[Cite as State v. Moore, 2014-Ohio-4879.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                 CASE NO. 14-14-06

        v.

HEZEKIAH M. MOORE,                          OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                 CASE NO. 14-14-07

        v.

HEZEKIAH M. MOORE,                          OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                 CASE NO. 14-14-08

        v.

HEZEKIAH M. MOORE,                          OPINION

        DEFENDANT-APPELLANT.
Case Nos, 14-14-06, 07, 08, 11, 12




STATE OF OHIO,

      PLAINTIFF-APPELLEE,                     CASE NO. 14-14-11

      v.

HEZEKIAH M. MOORE,                            OPINION

      DEFENDANT-APPELLANT.


STATE OF OHIO,

      PLAINTIFF-APPELLEE,                     CASE NO. 14-14-12

      v.

HEZEKIAH M. MOORE,                            OPINION

      DEFENDANT-APPELLANT.


                Appeals from Marysville Municipal Court
       Trial Court Nos. CRB1200323, TRC1202111B, TRC1201397A,
                      CRB1200324 and CRB1200206

                             Judgments Reversed

                     Date of Decision: November 3, 2014


APPEARANCES:

      Alison Boggs for Appellant

      John M. Eufiner for Appellee


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Case Nos, 14-14-06, 07, 08, 11, 12


WILLAMOWSKI, P.J.

        {¶1} In this consolidated action, Defendant-appellant Hezekiah Moore

(“Moore”) appeals the judgments of the Marysville Municipal Court of Union

County, Ohio, overruling his motions for speedy trial and finding him guilty of

multiple charges, as listed below, upon his entry of no contest pleas in five

separate cases, labelled as CRB 1200323 (App. # 06), TRC 1202111 (App. # 07),

TRC 1201397 (App. # 08), CRB 1200324 (App. # 11), and CRB 1200206 (App. #

12). For the reasons that follow, we reverse the trial court’s judgments.

        {¶2} The procedural facts relevant to this opinion indicate that on March

15, 2012, Moore was charged with multiple traffic offenses, including OVI

(operation of a vehicle under the influence), speeding, operation without a license,

and a lane violation, in Union County case number TRC 1201397 (App. # 08). On

the same date, Moore was charged with failure to comply with an order of a police

officer (fleeing and eluding), in case number CRB 1200206 (App. # 12). On

March 21, Moore filed a plea of not guilty and he was released on a personal

recognizance bond. A jury trial for these two cases was scheduled for May 25,

2012.

        {¶3} On April 20, 2012, Moore was charged with another OVI, as well as

operation with a suspended license, operation without a license, and

noncompliance with suspension, in case number TRC 1202111 (App. # 07). On


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the same day, Moore was charged with assault, a misdemeanor of the first degree,

in violation of R.C. 2903.13(A), in case number CRB 1200323 (App. # 06). He

was further charged with the use or possession of drug paraphernalia, a

misdemeanor of the fourth degree, in violation of R.C. 2925.14, in case number

CRB 1200324 (App. # 11). He pled not guilty to all charges, and a jury trial for

these three cases was scheduled for July 13, 2012.

        {¶4} It appears that the scheduled jury trials did not take place. A filing in

one of the five cases, TRC 1201397, indicates that on May 17, 2012, Moore failed

to appear in court for a pretrial and the trial court issued a bench warrant for his

arrest. No other filings appear in the cases until January 2013.

        {¶5} On January 23, 2013, Moore filed a motion for speedy trial pursuant

to R.C. 2941.401, in each of the five cases relevant to this appeal.1 The motion

indicated that Moore was at the time incarcerated “at Southeastern Correctional

Institution located in Lancaster, OH 43130-9606.” (See R. in case CRB 1200323,2

at 9.) Moore requested a “hearing within the time frame” set out by the statute and

asked the trial court to “grant the Defendant to [sic] a speedy trial.” (Id.) The

motion was filed by Moore pro se, although he had been previously represented by

counsel, Perry Parsons, in all these cases. The following documents were attached


1
  In their captions, Moore’s motions included additional trial court cases, labeled as CRB 1200322, CRB
1200358, and TRD 1202112. These additional cases are not included in the current appeal.
2
  The filings relevant to this appeal were the same in all five cases in the trial court. Therefore, for
simplicity of this opinion, we cite to one record, from case CRB 1200323.

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Case Nos, 14-14-06, 07, 08, 11, 12


to the motion: sworn affidavit of indigency, in which Moore attested that he was

“incarcerated at the Southeastern Correctional Institution located in Lancaster

Ohio”; certificate of service, indicating that the motion and the affidavit were sent

to the office of the Union County Prosecutor by regular mail; and a printout of the

“Offender Search” page from the Ohio Department of Rehabilitation and

Correction website with Moore’s information, indicating that he had been

incarcerated there on unrelated charges since May 8, 2012. (Id.) The printout was

not authenticated or notarized, but it listed Moore’s name, number, date of birth,

race, admission date, institution, status, offense information, stated prison term,

and the expiration date for the stated term. (Id.)

