[Cite as State v. Kadunc, 2016-Ohio-4637.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                  No. 15AP-920
v.                                                :           (C.P.C. No. 14CR-6279)

Michael J. Kadunc,                                :        (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                         D E C I S I O N

                                      Rendered on June 28, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee. Argued: Valerie Swanson.

                 On brief: The Tyack Law Firm Co., LPA, and Jonathan T.
                 Tyack, for appellant. Argued: Jonathan T. Tyack.

                  APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Michael J. Kadunc, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to a jury verdict finding him guilty of one count of possession of heroin, a fourth-degree
felony. Appellant now contends on appeal that the delay between his original arrest and
the commencement of trial violated his constitutional and statutory right to a speedy trial.
        {¶ 2} Columbus police stopped appellant, who was driving a rental vehicle, on
August 5, 2013, for a minor traffic violation. After receiving his traffic citation, appellant
left his vehicle parked in the street and entered a nearby home. Based on appellant's
demeanor and the recent history of the house he had entered, the citing officers called for
a canine search unit. The dog gave an alert indication on the rental vehicle. Police
No. 15AP-920                                                                                2


impounded the vehicle and obtained a search warrant, which when executed yielded
apparent heroin in small packages. Although investigators immediately sent the
suspicious material for analysis by the Columbus police crime lab, the lab did not return
its positive report until some eight months later on April 10, 2014. The report specified
that 1.238 grams of material in seven small plastic bags tested as heroin. Based on this
result and the relative amounts under Ohio sentencing guidelines, the lab did not test an
additional 18 plastic bags containing 2.736 grams of material.
       {¶ 3} Police arrested appellant on August 22, 2013, and charged him with one
count of possession of heroin in the amount of 5.5 grams, an amount slightly greater than
the subsequent lab-determined weight.        The complaint specified a violation of R.C.
2925.11, a felony of the fourth degree. Appellant posted bond the following day. On
September 4, 2013, appellant waived his right to a preliminary hearing and Franklin
County Municipal Court transferred the matter to the Franklin County Court of Common
Pleas under case No. 13CR-4666. The grand jury, however, returned a "no bill" on
September 16, 2013, declining to indict.       Other than the grand jury's report that it
declined to indict appellant, the trial court took no formal action to enter a dismissal in
accordance with Crim.R. 48.
       {¶ 4} After the grand jury returned its no bill, more than one year passed without
action from appellee. Appellant then filed a motion to dismiss case No. 13CR-4666 on
September 23, 2014, alleging that the case had been pending since his arrest on
August 22, 2013, that appellee had taken no further action, and that the delay violated
appellant's constitutional and statutory right to a speedy trial. The trial court did not rule
on this motion.
       {¶ 5} Appellee re-presented the matter to the grand jury under new case No.
14CR-6279, repeating the possession charge but specifying only an amount between one
and five grams and adding a second charge of trafficking under R.C. 2925.03, also a
fourth-degree felony. On November 21, 2014, the grand jury returned indictments on
both charges.     A warrant issued for appellant on January 2, 2015, and appellant
voluntarily presented himself into custody on January 6, 2015, entering his not-guilty plea
and posting bond the following day.
No. 15AP-920                                                                               3


       {¶ 6} Appellant moved to consolidate case Nos. 13CR-4666 and 14CR-6279 on
January 21, 2015. Appellee opposed the motion on the basis that case No. 13CR-4666
terminated on the grand jury's issuance of a no bill and that, as a result, the court of
common pleas lacked jurisdiction to entertain motions under that case number or
consolidate the terminated case with an active one. The court denied appellant's motion
to consolidate on those grounds.
       {¶ 7} On April 20, 2015, appellant again filed a motion to dismiss on speedy trial
grounds, this time under the new case No. 14CR-6279. The trial court denied the motion
on May 20, 2015. The matter went to trial on August 4, 2015, with a jury rendering a
guilty verdict on the possession count and a not-guilty verdict on the trafficking count.
The court sentenced appellant to five years of community control. Appellant brings the
following assignment of error on appeal:
              THE TRIAL COURT ERRED IN DENYING APPELLANT'S
              MOTION TO DISMISS IN VIOLATION OF APPELLANT'S
              RIGHTS UNDER OHIO REVISED CODE § 2945.71
              THROUGH § 2945.73, ARTICLE I, SECTION 10 OF THE
              OHIO CONSTITUTION, AND THE SIXTH AMENDMENT
              TO THE UNITED STATES CONSTITUTION.

