State v. Brooks , 2023 Ohio 1631 ( 2023 )

[Cite as State v. Brooks, 2023-Ohio-1631.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J,
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 2022 CA 0055
DEMONRAY BROOKS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2021
CR 902 R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 15, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP DARIN AVERY
Prosecuting Attorney 105 Sturges Avenue
BY: CHASE E. BAKER Mansfield, OH 44903
Assistant Prosecutor
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2022 CA 0055 2
Gwin, P.J.
{¶1} Defendant-appellant Demondray Brooks [“Brooks”] appeals from the July
19, 2022 Judgment Entry of the Richland County Court of Common Pleas denying his
Motion to Dismiss for failure to afford him a speedy trial.
Facts and Procedural History
{¶2} On January 7, 2022, the Richland County Grand Jury returned an
Indictment charging Brooks with: Count 1, Failure to Comply with an Order or Signal of a
Police Officer causing a substantial risk of serious physical harm to persons or property,
a felony of the third degree in violation of R.C. 2921.331(B)(C)(4(ii)(5)(a)(ii); Count 2,
Failure to Comply with an Order or Signal of a Police Officer while fleeing immediately
after the commission of a felony, a felony of the fourth degree in violation of R.C.
2921.331(B)(C)(4); Count 3, Trafficking in a Fentanyl-Related Compound in the vicinity
of a juvenile in an amount equal to or greater than 5 grams but less than 10 grams, a
felony of the second degree in violation of R.C. 2925.03(A)(2)(C)(9)(d); Count 4,
Possession of Fentanyl in an amount equal to or greater than 5 grams but less than 10
grams, a felony of the third degree in violation of R.C. 2925.11(A)(C)(11)(c); Count 5,
Trafficking in Cocaine in the vicinity of a juvenile, a felony of the third degree in violation
of R.C. 2925.03(A)(2)(C)(4)(c); Count 6, Possession of Cocaine in an amount equal to or
exceeding 5 grams but less than 10 grams, a felony of the fourth degree in violation of
R.C. 2925.11(A)(C)(4)(b); Count 7, Aggravated Trafficking in Drugs, Methamphetamine,
a felony of the fourth degree in violation of R.C. 2925.03(A)(2)(C)(1)(a); Count 8,
Aggravated Possession of Drugs, Methamphetamine, a felony of the fifth degree in
violation of R.C. 2925.11(A)(C)(1)(a); Count 9, Trafficking in Drugs, Clonazepam, a
Richland County, Case No. 2022 CA 0055 3
Schedule IV drug, in the vicinity of a juvenile in an amount less than bulk amount, a felony
of the fourth degree in violation of R.C. 2925.03(A)(2)(C)(2)(a)(C)(2)(b); Count 10,
Possession of Drugs, Clonazepam, a Schedule IV drug, with a previous conviction of a
drug abuse offense, a felony of the fifth degree in violation of R.C. 2925.11(A)(C)(2)(a);
Count 11, Having Weapons While under a Disability with a previous conviction for a drug
trafficking offense, a felony of the third degree in violation of R.C. 2923.13(A)(3)(B); Count
12, Having Weapons While under a Disability with a previous conviction for a felony of
violence, a felony of the third degree in violation of R.C. 2923.13(A)(2)(B); Count 13,
Assault - J.N., a misdemeanor of the first degree in violation of R.C. 2903.13(A)(C); Count
14, Assault - K.T., a misdemeanor of the first degree in violation of R.C. 2903.13(A)(C);
and Count 15, Criminal Damaging or Endangering with a substantial risk of serious harm
to the property of M.P., a misdemeanor of the first degree in violation of R.C.
2909.06(A)(1)(B).
{¶3} On November 25, 2021, Brooks filed a Demand for Discovery. [Docket
Entry No. 16].
{¶4} On March 24, 2022, Brooks filed a Motion to Continue the trial date. [Docket
Entry No. 22]. On April 6, 2022, Brooks filed a Motion to Dismiss/Suppress Counts 1, 2,
11 & 12 of the Indictment. [Docket Entry No. 23]. On April 13, 2022, the trial court filed
a Notice of Hearing scheduling a hearing on Brooks’ motion to dismiss/suppress for April
22, 2022. [Docket Entry No. 25]. On April 14, 2022, the trial court filed a Judgment Entry
granting Brooks’ motion to continue, and scheduled a new trial date of May 16, 2022.
