State v. Turner , 2011 Ohio 4348 ( 2011 )

[Cite as State v. Turner, 2011-Ohio-4348.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-01
v.
DAVID L. TURNER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR20100276
Judgment Affirmed
Date of Decision: August 29, 2011
APPEARANCES:
David L. Turner, Appellant
Jana E. Emerick for Appellee
ROGERS, P.J.
{¶1} Defendant-Appellant, David Turner, appeals from the judgment of the
Court of Common Pleas of Allen County sentencing him to a twenty-year prison
term. On appeal, Turner contends that his statutory right to a speedy trial was
violated; that holding his jury trial on November 2, 2010, a legal holiday, rendered
the trial null and void; and, that the criminal complaint was not properly endorsed
with a state seal or attested to by a notary. Based on the following, we affirm the
judgment of the trial court.
{¶2} On June 4, 2009, Officer John Butler filed a criminal complaint in the
Lima Municipal Court against Turner for an armed robbery of a local convenience
store that occurred on June 3, 2009. (Docket Entry No. 1). On June 4, 2010,
Officer W.S. Patterson received an arrest warrant for Turner. (Docket Entry No.
2). Turner was arrested by Officer Patterson on August 6, 2010. Id.{¶3} In September 2010, the Allen County Grand Jury indicted Turner on
Count One: aggravated robbery in violation of R.C. 2911.01(A)(1), with a firearm
specification as listed in R.C. 2941.145(A), and with a specification that he is a
repeat offender, as defined in R.C. 2929.01(CC) and as listed in R.C. 2941.149(A),
a felony of the first degree; Count Two: abduction in violation of R.C.
2905.02(A)(2), a felony of the third degree; and, Count Three: having a weapon
while under disability in violation of R.C. 2923.13(A)(2), a felony of the third
degree.
{¶4} On November 1, 2010, Turner filed a motion to dismiss the indictment
based on his statutory right to a speedy trial. Turner maintained that he was
arrested on August 3, 2010. Turner argued that the scheduled trial date of
November 2, 2010 fell outside the two hundred seventy day period provided in
R.C. 2945.71(C)(2), and that pursuant to R.C. 2945.73(B) he should be
discharged. That same day, the trial court filed its judgment entry denying
Turner’s motion to dismiss on three alternate grounds. First, the trial court found
that Turner was arrested on August 6, 2010, a fact which placed the November 2,
2010 trial date within the two hundred seventy day period provided in R.C.
2945.71(C)(2). Second, the trial court found that had Turner been arrested on
August 3, 2010, the November 2, 2010 trial date still fell within the two hundred
seventy day period provided in R.C. 2945.71(C)(2). Last, the trial court found that
even if the November 2, 2010 trial date fell outside the two hundred seventy day
period provided in R.C. 2945.71(C)(2), the statutory time period had been
extended by virtue of Turner’s requests for discovery and a bill of particulars as
well as his motion for a bifurcated trial.
{¶5} On November 2, 2010, the matter proceeded to a jury trial. The jury
returned verdicts of guilty on all counts in the indictment.
{¶6} On December 13, 2010, the matter proceeded to sentencing. The trial
court sentenced Turner to a ten-year prison term on Count One, a five-year prison
term on Count Two, and a five-year prison term on Count Three. The trial court
ordered Counts One, Two, and Three to be served consecutively for a total prison
term of twenty years. The trial court further ordered Turner to pay $2,500.00 in
restitution to Christopher Nutt, the victim of the armed robbery.
{¶7} It is from this judgment Turner appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERROD (sic) IN DENYING THE
DEFENDANT-APPELLANT’S DAVID L. TURNER’S
MOTION TO DISMISS ON GROUNDS THAT HIS
STATUTORY RIGHT TO A SPEEDY TRIAL WAS
VIOLATED PURSUANR (sic) TO R.C. §2945.71 ET SEQ.
Assignment of Error No. II
DEFENDANT-APPELLANT WAS DENIED A “FAIR TRIAL”
SIXTH U.S.C.A. FIFTH U.S.C.A. “DUE PROCESS” AND
FOURTEENTH “EQUAL PROTECTION OF LAW” U.S.C.A.
AND ALL COMPARABLE OHIO CONSTITUTIONAL
RIGHTS, AS TRIAL WAS HELD ON 2ND NOVEMBER 2010,
GENERAL ELECTION WHICH IS A LEGAL HOLIDAY,
SAID TRIAL IS THEN NULL AND VOID.1
Assignment of Error No. III
A FALSE “FAKE” ARREST WARRENT (sic) AND
COMPLAINT MANUFACTURED BY: DEPUTY JOHN
1
It is this Author’s practice to reproduce appellant’s assignments of error verbatim, regardless of
misspellings, grammatical mistakes, misstatements of the law, or incoherency.
