counsel for appellee, state of ohio counsel for appellant, christopher … appellant christopher...
TRANSCRIPT
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IN THE SUPREME COURT OF oHIO
STATE OF OHIO,1 ^^f ...,o-^^ l • a . ,^ .. .f,•°4 f^i^
CASE NO.
PLAINTIFF-APPELLEE,
V.
CHRISTOPHER WELLS,
ON DISCRETIONARY APPEAL FROM THE
DELAWARE COUNTY COURT OF APPEALS,
FIFTH APPELLATE DISTRICT,
CASE No.13 CAA 07 0057
DEFENDANT-APPELLANT.
MEMORANDUM IN SUPPORT OF JURISDICTION OF
APPELLANT CHRISTOPHER WELLS
Delaware County Prosecutor's Office
Mark C. Sleeper, 0079692
Assistant Prosecuting Attorney
Office of the Ohio Public Defender
Stephen P. Hardwick, 0062932
Assistant Public Defender
140 N. Sandusky Street
Third Floor
Delaware, Ohio 43015
740-833-2690
740-833-2689 (fax)
Counsel for Appellee, State of Ohio
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 (fax)
Counsel for Appellant, Christopher Wells
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TABLE OF CONTENTS
Page No.
THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS
OF PUBLIC AND GREAT GENERAL INTEREST .......................................................................1
STATEMENT OF THE CASE AND THE FACTS ............................................................................5
ARGUMENT.................................................................................................................................... 6
Proposition of Law:
The State's voluntary dismissal of a case does not automatically toll the
speedy trial deadline . .......................................................................................................6
A. T'he facts are undisputed: Mr. Wells wins or loses this case based onwhether his speedy trial time was tolled after the State dismissedhis first indictment . ................................................................................................6
B. The dismissal of a case at the State's request is not a tolling eventunder R.C. 2945.72 . . ..............................................................................................6
1. This case is simple under the plain language of R.C. 2945.71
and 2945.72 . . .. .. ... ... .. .. ... ..... ..... ... . .. . ..... . .. .. .. .. ... . . ....... .. .. .. .. .. . ..... ... . . . ... . .. .. .....6
2. The State has a remedy when it cannot prepare for trialwithin the time limits of R.C. 2945.71 . ...................................................7
CONCLUSION ...............................................................................................................................7
CERTIFICATE OF SERVICE .... ......................................................................................................8
APPENDIX:
Opinion, Delaware County Court of Appeals Case No. 13 CAA 07 0057(May 1, 2014) .................................................................................................................. A-1
Entry, Delaware County Court of Appeals Case No. 13 CAA 07 0057
(May 1, 2014) .................................................................................................................. A-9
Judgment Entry, Delaware County Common Pleas Case No. 13 CR 1010019
(June 14, 2013) ............................................................................................................. A-10
Judgment Entry, Delaware County Common Pleas Case No. 13 CR 1010019
(May 1, 2013) ............................................................................................................... A-16
i
THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
AND IS OF PUBLIC AND GREAT GENERAL INTEREST
The structure of Ohio's speedy trial statute is simple. "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." R.C. 2945.71(C)(2). As this Court recently clarified, "R.C.
2945.72 contains an exhaustive list of events and circumstances that extend the time
within which a defendant must be brought to triaL" (Emphasis added.) State v. Ramey,
132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, 'ff 24. As a result, once a person has
been arrested, the 270-day period s-tarts running, and it does not stop unless one of the
events specified in R.C. 2945.72 occur.
The "exhaustive list of events" in R.C. 2945.72 does not include "dismissed by
the request of the State." Accordingly, Mr. Wells's speedy trial deadline was not tolled
merely because the State chose to dismiss the charges.
But earlier decisions of this Court, on which the Fifth District relief, found that
the dismissal of a case (or the failure to file formal charges following an arrest) tolls
speedy trial time, and the Fifth District erroneously relied on those decisions to affirm
Mr. Wells's conviction. In State v. Broughton, 62 Ohio St.3d 253, 581 N.E.2d 541 (1991),
this Court held that it was "persuaded that the majority view (tolling the speedy-trial
statute between dismissal and reindictment) is sound[.]" (Emphasis added.) Id. at 259.
1
By contrast, in Ramey, this Court held that R.C. 2945.72 contains an exhaustive list of all
tolling events, and the dismissal of an indictment is not among them.
The lower court also erred by treating the plurality opinion in State v. Azbell, 112
Ohio St.3d 300, 2006-Ohio-6552, 859 N.E.2d 532, as authoritative. But the lead opinion in
that case garnered only three votes. Justice O'Donnell, the potential fourth vote, did not
join the lead opinion. Instead, he "concur[red] in the judgment reversing the decision"'
of the court of appeals. Id. at J[ 30 (O'Donnell, J., concurring in part). Because no opinion
attracted four votes, the decision created no binding law. Hedrick v. Motorists Mut. Ins.
Co., 22 Ohio St. 3d 42, 44, 488 N.E.2d 840 (Ohio 1986) ("This court, however, does not
find this language in Ady to be controlling. Ady was a plurality opinion. Only the
syllabus received the requisite four votes. Thus, the only law emanating from Ady is
contained in the syllabus").1 As a result, the three-vote Azbell dissenting opinion is as
authoritative as the three-vote lead opinion.
Because Ramey has effectively overruled the tolling theory behind Broughton and
Azbell, this Court should follow Chief Justice Moyer's dissenting opinion in Azbell. As
the Chief Justice explained, the plurality based its opinion on "a tortured reading of the
1 Of the four justices from Azbell who remain on the Court, one joined the lead opinion,one concurred in a separate opinion, and two dissented, advocating the position Mr.Wells argues in this case.
