State v. Owens , 181 Ohio App. 3d 725 ( 2009 )

{¶ 80} I dissent from the decision to vacate appellant's sentence. I would hold that the delay in sentencing was not unreasonable in this case and that the trial court properly denied appellant's motion to dismiss. This case is more similar to the Supreme Court's Neal case than to our Brown case, and our holding in Brown actually supports the denial of appellant's motion to dismiss.

{¶ 81} In Neal, the Supreme Court concluded that waiting for the resolution of a related indictment and thus deferring a sentence for ten months after conviction was not unreasonable, as the severity of sentence could be affected by the other charges. Neal v.Maxwell (1963), 175 Ohio St. 201, 202, 24 O.O.2d 281,192 N.E.2d 782 (noting that the trial court has discretion in determining the proper time for sentencing). In Brown, the defendant pleaded guilty in May 1998, the court issued a bench warrant to retrieve the defendant from Colorado in August 1998, and then, nothing occurred in the case until the defendant filed a motion to dismiss in March 2000. State v.Brown, 152 Ohio App.3d 8, 2003-Ohio-1218, 786 N.E.2d 492. The trial court then waited over a month to issue a ruling that gave the state an additional one year to procure the defendant for sentencing. Over a year after that, sentencing proceeded by video.

{¶ 82} Notably, the defendant in Brown appeared at an extradition action in Ohio seemingly indicating a desire to be sentenced for his Ohio crimes prior to any extradition to Colorado. Instead of ensuring that he was sentenced for his Ohio crimes, the court transferred him to Colorado. We focused on this fact and found that Ohio was responsible for the situation of the defendant's unavailability. We also noted that if the defendant had waived extradition to Colorado, then we would have found that his unavailability for Ohio sentencing was attributable to the defendant. Id. at ¶ 23, 29-30.

{¶ 83} Thus, it appears that our analysis in delayed-sentencing cases should include consideration of the following nondispositive factors: the amount of total delay (minus defendant continuances), the amount of delay during which no action occurred, the reason for the delay, and if absence from the state is part of the reason, the party to whom the absence is attributable.

{¶ 84} Here, two weeks after his February 2006 plea was entered and while his presentence investigation was being compiled, appellant committed crimes in Pennsylvania. He was immediately arrested and jailed in that state. Thus, he directly caused his incarceration in Pennsylvania and his absence from Ohio. The situation is distinguishable fromBrown on this fact alone as Brown's absence was said to be attributable to the state because even though that defendant seemed to ask to be sentenced before extradition, the Ohio court proceeded to release the defendant to Colorado prior to the Ohio sentencing hearing. The fact that appellant was jailed out of state also distinguishes this case from the two cases cited in Brown with shorter delays, as those defendants were sitting in the local jail awaiting sentencing with no reason for the failure to set a sentencing hearing. SeeState v. Tucker (May 2, 1989), 10th Dist. No. 88AP-550, 1989 WL 47102; Willoughby v. Lukehart (1987), 39 Ohio App.3d 74, 529 N.E.2d 206.

{¶ 85} Moreover, during the Ohio trial court's timely attempts to retrieve him, appellant waived extradition in the Pennsylvania court. Despite this waiver, Pennsylvania would not honor our warrant for removal and refused the sheriff's attempt to execute the warrant. We also note that Ohio retrieved appellant immediately upon his release in July 2007, and the trial court immediately set sentencing within the month, giving him time to prepare. That hearing was continued only at his request. Thus, the sentence would have been imposed the month prior to his motion to dismiss if he had not filed a continuance of the sentencing hearing, whereas inBrown, the sentence was not imposed until over a year after the defendant filed his motion to dismiss for delay. The time period here is more comparable to the ten months inNeal than the more than three years in Brown.

{¶ 86} Furthermore, there can be no doubt that the few months leading up to Pennsylvania's refusal of Ohio's warrant constituted a reasonable time period and a reasonable initial attempt at retrieval. Similarly, there can be no question that the time between Owens's retrieval by Ohio and his original sentencing date was reasonable. As acknowledged by the majority, the only contestable time period is the 13 months after the refusal by Pennsylvania during which no attempt to sentence appellant was made.

{¶ 87} In evaluating this delay, I note that he was incarcerated in a jail, not a prison, allowing the requesting court to infer that potential incarceration would be shorter rather than longer. In other words, if the anticipated release date is ten years away, the court might be obligated to find a way to sentence the defendant, but where the anticipated release date is not that far in the future, the court has some discretion to wait.

{¶ 88} Finally, appellant not only got himself incarcerated out of state, but the holding jail refused the Ohio court's warrant for removal notwithstanding appellant's waiver of extradition, which procedure is not the exclusive remedy in any event. See R.C. 2963.21. To the contrary, inBrown, there was no indication that the trial court's warrant was refused by the other state or that any attempt was made by the sheriff's office to retrieve the defendant as was performed here.

{¶ 89} In conclusion, no one factor is dispositive, but in balancing the factors, I find that the delay was not so unreasonable that vacation of the sentence is required under the totality of the facts and circumstances existing herein. I would conclude that after a county jail in another state refuses a warrant for removal even though the defendant waived extradition, it is not an abuse of discretion for the trial court to determine that sentencing could wait until the defendant is released from that jail, especially where there is a plan in place to immediately retrieve him from that jail upon his release.

{¶ 90} This is particularly true where the location of the defendant at the time of the originally scheduled sentencing was not attributable to the state, as was the crux of our holding in Brown- Id. at ¶ 23 ("Obviously, if appellant had waived extradition so that the authorities in Jefferson County were forced to deliver him into the custody of officials from the state of Colorado, he would have been responsible for any subsequent effects of that decision, such as missing his sentencing hearing in Columbiana County"). See also State v. Fugate, 6th Dist. No. F-07-003, 2007-Ohio-6126, 2007 WL 3408262, ¶ 12 (defendant's mere act of committing crimes and becoming incarcerated in other state pending sentencing justifies a delay of one and one half years; also finding waiver of issue). Such a holding would not be inconsistent with Brown. Thus, I would affirm appellant's sentence.