       {¶ 8} The heart of appellant's assignment of error is the question of whether the
period between the grand jury's return of a no bill under case No. 13CR-4666 and his
ultimate indictment under case No. 14CR-6279 is countable for speedy trial purposes.
Appellant argues that a return of a no bill by the grand jury does not qualify as a dismissal
under Crim.R. 48 or any other provision and does not toll the running of the Ohio
statutory period for speedy trial rights set forth in R.C. 2945.71 through 2945.73.
Appellant further argues that, apart from his statutory right to a speedy trial, the 15-
month delay between his original arrest and subsequent indictment on November 24,
2014 under case No. 14CR-6279 and the two-year interval between his original arrest and
his trial, violate his right to a speedy trial under Article I, Section 10 of the Ohio
Constitution and the Sixth Amendment to the United States Constitution.
       {¶ 9} R.C. 2945.71(C)(2) requires the state to bring a felony defendant to trial
within 270 days. Under R.C. 2945.71(E), each day that the defendant is incarcerated in
lieu of bond on the pending charge counts as three days. Under R.C. 2945.72, the time to
No. 15AP-920                                                                              4


bring the defendant to trial may be extended for various reasons with counting against the
speedy trial limit:
              (A) Any period during which the accused is unavailable for
              hearing or trial, by reason of other criminal proceedings
              against him, within or outside the state, by reason of his
              confinement in another state, or by reason of the pendency of
              extradition proceedings, provided that the prosecution
              exercises reasonable diligence to secure his availability;

              (B) Any period during which the accused is mentally
              incompetent to stand trial or during which his mental
              competence to stand trial is being determined, or any period
              during which the accused is physically incapable of standing
              trial;

              (C) Any period of delay necessitated by the accused's lack of
              counsel, provided that such delay is not occasioned by any
              lack of diligence in providing counsel to an indigent accused
              upon his request as required by law;

              (D) Any period of delay occasioned by the neglect or
              improper act of the accused;

              ***

              (H) The period of any continuance granted on the accused's
              own motion, and the period of any reasonable continuance
              granted other than upon the accused's own motion.

       {¶ 10} "For purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C),
a charge is not pending until the accused has been formally charged by a criminal
complaint or indictment, is held pending the filing of charges, or is released on bail or
recognizance." State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, syllabus. On appeal,
we calculate the number of days chargeable to either party under the statute and
determine whether the accused was brought to trial within the period required. State v.
Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 41 (10th Dist.). When computing time
under the statute, the date of arrest is not included. State v. Miller, 10th Dist. No. 06AP-
36, 2006-Ohio-4988, ¶ 7; Crim.R. 45(A); R.C. 1.14. If the accused has demonstrated a
prima facie case that his prosecution was pending for a time exceeding the statutory
limits, the burden shifts to the state to show that the time limit was extended under the
No. 15AP-920                                                                               5


