State v. Hartman , 2010 Ohio 2299 ( 2010 )

[Cite as State v. Hartman, 2010-Ohio-2299.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-10-05
v.
JASON E. HARTMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2009 CR 72
Judgment Affirmed
Date of Decision: May 24, 2010
APPEARANCES:
Michael J. Short for Appellant
Edwin A. Pierce for Appellee
Case No. 2-10-05
PRESTON, J.
{¶1} Defendant-appellant, Jason Hartman (“Hartman”), appeals the
Auglaize County Court of Common Pleas’ judgment of conviction and sentence
entered after overruling his motion to dismiss for an alleged violation of his right
to a speedy trial. We affirm.
{¶2} On June 27, 2009, Hartman was arrested and cited for six (6)
offenses, including: operating a vehicle under the influence (“OVI”) of alcohol in
violation of R.C. 4511.19(A)(1)(a); operating a vehicle with a prohibited blood
alcohol concentration in violation of R.C. 4511.19(A)(1)(h); driving under
financial responsibility law suspension in violation of R.C. 4510.16(A); driving
under (court) suspension in violation of R.C. 4510.11(A); failure to signal in
violation of R.C. 4511.39; and failure to reinstate a license in violation of R.C.
4510.21, all misdemeanors. (Joint Ex. C). These charges were originally filed in
the Auglaize County Municipal Court and assigned case no. 2009-TRC-3678.
(Id.).
{¶3} At the time of his aforementioned OVI offense, Hartman was on
community control for unrelated previous offenses in Auglaize Municipal Court
case nos. 2008-CRB-376, 2008-CRB-0773. (Joint Exs. A & B). As a condition of
his community control, Hartman was prohibited from consuming alcohol. (Id.).
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{¶4} On June 29, 2009, both OVI counts in the complaint were dismissed
without prejudice, Hartman pled not guilty to the remaining charges, and the
Auglaize County Municipal Court set bond on the remaining charges at an Own
Recognizance (“OR”) Bond. (Joint Ex. C). On this same day, Hartman was
charged with violating the terms and conditions of his community control in case
nos. 2008-CRB-376, 2008-CRB-0773. (Joint Ex. B). The Municipal Court also
held an arraignment on the community control violations and ordered that
Hartman be held without bond. (Id.).
{¶5} On July 23, 2009, the Auglaize County Grand Jury indicted Hartman
on three (3) counts, including: count one (1) of operating a vehicle while under the
influence of alcohol, in violation of R.C. 4511.19(A)(1)(a),(G)(1)(d) and R.C.
2941.1413, a fourth degree felony; count two (2) of operating a vehicle with a
prohibited blood alcohol concentration in violation of R.C.
4511.19(A)(1)(h),(G)(1)(d) and R.C. 2941.1413, a fourth degree felony; and count
three (3) of operating a motor vehicle while under a license suspension in violation
of R.C. 4510.14, a first degree misdemeanor. (Doc. No. 1). Counts one and two
also included a specification that Hartman had five (5) prior OVI convictions
within the past twenty (20) years. (Id.). On this same day, Hartman appeared for a
bond hearing, and the Auglaize County Court of Common Pleas set bond on the
Indictment at $25,000.00, 10% cash provision plus an OR Bond. (Doc. No. 9).
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{¶6} On July 27, 2009, the balance of the citation filed in Auglaize
County Municipal Court case no. 2009-TRC-3678 was dismissed. (Joint Ex. C).
On July 30, 2009, Hartman was arraigned on the Indictment and entered pleas of
not guilty to the charges. (Doc. No. 15).
{¶7} On October 6, 2009, Hartman filed a motion to dismiss the
indictment in the Auglaize County Court of Common Pleas based upon an alleged
violation of his right to a speedy trial pursuant to R.C. 2945.71(D) and (E). (Doc.
No. 32). Specifically, Hartman claimed that R.C. 2945.71(E)’s triple-count
provision applied since the basis of his community control violation, for which he
was being held, arose from the same set of facts giving rise to the indictment. (Id.).
{¶8} On October 9, 2009, the trial court held a hearing on the motion but
concluded that R.C. 2945.71(E)’s triple-count provision did not apply since the
Municipal Court’s community control violations and the felony OVI Indictment
did not share a common litigation history. (Doc. No. 34); (Oct. 9, 2009 Tr. at 43).