       {¶6} On March 27, 2013, the State filed a response in opposition to

Moore’s motion, requesting the trial court “to deny action” upon the motion,

because it “failed to comport with the requirements of R.C. §2941.401.” (R. at

10.) In particular, the State cited failure to attach “a certificate of the warden or

superintendent having custody of the prisoner, stating the term of commitment

under which the prisoner is being held, the time served and remaining to be served

on the sentence, the amount of good time earned, the time of parole eligibility of

the prisoner, and any decisions of the adult parole authority relating to the

prisoner,” as required by R.C. 2941.401. (Id.)




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Case Nos, 14-14-06, 07, 08, 11, 12


      {¶7} On May 22, 2013, the trial court issued a “finding and order.” (R. at

11.) Although the State did not raise this issue, the trial court noted that Moore

served his motions upon an improper party. “The Union County Prosecutor does

not represent the State of Ohio in the cases cited by Defendant. Rather, the State

of Ohio is represented by the Marysville Law Director’s Office.” (R. at 11.)

Because the Marysville Law Director’s Office responded to Moore’s motion with

objections, they were apparently provided with Moore’s motions, in spite of the

improper service by Moore. (See R. at 10.) The trial court gave Moore an

opportunity to respond to the challenges that the State had raised to his motion,

setting a deadline for the response of June 13, 2013. (R. at 11.) Moore did not file

anything within the deadline, and no action was taken on the cases until February

27, 2014.

      {¶8} On February 27, 2014, a notice of hearing was filed, indicating that all

cases had been assigned for a hearing. (R. at 12.) The hearing took place on

March 6, 2014. Moore was represented by his attorney Mr. Parsons, who started

with an argument regarding the January 2013 motion for speedy trial. (Tr. of

Proceedings (“Tr.”) at 3, Mar. 6, 2014.) Through his counsel, Moore argued that

he substantially complied with the requirements of R.C. 2941.401, and asked the

trial court “to grant his motion and dismiss these [cases] for lack of being tried

within 180 days.” (Id. at 5:18-19.) Moore asserted that he “did what he was


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Case Nos, 14-14-06, 07, 08, 11, 12


required to do” and that he “can’t be held liable for the warden not doing what

they’re required to do.” (Id. at 5:9-15.) The State replied that there was no proof

that Moore “had made any kind of written or verbal request to the warden” to

attempt to comply with the statute and that the motion should be overruled for

failure to substantially comply with the statute. (Id. at 6:18-20.)

       {¶9} The trial court refused to dismiss the cases for violation of speedy trial

rights, stating, “I don’t think the statute was complied with even substantially in

the case.” (Id. at 7:1-4.) Following the trial court’s decision, Moore entered pleas

of no contest to each of the charges. (Id. at 8-14.) The trial court found him guilty

of OVI in case TRC 1201397, fleeing and eluding in case CRB 1200206, assault

in case CRB 1200323, driving under suspension in case TRC 1202111, and

possession of drug paraphernalia in case CRB 1200324. The remaining charges

have been dismissed. (Id.)

       {¶10} Moore now appeals raising one assignment of error.

       APPELLANT’S SPEEDY TRIAL RIGHTS WERE VIOLATED
       WHEN THE TRIAL COURT OVERRULED HIS MOTION TO
       BRING HIS CASES TO TRIAL WITHIN 180 DAYS AFTER
       HE NOTIFIED THE COURT AND PROSECUTOR THAT HE
       WAS INCARCERATED.

                     Legal Framework for Review of this Case

       {¶11} “Appellate review of speedy-trial issues involves a mixed question of

law and fact.” State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, 876


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Case Nos, 14-14-06, 07, 08, 11, 12


N.E.2d 1007, ¶ 11 (3d Dist.); accord State v. Hansen, 3d Dist. Seneca No. 13-12-

42, 2013-Ohio-1735, ¶ 20. Therefore, we must give “due deference to the trial

court’s findings of fact if they are supported by competent, credible evidence.”

Masters at ¶ 11; Hansen at ¶ 20. But we conduct an independent review of

“whether the trial court correctly applied the law to the facts of the case.” Id.

       {¶12} Moore’s request for speedy trial was based on R.C. 2941.401, which

allows an incarcerated defendant to request a speedy disposition of other charges

pending against him in Ohio courts “in a timely manner.” State v. Hairston, 101

Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 25. This statute provides, in

relevant parts:

       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, except that for good cause shown in open
       court, with the prisoner or his counsel present, the court may grant
       any necessary or reasonable continuance. The request of the prisoner
       shall be accompanied by a certificate of the warden or
       superintendent having custody of the prisoner, stating the term of
       commitment under which the prisoner is being held, the time served
       and remaining to be served on the sentence, the amount of good time
       earned, the time of parole eligibility of the prisoner, and any
       decisions of the adult parole authority relating to the prisoner.

       The written notice and request for final disposition shall be given or
       sent by the prisoner to the warden or superintendent having custody

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Case Nos, 14-14-06, 07, 08, 11, 12


           of him, who shall promptly forward it with the certificate to the
           appropriate prosecuting attorney and court by registered or certified
           mail, return receipt requested.