various tolling provisions or otherwise should not be counted against the statute. State v.
Butcher, 27 Ohio St.3d 28, 30-31 (1986).
        {¶ 11} In arguing the statutory issue, appellant does not dispute appellee's position
that the lapse of time between the indictment under case No. 14CR-6279 and his trial is
attributable to his own motions or other tolling events and is, therefore, waived or tolled
for speedy trial purposes. As a result, we approach this discussion by postulating that
without the 14-month interval between no bill and indictment, no cumulation of the time
between arrest and no bill, or indictment and trial, can reach the statutory limit.
        {¶ 12} Appellee proposes that our decisions in State v. Woods, 10th Dist. No.
87AP-736 (June 16, 1988), and State v. Montgomery, 10th Dist. No. 89AP-1355 (Aug. 30,
1990), are guiding precedent for our treatment of the post-no-bill time. The latter is not
fully on point: in Montgomery, the initial charges against the defendant appear to have
been formally dismissed, rather than no billed by the grand jury. Woods did involve a no
bill and delayed indictment but was reviewed in this court primarily under a due process
challenge under the Fourteenth Amendment. We did summarily dispose of the
defendant's claim that time after his no bill should count under R.C. 2945.71, observing
without explanation that the speedy trial statute is "not applicable when no charges are
pending against an accused." Id., citing United States v. Marion, 404 U.S. 307 (1971), a
delayed-indictment case that did not involve any preceding arrest or complaint.
        {¶ 13} While we did not address in Woods the detailed arguments raised by
appellant here regarding the relevant criminal rules, the Fourth District of Ohio has
thoroughly examined and discussed the matter in State v. Alexander, 4th Dist. No.
08CA3221, 2009-Ohio-1401. In Alexander, a complaint charged the defendant with
murder, but the grand jury returned a no bill. After a two-year delay, the state again
presented the matter to the grand jury, which returned an indictment for aggravated
murder, leading to a subsequent conviction. On appeal, the Fourth District concluded
that the charges against the defendant were not "pending" for purposes of speedy trial
time.
        {¶ 14} As in the case before us, the court of common pleas did not formally dismiss
the initial charge against the defendant in Alexander or explicitly release him from his
bond originally set pursuant to the first complaint. The Fourth District began by noting
No. 15AP-920                                                                               6


that the grand jury is "under the control and direction of the court of common pleas" and
is "essentially an arm of the court." Id. at ¶ 21. "Chapter 2939 of the Ohio Revised Code
and Crim.R. 6 set forth the duties and responsibilities of the grand jury. Under R.C.
2939.23, the foreman must notify the court of common pleas if the grand jury fails to
return an indictment against an accused.          Moreover, Crim.R. 6(F) provides: 'If the
defendant is in custody or has been released pursuant to Rule 46 and seven [grand] jurors
do not concur in finding an indictment, the foreman shall so report to the court
forthwith.' " (Footnote omitted.) Id.
       {¶ 15} From this, the court in Alexander concluded that when the state failed to
obtain the initial indictment against the defendant and the grand jury issued its no bill,
the trial court lost jurisdiction of the charge against the defendant. Id. at ¶ 25. Alexander
noted that "if a court assumes jurisdiction over an improperly commenced felony
prosecution, the trial and conviction would be a nullity." Id. at ¶ 24, citing State ex rel.
Flint v. Dinkelacker, 156 Ohio App.3d 595, 2004-Ohio-1695, ¶ 21. In the absence of an
indictment, the trial court could not proceed with jurisdiction over the matter, and,
therefore, the court necessarily lost jurisdiction over the charge that would bound over to
the grand jury, after the grand jury issued its no bill. Id.
       {¶ 16} Under this reasoning, the court in Alexander concluded that a formal
dismissal under Crim.R. 48 and a formal release from bond under Crim.R. 46 was not
necessary because "[w]hen the grand jury failed to indict Alexander and the murder
charge was no longer pending against him, his bail obligations were extinguished by
operation of law." Id. at ¶ 28, noting the opposite conclusion reached by State v. Scott,
8th Dist. No. 59485 (Oct. 18, 1990).
       {¶ 17} In conjunction with our earlier holding in Woods, the Fourth District's
reasoning in Alexander is persuasive, and we apply it to the facts before us. We conclude
that the time between the issuance of a no bill by the grand jury and subsequent
indictment under a new case number is not chargeable to the state for speedy trial
purposes, and the time computed for the other periods between arrest and trial do not
exceed the 270-day requirement of R.C. 2945.71(C)(2).
       {¶ 18} Because we so hold, we do not reach appellee's suggestion that an additional
basis exists to preclude a speedy trial violation. Appellee argues that the later indictment
No. 15AP-920                                                                                7