2
statute and bad public policy." Azbell at 'ff 33. The Chief justice further explained how,
under the plain language of the statute, speedy trial time runs even when no indictment
is pending:
The first three subsections [of R.C. 2945.71 ] list the three major categories
of criminal offenses: minor misdemeanors, misdemeanors other than
minor misdemeanors, and felonies. These three categories tell the reader
under which subsection the reader will find the appropriate time period in
which the defendant must be brought to trial. Subsection (C) begins, "A
person against whom a charge of felony is pending.° This clause means
the person has already been indicted or subject to a bill of information
when the motion to dismiss for a speedy trial violation is made. In this
case, a felony of the fifth degree is currently pending against the
defendant Azbell. Subsection (C)(2) requires that she "be brought to trial
within two hundred seventy days after [her] arrest." It simply says
"arrest"; it does not say "arrest after indictment," or "arrest after a
warrant is issaed." Azbell was arrested on May 30, 2003. She was taken Lo
the police station, given Miranda warnings, photographed, and
fingerprinted. That is an arrest. Her freedom was curtailed. The plain
language of the statute required that she be brought to trial no later than
February 25, 2004. Our precedent also supports this conclusion.
When the police and prosecutor have all the necessary evidence to obtain
an indictment or warrant, they should not be allowed to delay
prosecution. I am not suggesting that the state be rushed into seeking an
indictment before all possible evidence has been obtained. However, in
the case at bar, Azbell was arrested while allegedly attempting to
purchase a controlled substance with a fraudulent prescription, and she
was later indicted for that offense. The state had in its possession all the
evidence it needed to go forward at the time of her arrest. T'he state has
presented no evidence, and there is nothing in the record to suggest, that
the 11-month delay between arrest and indictment was based upon a
lengthy and diligent search for additional evidence. When all evidence is
in. the hands of the police, the state must move forward. See People v.Hryciuk (1967), 36 I11.2d 500, 224 N.E.2d 250; see, also, People v. Hartman(1935), 170 Cal.App.3d 572, 216 Cal. Rptr. 641.
3
For 11 months, Azbell lived under the threat of indictment, wondering
whether the state was intending to prosecute her or whether her case had
been dropped. Azbell was under no obligation to pressure the state to
press charges, nor was she in a position to demand that the state moveforward with its prosecution. See [State v. ]Meeker, 26 Ohio St.2d [9,] 18,268 N.E.2d 589 [(1971)]; [State v.] Johnson, 275 N.C. [264,] 272, 167 S.E.2d274 [(1969)].
I am not suggesting that every preindictment delay warrants analysis
under the speedy-trial provisions of the United States and Ohio
Constitutions. Rather, in cases such as this where the statute is arguably
unclear, or open to different interpretations, our speedy-trial
jurisprudence suggests that we should read the statute to benefit thedefendant.
I read the plain words of the statute to say that a person accused of afelony must be brought to trial within 270 days of her arrest. Azbell wasarrested on May 30, 2003; that the state took 11 months to gain anindictment is not her fault.
Azbell at yj 34, 44-47 (Moyer, C.J., dissenting).
Likewise, the State's decision to dismiss Mr. Wells's case is not his fault,
especially since he had made three separate confessions. It was the State's duty to put
Mr. Wells on trial within 270 days of his arrest. The State missed that deadline. The
court of appeals wrongly held that the speedy trial time tolled while Mr. Wells's
indictment was dismissed.
This Court should take this case to reconcile Azbell and Broughton with this
Court's more recent decision in Ramey.
4
STATEMENT OF THE CASE AND THE FACTS
The State arrested Christopher Wells on June 22, 2012, and charged him with
breaking and entering in municipal court. He provided the State with multiple
confessions, and he even walked law enforcement through the scene of one of the
offenses. He was held in jail until July 2, 2012, when the State dismissed the complaint
and he was discharged. The State did not serve Mr. Wells with an indictment for
another seven months. The trial court's finding of fact are attached. Apx. A-16.
At the hearing on Mr. Wells's motion to dismiss, the State did not dispute Mr.
Wells's argument that the State gathered no new evidence between the time of
dismissal and indictment. Instead, the State relied entirely on the argument that the
speedy clock was tolled in the time between dismissal and indictment.
After the trial court denied his motion to dismiss, Mr. Wells pleaded no contest
to five counts of burglary, all third-degree felonies. Judgment Entry of Sentence (June
14, 2013), Apx. A-10. The trial court then sentence Mr. Wells to 18 months in prison on
each count, for a total of seven and a half years in prison. Id. If this Court accepts his
case and rules in his favor, it is likely that he will have served roughly three years of
that time before discharge.
Mr. Wells raised his speedy trial claim on a timely appeal, but the Fifth District
affirmed the trial court's judgment. Apx. A-1. This timely discretionary appeal follows.
5
ARGUMENT
Proposition of Law:
The State's voluntary dismissal of a case does not automatically toll thespeedy trial deadline.
A. The facts are undisputed: Mr. Wells wins or loses this case basedon whether his speedy trial time was tolled after the Statedismissed his first indictment.
Because Mr. Wells accepts the trial court's factual findings, the facts of this case
are undisputed. Accordingly, if the State's dismissal of the first case tolled speedy trial
time, the State used a total of 174 speed y trial days. (The 58 actual in-custod y days
translate to 174 speedy trial days due to the three-for-one counting of incarcerated time
under R.C. 2945.71(E).) It is also undisputed that there were 234 days between the
dismissal of his first case and his later arrest after indictment. As a. result, if the speedy
trial clock was tolled between dismissal and arrest after indictment, the State used only
174 of the 270 days allowed under R.C. 2945.71(C)(2), and Mr. Wells loses his claim. But
if the time was not tolled, the State used 480 days, well in excess of the statutory limit,
and Mr. Wells must be discharged.
B. The dismissal of a case at the State's request is not a tolling eventunder R.C. 2945.72.
1. This case is simple under the plain language of R.C.
2945.71 and 2945.72.