           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.

R.C. 2941.401.

           {¶13} We recognize that the language of R.C. 2941.401 is analogous to the

language of Article III of the Interstate Agreement on Detainers (“IAD”), R.C.

2963.30.3 See Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶


3
    Article III of IAD states:

           (a) Whenever a person has entered upon a term of imprisonment in a penal or
           correctional institution of a party state, and whenever during the continuance of the term
           of imprisonment there is pending in any other party state any untried indictment,
           information or complaint on the basis of which a detainer has been lodged against the
           prisoner, he shall be brought to trial within one hundred eighty days after he shall have
           caused to be delivered to the prosecuting officer and the appropriate court of the
           prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his
           request for a final disposition to be made of the indictment, information or complaint:
           provided that for good cause shown in open court, the prisoner or his counsel being
           present, the court having jurisdiction of the matter may grant any necessary or reasonable
           continuance. The request of the prisoner shall be accompanied by a certificate of the
           appropriate official having custody of the prisoner, stating the term of commitment under
           which the prisoner is being held, the time already served, the time remaining to be served
           on the sentence, the amount of good time earned, the time of parole eligibility of the
           prisoner, and any decisions of the state parole agency relating to the prisoner.

                                                     -9-
Case Nos, 14-14-06, 07, 08, 11, 12


23-24 (recognizing the same duty placed upon the incarcerated defendant by the

two statutes); State v. McDonald, 7th Dist. Mahoning No. 97 C.A. 146, 1999 WL

476253, *3 (June 30, 1999) (“R.C. 2963.30 is analogous to R.C. 2941.401 in that

the provisions therein mirror the language in the first paragraph of R.C.

2941.401.”); State v. Wells, 110 Ohio App.3d 275, 280, 673 N.E.2d 1008 (10th

Dist.1996). Ohio courts have relied on case law analyzing Article III of IAD when

resolving issues under R.C. 2941.401. See, e.g., State v. Gill, 8th Dist. Cuyahoga

No. 82742, 2004-Ohio-1245, ¶ 18-20, 23 (citing State v. Ferguson, 41 Ohio

App.3d 306, 535 N.E.2d 708 (10th Dist.1987), an interstate detainer case, when

analyzing R.C. 2941.401); McDonald at *4, (resolving an issue of compliance

with R.C. 2941.401 by referencing two IAD cases); see also State v. Antos, 8th

Dist. Cuyahoga No. 88091, 2007-Ohio-415, ¶ 11-12 (resolving issues of



        (b) The written notice and request for final disposition referred to in paragraph (a) hereof
        shall be given or sent by the prisoner to the warden, commissioner of corrections or other
        official having custody of him, who shall promptly forward it together with the certificate
        to the appropriate prosecuting official and court by registered or certified mail, return
        receipt requested.

        (c) The warden, commissioner of corrections or other official having custody of the
        prisoner shall promptly inform him of the source and contents of any detainer lodged
        against him and shall also inform him of his right to make a request for final disposition
        of the indictment, information or complaint on which the detainer is based.

        (d) * * * If trial is not had on any indictment, information or complaint contemplated
        hereby prior to the return of the prisoner to the original place of imprisonment, such
        indictment, information or complaint shall not be of any further force or effect, and the
        court shall enter an order dismissing the same with prejudice.

        ***

R.C. 2963.30.

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Case Nos, 14-14-06, 07, 08, 11, 12


compliance with R.C. 2941.401 by citing other cases that dealt with “the speedy

trial statute that applies to defendants in out-of-state prisons, including federal

penitentiaries”). Acknowledging the similar nature of the statutes and almost

identical operational language, we follow our sister districts and use the relevant

reasoning from the cases that dealt with Article III of IAD as influential on the

issue before us.4

                      Requirement of Compliance with R.C. 2941.401

        {¶14} Moore’s entire argument focuses on the question of whether the trial

court properly denied his request for dismissal, which was based on the alleged

violation by the State of the speedy trial statute, R.C. 2941.401. The State asserts

that the decision was proper because Moore’s request for speedy trial under the

statute was not properly submitted and therefore, the State had no duty to act

under R.C. 2941.401.

        {¶15} The Ohio Supreme Court held that the initial duty under R.C.

2941.401 is upon the defendant and the defendant’s initial compliance with the

requirements of R.C. 2941.401 in requesting the speedy trial triggers the state’s

responsibility to bring him to trial within the 180-day period or to forego any

prosecution. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, at ¶


4
 But see Wells, 110 Ohio App.3d at 281, fn. 1 (“R.C. 2941.401 is merely a state statute, which Ohio courts
have the ultimate authority to interpret. Because the IAD is a congressionally sanctioned interstate compact
under the Compact Clause of Section 10, Article I of the United States Constitution, its interpretation
presents a question of federal law.”)

