State v. Kolle , 2022 Ohio 2459 ( 2022 )

[Cite as State v. Kolle, 2022-Ohio-2459.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, : CASE NO. CA2021-10-024
Appellee, : OPINION
7/18/2022
:
- vs -
:
JOHN LAMAR KOLLE, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI20190431
Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.
Steven H. Eckstein, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, John Lamar Kolle, appeals his conviction in the Fayette County
Court of Common Pleas for aggravated trafficking in drugs.
{¶ 2} On January 24, 2019, Fayette County Deputy Sheriff Charles Kyle was
dispatched to an apartment complex in Washington Court House, Ohio regarding the report
of a disturbance in apartment C. Upon arriving at the complex, Deputy Kyle observed
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several individuals milling around in the parking lot. Upon questioning the individuals, the
deputy learned that the disturbance had actually occurred in front of the apartment complex,
that some of the people involved in the disturbance had left the area, and that several
individuals involved in the disturbance had entered apartment B. Deputy Kyle went to
apartment B and knocked on the door. Shawn Antis, a person known by the deputy to be
an occupant of the apartment, opened the door. The deputy briefly spoke with Antis and
advised him why he was there. Upon the deputy's request, Antis permitted him to enter the
apartment. Once inside, Deputy Kyle observed six to eight individuals, asked the individuals
about the disturbance, and conducted warrant checks on all the individuals, including
appellant. Upon discovering there was an outstanding warrant for appellant, Deputy Kyle
arrested him. While appellant was incarcerated in the jail, he made several telephone calls
related to drug trafficking.
{¶ 3} Appellant was indicted on November 20, 2019, on three counts of aggravated
trafficking in drugs. On November 26, 2019, appellant was served with the indictment and
was arraigned. At the time, appellant was awaiting trial on unrelated charges in Franklin
County. Appellant was incarcerated in the Franklin County jail on the Fayette County
indictment and the Franklin County charges for the entire pendency of this case.
{¶ 4} The matter was originally scheduled for trial on February 4, 2020. However,
there were several delays and continuances. On January 7, 2021, appellant moved to
suppress all evidence against him, claiming that Deputy Kyle's January 24, 2019 entry into
apartment B and warrant check on all individuals present in the apartment violated the
Fourth Amendment protection against unreasonable searches and seizures. The trial court
conducted a hearing on the motion on January 25, 2021, and continued the suppression
hearing in progress to March 17, 2021.
{¶ 5} The case was eventually scheduled for trial on August 25, 2021. At an August
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2, 2021 pretrial hearing, appellant's counsel moved to vacate the jury trial set for August
25, 2021, and requested a plea hearing. A plea hearing was held on August 30, 2021.
Appellant orally moved to dismiss the charges for violation of his right to a speedy trial. The
trial court denied the motion, the plea hearing proceeded, and appellant pled no contest to
one count of aggravated trafficking in drugs (methamphetamine), a third-degree felony. On
September 30, 2021, the trial court denied appellant's motion to suppress. The next day,
the trial court sentenced appellant to an agreed 12-month prison term.
{¶ 6} Appellant now appeals his conviction, raising two assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO A STATUTORY
AND CONSTITUTIONAL SPEEDY TRIAL UNDER [R.C.] 2945.71 AND ARTICLE I,
SECTION 10, OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE U.S.
CONSTITUTION.
{¶ 9} Appellant argues his statutory and constitutional speedy trial rights were
violated by the state's delay in bringing him to trial because 649 days elapsed between the
date he was indicted on November 20, 2019, and the date he pled no contest on August
30, 2021.
{¶ 10} The Sixth Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution guarantee the right to a speedy trial. The statutory speedy trial
provisions set forth in R.C. 2945.71 through 2945.73 are coextensive with the constitutional
speedy trial provisions. State v. Turner, 12th Dist. Brown No. CA2019-05-005, 2020-Ohio-
1548, ¶ 21, citing State v. King, 70 Ohio St.3d 158, 1994-Ohio-412.