The structure of Ohio's speedy trial statute is simple. "A person against whom a
charge of felony is pending [s]hall be brought to trial within two hundred seventy days
6
after the person's arrest." R.C. 2945.71(C)(2). As this Court recently clarified, "R.C.
2945.72 contains an exhaustive list of events and circumstances that extend the time
within which a defendant must be brought to trial." (Emphasis added.) State v. Raniey,
132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, Iff 24. As a result, once a person has
been arrested, the 270-day period starts running, and it does not stop unless one of the
events specified in R.C. 2945.72 occur.
The "exhaustive list of events" in R.C. 2945.72 does not include "dismissed by
the request of the State." Accordingly, Mr. Wells's speedy trial deadline was not tolled
merely because the State chose to dismiss the charges.
2. The State has a remedy when it cannot prepare for trial
within the time limits of R.C. 2945.71.
If, for reasons beyond its control, the State cannot prepare for trial by the speedy
trial deadline, it can seek to toll the speedy trial deadline by seeking a "reasonable
continuance granted other than upon the accused's own motion[.]" R.C. 2945.72(H);
State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, 1128-33.
CONCLUSION
This Court should accept this case, reverse the decision of the court of appeals,
and discharge Mr. Wells. In the alternative, this Court should accept this case, reverse
the decision of the court of appeals, and remand this case to that court for further
review in light of this Court's decision.
7
Respectfully submitted,
Office of the Ohio Public Defender^ ®--
^^
y: Stephen P. Hardwick (0062932)Assistant Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 (fax)
stephen.hardwick@op d. ohio. gov
Counsel for Appellant Christopher Wells
CER'TIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was forwarded by electronic
mail to the office of Mark C. Sleeper, Assistant Delaware County Prosecutor,
[email protected], on this 13th of June, 2014.
Stephen P. Hardwick (00 932)
Assistant Public Defender
Counsel for Appellant Christopher Wells
8
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
CASE No.1'LAINTIFF-APPE.LL E E,
V.
ON DISCRETIONARY APPEAL FROM THE
DELAWARE COUNTY COURT OF APPEALS,
FIFTH APPELLATE DISTRICT,
CHRISTOPHER WELLS, CASE N0.13 CAA 07 0057
DEFENDANT-APPELLANT.
APPENDIX To
MEMORANDUM IN SUPPORT OF JURISDICTION OF
APPELLANT CHRISTOPHER WELLS
COURT OF APPEALSDELAWARE COUNTY, OHIOF1FTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
_Vs_
CHRISTQPHER G. WELLS, JR.
Defendant-Appellant
CHARACTER OF PROCEEDING:
JUDGMENT:
DATE OF JUDGMENT:
APPEARANCES:
For Plaintiff-Appellee
MARK C. SLEEPER140 North Sandusky StreetThird FloorDelaware, OH 43015
JUDGES:Hon. William B. Hoffman, P.J.Hon. Sheila G. Farmer, J.Hon. Patricia A. Delaney, J.
Case No. 13 CAA 07 0057
0 PINlQN
Appeal from the Court of CommonPleas, Case No. 13 CR 1010019
Affirmed
e;a
> C Q r°Cn CD ^ tn
^
A - 1
For De°Fenda nt-Appellant
STEPHEN P. HARDWICK250 East Broad StreetSuite 1400Columbus, OH 43205urt of Appeals
Delaware Co., Ohio,U:hereby certify the within be a true
^opy af the original on file In this office.Art noplos, Clerk of Courts
y Deputy .
Delaware County, Case No. 13 CAA 07 0057
Farmer, J.
2
M1} On January 18, 2013, the Delaware County Grand Jury indicted appellant,
Christopher Wells, on five counts of burglary in violation of R.C. 2911.12, eighteen
counts of theft in violation of R.C. 2913.02, three counts of breaking and entering in
violation of R.C. 2911.13, and one count of criminal damaging in violation of R.C.
2909.06. One of the theft counts was subsequently dismissed.
{T2} On April 17, 2013, appellant filed a motion to dismiss on speedy trial rights
under R.C. 2945.71. Hearings were held on April 22, and May 1, 2013. By judgment
entry filed May 1, 2013, the trial court denied the motion.
{^3} On May 2, 2013, appellant pled no contest to five counts of burglary. The
remaining counts were dismissed. By judgment entry filed May 16, 2013, the trial court
found appellant guilty. By judgment entry filed June 14, 2013, the trial court sentenced
appellant to an aggregate term of seven and a half years in prison.
{^4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
1
{%5} "THE TRIAL COURT ERRED BY DENYING MR. WELLS'S MOTION TO
DISMiSS."
{%6} Appellant claims the trial court erred in denying his motion to disrniss on
speedy trial violations. We disagree.
A - 2
Delaware County, Case No. 13 CAA 07 0057 3
{%7} ' R.C. 2945.71 governs time within which hearing or trial must be held.
Subsection (C)(2) states a "person against whom a charge of felony is pending: js]hall
be brought to trial within two hundred seventy days after the person's arrest."
{¶8} Appellant was arrested on June 22, 2012 and charged in the municipal
court with breaking and entering. Appellant was held in jail until July 2, 2012 when the
charge was dismissed without prejudice because it was going to be presented to the
Delaware County Grand Jury. On January 18, 2013, the indictment was filed charging
appellant with five counts of buralary, eighteen counts of theft, three counts of breaking
and entering, and one count of criminal damaging. One of the breaking and entering
charges was the offense from the municipal court case. Appellant was arrested on the
indictment on February 21, 2013. Appellant argues the time between the dismissal of
the offense in the municipal court and the subsequent indictment of the same offense
cannot be tolled.
{¶9} It is undisputed that 234 days lapsed between the dismissal of the
municipal court offense and appellant's arrest after indictment. The gravamen of this
appeal is whether these 234 days can be tolled against the time for which appellant
should have been brought to trial.
{¶10} Appellant acknowledges the Supreme Court of Ohio's holding -in State v.