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Case Nos, 14-14-06, 07, 08, 11, 12


20. The question before us is therefore, whether Moore complied with R.C.

2941.401 when requesting the speedy trial, thus satisfying his burden. This is the

only issue we are addressing in this opinion.5

        {¶16} We note the apparently mandatory nature of R.C. 2941.401, listing a

number of procedures that “shall” be followed under its express language. See

also R.C. 2963.30. In spite of this mandatory language, however, Ohio courts

analyzing both R.C. 2941.401 and R.C. 2963.30 (IAD), have consistently held that

only substantial compliance with the statutes by the inmate is required in order to

trigger the running of the 180-day time limitation. The Ohio Supreme Court held

that “[t]he one-hundred-eighty-day time period set forth in R.C. 2963.30, Ohio’s

codification of the Interstate Agreement on Detainers, begins to run when a

prisoner substantially complies with the requirements of the statute set forth in

Article III(a) and (b) thereof.” (Emphasis added.) State v. Mourey, 64 Ohio St.3d

482, 597 N.E.2d 101 (1992), paragraph one of the syllabus. Ohio appellate courts

followed this reasoning in IAD and R.C. 2941.401 cases. See, e.g., State v.

Centafanti, 5th Dist. Stark No. 2007-CA-00044, 2007-Ohio-4036, ¶ 43-44,

remanded sub nom. State v. Centafanti, 120 Ohio St.3d 275, 2008-Ohio-6102, 898

N.E.2d 45 (holding that substantial compliance is required to satisfy R.C.

2941.401); State v. Quinones, 168 Ohio App.3d 425, 2006-Ohio-4096, 860 N.E.2d


5
  Moore does not assert that he was denied his speedy trial rights in any manner other than through the
violation of R.C. 2941.401.

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Case Nos, 14-14-06, 07, 08, 11, 12


793 (8th Dist.), ¶ 17 (analyzing IAD); Gill, 8th Dist. Cuyahoga No. 82742, 2004-

Ohio-1245, at ¶ 24 (holding that substantial compliance is the appropriate standard

under R.C. 2941.401 “in those instances where documents actually reach a

location”); McDonald, 7th Dist. Mahoning No. 97 C.A. 146, 1999 WL 476253

(“Substantial compliance is all that is required of a defendant under R.C.

2941.401.”); State v. York, 66 Ohio App.3d 149, 153, 583 N.E.2d 1046 (12th

Dist.1990) (requiring substantial compliance with IAD).

       {¶17} The standard for substantial rather than strict compliance with the

statute might be justified by the nature of the right that the statute protects, i.e., the

right to a speedy trial. The Ohio Supreme Court recognized that “ ‘[t]he right to a

speedy trial is a fundamental right guaranteed by the Sixth Amendment to the

United States Constitution, made obligatory on the states by the Fourteenth

Amendment. Section 10, Article I of the Ohio Constitution guarantees an accused

this same right.’ ” State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, 863

N.E.2d 1032, ¶ 11, quoting State v. Hughes, 86 Ohio St.3d 424, 425, 715 N.E.2d

540 (1999). That is why the Ohio Supreme Court has “repeatedly announced that

the trial courts are to strictly enforce the legislative mandates [of the speedy trial

statutes]” and construe them against the state. State v. Pachay, 64 Ohio St.2d 218,

221, 416 N.E.2d 589 (1980); see also Brecksville v. Cook, 75 Ohio St.3d 53, 57,

661 N.E.2d 706 (1996); Hughes, 86 Ohio St.3d at 427; Masters, 172 Ohio App.3d


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Case Nos, 14-14-06, 07, 08, 11, 12


666, 2007-Ohio-4229, 876 N.E.2d 1007, citing State v. Singer, 50 Ohio St.2d 103,

109, 362 N.E.2d 1216, ¶ 9 (1977). We must thus apply this construction, against

the state and in favor of the criminal defendant, to the statute at issue. See

McDonald, 7th Dist. Mahoning No. 97 C.A. 146, 1999 WL 476253, *5 (June 30,

1999) (“By its very nature, a speedy trial statute, such as R.C. 2941.401, must be

strictly construed against the State.”).

       {¶18} Review of Ohio cases indicates that substantial compliance with R.C.

2941.401 requires that the inmate does “everything reasonably required of him

that [is] within his control.” See, e.g., Mourey, 64 Ohio St.3d at 487, 597 N.E.2d

101; accord Centafanti, 5th Dist. Stark No. 2007-CA-00044, 2007-Ohio-4036, ¶

44, citing Ferguson, 41 Ohio App.3d at 311, 535 N.E.2d 708.

       {¶19} Analyzing what is reasonably required of an incarcerated criminal

defendant under the statute, the Ohio Supreme Court held:

       A careful review of Article III(a) of R.C. 2963.30 reveals that the
       prisoner “shall have caused to be delivered to the prosecuting officer
       and the appropriate court of the prosecuting officer’s jurisdiction
       written notice of the place of his imprisonment and his request for a
       final disposition to be made of the indictment, information or
       complaint * * *.” (Emphasis added.) The other requirements listed in
       Article III(a) are the responsibility of the officials having custody of
       the prisoner.

