[Cite as State v. Nagy, 2017-Ohio-639.]
                          STATE OF OHIO, COLUMBIANA COUNTY
                              IN THE COURT OF APPEALS
                                  SEVENTH DISTRICT

STATE OF OHIO,                               )
                                             )
        PLAINTIFF-APPELLEE,                  )
                                             )
VS.                                          )          CASE NO. 15 CO 0032
                                             )
MICHAEL J. NAGY,                             )                OPINION
                                             )
        DEFENDANT-APPELLANT.                 )

CHARACTER OF PROCEEDINGS:                    Criminal Appeal from Columbiana
                                             County Municipal Court Case No. 2014
                                             CRB 954

JUDGMENT:                                    Affirmed

APPEARANCES:

For Plaintiff-Appellee:                      Robert Herron
                                             Columbiana County Prosecutor
                                             Megan L. Bickerton
                                             Assistant Prosecutor
                                             105 South Market Street
                                             Lisbon, OH 44432

For Defendant-Appellant:                     Timothy Young
                                             Ohio Public Defender
                                             Eric M. Hedrick
                                             Assistant Public Defender
                                             The Midland Building
                                             250 East Broad Street, Suite 1400
                                             Columbus, OH 43215

JUDGES:

Hon. Eileen T. Gallagher, of the Eighth
 Appellate District, Sitting by Assignment
Hon. Patricia Ann Blackmon, of the Eighth
 Appellate District, Sitting by Assignment
Hon. Sean C. Gallagher, of the Eighth
 Appellate District, Sitting by Assignment

                                             Dated: February 21, 2017
[Cite as State v. Nagy, 2017-Ohio-639.]
EILEEN T. GALLAGHER, P.J.


        {¶1}     Defendant-appellant, Michael Nagy (“Nagy”), appeals his convictions and
sentence. He raises two assignments of error:

        1. Trial counsel rendered ineffective assistance in violation of Mr.
            Nagy’s rights under the Fifth, Sixth, and Fourteenth Amendments to
            the United States Constitution, and Article I, Section 10 and 16 of the
            Ohio Constitution.

        2. The trial court erred in violation of Mr. Nagy’s rights under the Double
            Jeopardy Clause of the Fifth Amendment to the U.S. Constitution,
            Article I, Section 10 of the Ohio Constitution, and R.C. 2941.25, when
            it failed to merge for sentencing offenses that had a similar import,
            arose from the same conduct, and were not committed separately or
            with a separate animus.

        {¶2}     We find no merit to the appeal, and affirm the trial court’s judgment.
                                 I. Facts and Procedural History
        {¶3}     Nagy was charged in the Columbiana County Municipal Court with
aggravated menacing in violation of R.C. 2903.21, a first-degree misdemeanor, and
criminal damaging or endangering in violation of R.C. 2909.06(A)(1), a second-degree
misdemeanor. At his arraignment, the court explained the effect of each of Nagy’s
plea options, his right to a jury trial or a bench trial, his right to counsel, and his right to
remain silent. The court also explained the nature of the charges filed against Nagy
and their potential penalties. Nagy pleaded not guilty and indicated he would retain
counsel for his defense. Consequently, the court reduced his bond and suggested
that if Nagy is released from jail pending trial, he “might want to consider signing a
waiver of speedy trial.” (Arraignment tr. 7.) Nagy signed a speedy trial waiver and
subsequently retained counsel. The case proceeded to trial approximately 453 days
after Nagy’s arrest.
                                                                                     -2-


        {¶4}    The victim, Joann Merriman (“Merriman”), testified that Nagy had been
living in her home for approximately three months when they decided to end the
relationship.   Nagy began moving his belongings out of the house, and Merriman
informed him that she was planning to sell the truck they had been sharing. Nagy
objected even though the truck was titled in Merriman’s name because he wanted her
to transfer title to him. (Trial tr. 106.) When Merriman subsequently sold the vehicle,
Nagy exchanged angry words with Merriman and the buyers. Merriman left the home
during the argument to pick up her son from football practice.
        {¶5}    Merriman locked the doors to her house as well as the door leading from
the inside of the house to the basement. Nagy was using an exterior door that led to
the basement from outside to remove the rest of his things. While Merriman was
gone, she received text messages from Nagy stating that “things would burn,” and that
“bad things would happen.” (Trial tr. 151, 180.) When Merriman returned home with
her children, she immediately noticed a strong smell of gasoline.             The local fire
department investigated the odor and discovered gasoline spilled on the basement
floor surrounding the hot water heater. (Trial tr. 110.) Merriman noticed that some of
the gasoline she kept for her lawnmower was missing from its container. (Trial tr.
111.)
        {¶6}    Based on the evidence adduced at trial, a jury found Nagy guilty of
aggravated menacing and criminal damaging. The court sentenced him to 180 days in
jail on the aggravated menacing conviction and 90 days on the criminal damaging
conviction, to be served consecutively for an aggregate 270-day sentence. Nagy now
appeals his conviction and sentence.
                                   II. Law and Analysis
                                      A. Speedy Trial
        {¶7}    In the first assignment of error, Nagy argues his constitutional right to the
effective assistance of counsel was violated because his trial counsel failed to move
for his discharge under R.C. 2945.73. He contends his trial counsel was ineffective
                                                                                    -3-


because he failed to move for dismissal based on a violation of his right to a speedy
trial.
          {¶8}   A reviewing court may not reverse a conviction for ineffective assistance
of counsel unless the defendant shows that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed. 2d 674 (1984). “To show that a defendant has been prejudiced by counsel’s
deficient performance, the defendant must prove that there exists a reasonable
probability that, were it not for counsel’s error, the result of the trial would have been
different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus. A “reasonable probability” in this context is one that undermines
confidence in the outcome. State v. Sanders, 92 Ohio St.3d 245, 274, 750 N.E.2d 90
(2001).
          {¶9}   Thus, in order to establish that Nagy’s trial counsel was ineffective, Nagy
must demonstrate that had counsel filed a motion for discharge based on a speedy
trial violation, the motion would have been granted. R.C. 2945.71(B) governs speedy
trial rights in misdemeanor cases and provides that a person charged with a first- or
second-degree misdemeanor must be brought to trial within 90 days of the person’s
arrest.    However, speedy trial time may be tolled by either a valid waiver of the
defendant’s right to speedy trial or any of the circumstances enumerated in R.C.
2945.72. State v. Hudson, 7th Dist. No. 11 MA 77, 2013-Ohio-5529, ¶ 14-15. Nagy
asserts his speedy trial waiver was not valid because the court failed to properly
explain his right to a speedy trial.
          {¶10} As with other fundamental rights, the accused may waive the right to a
speedy trial by knowingly and voluntarily executing an express written waiver. State v.
O’Brien, 34 Ohio St.3d 7, 516 N.E.2d 218 (1987), paragraph one of the syllabus. In
order to execute a knowing and intelligent waiver of one’s right to a speedy trial, the
defendant must understand (1) the nature of the charges against him, (2) what is being
waived, and (3) the extent of the waiver. State v. Adams, 43 Ohio St.3d 67, 69, 538
                                                                                    -4-


N.E.2d 1025 (1989). To be effective, the defendant’s speedy trial waiver must also “be
expressed in writing or made in open court on the record.” State v. King, 70 Ohio St.3d
158, 637 N.E.2d 903 (1994), syllabus.
       {¶11} As previously stated, the court explained the nature of the charges
pending against Nagy as well as the possible penalties attendant to the charges. Nagy
indicated on the record that he understood the charges and penalties. With respect to
the speedy trial waiver, the court stated:

       If you are getting out of jail you might want to consider signing a waiver
       of speedy trial so we don’t have to try your case within 90 days. If you
       don’t want to do that, that’s fine. But that means your next hearing will
       be a lot quicker. So if you want to sign that green sheet that means your
       next hearing is going to be in about a month. That will give you more
       time to come up with money for your attorney and so on. If, on the other
       hand, you don’t want to do that we’ll probably set your hearing in about
       10 days to two weeks.

       {¶12} The trial court informed Nagy that if he chose not to execute a speedy
trial waiver, he would receive a trial within 90 days. Nagy would have reasonably
inferred that the law required his case go to trial within 90 days if he did not waive the
right to trial within that time frame. Thus, although the court did not use the term “right”
to a speedy trial, the record shows Nagy understood he was relinquishing the right to
have his trial within the 90-day time limitation prescribed by law.
       {¶13} The court did not mention any time limitations on the waiver of Nagy’s
right to have his trial within 90 days. In the absence of any express limitations, Nagy
could only conclude that the waiver was of unlimited duration.              Indeed, Nagy
responded to the court’s questions appropriately and intelligently throughout the
proceedings. Furthermore, the court asked Nagy if he had any questions regarding
any of his rights, to which he replied “no.” (Arraignment tr. 8.)
                                                                                    -5-


       {¶14} The written speedy trial waiver signed by Nagy also explained that Nagy
was giving up his right to speedy trial. The written waiver states:

       I represent that I understand my right to have my case brought to trial
       within certain time limits as set by law in the Ohio Revised Code, and
       Rules of Criminal Procedure. I further understand my right under the
       U.S. and Ohio Constitutions to have a speedy trial.

       I hereby knowingly, intelligently, and voluntarily waive (give up) my right
       to a hearing of my case within the time limits set by the Constitutions of
       the U.S. and Ohio, by the Ohio Revised Code and by the Rules of
       Criminal Procedure.

       {¶15} Nagy has not suggested that he was unable to read or understand the
written waiver.    Thus, the record reflects that Nagy knowingly and intelligently
executed a written waiver of his right to a speedy trial.
       {¶16} Moreover, there were no limitations included in the speedy trial waiver.
The Ohio Supreme Court has held that where an accused executes a written speedy
trial waiver of unlimited duration, “the accused is not entitled to a discharge for delay in
bringing him to trial unless the accused files a formal written objection to any further
continuances and makes a demand for trial, following which the state must bring him
to trial within a reasonable time.” State v. O’Brien, 34 Ohio St.3d 7, 9, 516 N.E.2d 218
(1987).
       {¶17} Therefore, even if Nagy’s counsel had moved for dismissal on the basis
of an alleged speedy trial violation, the court would not have granted a dismissal or
discharge. At best, the court may have considered the motion for discharge as a
revocation of the speedy trial waiver and would have scheduled the trial sooner than
the date of the actual trial. Indeed, the trial date was continued to allow Nagy to retain
counsel and at his trial counsel’s request. Although the state requested a continuance
and the court sua sponte continued the trial a couple of times, the court’s continuances
                                                                                  -6-


resulted from the court’s engagement in other trial proceedings. There is no evidence
that Nagy was prejudiced by the late trial date, and he was not incarcerated pending
trial.
         {¶18} Therefore, the first assignment of error is overruled.
                                    B. Allied Offenses
         {¶19} In the second assignment of error, Nagy argues the trial court violated
his rights under the Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution and Article I, Section 10 of the Ohio Constitution because it failed to
merge allied offenses of similar import.        He contends his aggravated menacing
conviction should have merged with his criminal damaging conviction.
         {¶20} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Article I, Section 10 of the
Ohio Constitution, which prohibits multiple punishments for the same offense. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Under R.C.
2941.25(A), when the same conduct by the defendant “can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.”
However, R.C. 2941.25(B) provides that

         [w]here the defendant’s conduct constitutes two or more offenses of
         dissimilar import, or where his conduct results in two or more offenses of
         the same or similar kind committed separately or with a separate animus
         as to each, the indictment or information may contain counts for all such
         offenses, and the defendant may be convicted of all of them.

         {¶21} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court held that if a defendant’s conduct consisted of multiple offenses,
the defendant can be convicted of all of the offenses if any one of the following is true
(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows the
offenses were committed separately, or (3) the conduct shows that each of the
                                                                                   -7-


offenses were committed with a separate animus.           Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within
the meaning of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus.
       {¶22} Nagy was convicted of aggravated menacing in violation of R.C.
2903.21, which states that “[n]o person shall knowingly cause another to believe that
the offender will cause serious physical harm to the person or property of the other
person, the other person’s unborn, or a member of the other person’s immediate
family.” Nagy committed aggravated menacing when he sent Merriman threatening
text messages, stating that “things would burn” and “bad things were going to happen.”
       {¶23} Nagy was convicted of criminal damaging in violation of R.C. 2909.06,
which states, in relevant part, that “[n]o person shall cause, or create a substantial risk
of physical harm to any property of another without the other person’s consent.” Nagy
committed criminal damaging when he poured gasoline around Merriman’s water
heater where it could have been ignited and caused an explosion. The act of sending
the text messages was separate and apart from the act of pouring gasoline on
Merriman’s basement floor.       Although Nagy’s intent behind both actions was to
intimidate Merriman, the two acts were committed separately. The Ohio Supreme
Court held that where conduct is committed separately, the separate acts are not
subject to merger. Ruff at paragraph three of the syllabus.
       {¶24} Therefore, the trial court did not violate Nagy’s right to be free from
double jeopardy when the court sentenced him separately on each of his convictions.
Accordingly, the second assignment of error is overruled.
                                     III. Conclusion
       {¶25} Nagy’s right to the effective assistance of counsel was not violated.
Even if his trial counsel had moved for dismissal based on a violation of his right to
speedy trial, the motion would have been denied because Nagy executed a valid
waiver of his right to speedy trial. And the trial court properly sentenced Nagy on both
                                                                                -8-


of his convictions, where the acts underlying the convictions were committed
separately and were therefore not subject to merger.
      {¶26} The trial court’s judgment is affirmed.
Patricia Ann Blackmon, J., concurs
The Eighth Appellate District, Sitting by Assignment

Sean C. Gallagher, J., concurs; see concurring opinion
The Eighth Appellate District, Sitting by Assignment




SEAN C. GALLAGHER, J., CONCURRING:

      {¶27} While I concur with the majority’s analysis and opinion on both assigned
errors, I write separately to further address the allied offense issue raised in the
second assigned error.
      {¶28} Nagy complains that because the victim testified she was not initially in
fear or intimidated by the text message, that act cannot form the basis of separate
conduct that would subject him to independent convictions for both aggravated
menacing and criminal damaging.       Nagy further asserts that because aggravated
menacing can be committed by a threat to a person or property the act of criminal
damaging is already present in the aggravated menacing offense under these facts.
      {¶29} Nagy’s conduct in sending the text message and the victim’s initial
response upon its receipt cannot be viewed in a vacuum.          If the victim had not
received the text message, she would have had no context within which to understand
the smell of gasoline coming from the basement. It is the victim’s realization that Nagy
had made good on this threat intertwined with that text message that bolsters the
majority’s finding of separate conduct involving that text message and aggravated
menacing. Without the text message, there would be no threat.
      {¶30} More significant than the conduct, the harm in these convictions is
separate and distinct despite the fact that the conduct and elements of the separate
offenses overlap. The harm under the aggravated menacing charge relates to the
                                                                             -9-


victim personally, while the harm under the criminal damaging charge goes to her
residence. Even if the conduct underlying the two offenses is the same, separate
harms is an independent reason justifying multiple sentences. State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.
      {¶31} Nagy confuses separate means to commit aggravated menacing (either
by a threat to a person or property) with the separate conduct and harm related to
separate convictions.