Broughton, 62 Ohio St.3d 53 (1991), but argues it has been modified by their dicta in
State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904.
{$11} In its syllabus at paragraphs one and two, the Broughton court specifically
addressed the tolling time between dismissed and subsequently indicted offenses:
A - 3
Delaware County, Case No. 13 GAA 07 0057 4
1. For purpases of computing how much time has run against the
state under R.D. 2945.71 et seq., the time period between the dismissal
without prejudice of an original indictment and the filing of a subsequent
indictment, premised upon the same facts as ai(eged' in the original
indictment, shall not be counted unless the defendant is held in jail or
reieased on bail pursuant to Crim.R. 12{1}.
2. The arrest of a defendant, under a subsequent indictment which
is premised on the same underlying facts aiieged in a previous indictment,
is the proper point at which to resume the running of the speedy-trial
period. (R.C. 2945.71 et seq., construed and applied.)
{T1 2} The Broughton court at 259 explained the following:
In considering which of the above approaches to adopt, we
recognize "the public's interests not only in the prompt adjudication of
criminal cases, but also in obtaining convictions of persons who have
committed criminal offenses against the state." Bonarrigo, supra, 62 Ohio
St.2d at 11, 16 0.0.3d at 6-7, 402 N.E.2d at 534; see, also, State v.
Calhoun (1985), 18 Ohio St.3d 373, 376, 18 OBR 429, 432, 481 N.E.2d
624, 627. We explained in Bonarrigo that °'[i]t was not the Generai
Assembly's sole purpose in enacting the speedy trial statutes to reward
those accused of criminal conduct for a prosecutor's iack of diligence."
Id., 62 Ohio St.2d at 10, 16 O.0.3d at 6, 402 N.E.2d at 534. Therefore,
A - 4
Delaware County, Case No. 13 CAA 07 0057
we are persuaded that the majority view (tolling the speedy-trial statute
between dismissal and reindictment) is sound in light of our previous
holdings in Bonarrigo, supra, Gougilf, supra, and Spratz, supra, and the
legislative intent behind the speedy-trial statute.
5
{%13} Appellant argues the Supreme Court of Ohio in Ramey, supra, in
reviewing the issue of tolling time because of a co-defendant's pre-trial motions,
►-nodified ard rejected the syllabus law of Broughton:
R.C. 2945.72 does not include the filing of pretrial motions by a co-
defendant as an event that automatically extends a defendant's speedy-
trial time. In construing a statute, we may not add or delete words. State
ex re1. Sears, Roebuck & Co. v. Irrcfus. Comm., 52 Ohio St.3d 144, 148,
556 N.E.2d 467 (1 990). We are, therefore, compelled to conclude that a
co-defendant's filing of pretrial motions does not automatically toll the time
in which a defendant must be brought to trial.
{T14} R.G. 2945.72 language has not changed since the Broughton opinion. In
Ramey, there was no time when the criminal charge was not pending against the
defendant, including the time of the pretrial motions filed by the co-defendant. The
Ramey court specifically addressed R.C. 2945.72(H) which states: "The time within
which an accused must be brought to trial, or, in the case of felony, to preliminary
hearing and trial, may be extended only by the following:***The period of any
A - 5
Delaware County, Case No. 13 CAA 07 0057 6
continuance granted on the accused's own motion, and the period'of any reasonable
continuance granted other than upon the accused's own motion."
{%15} The facts and dicta of Ramey are completely opposite to the facts sub
judice. We find Ramey has no effect on the syllahus law of Broughton.
{%1£} Our decision is further supported by the unambiguous statutory language
of R.C. 29451,71(A) which states: "Subject to division (D) of this section, a person
againsf whom a charge is pending in a court not of record, or against whom a charge of
minor misdemeanor is pending in a court of record, shall be brought to trial within thirty
days after the person's arrest or the service of summons."
{¶17} The statute speaks of charges pending. In this case, charges were not
pending against appellant during the 234 days hiatus, and appellant was not imprisoned
on any of the offenses. In State v. AzbePf, 112 Ohio St.3d 300, 2006-Ohio-6552, 121-
27; Justice O'Donnell in his concurring opinion emphasized that the stafutory language
speaks of charges pending and essentially concurs with the majority opinion:
R.C. 2945.71 sets forth the statutory right to a speedy trial in Ohio
and catalogs throe classifications of persons against whom a charge is
pending, dependent upon the degree of the offense with which the person
is charged. Subdivision (A) pertains to "a person against whom a cbarge
is pending in a court not of record, or against whom a charge of minor
misdemeanor is pending in a court of record." (Emphasis added.)
Subdivision (B) pertains to "a person against whom a charge of
misdemeanor, other than a minor misdemeanor, is pending in a court of
A - 6
Delaware County, Case No. 13 CAA 07 0057 7
record." (Emphasis added.) And, tl^irdly, insofar as is relevant here,
subsection (C) specifies:
"A persort against whom a charge of felony is pending:
"{2} Shal( be brought to trial within two hundred seventy days after
the person's arrest." (Emphasis added.}
Reading the statute in its entirety in order to discern the legislative
intent, it is apparent to me that this statute applies only to persons against
whom charges are pending.
{^18} Accordingly, we find the trial court did not err in denying appellarit's motion
to dismiss on speedy trial vioietiorts.
{¶19} The sole assignment of error is denied.
A - 7
Delaware County, Case No. 13 CAA 07 0057 8
{^20} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P. J. and
Delaney, J. concur.
SGF/sg 4111
Hon. Sheila . Farmer
MWHon. UVilliam B. Hoffma
AK'Hon. Pa#ricia A. Delaney
A - 8
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
'FiFTH APPELLATE DISTRICT
STATE OF OHIO
PlaintifF: Appellee
-vs-
CHRIST{]PHER G. WELLS, JR.
Defendant-Appellant
JUDGMENT ENTRY
CASE NO. 13 CAA 07 0057
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to
appellant.