       Article III(b) of the agreement then requires that the written notice of
       the prisoner “ * * * shall be given or sent by the prisoner to the
       warden, commissioner of corrections or other official having custody
       of him * * *.” The remainder of subsection (b) provides the other
       responsibilities of the officials having custody of the prisoner.

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(Emphasis sic.) Mourey, 64 Ohio St.3d at 487, 597 N.E.2d 101, quoting R.C.

2963.30. The above quote indicates that the Ohio Supreme Court recognized two

requirements of the statute: delivery of the notice and the request for speedy trial

to the prosecuting officer and the court, and service of the notice on the prison

official having custody of the prisoner.

        {¶20} In Mourey, the Ohio Supreme Court was asked to determine when

the 180-day time period begins to run. Id. at 485. The court found that the

defendant substantially complied with the statute and that therefore, the time

began to run when the defendant “ ‘caused to be delivered’ his IAD request form

to the California prison officials.” Id. This was found to substantially satisfy the

statute, even though the appropriate prosecutor and the court had not been notified

of the request yet.6 Id. at 484. Therefore, in spite of the fact that the Ohio

Supreme Court recognized two procedures required under the statute, it found

substantial compliance upon satisfaction of one of the procedures only. It appears

that the Ohio Supreme Court justified this low standard for inmate’s compliance

with the statute by reasoning that the prisoner should not be held “accountable for

measures and duties that are totally beyond his or her control.” Id. at 487.




6
  Three justices disagreed with this decision and would require notification to the prosecuting attorney and
the court, with the additional information, as mandated by R.C. 2963.30, Article III(a). Mourey at 489
(Resnick, J., Moyer, C.J., and Holmes, J., dissenting).

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Case Nos, 14-14-06, 07, 08, 11, 12


        {¶21} The Mourey holding that mere delivery of the request to the prison

officials satisfies the statute was soon effectively overruled by the United States

Supreme Court in Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406

(1993). Reviewing a Michigan IAD case, the United States Supreme Court held

that “the 180-day time period in Article III(a) of the IAD does not commence until

the prisoner’s request for final disposition of the charges against him has actually

been delivered to the court and prosecuting officer.” Id. at 52; see State v. Ward,

10th Dist. Franklin No. 02AP-56, 2002-Ohio-4852, ¶¶ 48-49 (recognizing that the

Fex holding “effectively overruled that portion of Mourey”). Yet, the Mourey

reasoning and the substantial compliance standard continue to be governing law in

Ohio.

        {¶22} Other cases in Ohio confirm this low standard for substantial

compliance with R.C. 2941.401 by the inmate. Thus, the courts have found that

where the prosecuting attorney and the appropriate court are notified of the

inmate’s request for speedy trial, but the notification to the prison official is

missing, the statute is satisfied and the state must act. For example, in Centafanti,

5th Dist. Stark No. 2007-CA-00044, 2007-Ohio-4036, the inmate sent letters “to

the appropriate prosecutor’s office and court, notifying them of his location of

imprisonment and demanding a final disposition.” (Emphasis added.) Id. at ¶ 52.




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Reversing the trial court’s denial of the inmate’s motion to dismiss for speedy trial

violations due to noncompliance with the statute, the court of appeals noted that

         [f]or appellant to have strictly followed the R.C. 2941.401
         requirements, he should have given his written notice to the prison
         authorities, who should have forwarded it to the prosecutor and court
         along with a certificate of inmate status. However, it is clear that,
         although appellant did not strictly follow that path, the required
         information arrived at the proper place.

Id. at ¶ 41. The court further noted that upon receipt of the inmate’s request for

speedy trial “[a]ll the State needed to do was communicate with the warden of the

institution where appellant was incarcerated to obtain the appropriate certificate.”

Id. at ¶ 52.

         The State cannot avoid the application of R.C. 2941.401 by
         neglecting to inform the custodial warden or superintendent of the
         source and content of an untried indictment when the State is aware
         of the defendant’s location and the source and content of the untried
         indictment and the defendant has made a demand for speedy
         disposition of the same.

Id.7

         {¶23} A case from the Eighth District Court of Appeals dealt with facts

almost identical to the case at issue. In State v. Barrett, 191 Ohio App.3d 245,

2010-Ohio-5139, 945 N.E.2d 1070 (8th Dist.), an inmate “sent notice to the trial

court of his availability and requested that the criminal case move forward.” Id. at


7
 The Ohio Supreme Court remanded the case with instructions to review it under IAD “[b]ecause appellee
was incarcerated in a federal prison in Ohio rather than in a ‘correctional institution of this state.’ ” State v.
Centafanti, 120 Ohio St.3d 275, 2008-Ohio-6102, 898 N.E.2d 45. The relevant reasoning of the court of
appeals was not criticized.