{¶ 11} Pursuant to R.C. 2945.71(C)(2), "[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." Although appellant was incarcerated throughout the pendency of this case, he was
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not held in jail solely on the pending Fayette County charges in lieu of bail but was held
jointly on the Fayette County and Franklin County charges. Accordingly, the triple-count
provision of R.C. 2945.71(E) is inapplicable. State v. Messer, 12th Dist. Clermont No.
CA2006-10-084, 2007-Ohio-5899, ¶ 20; State v. McDonald, 48 Ohio St.3d 66 (1976),
paragraph one of the syllabus. Therefore, the state was required to bring appellant to trial
within 270 days from the date the aggravated drug trafficking indictment was filed; that is,
the state was required to bring appellant to trial on or before August 16, 2021.
{¶ 12} When an appellant raises a violation of a speedy trial issue, an appellate court
must compute a "try-by date." Turner, 2020-Ohio-1548 at ¶ 23. The court of appeals must
count the days of delay chargeable to either side and determine whether the case was tried
within the statutory time limits. Id. R.C. 2945.72 extends the time within which a defendant
must be brought to trial for any period during which the defendant is unavailable for hearing
or trial, by reason of other criminal proceedings against him, any period of delay
necessitated by the defendant's motions, the period of any continuance granted on the
defendant's own motion, and the period of any reasonable continuance granted other than
upon the defendant's own motion. R.C. 2945.72(A), (E), and (H).
{¶ 13} Appellate review of speedy-trial issues involves a mixed question of law and
fact. State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, ¶ 15. An appellate court must
defer to the trial court's findings of fact if they are supported by competent, credible
evidence, but must independently review whether the trial court correctly applied the law to
the facts of the case. Id.; State v. Watkins, 12th Dist. Preble No. CA2020-03-005, 2021-
Ohio-163, ¶ 37.
{¶ 14} Appellant was indicted on November 20, 2019. He filed a discovery demand
and request for a bill of particulars on December 10, 2019. The state responded to
appellant's requests on December 11, 2019. The one day is chargeable to appellant. The
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trial was originally scheduled for February 4, 2020. The record indicates that on January
13, 2020, appellant orally moved to continue the trial. On January 14, 2020, the trial court
filed an entry granting appellant's January 13, 2020 oral motion for a continuance. The trial
was continued to February 13, 2020. Under R.C. 2945.71(C), the 53-day delay between
appellant's indictment and his first motion for a continuance ran against the state. State v.
Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, ¶ 39.
{¶ 15} At a pretrial hearing on February 12, 2020, appellant's counsel indicated she
had not had sufficient time to prepare for trial. As stated above, appellant was incarcerated
in Franklin County during the entire pendency of this case. A transcript of the hearing
indicates that he had pending charges in Franklin and Pickaway Counties and that the
parties were trying to find an acceptable trial date for appellant's aggravated drug trafficking
charges given his multiple prosecutions. On February 13, 2020, the trial court filed an entry
vacating the trial "for reasons set forth on the record." On March 10, 2020, the trial court
continued the trial to June 10, 2020, "time tolled to the defendant." At this juncture, the
number of days chargeable to the state remains at 53. R.C. 2945.72(H); Myers at ¶ 40.
{¶ 16} On June 1, 2020, appellant filed pro se a motion to be appointed new counsel.
On June 2, 2020, the trial court sua sponte vacated the trial set for June 10, 2020, citing a
"public health emergency good cause" due to COVID-19 and the Ohio governor's March 9,
2020 executive order, and continued the trial to August 27, 2020. The trial court found that
the period of continuance was reasonable and necessary under R.C. 2945.72(H) and that
the time was neither tolled to the state nor to appellant. A trial court's sua sponte
continuance falls within continuances "granted other than on the accused's own motion"
under R.C. 2945.72(H). The trial court's June 2, 2020 sua sponte continuance of the trial
until August 27, 2020, because of the pandemic state of emergency was reasonable and is
not chargeable to the state. See State v. Lovett, 2d Dist. Montgomery No. 29240, 2022-
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Ohio-1693.