[Docket Entry No. 26]. On April 28, 2022, the trial court filed a Judgment Entry overruling
Brooks’ motion to dismiss/suppress. [Docket Entry No. 31].
Richland County, Case No. 2022 CA 0055 4
{¶5} On May 3, 2022, counsel for Brooks filed a motion to withdraw. [Docket
Entry No. 32]. By Judgment Entry filed May 4, 2022, the trial court granted the motion to
withdraw and scheduled a final pre-trial for May 12, 2022 and a jury trial for May 16, 2022.
[Docket Entry No. 34].
{¶6} On May 6, 2022, Brooks’ new counsel filed a Demand for Discovery a
Demand for a Bill of Particulars, and a Demand for Testimony. [Docket Entry No. 35, 36,
and 37]. On May 12, 2022, Brooks filed a motion to continue the trial, in which he noted
that he had received discovery from the state on May 10, 2022. [Docket Entry No. 40].
{¶7} On May 23, 2022, Brooks filed a pro se motion to dismiss for a violation of
his right to a speedy trial. [Docket Entry No. 42]. On June 9, 2022, Brooks filed a pro se
motion to discharge his counsel and represent himself. [Docket Entry No. 43].
{¶8} By Judgment Entry filed June 15, 2022, the trial court granted Brooks’
motion to continue the trial date. [Docket Entry No. 45]. The trial court tolled time and
scheduled a new trial date for July 18, 2022.
{¶9} On June 24, 2022, Brooks, through counsel, filed a Motion to Dismiss
alleging a violation of his right to a speedy trial.
{¶10} On July 15, 2022, the trial court held a hearing on Brooks’ motion to dismiss.
Sergeant Beau James of the Richland County Sheriff’s Office, Corrections Division
testified that Brooks has been in jail since his arrest on the present charges on November
2, 2021. T. at 25-26.1 On the day of his arrest, a holder was placed on Brooks by Morrow
County for a Failure to Appear for a misdemeanor charge. Id. at 26-27.
1 The transcript references are to the Hearing on Motion, Change of Plea & Sentencing held July
15, 2022.
Richland County, Case No. 2022 CA 0055 5
{¶11} The trial court took the motion to dismiss under advisement and next
addressed Brooks’ request to proceed pro se. T. at 33-34. Brooks informed the court that
he decided not to represent himself. T. at 41. After plea negotiations, the trial judge orally
overruled Brooks’ motion to dismiss. Id. at 52. Thereafter, the state amended Count 3
of the Indictment to remove the “in the vicinity of a juvenile” language thereby making the
offense a felony of the third degree. T. at 54-55. The trial court permitted Brooks to plead
“No Contest” to Counts 1, 2, Count 3 as amended, Counts 7, 11, 13 and Count 15. Brooks
stipulated to a guilty finding by the trial judge. T. at 64. The trial court imposed the agreed
upon sentence of 8.5 years as follows: Count 1: 36 months; Count 3: 36 months; Count
7: 12 months, Count 11: 18 months, to be served consecutively to each other but
concurrently with Count 13: 6 months, concurrent to Count 15: 6 months.
Assignment of Error
{¶12} Brooks raises one Assignment of Error,
{¶13} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
DISMISS FOR FAILURE TO GRANT HIM A SPEEDY TRIAL.”
Law and Analysis
Standard of Appellate Review
{¶14} Speedy trial provisions are mandatory and are encompassed within the
Sixth Amendment to the United States Constitution. The availability of a speedy trial to a
person accused of a crime is a fundamental right made obligatory on the states through
the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational
effort to enforce the constitutional right to a public speedy trial of an accused charged with
Richland County, Case No. 2022 CA 0055 6
the commission of a felony or a misdemeanor and shall be strictly enforced by the courts
of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus.
{¶15} Our review of a trial court’s decision regarding a motion to dismiss based
upon a violation of the speedy trial provisions involves a mixed question of law and fact.
State v. Larkin, 5th Dist. No. 2004–CA–103, 2005-Ohio-3122, ¶11. State v. Long, 163
Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, ¶15. As an appellate court, we must
accept as true any facts found by the trial court and supported by competent, credible
evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17, 2016-Ohio-5912, ¶43, citing
Larkin; Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, ¶15.