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Case Nos, 14-14-06, 07, 08, 11, 12


¶ 2. The statutorily required notice was not sent to the warden or superintendent

charged with the inmate’s custody. Id. at ¶ 12. No certificate of the warden was

attached either, although the inmate “included his federal prison identification

number, his home federal prison institution in Kentucky, and a certificate of

service indicating that the notice was also sent to the prosecutor.” Id. at ¶ 2. The

Court of Appeals determined that the inmate “provided enough information to

invoke the IAD and the right to be brought to trial within 180 days.” Id. at ¶ 15. It

affirmed the trial court’s dismissal for violation of the inmate’s speedy trial rights,

even though the trial court improperly relied on R.C. 2941.401 instead of the IAD

in its action. See also State v. Levy, 8th Dist. Cuyahoga No. 83114, 2004-Ohio-

4489, ¶ 34 (“Levy would be in substantial compliance had he filed with both the

court and the prosecutor.”); State v. Pierce, 8th Dist. Cuyahoga No. 79376, 2002

WL 337727 (reaching the same result where the state argued that the speedy trial

provisions of IAD “were never triggered” because the “notice by defendant’s

counsel to the court and prosecution” did not constitute “the prisoner’s request”

under the statute).

       {¶24} The Ohio Supreme Court has not addressed the exact facts with

which we are faced in this case, where an incarcerated defendant requests speedy

trial under R.C. 2941.401 by causing the request to be delivered to the prosecutor

and the court, but not the warden. But the court’s existing opinions suggest that


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Case Nos, 14-14-06, 07, 08, 11, 12


compliance would be found on these facts. In Hairston, the Ohio Supreme Court

was again asked to determine when the state’s duty to act starts under R.C.

2941.401. 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, at ¶ 20. The

court rejected the defendant’s argument that R.C. 2941.401 requires the state to

locate an incarcerated defendant and bring him to trial. Id. at ¶ 20. It held that the

state’s duty to bring the incarcerated defendant to trial within 180 days begins

when the defendant “ ‘cause[s] to be delivered to the prosecuting attorney and the

appropriate court * * * written notice of the place of his imprisonment and a

request for final disposition to be made of the matter.’ ” Id. at ¶ 26, quoting R.C.

2941.401. In that case, the incarcerated defendant did not provide any such notice

to the prosecuting attorney or the court, and thus, he “never triggered the process

to cause him to be brought to trial within 180 days of his notice and request.” Id.

at ¶ 21. We note that Hairston was not a case concerning substantial compliance

with R.C. 2941.401. Therefore, we do not read it as determinative on the issue of

whether sole delivery to the prosecution and the appropriate court satisfies

substantial compliance standard. Its holding is instructive, however.

       {¶25} In Daugherty v. Solicitor for Highland Cty., 25 Ohio St.2d 192, 267

N.E.2d 431 (1971), an inmate submitted letters “to the prosecuting authorities and

the Common Pleas Judge,” requesting “either a trial or dismissal of the charge for

lack of prosecution.” Id. at 192. The prosecution argued that “no proper demand


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Case Nos, 14-14-06, 07, 08, 11, 12


for speedy trial has ever been made.” Id. The Ohio Supreme Court found that the

inmate “has made a diligent, good-faith effort to call to the attention of the proper

authorities in another state that he desires a charge pending against him in that

state disposed of, by trial or dismissal.” Id. Therefore, “he was entitled to have

such request acted upon. The failure of the authorities to do so constitute[d] the

denial of a speedy trial.” Id. We note that the Daugherty opinion did not mention

any statute upon which the prisoner’s request for speedy trial was based.8 Yet, the

facts of that case, the issues addressed in the opinion, and the reasoning, confirm

the Ohio Supreme Court’s position that the burden on an imprisoned criminal

defendant is low when it comes to informing the state that he wishes to exercise

his constitutional right to a speedy trial. Finally, in Mourey, the Ohio Supreme

Court recognized that the statute places a twofold burden on criminal defendant,

but found substantial compliance upon satisfaction of one element only.9 Mourey,

64 Ohio St.3d 482, 597 N.E.2d 101.

         {¶26} We acknowledge the conflict between the mandatory language of

R.C. 2941.401 and the above summary of Ohio case law. The language of R.C.

2941.401 seems to require at least three procedures that “shall” be followed to

invoke the imprisoned defendant’s speedy trial rights: (1) notice of the place of


8
  The inmate’s letters requesting speedy trial or dismissal were written in 1964, before the enactment of the
Ohio IAD, in 1969. See R.C. 2963.30, 1969 S 356, eff. 11-18-69.
9
  Although, as stated above, part of this holding has been effectively overruled in Fex, 507 U.S. at 52, the
remainder of Mourey reasoning continues to be governing law in Ohio.

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Case Nos, 14-14-06, 07, 08, 11, 12


imprisonment and a request for final disposition to the prosecuting attorney and

the appropriate court; (2) a certificate of the warden or superintended who has

custody of the prisoner, attached to the request, containing specific information

about the prisoner; and (3) service of the notice and the request on the warden or

superintended having custody of the prisoner. Conversely, the cases cited above

require only that the first requirement be satisfied, directly or indirectly.