{¶ 17} On August 25, 2020, the trial court filed an entry granting appellant's August
24, 2020 oral motion for a continuance. The trial was continued to October 21, 2020. On
October 19, 2020, appellant moved for a change of venue and to compel a hearing on his
motion for a new counsel. On October 21, 2020, the trial court appointed John Cornely as
new counsel and continued the trial to December 10, 2020; appellant's new counsel filed a
discovery demand. The state responded to the discovery demand the next day. Ohio
courts have found it is reasonable for a trial court to continue a case to give recently
appointed defense counsel time to prepare for trial. State v. Redelman, 12th Dist. Clinton
No. CA2012-04-010, 2013-Ohio-657, ¶ 24.
{¶ 18} On November 25, 2020, appellant moved to continue the trial on the grounds
he needed additional time to investigate and the state failed to provide some discovery.
The state provided additional discovery on December 4, 2020, and indicated it had no
objection to a continuance. On December 8, 2020, the trial court continued the trial to
January 28, 2021. On December 28, 2020, appellant moved for leave to file a motion to
suppress which was granted by the trial court. Appellant filed his motion to suppress on
January 7, 2021. A suppression hearing was held on January 25, 2021, and continued in
progress to March 17, 2021. The trial was continued to March 18, 2021.
{¶ 19} On February 11, 2021, attorney William Mooney filed a notice of substitution
of counsel, thereby replacing attorney Cornely as appellant's counsel. The record indicates
that during a February 26, 2021 phone conference, appellant's counsel moved to continue
the trial. On March 2, 2021, the trial court continued the trial to April 15, 2021.
{¶ 20} On March 17, 2021, May 10, 2021, and June 7, 2021, appellant moved to
continue the trial; each time, the trial court granted appellant's motion. The trial was
ultimately continued to August 25, 2021. On August 2, 2021, the trial court vacated the trial,
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and a plea hearing was set for August 25, 2021, at the request of appellant's counsel. The
plea hearing was ultimately held on August 30, 2021, because appellant was unavailable
for transport due to a scheduled hearing in Franklin County. The total days chargeable to
the state as of August 30, 2021, is still 53. R.C. 2945.72(A), (E), and (H).
{¶ 21} The plea hearing was held on August 30, 2021. As stated above, appellant
orally moved to dismiss the aggravated drug trafficking charges for violation of his right to
a speedy trial; the trial court dismissed the motion; the plea hearing proceeded; and
appellant pled no contest to one count of aggravated trafficking in drugs.
{¶ 22} As the foregoing shows, there were several tolling events that occurred after
appellant was indicted for aggravated trafficking in drugs that bring the total number of days
chargeable to the state below the required 270-day time limit. These tolling events include
appellant's numerous motions for a continuance, his changes of counsel, and his demand
for discovery and request for a bill of particulars. R.C. 2945.72(E), (H). Appellant's statutory
right to a speedy trial was not violated and the trial court did not err in denying his motion
to dismiss on speedy trial grounds.
{¶ 23} Appellant further argues that the state violated his constitutional right to a
speedy trial because the 649-day delay between his indictment and no contest plea was
presumptively prejudicial.
{¶ 24} The United States Supreme Court set forth a balancing test that considers the
following four factors in determining whether trial delays are reasonable under the Sixth and
Fourteenth Amendments to the United States Constitution: (1) the length of the delay, (2)
the reason the government assigns to justify the delay, (3) the defendant's assertion of his
right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S.
514, 530-532, 92 S.Ct. 2182 (1972); State v. Triplett, 78 Ohio St.3d 566, 568, 1997-Ohio-
182.
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{¶ 25} "The first factor, the length of the delay, is a 'triggering mechanism,'
determining the necessity of inquiry into the other factors." Triplett at 569. Unless there is
some delay which is "presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance." Barker at 530. Post-accusation delay approaching
one year is generally found to be presumptively prejudicial. Doggett v. United States, 505
U.S. 647, 652, fn. 1, 112 S.Ct. 2686 (1992); Triplett at 569. Because the time lapse between
appellant's November 20, 2019 indictment and his no contest plea on August 30, 2021, the
same day as the trial court decision denying appellant's motion to dismiss, was 649 days
and thus exceeds one year, the delay was presumptively prejudicial and the remaining
Baker factors must be addressed. Messer, 2007-Ohio-5899 at ¶ 10.