BUTLER A,C.S.O. (sic) THAT IS NOT INDORCED (sic) WITH
A STATE SEAL OR ATTESTED TO BY NOTARY.
Assignment of Error No. I
{¶8} In his first assignment of error, Turner contends that his statutory right
to a speedy trial was violated, as he was brought to trial beyond the two hundred
seventy day period provided in R.C. 2945.71(C)(2). We disagree.
{¶9} “Our standard of review upon an appeal raising a speedy trial issue is
to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3d
Dist. No. 9-06-18, 2007-Ohio-335, ¶30, citing State v. DePue (1994), 96 Ohio
App .3d 513, 516. If any ambiguity exists, this Court will construe the record in
the defendant’s favor. King, 2007-Ohio-335, at ¶30, citing State v. Mays (1996),
108 Ohio App.3d 598, 609.
{¶10} “Both the United States and Ohio Constitutions guarantee a criminal
defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666,
2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-
229. In addition, Ohio statutes set forth specific time requirements necessary for
compliance with the speedy trial guarantee. The applicable statutory speedy trial
provision, R.C. 2945.71(C)(2), provides that “[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.”
{¶11} Additionally, R.C. 2945.73(B) provides that “[u]pon motion made at
or prior to the commencement of trial, a person charged with an offense shall be
discharged if he is not brought to trial within the time required by sections 2945.71
and 2945.72 of the Revised Code.” Both R.C. 2945.71 and 2945.73 are
mandatory, and strict compliance is required by the State. King, 2007-Ohio-335,
at ¶32, quoting State v. Pudlock (1975), 44 Ohio St.2d 104, 105. “Therefore,
when a criminal defendant shows that he was not brought to trial within the proper
period, the burden shifts to the State to demonstrate that sufficient time was tolled
or extended under the statute.” State v. Maisch, 173 Ohio App.3d 724, 2007-
Ohio-6230, ¶24, citing Masters, 2007-Ohio-4229, at ¶10, citing State v. Butcher
(1986), 27 Ohio St.3d 28, 31.
{¶12} “The statutory time period begins to run on the date the defendant is
arrested; however, the date of arrest is not counted when computing the time
period.” Maisch, 2007-Ohio-6230, at ¶26, citing Masters, 172 Ohio App.3d 666,
at ¶12, citing State v. Stewart, 12th Dist. No. CA98-03-021, 1998 WL 640909.
Additionally, the triple-count statute, R.C. 2945.71(E), provides that, for
computation purposes, each day an accused spends in jail in lieu of bond solely on
the pending charge shall count as three days. State v. Euton, 3d Dist. No. 2-06-35,
2007-Ohio-6704, ¶24; State v. Pishok, 3d Dist. No. 13-03-43, 2003-Ohio-7118,
¶7, citing State v. Brown (1992), 64 Ohio St.3d 476, 479.
{¶13} Turner was indicted on three felony counts. Therefore, the State was
required to bring him to trial within two hundred seventy days of his arrest. R.C.
2945.71(C)(2). Review of the record reveals that Turner was arrested on August
6, 2010, not August 3, 2010 as Turner contends. (Docket Entry No. 2). Turner’s
trial was held on November 2, 2010. During the time between his arrest and trial
Turner was held in jail in lieu of bond, thus the triple-count provision applies.
R.C. 2945.71(E) Calculating the number of days between August 7, 2010 and
November 2, 2010, we find that only two hundred sixty four (264) days of the
statutory speedy trial period had elapsed. Accordingly, we find that Turner’s
statutory right to a speedy trial was not violated.
{¶14} Accordingly, we overrule Turner’s first assignment of error.
Assignment of Error No. II
{¶15} In his second assignment of error, Turner contends that his trial was
null and void as it was held during the November 2, 2010 general election.
Specifically, Turner contends that November 2, 2010 was a legal holiday, and that
any court business, including his trial, conducted on that day was null and void.
We disagree.
{¶16} Both the United States and Ohio governments statutorily recognize
particular days as legal holidays. The United States and Ohio governments jointly
recognize the following as legal holidays: New Year’s Day, the first day of
January; Martin Luther King, Jr.’s Birthday, the third Monday in January;
President’s Day, the third Monday in February; Memorial Day, the last Monday in
May; Independence Day, the fourth day of July; Labor Day, the first Monday in
September; Columbus Day, the second Monday in October; Veterans Day, the
eleventh day of November; Thanksgiving Day, the fourth Thursday of November;
and, Christmas Day, the twenty-fifth day of December. 5 U.S.C. § 6103; R.C.