       {¶27} Several courts in Ohio refused to so significantly lower requirements

of the statute. For instance, in State v. York, an inmate sent a letter to the clerk of

courts “requesting ‘information as to what [he] must do to have [the] detainer

disposed of.’ ” 66 Ohio App.3d 149, 151, 583 N.E.2d 1046 (12th Dist.1990). The

clerk forwarded the letter to the trial court, who in turn forwarded it to the

appropriate prosecutor. Id. Because “no notice of the alleged request was given to

prison officials * * * [,] the alleged request was not accompanied by a certificate

of inmate status.” Id. at 153-154. The Twelfth District Court of Appeals held that

“[n]otice to the prison officials and the certificate of inmate status are

indispensable and essential to effectuate the purposes of the I.A.D.” Id. at 154.

We note that York was decided prior to the Ohio Supreme Court’s decision in

Mourey, where the court held that substantial compliance requires the defendant to

do “everything reasonably required of him that was within his control” and did not

find the certificate of inmate status to be indispensable and essential for


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Case Nos, 14-14-06, 07, 08, 11, 12


compliance with the IAD.10 Mourey, 64 Ohio St.3d at 487, 597 N.E.2d 101. The

York holding was subsequently cited with approval by the Sixth District Court of

Appeals in State v. Denniss, 6th Dist. Lucas No. L-06-1361, 2009-Ohio-3498. See

also State v. Schnitzler, 12th Dist. Clermont No. CA98-01-008, 1998 WL 729250,

*4 (Oct. 19, 1998) (holding that the prisoner did not substantially comply with

IAD where he failed to deliver his request to prison officials and to attach “the

certification and the information from prison officials specified in Article III(a)”).

        {¶28} The Twelfth and Sixth districts focused on the requirement that the

inmate files his or her request with the officials “having custody of him.” See R.C.

2941.401 and 2963.30. Yet, it appears that the Ohio Supreme Court did not intend

to create such a distinction for finding substantial compliance when it held that the

state’s duty to bring the incarcerated defendant to trial within 180 days begins

when the defendant “ ‘cause[s] to be delivered to the prosecuting attorney and the

appropriate court * * * written notice of the place of his imprisonment and a

request for final disposition to be made of the matter.’ ” Hairston, 101 Ohio St.3d

308, 2004-Ohio-969, 804 N.E.2d 471, at ¶ 26, quoting R.C. 2941.401.

        {¶29} Although we recognize the position taken by the courts in the

Twelfth and the Sixth districts, and the mandatory language of R.C. 2941.401, the

Ohio Supreme Court has held that once the prosecuting attorney and the


10
  The Mourey dissenters noted the requirement of the certificate, which provides “vital” information to the
prosecuting attorney. Mourey at 489 (Resnick, J., Moyer, C.J., and Holmes, J., dissenting).

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Case Nos, 14-14-06, 07, 08, 11, 12


appropriate court are notified of the inmate’s request for speedy trial, the state

must act. Hairston at ¶ 26; Daugherty, 25 Ohio St.2d 192, 267 N.E.2d 431; see

also Centafanti, 5th Dist. Stark No. 2007-CA-00044, 2007-Ohio-4036; Barrett,

191 Ohio App.3d 245, 2010-Ohio-5139, 945 N.E.2d 1070; Pierce, 8th Dist.

Cuyahoga No. 79376, 2002 WL 337727; Levy, 8th Dist. Cuyahoga No. 83114,

2004-Ohio-4489. We feel bound by the Ohio Supreme Court’s interpretation of

the statute. Therefore, we apply it to the case at hand.

                        Compliance of Moore’s Request for
                         Speedy Trial with R.C. 2941.401

       {¶30} As we have previously stated, under the express language of R.C.

2941.401, three procedures are required: (1) delivery of the notice of the place of

imprisonment and a request for final disposition to the prosecuting attorney and

the appropriate court; (2) attachment to the request of the warden or

superintendent’s certificate, containing specific information about the prisoner;

and (3) service of the notice and the request on the warden or superintendent

having custody of the prisoner.

       {¶31} With respect to the first requirement, Moore filed his request for

speedy trial on January 23, 2013. Although this request was not initially served on

the proper prosecuting attorney, the State’s response on March 27, 2013, proves

that the notice and the request were “cause[d] to be delivered” to it by this date, at

the latest. See R.C. 2941.401; see also Centafanti, 5th Dist. Stark No. 2007-CA-

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Case Nos, 14-14-06, 07, 08, 11, 12


00044, 2007-Ohio-4036, ¶ 41 (“it is clear that, although appellant did not strictly

follow that path, the required information arrived at the proper place”); Ferguson,

41 Ohio App.3d 306, 311, 535 N.E.2d 708 (holding that the prosecutor’s “actual

receipt of the request * * * effectively cured the mistake of mismailing the request

to the wrong Ohio official”).        Thus, Moore fully complied with the first

requirement of the statute. According to the law delineated above, this, alone, is

sufficient to satisfy the substantial compliance standard. Continuing our analysis,

however, we find substantial compliance in this case because there are additional

facts present in this case.