{¶16} With regard to the legal issues, however, we apply a de novo standard of
review and thus freely review the trial court’s application of the law to the facts. Long,
163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, ¶15. When reviewing the legal
issues presented in a speedy-trial claim, we must strictly construe the relevant statutes
against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 709 (1996);
State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-Ohio-2326, ¶12.
Issue for appellate review: Whether the trial court permissibly extended the trial
date beyond the R.C. 2945.71 time prescriptions
{¶17} Brooks specifically contends dismissal of the indictments in the case sub
judice was required on the grounds that he was not brought to trial within ninety days
under the “triple-count” provision of R.C. 2945.71(E). Brooks argues that the decision in
State v. McDonald, 48 Ohio St.2d 66, 357 N.E.2d 40(1976) was wrongly decided.
Specifically, Brooks contends that R.C. 2945.71(E) does not contain any language that
Richland County, Case No. 2022 CA 0055 7
the accused be held in jail “solely” on the pending charge in order to be entitled to the
triple-count provisions. [Appellant’s brief at 11].
{¶18} A person charged with a felony shall be brought to trial within 270 days after
the person's arrest or the service of summons. R.C. 2945.71(C)(2). In addition, the first
day is excluded from the count. State v. Adkins, 4 Ohio App.3d 231, 232, 447 N.E.2d
1314 (3rd Dist. 1982), Crim.R. 45 and R.C. 1.14. Accordingly, it is Brooks’ contention
that the state had until Tuesday, February 1, 2022 to bring Brooks to trial2.
{¶19} The statutory provision commonly referred to as the “triple count” provision,
R.C. 2945.71(E), reads as follows,
(E) For 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. This
division does not apply for purposes of computing time under division (C)(1)
of this section.
Emphasis added. The Ohio Supreme Court has held that the triple count provision only
applies when the person is being held in jail in lieu of bail solely on the pending case.
State v. McDonald, 48 Ohio St.2d 66, 357 N.E.2d 40(1976), paragraph one of the
syllabus. Accord, State v. Ladd, 56 Ohio St.2d 197, 202-203, 383 N.E.2d 579(1978).
{¶20} Upon review of the record, we find that competent, credible evidence
supports the trial court’s conclusion that Brooks was not being held in the Richland County
jail solely on the underlying charges in the case sub judice. Unrefuted testimony was
2Arrested November 2, 2021. 90 days equals Monday January 31, 2022. Exclude first day equals
Tuesday, February 1, 2022.
Richland County, Case No. 2022 CA 0055 8
presented that a holder was placed upon Brooks by Morrow County on November 2,
2021. T. at 25. We hold the existence of the detainer from Morrow County would alone
equate to Brooks being held on other charges for the purposes of McDonald, supra. To
be held in jail on “the pending charge” can only be interpreted as meaning that “but for”
the pending charge the defendant could not be held in jail. In the case at bar, had Brooks
posted bond on the pending charges, he would not have been released from jail because
of the holder placed on him by Morrow County. T. at 26. Richland County was informed
that Morrow County had an active warrant for Brooks and they intended to come and get
Brooks. T. at 26 – 28. Therefore, Brooks was not held in jail only because of the charges
in the case at bar. Hence, we conclude the trial court properly denied the application of
the triple-count provision of R.C. 2945.71(E) under the facts of this case.
{¶21} Brooks’ appeal to this Court to reverse or ignore the Ohio Supreme Court’s
decision in McDonald is untenable. Article IV of the Ohio Constitution designates a
system of “superior” and “inferior” courts, each possessing a distinct function. The
Constitution does not grant to a court of common pleas or to a court of appeals jurisdiction
to reverse or vacate a decision made by a superior court. See, State, ex rel. Potain v.
Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343, 345 (1979); R.C. 2305.01; Hutto v.
Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 70 L.Ed.2d 556(1982) (per curiam); State v.
Hamon, Fifth Dist. Delaware No. 12 CAA 12 0089. 2015-Ohio-887, ¶24.
{¶22} Brooks’ sole Assignment of Error is overruled.
Richland County, Case No. 2022 CA 0055 9
{¶23} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Baldwin, J., and
King, J., concur