State v. Banks , 2020 Ohio 5170 ( 2020 )

[Cite as State v. Banks, 2020-Ohio-5170.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
MARLON BANKS : Case No. 2020 CA 0002
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016 CR 00111
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 4, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID HOMER EARL K. DESMOND
60 East High Street 7 West High Street
Mt. Gilead, OH 43338 Mount Gilead, OH 43338
Morrow County, Case No. 2020 CA 0002 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Marlon Banks appeals the December 20, 2019
judgment of the Morrow County Court of Common pleas which denied Banks' motion to
dismiss, found him guilty of burglary and theft of a firearm, suspended a 36-month prison
sentence, and placed Banks on community control for a period of three years. Plaintiff-
appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 15, 2016, the Morrow County Grand Jury returned an indictment
charging Banks with burglary and theft of a firearm. Although Banks had been interviewed
regarding the charges by a Morrow County Sheriff's deputy on June 7, 2016, his
whereabouts thereafter became unknown, and a warrant issued for his arrest. The
warrant was entered into the Law Enforcement Automated Data System (LEADS)
database on July 19, 2016.
{¶ 3} A short time before Banks was indicted in Morrow County, he was
sentenced to a prison term on June 26, 2016 as a result of criminal convictions in Franklin
County. When Banks was received at Pickaway Correctional Institution an official there,
as per procedure, checked for any outstanding warrants for Banks but found none.
However, when Banks was screened before his August 20, 2018 release, prison officials
discovered the outstanding Morrow County warrant and notified Banks of the same. He
was thereafter transported to Morrow County where he was arraigned and released on
bail.
Morrow County, Case No. 2020 CA 0002 3
{¶ 4} While he was incarcerated at Pickaway, Banks never made a request for
disposition of his pending Morrow County charges pursuant to R.C. 2941.401, a speedy
trial statute applicable only to defendants incarcerated in an Ohio correctional institution
and facing charges separate from those they are already incarcerated for. Instead, on
November 5, 2018, after he had been released from Pickaway and was free on bail on in
the matter at bar, Banks filed a motion to dismiss arguing the state had failed to comply
with R.C. 2941.401. On November 13 2018, the state filed a response arguing Banks was
not entitled to discharge per R.C. 2941.401 under the facts of this case. On November
19, 2018, counsel for Banks filed a second notion to dismiss, again per R.C. 2941.401,
and the state again responded on November 21, 2018.
{¶ 5} Following several continuances, the parties arrived at a plea agreement
whereby in exchange for Banks' no contest plea, so he could appeal the R.C. 2941.401
issue, Banks would receive a suspended 36-month sentence, and a period of three years
community control.
{¶ 6} Banks timely appeals the denial of his motion to dismiss raising one
assignment of error for our review:
I
{¶ 7} "THE TRIAL COURT ERRONEOUSLY DENIED THE MOTION TO
DISMISS FOR VIOLATION OF R.C. 2941.401."
{¶ 8} In his sole assignment of error, Banks argues the trial court improperly
denied his motion to dismiss the charges against him because the state failed to comply
with R.C. 2941.401. We disagree.
{¶ 9} R.C. 2941.401 provides:
Morrow County, Case No. 2020 CA 0002 4
When a person has entered upon a term of imprisonment in a
correctional institution of this state, and when during the continuance
of the term of imprisonment there is pending in this state any untried
indictment, information, or complaint against the prisoner, he shall
be brought to trial within one hundred eighty days after he causes to
be delivered to the prosecuting attorney and the appropriate court in
which the matter is pending, written notice of the place of his
imprisonment and a request for a final disposition to be made of the
matter * * *.
***
The warden or superintendent having custody of the prisoner shall
promptly inform him in writing of the source and contents of any
untried indictment, information, or complaint against him, concerning
which the warden or superintendent has knowledge, and of his right
to make a request for final disposition thereof.
***
If the action is not brought to trial within the time provided, subject to
continuance allowed pursuant to this section, no court any longer has
jurisdiction thereof, the indictment, information, or complaint is void,
and the court shall enter an order dismissing the action with
prejudice.
Morrow County, Case No. 2020 CA 0002 5
{¶ 10} Banks argues this section required the state to discover his whereabouts
and notify him of the pending charges. He relies upon State v. Brown, 131 Ohio App. 3d
387, 722 N.E.2d 594 (4th Dist. 1998), which found "[a]lthough section 2941.401 does not
explicitly require the state to give notice of an indictment to an accused who is
incarcerated on a different charge, the statute would have no meaning if the state could
circumvent its requirements by not sending notice of an indictment to the warden of the
institution where the accused is imprisoned." Brown, 391 quoting State v. Miller (1996),
113 Ohio App. 3d 606, 609, 681 N.E.2d 970, 972 (1996), and State v. Floyd, 8th Dist.
Cuyahoga App. No. 39929, 1979WL210636 (Oct. 25, 1979).
{¶ 11} In 2004, however, the Supreme Court of Ohio, in State v. Hairston, 101 Ohio
St. 3d 308, 2004-Ohio-969, 804 N.E.2d 471 found R.C. 2941.401 places no obligation on
the state to locate an incarcerated defendant with pending charges who never caused the
requisite notice of imprisonment and request for final disposition to be delivered to either
the prosecuting attorney or the court. Hairston ¶ 26. Rather, the court specifically held " *
* * R.C. 2941.401 places a duty on an incarcerated defendant to " 'cause[ ] to be delivered
to the prosecuting attorney and the appropriate court * * * written notice of the place of
his imprisonment and a request for a final disposition to be made of the matter[ ]' and that
the duty to bring such a defendant to trial within 180 days of the written notice and request
arises only after receipt of that statutory notice." Id. We apply this binding precedent to
the instant matter.
{¶ 12} First, R.C. 2041.401 applies to an incarcerated defendant. There is no
dispute here that Banks never attempted to invoke the process set forth in R.C. 2941.401
until after he had been released from a state institution. Additionally, in arguing the
Morrow County, Case No. 2020 CA 0002 6
indictment at issue should be dismissed, Banks attempted to blame the state for failing to
find him. Pursuant to Hairston and R.C. 2941.401, however, the onus was upon Banks to
begin the process. Because he failed to do so, his argument here fails.
{¶ 13} The sole assignment of error is overruled.
By Wise, Earle, J.
Wise, John, P.J. and
Delaney, J. concur.
EEW/rw