio Supreme Court said nothing about every appellate court's reading a requirement into the statute that is not even hinted at in the language of the statute, the court said that the statute is plain on its face and needs no interpretation.] SENTENCING PACKAGE DOCTRINE: LONGER SENTENCE PERMISSIBLE AFTER REVERSAL ON APPEAL AND RETRIAL, WHEN. State v. Jackson, No. 03AP-698 (10th Dist. Ct. App., Franklin Co., March 4, 2004), 2004 Ohio App. LEXIS 864. Freeman C. Jackson was indicted for numerous sexual offenses, the victims being the thirteen-year-old niece and eight-year-old daughter of Jackson's live-in girlfriend. He was sentenced to life plus 19 years. He would have been eligible for parole after 29 years under O.R.C. Section 2967.13. Jackson appealed. The Franklin County Court of Appeals held the evidence on two convictions insufficient, and held that the trial court should have merged some of the offenses. Convictions on three counts of gross sexual imposition, three counts of corruption of a minor, two counts of kidnapping, and four counts of rape, remained after appeal. The appellate court remanded for re-sentencing. The trial court sentenced Jackson to a 35 years definite sentence. Jackson appealed, arguing that some of the sentences on remand exceeded the original sentence, violating North Carolina v. Pearce (1969), 395 U.S. 711. The Franklin County Court of Appeals disagreed. As the total aggregate sentence after remand was not longer than the original sentence, the court said there was no presumption of vindictiveness. Moreover, the court held the sentencing package doctrine applicable. The court described the doctrine as follows: "The sentencing package doctrine provides that, when a defendant is sentenced under a multi-count indictment and the sentences imposed on those counts are interdependent, the trial court has the authority to reevaluate the entire aggregate sentence, including those on the unchallenged counts on remand from a decision vacating one or more of the original counts. (Citation omitted). The underlying theory is that, in imposing a sentence in a multi-count conviction, the trial court typically looks to the bottom line, or the total number of years. Thus, when part of a sentence is vacated, the entire sentencing package doctrine becomes 'unbundled,' and the trial judge is, therefore, entitled to re-sentence a defendant on all counts to effectuate its previous intent." The Franklin County Court of Appeals affirmed. COURT COSTS: TRIAL COURT HAS NO AUTHORITY TO ORDER PROSECUTOR TO PAY FOR A NEW TRIAL AFTER MISTRIAL. State v. Songer, No. 03COA051, (5th Dist. Ct. App., Ashland Co., 3-18-04). The Ashland County Grand Jury indicted Keith Songer on one count of forgery, R.C. 2913.31(A)(3); one count of theft, R.C. 2913.02(A)(3); and one count of grand theft, R.C. 2913.02(A)(3). On the second day of trial, the court declared a mistrial. The state's theory of the indictment was that Keith and Layne Songer, and another man, Mike Chase, devised a check-cashing scheme to steal money. On the second day of trial, Lt. Geoff Thomas of the Ashland County Police Department spoke with the defendant's brother, Layne Songer, in the hallway. Lt. Thomas and Mr. Songer disagreed about the substance of the conversation. According to Lt. Thomas, a bank in Kentucky had discovered a forged check that had not been the subject of any indictment. Layne Songer told the court that he had decided to exercise his Fifth Amendment Rights. The defendant moved for a mistrial. After hearing, the court granted the motion. The court in an entry dated September 29, 2003, ruled that the Double Jeopardy clause permitted retrial. The court specifically stated that the prosecution had done nothing wrong. The court also said that the officer had not intended to cause a mistrial. Finally, the court said the following: "there will be certain expenses of this retrial which should be assessed by the state of Ohio.