Hon. 511ei1a G. armer
s + ^-- _T71
CrIt C^2CoHon. William B. Hoffm
` ^3 ,
Hon. Patricia A. Delaney
A - 9
THE STATE OF OHIO,
0
IN THE COU'RT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO
Plaintif^
-vs-
9
Case No. 13CR-I-01-0{119
Honorable Judge W. Duncan VVhitnetm
DOB: September 17, 1992
SSN: XXX-XX-7677-Tsr--
^
CHRISTOPHER G. WELLS, 3k.,
Defendant.
This case came before the Court for Sentencing on June 10, 2013 and in conformity with the
provisions of Section 2929.19 of the Ohio Revised Code. The Defendant, Christopher G. Wells, Jr.,
was present in Open Court and was accompanied by his counsel, Suzanne L. Slowey, and the State of
Ohio was represented by Eric C. 1'enlCal, one of the Assistant Prosecuting Attorneys for Delaware
County, Ohio.
On June 10, 2013, the Defendant filed a Motion To Close The Courtroom During Sentencing.
The Court for good cause, denied said Motion and proceeded with Sentencing. The Court grants the
Defendant's Motion to limit information in the Pre-Sentence Investigation Report and has directed
Adult +Court Services to redact all specific facts as to the Defen.danf's juvenile offenses. _ The
Defendant'sjuvenile record shall be includedin the Pre-Sentence Investigation Report. Any reference to
defendant's cooperation with authorities after his arrest in this case shall be redacted.
The Court finds that on May 1, 2013, the Defendant entered No Contest pleas to the crimes of
Burglary, a lesser included offense of that as set forth in Count One, Count Ten, Count Sixteen, Count
Eighteen and Count Twenty-One of the Indictment, in violation of Section 2911.12(A)(3) of the Ohio
Revised Code.
The Court further finds that on May 1, 2013, the Court accepted the Defendant's No Contest
pleas and found the Defendant Guilty of the crimes of Burglary, a lesser included offense of that set
forth in Count One, Count Ten, Count Sixteen, Count Eighteen and Count Twenty-One of the
Iticfietmertt, in violation of5ection 2911.12(A)(3) of the Ohio Revised Code, each being a Pelonyofthe
Third Degree.
`7?
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€^GMENT ENTRY ON SENTENCE ^ ^ ^ 1
'0'!!
Both the Assistant Prosecutor and Attorney for Defendant acknowledged that they had read the
Pre-Sentenee Investigation Report prepared by Adplt Court Services arid.were afforded the opportunity
to make any corrections or additions thereto. The Assistant Prosecuting Attorney and counsel for the
Defendant were afforded an opportunity to present information to the Court relevant to Impositien of
Sentence in this case., The Assistant Prosecuting Attomey took no position as to Sentencing in this case
and counsel for the Defendant addressed the Court on behalf of the Defendant relevant to Iinpositi4n of
Sentence.
The Court then inquired ofthe Defendant in order to determine, if the Defendant had anything to
say as tr, why Sentence should not be imposed upon him, thereby giving the Defendant an opportunity to
address the Court on his own behalf. The Defendant had counsel read a letter to the Court on his behalf
Having considered the factual background of this case, the negotiations conducted in this case,
the Pre-Sentence Report prepared by Adult Court Services, the Victim Impact Statemertts, the
Defenda.nt's counsel's statement, the Assistant Prosecuting Attnrney's statement, the Defendant's letter,
and, having considered the two ovarriding purposes of felony sentencing set forth in Section 2929.11.of
the Ohio Revised Code, and having considered the seriousness and recidivisrn factors set forth in
Section 2929.12 of the Ohio Revised Code, which the Court considers to be advisory only, the Court
makes the following FINDINGS:
1; Prior history of criminal convictions.2. Victims suffered psychological and economic hartn.
It was ORDERED and ADJUDGED by the Court that the Defendant, Christopher G, Wells, Jr.,
as to the crime of Burglary, a lesser included offense of that set forth in Count One of the Indictment
herein filed, the same being in violation of 2911.12(A}(3) of the Ohio Revised Code, and being a
Felony of the Third Degree, be imprisoned and confined at the Correctional Reception Center at Orient,
Ohio, for a stated prison term of Eighteen (18) months, and to paythe costs of the prosecution of this
case, for which execution was awarded.
It was further ORDERED and ADJUDGED by the Court that the Defendant, Christopher G.
Wells, Jr., as to'the crime of Burglary, a lesser include offense of that set forth in Count Ten of the
Indictment herein filed, the same being in violation of 2911,12(A)(3) of the Ohio Revised Code, and
being a Felony of the Third Degree, be imprisoned and confined at the Correctional Reception Center
at Orient, Ohio, for a stated prison term of Eighteen (18) months, said sentence to be served
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consecutive to Count One.
0
It was further ORDERED and ADJUDGED by the Court that the Defendant, Christopher G.
Wells, Jr, as to the crime of Burglary, a lesser included offense of that set forth in Count Sixteen of
the Indictment herein filed, the same being in violation of 2911,12(A.)(3) of the Ohio Revised Code,
and being a Felony of the Third Degree, be imprisoned and confined at the Correctional Reception
Center at Orient, Ohio, for a stated prison term of Eighteen (18) months, said sentence to be served
consecutive to the sentences imposed on Counts One and Ten.
It was further ORDERED and AI7Jt7DGED by the Court that the Defendant, Christopher G.
Wells, Jr., as to the crime of Burglary, a lesser included offense of that set forth in Count Eighteen of
the Indictment herein filed, the same being in violation of 291 i.12(A)(3) of the Ohio Revised Code,
and being a Felony of the Third Degree, be imprisoned and confined at the Correctional Receptivn.
Center at Orient, Ohio, for a stated prison term of Eighteen (1.8) months, said sentence to be served
consecutive to the sentences imposed on Counts One, Ten and Sixteen.