under case No. 14CR-6279 was based on additional evidence or facts in the form of the
eventual laboratory analysis confirming that the seized material was heroin and,
accordingly, would operate independently of any prior arrest or complaint and restart the
speedy trial clock from zero. Because this issue is rendered moot by our application of
Alexander to determine the effect of the grand jury no bill in terminating case No. 13CR-
4666, we expressly make no application here of our holdings in State v. Mohamed, 10th
Dist. No. 08AP-960, 2009-Ohio-6658, ¶ 2, and State v. Brown, 10th Dist. No. 12AP-292,
2012-Ohio-5903, or this aspect of the Supreme Court of Ohio's decision in State v.
Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 84, quoting State v. Baker, 78 Ohio St.3d
108, 110 (1997) ("A later indictment is not subject to the speedy-trial timetable of an
earlier indictment or arrest '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' or earlier arrest.").
       {¶ 19} We now consider appellant's assertion that, Ohio statutory rights apart, the
two-year delay between arrest and trial presumptively violated his constitutional right to a
speedy trial under the Sixth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution. Under some circumstances, these constitutional
speedy trial guarantees may be broader than the equivalent statutory right. State v.
O'Brien, 34 Ohio St.3d 7, 8-9 (1987). Ohio courts have held that the state and federal
constitutional speedy trial rights, however, are co-extensive. State v. MacDonald, 48
Ohio St.2d 66, 68 (1976); State v. Miller, 10th Dist. No. 04AP-285, 2005-Ohio-518, ¶ 8.
We must balance four factors in assessing a constitutional speedy trial challenge: the
length of delay, the reasons for the delay, the defendant's timely assertion of his speedy
trial right, and resulting prejudice to the defendant from the delay. Barker v. Wingo, 407
U.S. 514, 530 (1972).
       {¶ 20} We first note that appellant meets the third prong of the Barker standard
because he has repeatedly and clearly raised his speedy trial challenges through the
course of proceedings in the trial court.
       {¶ 21} The first Barker factor, the length of delay, requires a double inquiry: the
defendant must first make a threshold showing of presumptively prejudicial delay to
trigger further analysis, and a court must then consider the length of delay in conjunction
No. 15AP-920                                                                                8


with the other Barker factors. Doggett v. United States, 505 U.S. 647 (1992); Miller,
2005-Ohio-518, at ¶ 11.         A delay approaching one year becomes "presumptively
prejudicial" under Barker. Doggett at 652, fn. 1. In the present case, if we omit the 14-
month interval between the grand jury's issuance of a no bill and eventual indictment, the
period to be counted is substantially less than one year; moreover, much of that period is
attributable to motion practice by the defense that may be considered and discounted
under the second prong of Barker, leaving very little room to presume a prejudicial delay
in this case. The constitutional speedy trial claim, therefore, again turns on our treatment
of the post-no-bill interval.
       {¶ 22} We find that the post-no-bill period, for reasons that are congruent with our
approach to the statutory speedy trial challenge, will not be counted in assessing the
constitutional challenge. The United States Supreme Court has specifically addressed
treatment given to a period after charges are dismissed and new charges are brought for
the same crime: "Once charges are dismissed, the speedy trial guarantee is no longer
applicable. At that point, the formerly accused is, at most, in the same position as any
other subject of a criminal investigation." United States v. MacDonald, 456 U.S. 1, 8-9
(1982).   "[U]nder the rule of MacDonald, when defendants are not incarcerated or
subjected to other substantial restrictions on their liberty, a court should not weigh that
time towards a claim under the Speedy Trial Clause." United States v. Loud Hawk, 474
U.S. 302, 312 (1986).
       {¶ 23} The Supreme Court of Ohio recently applied these authorities in Adams to
discount speedy trial time: "Thus, for constitutional speedy-trial purposes, the only time
we count is the period from Adams's arrest [for burglary] on December 30, 1985, to the
grand jury's issuance of a 'no bill' in May 1986, plus his 24 days of incarceration [following
his later arrest for aggravated murder] in October 2007. We hold that this period was not
'presumptively prejudicial,' and we therefore do not need to reach the other elements of
the Barker inquiry." Adams at ¶ 95. Because we have concluded in the present case that
appellant was not subject to a bond or other constraint on his freedom after the grand jury
issued its no bill, we find that the ensuing period is not a basis for a finding of undue
delay. Moreover, appellant has failed to particularize any prejudice under the fourth
No. 15AP-920                                                                              9