*** Therefore, this court does order that the state of Ohio post a $2,500.00 deposit with the clerk of this court by the end of the day, Tuesday, September 2, to apply toward the juror fees and the indigent counsel fees to be incurred in this matter. "Failure to do so will result in the matter being dismissed by the court for lack of proper prosecution by the state of Ohio." The prosecutor informed the court that he did not intend to post the bond, and intended to appeal the court's order. On September 3, 2003, the court dismissed the indictment. The state appealed and the Ashland County Court of Appeals reversed. The trial court believed it had "inherent authority" to order the bond and to dismiss the indictment. The Ohio Supreme Court has ruled that Criminal R. 48(B) grants a trial court authority to dismiss indictments in the "interests of justice." The appellate court said, however, that the only interests served by dismissing the instant indictment was "self interests." Jury fees and indigent counsel fees, the court continued, are provided for in R.C. 2947.23, 2313.33, 2313.34, and R.C. 120.33. A trial court has no authority to reassign these costs. The court held that no interest of justice is served by shifting costs to another governmental unit. The court reversed and remanded for trial on the indictment. OTHER ACTS: PENDING CHARGES AS MOTIVE FOR INDUCING PANIC. State v. Dean, No. 21623, (9th Dist. Ct. App., Summit Co., 3-24-04). Daryle Dean had several charges pending against him. He was to appear in the Akron Municipal Court for a pre-trial proceeding on February 26, 2003, two pre-trials on February 27, 2003, and an arraignment on February 28, 2003. On February 26, 2003, someone telephoned the Akron Police Department, which is in the same building as the municipal court, saying that a bomb would be delivered to the police department on February 27, 2003. Those working in the building evacuated. Having traced the call to Dean's cellular telephone, the police charged him with inducing panic, R.C. 2917.31. The jury returned a guilty verdict and the court imposed a one-year prison sentence. On appeal, Dean argued that his counsel had been ineffective for failing to object to evidence of appellant's pending charges. The Summit County Court of Appeals disagreed that those crimes were irrelevant to the indicted crime. On the contrary, the court said, the pending charges provided the motive for appellant's call, and were, therefore, admissible evidence under Evid. R. 404(B). The court affirmed the conviction. SENTENCING: IF A COURT PROPERLY IMPOSES A MAXIMUM SENTENCE, THE COURT INHERENTLY FINDS THAT A MINIMUM SENTENCE WILL DEMEAN THE SERIOUSNESS OF THE OFFENSE OR FAIL TO PROTECT THE PUBLIC FROM THE OFFENDER OR OTHERS. State v. Abshear, No 03CA0012 (2d Dist. Ct. Apps., Clark Co., 3-19-04). Keith Abshear broke into his ex-wife's home, bound her hands in tape and forced her to engage in sexual intercourse. The victim escaped and fled in her car. However, Abshear ran her car off the road, forced her into his car and drove away. A passerby called police, who, after a lengthy chase, disabled Abshear's car and arrested him. Having been indicted for two counts of domestic violence, one count of fleeing and eluding a police officer, felonious assault, kidnapping, aggravated burglary and rape, Abshear entered guilty pleas to felonious assault, kidnapping and fleeing and eluding. The court sentenced him to four years on the felonious assault charge, eight years on the kidnapping, and five years on the fleeing and eluding charge, all to be served consecutively. On appeal, the defendant argued that the court had erred by imposing the maximum sentences without first making the findings that a minimum sentence would be inappropriate. The appellate court initially noted that, if a maximum sentence was properly imposed under Ohio Rev. Code Ann. ' 2929.14(C), findings about a minimum sentence under Ohio Rev. Code Ann. ' 2929.14(B) were not required, and that, if a maximum sentence was properly imposed, rejection of a minimum sentence was inherent in the findings used to justify the maximum sentence. The appellate court held that, although the trial court failed to carefully relate its findings to the reasons that supported them, the transcript of the sentencing hearing contained the reasons that supported the trial court's imposition of consecutive sentences; therefore, the imposition of consecutive sentences was appropriate. Observing that the issue is currently pending before the Ohio Supreme Court in State v. Evans, 98 Ohio St. 3d 1508, 2003 Ohio 1572, the court affirmed appellant's convictions and sentences.
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