It was .fi,irther ORDERED and ADJUDGED by the Court that the Defendant, Christopher G.
Wells, Jr., as to the crime of Burglary, a lesser included offense of that setforth in Count Twenty-One
of the I.ndictment herein fzled, the same being in violation of 2911.12(A)(3) of the Ohio Revised Code,
and being a Felony of the Third Degree, be imprisoned and confined at the Correctional Reception
Center at Orient, Ohio, for a stated prison term of Eighteen (18) months, said sentence to be served
consecutive to the sentences imposed ir Counts One, Ten, Sixteen and Eighteen. The Defendant shall.
receive One Hundred Twenty-One (121) days ofjail titne credit.
The Court further finds that a stated prison term is consistent with the purposes and principles of
Sentencing and that the Defendant is not amenable Community Control Sanctions and that a
consecutive sentence should be imposed because of the findings set fbrth above and a consecutive
sentence is necessary to protect the public from future criine and to punish the offender and that
consecutive sentences are not dispropnrtionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public. Further, the Court finds the offender's history of criminaai
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conduct demonstrates that consecutive sentences are necessary to protect the public from future crime
by the offender. The Defendant shall not be granted admittance into the Intensive Prison
Fro am without prior approval of the Judge.
The Defendant shall pay restitut€on in full in the sum of Two Thousand Four Hundred Seventy-
Nine Dollars ($2,479.00) to this Court to be disbursed as follows:
-One Thousand Dollars ($1,000.00) to Clifton Cole,1650 AlexanderRoad, Galena, Ohio 43021
-Three Hundred Fifly Dollars ($350.00) to Kurt Van Dyke, 1216 Ross Road, Sunbury, Ohio 43074
-Two Hundxt;d Forty Dollars ($240:00) to Jean. Kelly, 2845 Sunbury Road, Galena, Ohio 430^ 1
-Three Hundred Eighty-Nine Dollars ($389.00) to Mike Wilson, 679 Green-Cook Road
Sunbury; Ohio 43074
-Two Hundred Dollars ($200.00) toNorth StarGolfCvurse,11 50 Wilson Road, Sunbury, Ohio 43074
-Three Hundred Dollars ($300.00) to Julia Keller, 2770 Sunbury Road, t'ralena, Obio 43021.
Tlze Court finds the Defendant is an able bodied individual and does not fi.rtd hirn indigent,
The Court then advised the Defendant of the provisions of Sections 2929.19(B) and 2967.28(B)
of the Ohio Revised Code, as follows:
1. As a part af this Sentence, the Parole Board may extend the stated prison term forcertain vialatious of prison rules for up to one-half of the stated prison ternn,
2. That as a part of this Se'ntence, post-release control will be imposed for a mandatoryThree (3) years.
3. That if said Defendant violated post-release cointrcrl, he could be returned to prisonfor up to Nine (9) months, with a maximum for repeated violations to equal riftypercent of the original stated prison term, and if the violation is a new felony, saidDefendant could be both returned to prison for the remaining period of control orTwelve (12) months, whichever is greater, plus receive a prison term for the newfelony,
The Court then advised the Defendant of the provisions of Sections 2929.19 and
29fi7. i 93(A)(1) of the Ohio Revised Code, as follows:
l. A person confined in a state correctional institution may provisionally earn One (1)day or Five (5) days of credit, based on program and activity completion as setforth by the Ohio Departrnent of Rehabilitation and Corrections, in which the
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a
person is included, toward satisfaction of the person's stated prison term for eachcompleted month during which the person productively participates in aneducation program, vocational training, employment in prison industries,treatment for substance abuse, orany other constructive program developed by thedepartment with specific standards for performance by prisoners.
2. The aggregate days of credit provisionally earned by a person for program oractivity participation and program and activity completion under this section andthe aggregate days of credit finally credited to a person under this section shall notexceed Eight percent (8%) of the total number of days in the person's stated prisonterm.
3. The Ohio Department of Rehabilitation and Corrections may deny or withdrawpreviously provisiQnally earned credit as a result of a violation of prison z°ules.
In accordance with Section 2947,23(A)(1) of the Ohio Revised Code, the Court further advised
the Defendant that commuuity service could be imposed if the Defendant fails to pay the costs of
prosecution or court costs.
Defendant was remanded to the custody of the Sheriff of Delaware County, Ohio to await
transrnittal to the Correctional Reception Center at Orient, Ohio, and the Clerk was ORDERED to issue
a Warrant to Convey. Further, the Clerk of this Court was ORDERED to forward to the Bureau of
Sentence Computation, P.O. Box 2650, Columbus, Ohio 43236 a certified copy ofthis Judgment Entry
on Sentence. A redacted copy of the Defendant's Pre-Sentence Investigation Report will be made
available by the Delaware County Court of Common Pleas upon request by the Bureau of Sentence
Computation. It was finally ORDERED that Bail in effect in this case be released.
Dated: June 14, 2413.
W. E?UNCAN WHITNEY, UDGE
cc: Mark C. Sleeper, Assistant Prosecuting AttorneySuzanne L. Slowey, Attorney for DefendantAdult Court ServicesBureau of Sentence Computation, P.O. Box 2650, Columbus, Ohio 43216
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WDW/ct
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IIwT THE COURT OF COMMON PLEAS OF DELAWARE COLJNTY, QiHO 6,41 °n
THE STATE OF OHIO, >X ! E
Plaintiff, oc--3-
-vs- . Case No. 13 CR 10 1 0019 t- °- C:)LC=c *CHRISTOPHER G WELLS JR,
Defendant,
JUDGMENT ENTRY
This matter came on for Hearing upon Defendant's 1Viotion to Dismiss on April 23, 2013
and May 1, 2013. Present were the Defendant, represented by Suzanne Slowey and Mark C.
Sleeper, Assistant Prosecuting Attomey.