{¶ 26} Upon reviewing the remaining Baker factors, we find that appellant was not
denied his constitutional right to a speedy trial. As discussed above, the reasons for the
delay were largely attributable to appellant's numerous requests for continuance, changes
in counsel, and other motions. Nothing in the record suggests that the state intentionally or
with bad faith delayed prosecution of the case. Although appellant knew of his indictment,
he did not timely invoke his speedy trial right, instead orally moving to dismiss the indictment
on the day of the plea hearing, 649 days after he was charged with aggravated drug
trafficking. In support of his speedy trial claim, appellant listed numerous instances where
the time should not be chargeable to him. Although the state was given the opportunity to
state on the record why the motion to dismiss should be overruled, such was not a hearing
on appellant's speedy trial claim. As the state told the trial court, appellant's failure to file a
written motion deprived the state of an ample opportunity to respond. Finally, the record
does not support a finding appellant suffered any actual prejudice.
{¶ 27} In light of the foregoing, we find that neither appellant's statutory right to a
speedy trial nor his constitutional right to a speedy trial was violated in this case. Appellant's
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first assignment of error is overruled.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S
MOTION TO SUPPRESS IN VIOLATION OF THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 14 OF THE OHIO
CONSTITUTION.
{¶ 30} Appellant argues the trial court erred in denying his motion to suppress.
Appellant asserts that his Fourth Amendment rights were violated because Deputy Kyle did
not have a reasonable articulable suspicion to enter apartment B in the first instance and
conduct a warrant check on all of those present.
{¶ 31} Appellate review of a trial court's denial of a motion to suppress presents a
mixed question of law and fact. State v. Fletcher, 12th Dist. Brown No. CA2016-08-016,
2017-Ohio-1006, ¶ 30. Acting as the trier of fact, the trial court is in the best position to
resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing
the denial of a motion to suppress, an appellate court is bound to accept the trial court's
findings of fact if they are supported by competent, credible evidence. Id. An appellate
court, however, independently reviews the trial court's legal conclusions based on those
facts and determines, without deference to the trial court's decision, whether as a matter of
law, the facts satisfy the appropriate legal standard. Id.{¶ 32} The Fourth Amendment to the United States Constitution guarantees "[t]he
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures." A presumption of unreasonableness attaches to all
warrantless home entries. Fletcher at ¶ 31. However, "[w]hen law enforcement officers
who are not armed with a warrant knock on a door, they do no more than any private citizen
might do." Kentucky v. King, 563 U.S. 452, 469, 131 S.Ct. 1849 (2011). A "knock and talk"
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by law enforcement is a "permissible warrantless intrusion" that does not require "any
objective level of suspicion." Fletcher at ¶ 31.
{¶ 33} We find that Deputy Kyle's actions in entering apartment B and conducting a
warrant check did not violate appellant's Fourth Amendment rights. While investigating a
disturbance complaint at the apartment complex, Deputy Kyle went to apartment B,
knocked on the door, and talked to Shawn Antis. As stated above, a law enforcement
officer's "knock and talk" is a "permissible warrantless intrusion" that does not require "any
objective level of suspicion." Id. Antis was a person known by the deputy to be an occupant
of the apartment. At the suppression hearing, appellant testified that Antis was temporarily
residing in the apartment. Upon the deputy's request, Antis permitted him to enter the
apartment. Once inside, the deputy conducted a warrant check on the individuals in the
apartment, including appellant. Deputy Kyle testified that he routinely conducts a warrant
check when coming in contact with people while investigating a complaint. Moreover, the
deputy's decision to conduct the warrant check was a "negligibly burdensome precaution"
for officer's safety. See Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609 (2015).
Once Deputy Kyle discovered the warrant, he had the obligation to arrest appellant as a
"warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the
officer has a sworn duty to carry out its provisions." United States v. Leon, 468 U.S. 897,
920, fn. 21, 104 S.Ct. 3405 (1984).