That same day, Hartman withdrew his previously tendered plea of not guilty to
count one (1) and entered a no contest plea, and the State dismissed counts two (2)
and three (3) of the indictment, pursuant to a negotiated plea agreement. (Doc. No.
36). The trial court found Hartman guilty on count one of the indictment and, on
November 18, 2009, sentenced him to twenty-nine (29) months incarceration.
(Doc. Nos. 37, 51).
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{¶9} On December 8, 2009, Hartman filed a notice of appeal, but this
Court dismissed the appeal for lack of a final appealable order on December 17,
2009. (Doc. Nos. 79, 88).
{¶10} On December 22, 2009 and January 7, 2010, the trial court filed two
separate nunc pro tunc entries of sentencing. (Doc. Nos. 89, 94).
{¶11} On January 14, 2010, Hartman filed a subsequent notice of appeal
from the trial court’s second corrected sentencing entry. (Doc. No. 100). On
February 3, 2010, this Court granted Hartman’s motion for delayed appeal. (Doc.
No. 109).
{¶12} Hartman now appeals raising one assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT APPLYING THE
TRIPLE-COUNT PROVISIONS OF R.C. 2945.71(E) TO THE
DEFENDANT’S CASE.
{¶13} In his sole assignment of error, Hartman argues that the trial court
erred by not applying R.C. 2945.71(E)’s triple-count provision for purposes of
calculating speedy trial time. Specifically, Hartman argues that the triple-count
provision should apply since his community control violation for consumption of
alcohol arose out of the same incident for which he was indicted, and thus, has a
“common litigation history” within the meaning of R.C. 2945.71.
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{¶14} R.C. 2945.71(E) provides, in pertinent part, “[f]or purposes of
computing time under divisions (A), (B), (C)(2), and (D) of this section, each day
during which the accused is held in jail in lieu of bail on the pending charge shall
be counted as three days.” (Emphasis added).
{¶15} The Ohio Supreme Court in State v. Parker held that “when multiple
charges arise from a criminal incident and share a common litigation history,
pretrial incarceration on the multiple charges constitutes incarceration on the
‘pending charge’ for the purposes of the triple-count provision of the speedy-trial
statute, R.C. 2945.71(E).” 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d
1032, ¶21. In reaching its holding in Parker, the Ohio Supreme Court noted that:
Criminal charges arising out of the same criminal incident and
brought simultaneously will always be deemed to have a
“common litigation history” for the purposes of establishing
incarceration solely on the “pending charge” within the meaning
of R.C. 2945.71(E), even if they are prosecuted in separate
jurisdictions.
2007-Ohio-1534, at ¶25.
{¶16} Hartman cites this language from Parker and concludes that his
community control violation, which arose out of the same criminal incident and
was filed simultaneous to the indictment, must too be deemed to have a “common
litigation history” for purposes of R.C. 2945.71(E). We disagree.
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{¶17} Unlike the defendant in Parker, Hartman was being held without
bond on a violation of community control, which arose from the indicted criminal
incident, not additional misdemeanor charges pending in municipal court. 2007-
Ohio-1534, at ¶¶2-3. This case is more analogous to State v. Martin (1978), 56
Ohio St.2d 207, 383 N.E.2d 585, wherein the Court determined that R.C.
2945.71(E)’s triple-count provision was inapplicable when the accused was being
held pursuant to a probation-violation holder that stemmed from the alleged
criminal incident. Similarly, the Ohio Supreme Court has found that R.C.
2945.71(E)’s triple-count provision does not apply when the defendant is being
held in custody pursuant to a parole-violation holder. State v. Brown (1992), 64
Ohio St.3d 476, 597 N.E.2d 97. The Ohio Supreme Court has recognized the
continued viability of these rules of law as recently as 2006 in State v. Sanchez,
and we are not persuaded that its holding in Parker has altered these well-
established rules of law. 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283,
¶11. Therefore, the trial court did not err in finding R.C. 2945.71(E)’s triple-count
provision inapplicable here. Furthermore, since Hartman admits that he entered
his no contest plea in less than two hundred seventy (270) days from the date of
arrest, no violation of R.C. 2945.71(C)(2) occurred either. (Appellant’s Brief at 4).
As such, the trial court did not err in overruling Hartman’s motion to dismiss.
{¶18} Hartman’s assignment of error is overruled.
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{¶19} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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