prong of Barker resulting from the delay, either by inability to produce witnesses or
otherwise contest the material facts of his guilt.
          {¶ 24} In summary, we find that appellant has not demonstrated a violation of his
right to speedy trial under either Ohio's speedy trial statute or the constitutions of Ohio
and the United States.       Appellant's sole assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                         Judgment affirmed.
                               LUPER SCHUSTER, J., concurs.
                                  HORTON, J., dissents.

HORTON, J., dissenting.
          {¶ 25} Because I cannot concur with the majority's disposition of appellant's
speedy trial challenges under either statute or constitution, I respectfully dissent.
          {¶ 26} I would include the entire 14-month period between the grand jury's return
of the no bill and the subsequent indictment under a new case number in my R.C.
2945.71(C)(2) computation, and as a result find that the state has failed to rebut
appellant's showing that more than 270 days elapsed between his arrest and trial. This is
true even if we consider the ensuing period from indictment to trial as entirely waived or
tolled.
          {¶ 27} In the absence of an express dismissal of the case under Crim.R. 48, I
consider that appellant was continuously under the conditions of his bond as set by the
municipal court after his initial arrest. Crim.R. 46(H) clearly states that "the same bond
shall continue until the return of a verdict or the acceptance of a guilty plea. * * * Any
provision of a bond or similar instrument that is contrary to this rule is void." Because
appellant was subject to the constraints of his bond and resulting " ' "continuing restraint
on [his] liberty imposed in connection with the formal charge on which [he was]
eventually tried," ' " the time must count for speedy trial purposes. State v. Azbell, 112
Ohio St.3d 300, 2006-Ohio-6552, ¶ 13, quoting State v. Weiser, 10th Dist. No. 03AP-95,
2003-Ohio-7034, ¶ 25-26, quoting United States v. Stead, 745 F.2d 1170, 1172 (1984).
          {¶ 28} The Fourth District's reasoning in State v. Alexander, 4th Dist. No.
08CA3221, 2009-Ohio-1401, explains no other mechanism by which bond or a pending
criminal case can terminate "by operation of law." Id. at ¶ 2. I conclude to the contrary
No. 15AP-920                                                                                 10