{¶ 34} Furthermore, the indictment charging appellant with drug trafficking offenses
did not arise from Deputy Kyle's January 24, 2019 entry into apartment B but from
appellant's own conduct in voluntarily placing telephone calls from the jail relating to drug
trafficking. Appellant's arrest on January 24, 2019, was solely due to an unrelated
outstanding arrest warrant. No evidence supporting the drug trafficking indictment was
obtained as a result of Deputy Kyle's encounter with appellant on January 24.
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{¶ 35} However, even assuming that Deputy Kyle's entry into apartment B and his
conducting a warrant check violated appellant's Fourth Amendment rights, exclusion of the
drug trafficking evidence against appellant would be inappropriate under the attenuation
doctrine. The doctrine is an exception to the exclusionary rule and provides that evidence
discovered as a result of unconstitutional police conduct is admissible "when the connection
between the unconstitutional police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that 'the interest protected by the
constitutional guarantee that has been violated would not be served by suppression of the
evidence obtained.'" Utah v. Strieff, 579 U.S. 232, 237-238, 136 S.Ct. 2056 (2016), quoting
Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159 (2006).
{¶ 36} In Strieff, an officer conducting surveillance of a suspected drug residence
stopped the defendant after observing him leave the residence. Strieff at 235. The officer
detained the defendant in a nearby parking lot and asked for his identification, which the
defendant provided. Id. The officer was notified by dispatch that the defendant had an
outstanding arrest warrant for a traffic violation. Id. The officer arrested the defendant,
searched him, and found methamphetamine and drug paraphernalia. Id. at 236. The
defendant moved to suppress the evidence arguing it was derived from an unlawful
investigatory stop. Id. The Utah Supreme Court ultimately ordered the evidence
suppressed. Id.
{¶ 37} On appeal, the United States Supreme Court examined whether the discovery
of a valid arrest warrant was a sufficient intervening event to break the causal chain between
the unlawful stop and the discovery of drug-related evidence on the defendant's person.
Strieff, 579 U.S. at 238. The Supreme Court identified three factors to be considered when
applying the attenuation doctrine: (1) the "temporal proximity" between the unconstitutional
conduct and the discovery of the evidence to determine how closely the discovery of
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evidence followed the unconstitutional search, (2) the "presence of intervening
circumstances," and (3) the "purpose and flagrancy of the official misconduct." Id. at 239.
{¶ 38} Applying these factors, the Supreme Court held that "the evidence discovered
on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by
the pre-existing arrest warrant." Id. at 242. The Court noted that while the first factor
favored suppressing the evidence because the officer discovered drug contraband on the
defendant's person only minutes after the illegal stop, the second and third factors strongly
favored the state. Specifically, the Supreme Court found that the outstanding warrant for
the defendant's arrest predated the officer's investigation and was "a critical intervening
circumstance that is wholly independent of the illegal stop. The discovery of that warrant
broke the causal chain between the unconstitutional stop and the discovery of evidence by
compelling [the officer] to arrest Strieff." Id. at 240, 242. The Court further found that the
officer's "errors in judgment hardly [rose] to a purposeful or flagrant violation of Strieff's
Fourth Amendment rights." Id. at 241. The Court noted "there [was] no indication that this
unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, * *
* the stop was an isolated instance of negligence that occurred in connection with a bona
fide investigation of a suspected drug house." Id. at 242.
{¶ 39} Applying the Strieff factors in the case at bar, we find that the drug trafficking
evidence against appellant is admissible under the attenuation doctrine. All three factors
strongly favor the state. First, the evidence was discovered months after appellant's
January 24, 2019 arrest in apartment B. Second, the discovery of a preexisting warrant for
appellant's arrest was a critical intervening circumstance wholly independent from the
deputy's entry into the apartment and warrant check that broke any causal chain between
any Fourth Amendment violation and the discovery of the drug trafficking evidence against
appellant. Finally, there is no evidence that Deputy Kyle's entry into apartment B and
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subsequent warrant check reflected flagrantly unlawful police misconduct. Strieff, 579 U.S.
at 242; State v. Stout, 12th Dist. Butler No. CA2020-08-085, 2021-Ohio-1125.
{¶ 40} In light of the foregoing, the trial court did not err in denying appellant's motion
to suppress. Appellant's second assignment of error is overruled.
{¶ 41} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.
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