[Cite as State v. Kasler, 2013-Ohio-2632.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.
-vs-
                                                   Case No. 12-CA-124
JOHNNIE KASLER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Court of
                                               Common Pleas Court, Case No.
                                               11 CR 147/404


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 21, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


GREGG MARX                                     DAVID A. SAMS
Prosecuting Attorney                           Box 40
By: Jocelyn S. Kelly                           W. Jefferson, Ohio 43162
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 W. Main St., Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 12-CA-124                                                        2

Hoffman, J.


         {¶1}   Defendant-appellant Johnnie Kasler appeals the September 25, 2012

Judgment Entry entered by the Fairfield County Court of Common Pleas denying his

petition for post conviction relief. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   Appellant filed a direct appeal from his conviction and sentence in State v.

Kasler, Fairfield App. 11 CA 59, 2012-Ohio-6073. Appellant then filed a petition for

post-conviction relief in the trial court, which was denied via Judgment Entry of

September 25, 2012.

         {¶3}   Appellant appeals that denial, assigning as error:

         {¶4}   “I. THE DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO A

SPEEDY TRIAL CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL

CONSTITUTIONS.”

         {¶5}   On direct appeal to this Court in State v. Kasler, 5th Dist. No. 11CA59,

2012-Ohio-6073, Appellant argued his right to a speedy trial had been violated. This

Court held “only 92 days elapsed of the 270 days within which appellant had to be

brought to trial even if the time following the mistrial is counted.” This Court also held

the triple-count provision did not apply once the charges of the indictment were severed

upon Appellant’s motion.

         {¶6}   This Court’s December 20, 2012 Opinion reads,




1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Fairfield County, Case No. 12-CA-124                                                        3


       {¶7}   “Appellant argues that because the felonious assault charges arose out of

the same set of facts as the original rape and attempted rape charges, the time within

which he should be brought to trial began to run with the original indictment.

       {¶8}   “Subsequent charges made against an accused are subject to the same

speedy-trial constraints as the original charges, if the additional charges arose from the

same facts as the first indictment. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E .2d

1025, 1027 (1989). However, the state is not subject to the speedy-trial timetable of the

initial indictment when additional criminal charges arise from facts different from the

original charges, or the state did not know of these facts at the time of the initial

indictment. Baker, supra, at syllabus.

       {¶9}   “The State argues that it was not aware of the permanent damage to

C.B.'s lip until 2011 when C.B. returned from Florida, where she had moved subsequent

to the incident, to testify at the first trial, and thus could not have charged appellant with

felonious assault in the original indictment.

       {¶10} “***

       {¶11} “The evidence presented at trial demonstrates that on the night of the

rape, appellant punched C.B. in the lip when she refused to consent to sex with him.

C.B. went to the hospital later that night to have her lip stitched. Dr. Mark Darnell saw

C.B. and noted that her lip was completely severed. The inside, outside and muscular

layers of the lip were all split. He called in a plastic surgeon, something he had done

only a handful of times in nineteen years of practice. A plastic surgeon stitched her lip.

When the police interviewed appellant several days after the incident, they showed him

pictures of C.B.'s lip and he expressed shock at the severity of the injury. The incident
Fairfield County, Case No. 12-CA-124                                                       4


occurred in April of 2008, but appellant was not indicted until three years later in April of

2011. Although the State may not have seen C.B. until she appeared for the first trial

because she had moved to Florida, the State had access to information concerning the

potential severity of the injury at the time it occurred and could have inquired of C.B.

about the lingering effects of the injury prior to her appearance at trial. We therefore find

that for speedy trial purposes, the felonious assault charge dates back to the date of the

original indictment.

       {¶12} “However, in calculating the time within which a criminal defendant must

be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by

the defendant in a previous case also apply in a subsequent case in which there are

different charges based on the same underlying facts and circumstances of the previous

case. State v. Blackburn, 118 Ohio St.3d 163, 887 N.E.2d 319, 2008–Ohio–1823,

syllabus. We therefore must determine if the time was tolled in the proceedings under

the first indictment, and whether appellant was brought to trial within 270 days as

required by statute.

       {¶13} “Appellant was served with a warrant on the indictment on April 11, 2011.

At that time, he was held in prison and so the triple count provision of R.C. 2945.71(E)

applies. On April 13, 2011, he filed a motion for a bill of particulars and a discovery

request. A demand for discovery or a bill of particulars is a tolling event pursuant to R.C.

2945.72(E). State v. Brown, 98 Ohio St.3d 121, 781 N.E.2d 159, 2002–Ohio–7040,

syllabus. Because of the triple count provision, the two days that elapsed before the

clock was tolled count as six days.
Fairfield County, Case No. 12-CA-124                                                        5


       {¶14} “On May 20, 2011, appellant filed a motion to sever the charges from the

rape charges involving three other victims. This motion is another tolling event. The

court granted the motion to sever the charges on June 17, 2011. At this point, appellant

was no longer held in jail on solely the charges in the instant case as the charges were

severed from the remaining charges. The triple count provision applies only when the

defendant is being held in jail solely on the pending charge. State v. Sanchez, 110 Ohio

St.3d 274, 277, 853 N.E.2d 283, 2006–Ohio–4478. Thus, the triple-count provision does

not apply when a defendant is being held in custody pursuant to other charges. Id.

Therefore, once the instant charges in which C.B. was the victim were severed from the

charges involving the other three victims, appellant was no longer held in jail solely on

the instant charges and the triple count provision no longer applied.

       {¶15} “The speedy trial clock began to run again on June 17, 2011. Four days

elapsed between the judgment granting the motion to sever and the start of appellant's

first trial. At this point, a total of 10 days had elapsed of the 270 days in which the State

must bring appellant to trial.

       {¶16} “Appellant's first trial resulted in a mistrial on June 24, 2011. Ordinarily, the

interval between the declaration of a mistrial and a retrial does not count toward a

defendant's statutory speedy trial time, as long as the defendant is retried within a

reasonable time. State v. Morris, 2nd Dist. No. 19283, 2003–Ohio–1049, ¶ 17, citing

State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). The holding in Fanning is in

accord with the view that the statutory speedy trial requirements apply only until trial on

the charges involved is commenced, and when that trial terminates in a mistrial the

second trial is merely a continuation of the same trial proceeding. Id. However, only 82
Fairfield County, Case No. 12-CA-124                                                  6


days passed between the declaration of a mistrial on June 24, 2011 and the start of

appellant's new trial on September 13, 2011, leaving only 92 days elapsed of the 270

days within which appellant had to be brought to trial even if the time following the

mistrial is counted.”

       {¶17} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceedings, except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment or conviction, or on an appeal from that judgment. State

v. Cole (1982), 2 Ohio St.3d 112. A defendant is barred from appealing issues which

were raised or could have been raised on direct appeal. State v. Fischer (2012), 128

Ohio St.3d 92.

       {¶18} Here, Appellant is barred from again raising the issue of the trial court’s

calculation of the discovery period on direct appeal, as the issue was or could have

been raised on direct appeal when this Court considered Appellant’s assigned error of a

speedy trial violation.

       {¶19} The sole assignment of error is overruled.
Fairfield County, Case No. 12-CA-124                                                  7


      {¶20} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
Fairfield County, Case No. 12-CA-124                                                8


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
JOHNNIE KASLER                            :
                                          :
       Defendant-Appellant                :         Case No. 12-CA-124


       For the reason stated in our accompanying Opinion, the September 25, 2012

Judgment Entry entered by the Fairfield County Court of Common Pleas is affirmed.

Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