The Defendant submitted the following evidence:
Defendant's Exhibit A - Delaware County Sheriff's Office, Grand Jury
Presentation report
Defendant's Exhibit B- Motion To Dismiss filed in Delaware Municipal Court
Case 12CRA01210
Defendant's Exhibit C- Complaint filed in Delaware Municipal Court, Case N.
12CRA01210 charging Christopher Gene wells, Jr. with one count of Breaking
And Entering
Defendant's Exhibit D - BCI report regarding fingerprints dated July 20, 2012
The Catirt finds as follows:
1. An Indictment was filed on January 1$, 2013 charging the Defendant with five (5) counts
of Burglary, eighteen (18) counts of Theft, three (3) counts of Breaking and Entering and
one (1) count of Cr%xninal Damaging.
2. The Defendant was initially arrested on June 22, 2012 and charged by Complaint in the
Delaware Municipal Court with the offense of Breaking and Entering. The Defendant
was held upon the Complaint in jail, with bond set, until3uly 2, 2012 when the
Complaint was Dismissed and he was discharged from the jail.
I llllll I^li Illil I^IlI lllli illll Ifl^ i^lll fllfl Illll lll11 IIII ^^I ^ 9R, °,00098243773
JDEN
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3. The Municipal Court Complaint was "DISMISSED, without prejudice pursuant to it
being presented to the Delaware County Grand Jury." See Defendant's Exhibit B.
4. The Defendant was served with the Indictment in this case when he was arrested upon a
warrant on February 21, 2013.
5. Count 23 of the Indictment in this instant case is the o#l;ense charged within the initial
Complaint, Case No. 12CRA01210, filed against the Defendant on June 25, 2012 in the
Delaware Municipal Court.
6. During the period of time between July 2, 2013 and January 18, 2013, no charges were
pending against the Defendant relative to his June 22, 2012 arrest.
7. The Defendant appeared for arraignment upon the Indictment on March 6, 2013. Bond
was set at $100,000 cash or surety.
8. By Entry dated March 11, 2013, Jury Trial was scheduled for Apri123, 2013, with a
back-up trial of May 2, 2013.
9. The Defendant has remained in jail since January 18, 2013.
10. On April 17, 2013 Defendant filed the instant Motion To Dismiss asserting that he has
been denied his right to a speedy trial.
11. Pursuant to Ohio Revised Code 2945.71, Defendant is required to be brought to trial
within 270 days of his arrest. Furthermore, each day during which the accused is held in
jail in lieu of bail on the pending charges shall be counted as three days.
12. Defendant is entitled to credit for the pre-indictment period of time in which he was held
in jail upon the felony complaint.
13. Therefore, as of the date of Defendant's Motion, for the purpose of speedy trial
calculations, he would have been held in jail upon these charges as follows:
June 22, 2012 until July 2, 2012 - 1fl daysFebruary 21, 2013 until April 17, 2013 - 55 davs
65 days
14. Against the "speedy time" however, time is tolled and does not run against the State,
pursuant to Ohio Revised Code 2945.72, during the time that Defendant's Motion for Bill
of Particulars was pending, as follows:
March 14, 2013 until March 21, 2013 - 7 days
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15. The time fiuther stopped running against the State on April 17, 2013 when Defendant's
instant motion was filed.
16_ Defendant asserts however that speedy time started on June 21, 2012 when he was
arrested,.and remained counting against the State even after the Complaint was
dismissed, because the State was aware of the offenses and waited seven months to indict
him, resulting in prejudicial delay. In support of his motion Defendant cites, in particular,
State v. Aclams, 43 Ohio St.3d, State v. Baker, 78 Ohio St.3d 108, State v. Vickers, 2010-
Ohio-1216 , State v. Rutkowski, 2006-Ohio-1087 and State v. Cooney, 124 Ohio App.3d
570.
17..Defendant's IVlotion is not well-taken.
18. In State v. Adams, a defendant was arrested and charged with a misdemeanor violation of
R.C. 4511.19(A)(3). The arrest occurred on July 12, 1986. By statute, he was required to
be brought to trial within 90 days. The charge was dismissed on October 22, 1986. One-
hundred and two (102) days had lapsed. Defendant however had waived time on three
occasions for a total of eighty-three (83) days. Thus, speedy time had not been violated as
to the original charge alleging a violation of R.C. 4511.19(A)(3). On October 23, 1986
the defendant was charged with violating RC. 4511.19(A)(1). The second complaint
stemmed from the same facts as the first complaint. The Ohio Supreme Court held in
Adams that when an accused waives the right to a speedy trial upon an initial complaint,
that waiver is not applicable to any additional or subsequent charges if those additional or
subsequent charges arise from the same set of circumstances. Therefore, when Adams.
was charged with the second complaint, time (i.e. 90 days) had completely run and he
was entitled to have the second complaint dismissed. The issue in this case however is
not the impact of a prior time waiver upon a subsequent charge following dismissal of an
initial charge. There has been no waiver of tune in this instant case. Furthermore, Adams
is not applicable to this instant case because, when Defendant's conmplaint was dismissed
on July 2, 2012 the speedy time had not completely run. Only. 30 days (i.e. 3 x 10) had
lapsed for purposes of calculations against statutory 270 days.
19. In State v. Baker, a defendant was arrested on June 10, 1993 after several controlled buys
and`the execution of a search warrant. Baker was charged with two counts of traffr.cking
in drugs and five counts of aggravated trafficking. After this initial indictment, a second
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indictment was filed on June 1, 1994 charging Baker with eight additional charges of
drug traffi.cking, one count of aggravated trafFicking and one count of Medicaid Fraud.
The second indictment was based upon evidence seized during the June 10, 1994
execution'of the search warrant. The seized evidence was audited by state agents and
sheriffs detectives. Those audits were completed on August 18, 1993 and September 15,
1993. The Ohio Supreme Court held Baker was not entitled to dismissal of the second
indictment because the second indictment arose from facts different from the original
indictment, to wit: the information obtained after the audits were completed was new and
additional facts that the state had no knowledge of at the time of the original indictment.