       {¶32} With respect to the second statutory requirement, although Moore’s

request was not accompanied by the necessary warden’s certificate, Moore

attached a printout of the “Offender Search” page from the Ohio Department of

Rehabilitation and Correction website with information concerning his status at

Southeastern Correctional Institution. While the printout was not authenticated or

notarized, it did list “the term of commitment under which [Moore was] being

held,” the admission date and the expiration of his stated term, as are required to

be listed on the certificate under R.C. 2941.401 as “the time served and remaining

to be served on the sentence.” The printout did not include “the amount of good

time earned, the time of parole eligibility of the prisoner, and any decisions of the




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Case Nos, 14-14-06, 07, 08, 11, 12


adult parole authority relating to the prisoner,” which are also required to appear

on the certificate. R.C. 2941.401.

       {¶33} The dissenting justices in Mourey noted that the certificate was

important because the information contained within it “is vital, and it may be

difficult for the prosecuting attorney to make an informed decision on whether to

prosecute the prisoner on the pending charges without receipt of a completed

certificate of the official having custody of the prisoner.” (Emphasis sic.) Mourey,

64 Ohio St.3d at 489-490, 597 N.E.2d 101 (Resnick, J., Moyer, C.J., and Holmes,

J., dissenting). In this case, Moore provided much of this “vital” information to

the prosecuting attorney in his case. Additionally, the decision to prosecute had

already been made, as charges in all cases relevant to this appeal had actually been

filed before his incarceration in an unrelated case. Therefore, the concern raised

by lack of the certificate by the dissenters in Mourey is not as significant in this

case. See Pierce, 8th Dist. Cuyahoga No. 79376, 2002 WL 337727, *3, fn. 2

(citing the Mourey dissent and explaining that “the certificate does not have the

same function when a case is already in court and is proceeding to trial”).

       {¶34} With respect to the third statutory requirement, although no evidence

was provided that Moore had given his notice and request “to the warden or

superintendent having custody of him,” he argued in the trial court that he “did

what he was required to do” and that he “can’t be held liable for the warden not


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Case Nos, 14-14-06, 07, 08, 11, 12


doing what they’re required to do.” (Tr. at 5:9-15.) We agree that it would be

improper to hold Moore responsible for the warden’s inaction. See Mourey at 487

(holding that the prisoner should not be held “accountable for measures and duties

that are totally beyond his or her control”). But Moore offered no testimony or

evidence in the trial court to support his suggestion that he had contacted the

warden with a request.      Therefore, we are unable to determine whether this

element of R.C. 2941.401 was satisfied. At the same time, we see no prejudice to

the State resulting from Moore’s failure to prove that the warden of the

Southeastern Correctional Institution received his notice and request for final

disposition. The State was served with the notice and the request, and it was

aware of Moore’s status in the facility. See Centafanti, 5th Dist. Stark No. 2007-

CA-00044, 2007-Ohio-4036, ¶ 41 (“For appellant to have strictly followed the

R.C. 2941.401 requirements, he should have given his written notice to the prison

authorities, who should have forwarded it to the prosecutor and court along with a

certificate of inmate status. However, it is clear that, although appellant did not

strictly follow that path, the required information arrived at the proper place.”); see

also Antos, 8th Dist. Cuyahoga No. 88091, 2007-Ohio-415, at ¶ 10 (holding the

same); Gill, 8th Dist. Cuyahoga No. 82742, 2004-Ohio-1245, at ¶ 10 (“An

inmate’s ‘notification of availability and request for final disposition’ can take

several forms, depending on the circumstances of the inmate. Inmates are


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Case Nos, 14-14-06, 07, 08, 11, 12


sometimes in halfway houses or municipal jail facilities where a warden or

superintendent may or may not be present as contemplated in R.C. 2941.401. At

times, inmates take it upon themselves to notify the court and prosecutor directly,

outside the prescribed method in R.C. 2941.401. * * * Even where the prescribed

method is used, variations in notification still occur.”).

       {¶35} Based on the review of the Ohio law and our analysis of the statute

and the facts of this case, we hold that Moore substantially complied with R.C.

2941.401.    But because his motion was not initially served upon the proper

prosecutor and the appropriate court, we cannot use the date of filing, January 23,

2013, as the date when the 180-day period begins to run. Although the record

does not disclose when Moore’s request was delivered to the State, it is apparent

that the State received the request by March 27, 2013, at the latest, because that is

when the State responded to Moore’s motion. According to the Ohio Supreme

Court’s mandate, the delivery to the prosecuting attorney and the appropriate court

triggers the state’s duty. See Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804

N.E.2d 471, ¶ 26. Thus, March 27, 2013, was the date from which the 180-day

period began to run. Moore’s trial did not start within the next 180-days, and no

continuances “for good cause shown in open court, with the prisoner or his

counsel present” were granted. See R.C. 2941.401. Therefore, Moore’s speedy




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Case Nos, 14-14-06, 07, 08, 11, 12


trial rights were violated and the trial court should have granted his motion to

dismiss.

       {¶36} For the foregoing reasons, Moore’s assignment of error is sustained.

                                     Conclusion

       {¶37} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellant in the particulars assigned and argued.

The judgments of the Marysville Municipal Court of Union County, Ohio are

therefore reversed.

                                                              Judgments Reversed

ROGERS, J., concurs.

PRESTON, J., dissents.

/jlr




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