that it is by operation of rule and statute that a case cannot be terminated by implication.
I, therefore, find no reason to exclude the 14-month period after the no bill for purposes of
computing statutory speedy trial delay in this case.
         {¶ 29} Likewise, I would find that State v. Woods, 10th Dist. No. 87AP-736
(June 16, 1988), in which we first held that an interval following a no bill does not count
for speedy trial purposes, is flawed authority.        In Woods, we relied without further
explanation on the United States Supreme Court case of United States v. Marion, 404
U.S. 307 (1971). Marion is not a no bill case, nor even a case involving an initial arrest
followed by release or dismissal of charges. Marion addresses only an allegedly
unreasonable delay in prosecution based on the interval between commission of the crime
and a delayed indictment; there was no initial arrest in Marion, only pre-indictment
investigation. As such, it provides no reasonable foundation for Woods' conclusion
regarding the speedy trial effect of a no bill returned after the defendant has been arrested
and arraigned in municipal court.
         {¶ 30} I further emphasize that we lack any evidence in the present case that
appellant was actually freed from the restrictions and conditions of his bond after the
grand jury returned its no bill. The majority's holding effectuates an indefinite period of
time in which criminal defendants will remain subject to conditions of bond but see the
time under bond tolled for speedy trial purposes unless the trial court expressly enters an
order terminating the matter.
         {¶ 31} With proper consideration of the 14-month period following the grand jury's
return of a no bill, I would also find a violation of appellant's constitutional right to speedy
trial:
               " 'We can see little, if any, difference in the dilemma which
               unreasonable delay creates for the suspect who was belatedly
               charged, the accused named in a warrant promptly issued but
               belatedly served, and the indicted defendant whose trial has
               been unduly postponed. The same considerations which
               impel prompt action in the one situation are equally critical in
               the others.' " State v. Meeker (1971) 26 Ohio St.2d 9, 16, 55
               O.O.2d 5, 268 N.E.2d 589, quoting State v. Johnson (1969),
               275 N.C. 264, 271-272, 167 S.E.2d 274.
No. 15AP-920                                                                               11


Azbell at ¶ 39, Moyer, C.J., dissenting. Under the Sixth Amendment authorities cited by
the majority, we should find that the two-year interval between initial arrest and trial in
this case was presumptively prejudicial.
       {¶ 32} Finally, because I would include the 14-month period following the no bill
as countable time, I must address the state's contention that under State v. Mohamed,
10th Dist. 08AP-960, 2009-Ohio-6658, ¶ 2, and State v. Brown, 10th Dist. No. 12AP-292,
2012-Ohio-5903, the later indictment in case No. 14CR-6279 operated under its own
speedy trial clock and took no account of earlier time accruing under case No. 13CR-4666.
The bedrock principle in Ohio remains that " 'when new and additional charges arise from
the same facts as did the original charge and the state knew of such facts at the time of the
initial indictment, the time within which trial is to begin on the additional charge is
subject to the same statutory limitations period that is applied to the original charge.' "
State v. Adams, 43 Ohio St.3d 67, 68 (1989), quoting State v. Clay, 9 Ohio App.3d 216
(11th Dist.1983). Brown and Mohamed apply only as exceptions to that rule and are
predicated on the appearance of material new facts that would alter the prosecution's
theory of the case or the charged offense.
       {¶ 33} The initial arrest and complaint in this case accused appellant of possession
of heroin. The laboratory report confirming that the seized material was in fact heroin did
not constitute a new fact but merely confirmation of the assumed facts upon which the
initial arrest and complaint were based. If the laboratory report had revealed, instead,
that the substance was not heroin, only then might that constitute new facts that required
dismissal or modification of pending charges. Confirmation of the assumed facts,
however, does not constitute new evidence of a different crime or "facts different from the
original charges," as required by State v. Baker, 78 Ohio St.3d 108 (1997), syllabus, to
restart the speedy trial clock. "The holding in Baker is disjunctive and identifies two
scenarios in which the state is not held to the speedy-trial timetable of an initial complaint
or indictment: (1) when additional criminal charges arise from different facts, or (2) when
the state did not know of these facts at the time of the initial indictment." Brown at ¶ 10,
citing Mohamed at ¶ 30.
       {¶ 34} For these reasons, I would find that the 14-month period between no bill
and indictment counts against the state for statutory speedy trial purposes, that the 2-year
No. 15AP-920                                                                             12


delay between initial arrest and trial supports a constitutional speedy trial violation, and
that the subsequent indictment represented a mere continuation of the original
complaint. I would sustain appellant's assignment of error and reverse the judgment of
conviction sentence entered by the Franklin County Court of Common Pleas. I
respectfully dissent.
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