1.14. In addition, Ohio recognizes the first Tuesday of November, between the
hours of twelve noon and five-thirty, as a legal holiday. R.C. 5.20. Despite half of
the first Tuesday of November being a legal holiday in the State of Ohio, we find
no law requiring public agencies, including courts, to cease operations during that
time, nor has Turner cited any authority demonstrating such a requirement. See
Norman v. State (1924), 109 Ohio St. 213, 227 (absent a statutory provision
prohibiting court on legal holidays a judicial proceeding on such a day is not
void); Powell v. New York Cent. RR. Corp. (1960), 174 N.E.2d 556, 557 (finding
that it is not unlawful to hold court on a legal holiday). Rather, we find that it is
within a court’s discretion to conduct its business on a legal holiday, which
consequently includes the afternoon of the first Tuesday of November. Dursa v.
Dursa (1958), 150 N.E.2d 306, 308, citing State v. Thomas (1900), 61 Ohio St.
444, and Norman, 109 Ohio St. 213. In considering whether the trial court abused
its discretion in holding court during a legal holiday we look to the regularity of
the court’s proceedings.
{¶17} The trial court did not abuse its discretion by holding Turner’s trial
on November 2, 2010, which happened to be the first Tuesday of November. The
trial commenced at 8:47 a.m. on November 2, 2010, and finished at 4:38 p.m. See
Trial Tr., pp. 1, 202. Thus, the trial continued well into the period of time
designated as a legal holiday pursuant to R.C. 5.20. Nevertheless, it was within
the trial court’s discretion to hold trial on November 2, 2010. Upon review of the
record, particularly the trial proceedings, there is nothing to suggest that the trial
proceeded in an inappropriate or irregular manner. Turner cites the docket and the
fact that there were no entries made on November 2, 2010, the date of the trial.
Turner focuses on the entries dated November 3, 2010, to wit: the verdict, calling
jury fee, jury expenses, and the judgment entry of conviction, arguing that the
timing of the entries demonstrates that the court was closed on November 2, 2010.
We find this to be pure unsubstantiated speculation. In the absence of any
evidence suggesting irregularity in the proceedings below, we must presume their
regularity. State v. Rappach, 11th Dist. No. 3361, 1984 WL 7378, citing
Scovanner v. Toelke (1928), 119 Ohio St. 256, at syllabus. Because Turner has
failed to demonstrate any irregularity in his trial, we find that the trial court did not
abuse its discretion in holding trial on November 2, 2010.
{¶18} Accordingly, we overrule Turner’s second assignment of error.
Assignment of Error No. III
{¶19} In his third assignment of error, Turner contends that the June 4,
2009 complaint was not endorsed with a state seal or attested to by a notary, thus
depriving the trial court of jurisdiction. We disagree.
{¶20} The filing of a valid complaint is a necessary prerequisite to a court’s
acquisition of jurisdiction. State v. Mdobji, ___ Ohio St.3d ___, 2011-Ohio-2880,
¶12; State v. Thacker, 4th Dist. No. 04CA5, 2004-Ohio-3978, ¶11, citing
Columbus v. Jackson (1952), 93 Ohio App. 516, 518. Particularly, the failure to
present a properly sworn complaint is a defect that deprives a court of subject
matter jurisdiction and cannot be waived by a defendant. State v. Green (1988),
48 Ohio App.3d 121; State v. Miller (1988), 47 Ohio App.3d 113. In Green, the
charging officer signed the complaint, but did not sign the jurat. The Eleventh
District Court of Appeals held that an unsworn complaint “is void and any
conviction resulting therefrom would be void also.” Green, 48 Ohio App.3d at
122; Village of New Albany v. Dalton (1995), 104 Ohio App.3d 307, 311.
{¶21} In the present case, however, Turner was not convicted or prosecuted
upon the allegedly defective complaint presented to the Lima Municipal Court.
Rather, Turner was tried upon the indictment. (Docket Entry No. 3). Where the
accused is initially charged via a complaint, but is subsequently indicted by the
grand jury, the accused is tried upon the indictment not the complaint. State v.
Christian, 7th Dist. No. 02 CA 170, 2005-Ohio-2381, ¶14, citing Thacker, 2004-
Ohio-3978, at ¶12, citing Foston v. Maxwell (1964), 177 Ohio St. 74, 76.
Consequently, any alleged defects with the June 4, 2009 complaint are irrelevant
and harmless to Turner’s convictions, as he was tried and convicted on the
indictment. See Thacker, supra, citing State v. Martin, 4th Dist. No. 01CA24,
2002-Ohio-6140, ¶24; State v. Jenkins, 4th Dist. No. 02CA5, 2003-Ohio-1058,
¶24. Furthermore, the indictment filed in Turner’s case gave the trial court subject
matter jurisdiction over the case. See State v. Leigh, 2d Dist. No. 18294, 2001-
Ohio-1700, *2.
{¶22} Accordingly, we overrule Turner’s third assignment of error.
{¶23} Having found no error prejudicial to Turner herein, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr