[Cite as State v. Johnson, 2014-Ohio-4506.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 26032
          Plaintiff-Appellee                      :
                                                  :     Trial Court Case No. 13-CR-1019
 v.                                               :
                                                  :
 IRAN L. JOHNSON                                  :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                              ...........
                                              OPINION
                             Rendered on the 10th day of October, 2014.
                                              ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery
County Prosecutor’s Office, Appellate Division, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

ALAN D. GABEL, Atty. Reg. #0025034, P.O. Box 1423, Dayton, Ohio 45401
     Attorney for Defendant-Appellant

                                              .............

HALL, J.

        {¶ 1}     Iran L. Johnson appeals from his conviction and sentence following a no-contest
                                                                                                                                         2


plea to one count of felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), a

second-degree felony.

         {¶ 2}       Johnson advances two assignments of error. First, he contends the trial court

erred in overruling his motion to dismiss the charge against him based on a speedy trial violation.

Second, he claims the trial court erred in proceeding to sentencing without the “assigned judge.”

         {¶ 3}       The record reflects that Johnson was indicted on February 5, 2013 in

Montgomery County Common Pleas Court case number 2012-CR-2974 on a charge of carrying a

concealed weapon. He was given an own-recognizance (“OR”) bond. On April 2, 2013, a felony

complaint was filed against Johnson in Dayton Municipal Court case number 2013-CRA-2294,

charging him with two counts felonious assault.1 He was taken into custody on April 3, 2013,

and $100,000 bond was set in the municipal-court case. Also on April 3, 2013, the OR bond in

the concealed-weapon case was revoked and a $25,000 bond was set. Thereafter, the

municipal-court charges were dismissed on April 11, 2013. 2 Despite the municipal-court

dismissal, Johnson remained jailed in lieu of a $25,000 bond in the concealed-weapon case.3




           1
             Johnson contends the municipal-court charges were filed on April 3, 2013. The Dayton Municipal Court’s docket reflects
 otherwise. For present purposes, the one-day discrepancy is immaterial.
           2
             Johnson claims one of the charges was dismissed. The municipal-court docket reflects, however, that both charges were dismissed
 on April 11, 2013. Again, this discrepancy is not significant for present purposes.
           3
              On August 7, 2014, the State filed an unopposed motion to supplement the record with the trial court’s bail orders in the
 concealed-weapon case, Montgomery County Common Pleas Court case number 2012-CR-2974. Because both parties have referred to the
 bail orders in that case, the State’s motion to supplement the record is hereby sustained.
[Cite as State v. Johnson, 2014-Ohio-4506.]
         {¶ 4}           On April 30, 2013, Johnson was indicted in the above-captioned case on two

counts of felonious assault with specifications.4 On May 3, 2013, the trial court set a $100,000

bond, which Johnson did not post. While still in jail, he filed an October 27, 2013 motion to

dismiss on statutory speedy-trial grounds. (Doc. #36). In support, he relied on the triple-count

provision in R.C. 2945.71(E), which applies when a defendant is jailed in lieu of bail solely on

the pending charge. Johnson argued that he had been arrested in the above-captioned case on

March 30, 2013 and had remained in custody since that time. 5 He noted that 211 days had

elapsed from March 30, 2013 to the date of his motion. He then deducted 50 days to account for

motions he had filed and continuance requests he had made, leaving 161 days. Johnson

multiplied the 161 days by three (applying the triple-count provision) and asserted that 483

speedy-trial days had passed. Because R.C. 2945.71(C)(2) obligates the State to bring a felony

defendant to trial within 270 days of his arrest, Johnson maintained that his statutory speedy-trial

rights had been violated.

         {¶ 5}           The trial court rejected Johnson’s argument. It found the triple-count provision

inapplicable, reasoning:

                       The Court concludes that Defendant was held in lieu of bail in case

         number 2012 CR 2974 on a $25,000 cash or surety bond and in the current case

         number 2013 CR 1019 on a $100,000 cash or surety bond. Defendant’s bail was
            4
                The indictment involved the same incident that gave rise to the earlier felony charges in Dayton Municipal Court.
            5
              The record before us does not reflect a March 30, 2013 arrest in connection with this case. In his appellate brief, however, Johnson
 explains: “The Defendant was arrested in the instant case 2013 CR 1019 on March 30, 2013. The Indictment occurred on April 30, 2013 only
 after a preliminary hearing on April 11, 2013 and the subsequent dismissal of the charges due to the nonattendance of state witnesses. The
 Defendant was still being held in jail.” (Appellant’s brief at 8). For present purposes, we will accept that Johnson was arrested and jailed in
 connection with the above-captioned case on March 30, 2013. Even using that date, the success of his speedy-trial argument still turns on
 applicability of the triple-count provision.
                                                                                                      4


       revoked in case number 2012 CR 2974 from an own recognizance bond to a

       $25,000 cash or surety bond on April 3, 2013. Defendant was indicted on April

       30, 2013 in case number 2013 CR 1019 and bail was set in that case in the amount

       of $100,000 cash or surety bond. Defendant was held in lieu of bail not “solely”

       for the pending charge of felonious assault in case number 2013 CR 1019 but also

       for the pending charge of carrying a concealed weapon in case number 2012 CR

       2974. Thus, the triple count provision is not applicable in this case, consequently

       running Defendant’s speedy trial calculation at a one-for-one count.

(Doc. #40 at 3).

       {¶ 6}       The trial court then concluded that only 121 days of speedy-trial time had passed.

It provided detailed calculations to support this figure. (Id. at 4 and fn. 1-6). After the trial court

overruled his motion to dismiss, Johnson entered a negotiated no-contest plea to one count of

felonious assault without any specifications. The trial court accepted the plea, found him guilty,

and imposed sentence accordingly. (Doc. #41, 49).

       {¶ 7}       In his first assignment of error, Johnson does not dispute that his speedy-trial

argument fails if the triple-count provision does not apply. He insists, however, that he was

entitled to triple counting because “there are no indications there was to be multiple trials on case

numbers 2013 CR 1019 and 2012 CR 2974.” (Appellant’s brief at 8). In support, he cites State v.

Fielder, 66 Ohio Misc.2d 163, 643 N.E.2d 633 (Dayton Mun. Ct.1994), for the proposition that

“the triple-count provision applies to a defendant held on multiple counts on the same indictment

if all counts are to be heard at the same trial.” The Fielder court also cited State v. Parsley, 82

Ohio App.3d 567, 571, 612 N.E.2d 813 (10th Dist.1993) for the proposition that the existence of
                                                                                                                                           5


multiple charges filed on separate dates and given different case numbers may not preclude

triple-counting if they arise from a single transaction and share a common litigation history from

arrest onward.6

         {¶ 8}       Upon review, we see no error in the trial court’s denial of triple counting. As

noted above, the rule is that triple counting applies “only when the defendant is being held in jail

solely on the pending charge.” State v. Sanchez, 110 Ohio St.3d 274, 276-77, 2006-Ohio-4478,

853 N.E.2d 283, 286. Triple counting does not apply when a defendant also is being held in

custody on other charges. Id. In State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, 863

N.E.2d 1032, ¶ 21, however, the Ohio Supreme Court adopted the rule of Parsley, supra, and

clarified that “when multiple charges arise from a criminal incident and share a common

litigation history, pretrial incarceration on the multiple charges constitutes incarceration on the

‘pending charge’ for the purposes of the triple-count provision of the speedy-trial statute, R.C.

2945.71(E).”

         {¶ 9}       Here the trial court correctly recognized that Johnson was being held in lieu of

bail on pending charges in two unrelated cases involving separate indictments. The first case,

Montgomery County Common Pleas Court case number 2012-CR-2974, involved a charge of

carrying a concealed weapon and a $25,000 bond. The indictment in that case was filed on

February 5, 2013, and it involved conduct allegedly occurring on October 1, 2012. The second

case (the above-captioned case), Montgomery County Common Pleas Court case number


           6
            In Parsley, the defendant “was arrested and arraigned on both charges at the same time. A pretrial was conducted on both charges
 at the same time and a single trial date and time was set for both charges. Both charges apparently arose from a single altercation involving
 more than two parties.” Parsley at 571.
                                                                                                                                           6


2013-CR-1019, involved felonious assault charges and a $100,000 bond. As noted above, the

indictment was filed on April 30, 2013, and it involved conduct allegedly occurring on March 30,

2013.

         {¶ 10} Unlike Parker, the record does not reflect that the two cases at issue arose from

the same criminal incident or shared a common litigation history. Therefore, we see no basis to

treat the separate charges as one “pending charge” for triple-count purposes. Cf. State v.

Dankworth, 172 Ohio App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, ¶ 35 (2d Dist.) (finding

Parker inapplicable where a defendant was arrested and jailed on separate complaints with

separate cash bonds for unrelated charges).7 Without triple counting, Johnson admittedly did not

come close to establishing a speedy-trial violation. Accordingly, his first assignment of error is

overruled.

         {¶ 11} Johnson’s second assignment of error addresses the absence at sentencing of the

trial court judge assigned to his case. He argues that he should have been asked whether he

wanted to proceed in the assigned judge’s absence or whether he desired a continuance. Although

the sentencing judge imposed a four-year prison sentence—which was within the agreed-upon

range of two, three, or four years—Johnson reasons that the judge originally assigned to his case

might have imposed a lesser sentence.

         {¶ 12} Johnson’s specific argument is as follows:

                    * * * Even though there are no allegations the sentencing Judge had any


           7
             In Dankworth, this court did agree that “when an accused is charged with several unrelated offenses in a multiple-count
 indictment and all counts are to be tried in a single trial, the indictment is treated as a single charge, and the accused is entitled to the
 triple-count provision.” Dankworth at ¶ 37. Of course, that is not the situation in the present case.
                                                                                                                                              7


         outside information, nevertheless, it appears fundamental fairness would ha[ve]

         prevailed if the Judge had simply informed the Defendant of the opportunity to

         request a continuance if he wanted the assigned Judge to impose sentencing. The

         Judge failed to do so. Furthermore, there are no allegation[s] of an unreasonable,

         arbitrary or unconscionable attitude rising to an abuse of discretion. Rather, the

         assignment of error is the failure to afford the Defendant an opportunity to

         continue the matter to the assigned Judge who had a greater appreciation and

         understanding of the history of the case.

(Appellant’s brief at 10).

         {¶ 13} Upon review, we find no error in the sentencing judge’s failure to ask Johnson if

he wanted a continuance. Johnson was represented by counsel who could have requested a

continuance if desired. Based on the lack of request for a continuance, the only issue is whether

the trial court’s failure to offer one sua sponte constituted plain error. In our view, it did not.

Johnson cites no authority obligating the sentencing judge to offer a continuance. Moreover, the

sentencing judge imposed a sentence within an agreed-upon range that was authorized by law.

The sentencing judge also independently reviewed the record, including a PSI, and considered

Johnson’s criminal history and the facts of this case. It is pure speculation whether the originally

assigned judge would have imposed a shorter sentence. Therefore, Johnson cannot establish

prejudice either.8 The second assignment of error is overruled.

           8
            On appeal, the State contends the record also fails to establish that Johnson in fact was sentenced by someone other than Judge
 Michael Krumholtz, the judge originally assigned to his case. We note that the plea and sentencing transcript cover page identifies Judge
 Krumholtz as “presiding.” During the sentencing hearing, however, the sentencing judge referenced prior proceedings “before Judge
 Krumholtz,” strongly suggesting that the sentencing judge was not Judge Krumholtz. See Transcript at 21 (“And then March 4, 2013, you
 were before Judge Krumholtz. * * *And Judge Krumholtz then ordered there be a report * * *.”).
                                                                                                      8


       {¶ 14} The trial court’s judgment is affirmed.

                                           .............

FAIN, J., concurs.

FROELICH, P.J., concurring:

       {¶ 15} I agree with the majority that the record sufficiently reflects that the sentencing

was done by a different judge than the one who took the plea. This raises concerns with both

Montgomery County C.P.R. 1.19 and Crim.R. 25. Crim.R. 25(B) “inferentially commands that

unless unable to do so, the judge who presided at the criminal trial must also preside at the

post-conviction proceedings, including sentencing.” Beatty v. Alston, 43 Ohio St.2d 126, 127,

330 N.E.2d 921 (1975). See also People v. Childress, ____ P.3d ____, 2012 WL 2926636

(Colo. App.), interpreting an almost-identical C.P.R. 25.

       {¶ 16} Although the sentence was after a consideration of the PSI and was within the

range agreed upon at the plea, perhaps counsel or the appellant only entered into the plea and

sentencing agreement based on his or their anticipation of what sentence the particular judge

(who accepted the agreement) would impose.

       {¶ 17} Regardless, the appellant and counsel both were aware that sentencing was

occurring before a different judge (in this regard, it is possible that their “opinion” as to what this

judge would do was more favorable). There was no objection and there is no suggestion of plain

error or prejudice on this record. The appellant waived any error. State v. Pecina, 76 Ohio

App.3d 775, 603 N.E.2d 363, 365 (6th District 1992).

                                           .............
                            9




Copies mailed to:

Mathias H. Heck, Jr.
April F. Campbell
Alan D. Gabel
Hon. Michael W. Krumholtz