This instant case does not involve ftutlier investigation or additional distinct evidence
resulting in additional charges against Wells. This instant case also does not involve two
indictments. Nor does it involve the filing of a subsequent charge while an initial charge
is pending. The Court agrees that if the Indictment was filed against the Defendant in this
case while the original complaint remained pending, then the speedy trial time would
have begun upon the subsequent indictment when Defendant Wells was arrested and
charged with the complaint. However, in this case, the complaint was dismissed against
Defendant Wells on July 2, 2012. Theiefore, time stopped as to all future charges until
such time as the Defendant was arrested on February 21, 2013.
20. In State v Vickers, a defendant was charged on July 17, 2007 with five misdemeanors
based upon evidence obtained on July 15, 2007. A search warrant was executed on July
18, 2007 and a second complaint was filed charging Vickers with a felony (i.e. dog
fighting). The felony complaint was dismissed on July 27, 2007. On August 8, 2007
Vickers was then charged in a third complaint with twelve other misdemeanors allegedly
occurri.ng on July 15, 2007. The misdemeanor charges were disposed of on December
19, 2007. On April 28, 2008 a ten count- indictment was filed against Vickers. The Tenth
District Appellate Court dismissed the 2008 indictment however upon speedy trial
grounds, because it was based upon the same facts as the municipal court misdemeanor
complaints to which Vickers had entered a plea. The Tenth District reasoned that time
began to run upon the indictment on July 18, 2007 when Vickers was arrested upon the
same facts that formed the basis of the indictment charges. Vz'ckers however is
distinguishable from this instant case because, in Vickers, "misdemeanor cases were still
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pending even after the first felony complaint was dismissed for future indictment,
whereas, in the present case, there were no cases pending between dismissal of the
original complaint and the subsequent re-in.dictment on the same charges." State v.
Crosby, 2012 WL 6738506 (Ohio App. 10 Dist.).
21. In State v. Cooney, a defendant was arrested on June 3, 1996 and charged with OVI in
violation of R.C. 4511.19(A)(1), a misdemeanor offense which requires that he be
brought to trial within 90 days. Cooney was subsequently also charged with a violation of
R.C. 4511.19(A)(3) on August 28, 1996 following the receipt of lab reports. Time upon
the initial complaint was tolled because of a motion to suppress filed by Cooney. Time
was not tolled however, as to the second complaint. On September 23, 1996 (111 days
after his uutlal arrest) Cooney moved to disnuss the second complaint upon speedy tr'tal
grounds. Pursuant to State v. Adams, the First District Court of Appeals dismissed the
second complaint. Once again, the facts of Cooney are not applicable to this instant case.
No charges stemming from Wells' June 22, 2012 arrest were pending when the
Indictment was returned in this case. Thus, time did not continue to run but had stopped.
Furthermore, the Fifth District Court of Appeals has not followed the holding of Cooney,
but rather found subsequent lab reports to be "new" evidence and additional facts which
does not require the state to "bring the accused to trial within the same statutory period as
the original charge under R.C. 2945.71." State v. McKinney, 2011 WL 3503249 (Ohio
App. 5 Dist.).
22. In State v. Rutkowski, a defendant was initially arrested on November 20, 2003 following
a traffic stop at which time a search of his vehicle resulted in the seizure of marijuana,
paraphernalia and ecstasy pills. Rutkowski was charged with misdemeanor offenses (i.e.
possession of marijuana and drug paraphernalia) but he was not with any offense related
to the ecstasy pills. On December 4, 2003 Rutkowski was convicted of the misdemeanor
charges. The suspected pills were sent to BCI and, following the receipt of a lab report,
Rutkowski was indicted on December 16, 2004 upon a felony count of possession of
drugs (i.e. ecstasy pills). The Eighth District Appellate Court, citing Barker v. Wingo,
found that Rutkowski's speedy trial rights had been violated and dismissed the ^
indictment. This dismissal was not based upon the statutory provision of 2945.71
however; but rather upon a finding that the length of delay (i.e. between November 20,
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2003 and December 16, 2004) while waiting upon the lab report to indict the defendant
was an "unjustifiable delay."
23. The United States Supreme Court in Barker v. Wingo (1972) 407 U.S. 514, set forth a
balancing test which includes four separate inquiries for the Court to make regarding a
Defendant's sixth amendment right to a speedy trial:
(1) whether the delay before trial was uncommonly long(2) whether the government or the criminal defendant is more to blame for the
delay(3) whether the defendant, in due course, asserted his right to a speedy trial(4) whether the defendant suffered prejudice as a result of the delay
24. The delay between the Defendant's initial arrest and indictment was seven (7) months,
which this Court finds to not be "°uncommonly long." Furthermore, Defendant failed to
establish any prejudice as a result of the delay, other than his asserted anxiety in awaiting
formal charges after his confession.
25. It is well-established that the period between the dismissal of an original indictment
without prejudice and the filing of a subsequent indictment, which is premised upon the
same facts, shall not be included within the speedy trial calculations unless the defendant
was held in jail or released upon bail. State v. Broughton, 62 Ohio St.3d 253. Broughton
has not been overturued by Adams, Baker, Y'ickers, Cooney or Rutkowski and remains
controlling upon the facts in this case. See State v, Crosby, 2012 WL 6738506 (Ohio
App. 10 Dist.) citing State v. Azbe11, 112 Ohio St.3d 300 and State v. Myers, 97 Ohio
St.3d 335.
Defendant's Motion to Dismiss is hereby OVERRULED and DENIED.
Dated. May 1, 2013.^.
W. DUNCAN yVHITNEY, JC7D E
cc: Mark C. Sleeper, Assistant Prosecuting AttorneySuzanne Slowey, Attorney for Defendant
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