[Cite as State v. Miller, 2012-Ohio-1823.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY


State of Ohio,                        :
                                      :
        Plaintiff-Appellant,          :
                                      :          Case No. 11CA26
        v.                            :
                                      :          DECISION AND
Eric J. Miller,                       :          JUDGMENT ENTRY
                                      :
        Defendant-Appellee.           :          Filed: April 20, 2012
_____________________________________________________________________

                                             APPEARANCES:

Keller J. Blackburn, Athens County Prosecuting Attorney, Sabrina J. Ennis and Merry
M. Stacks, Athens County Assistant Prosecuting Attorneys, Athens, Ohio, for Appellant.

Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier, Ohio Assistant
Public Defender, Columbus, Ohio, for Appellee.
_____________________________________________________________________

Kline, J.:

         {¶ 1} The State of Ohio appeals the judgment of the Athens County Court of

Common Pleas, which dismissed an indictment against Eric Miller. The state contends

that the trial court erroneously determined that the state failed to bring Miller to trial

during the time period required by R.C. 2941.401. We conclude (1) that the 180-day

time period provided by R.C. 2941.401 applies in this case and (2) that the state failed

to bring Miller to trial during that time period. Therefore, the trial court correctly

dismissed the indictment against Miller. Accordingly, we affirm the judgment of the trial

court.

                                                  I.
Athens App. No. 11CA26                                                              2


       {¶ 2} In October 2009, the state filed a complaint against Miller in Athens

County Municipal Court. The complaint charged Miller with kidnapping and aggravated

burglary. Miller did not appear for the municipal court complaint. On July 13, 2010, the

Franklin County Court of Common Pleas sentenced Miller to a prison term on an

unrelated charge.

       {¶ 3} On July 26, 2010, while still incarcerated on the Franklin County charge,

Miller served a request for disposition of the municipal court complaint on the Athens

County Prosecuting Attorney pursuant to R.C. 2941.401. In response, the state

dismissed the Athens County municipal court complaint on August 9, 2010.

       {¶ 4} Miller received judicial release for the Franklin County charge on May 26,

2011. Then, on June 27, 2011, an Athens County grand jury indicted Miller for burglary.

The same facts supported the June 27, 2011 indictment and the October 2009

municipal court complaint. Miller moved to dismiss the indictment because the state

failed to bring him to trial within the time period required by R.C. 2941.401. The trial

court held a hearing on the issue, and, on September 20, 2011, the trial court granted

Miller’s motion to dismiss the indictment.

       {¶ 5} The state appeals and asserts the following assignment of error: I. “The

Trial Court committed plain error by finding that the ‘speedy trial clock’ does not stop

when a criminal complaint is dismissed in municipal court and later re-indicted in the

Court of Common Pleas.”

                                             II.

       {¶ 6} In its sole assignment of error, the state argues that the trial court erred in

dismissing the indictment against Miller.
Athens App. No. 11CA26                                                              3


       {¶ 7} This case concerns the application of R.C. 2941.401. “When interpreting

statutes and their application, an appellate court conducts a de novo review, without

deference to the trial court’s determination.” State v. Sufronko, 105 Ohio App.3d 504,

506, 664 N.E.2d 596 (4th Dist.1995); accord State v. Jenkins, 4th Dist. 10CA3389,

2011-Ohio-6924, ¶ 9.1 “If [R.C. 2941.401] is ambiguous, we must then interpret the

statute to determine the General Assembly’s intent. If it is not ambiguous, then we need

not interpret it; we must simply apply it.” State v. Hairston, 101 Ohio St.3d 308, 2004-

Ohio-969, 804 N.E.2d 471, ¶ 13, citing Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d

413 (1944), paragraph five of the syllabus. And significantly, the Supreme Court of

Ohio has held that “[R.C. 2941.401] is not ambiguous.” Hairston at ¶ 20.

       {¶ 8} R.C. 2941.401 provides, in relevant part, as follows:

              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



1
  The state argues that the trial court committed “plain error.” However, Miller and the
state argued their respective positions on this issue before the trial court. As a result,
we need not analyze this issue under the plain-error standard.
Athens App. No. 11CA26                                                               4


              open court, with the prisoner or his counsel present, the

              court may grant any necessary or reasonable continuance. *

              * * 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.

       {¶ 9} “In its plainest language, R.C. 2941.401 grants an incarcerated defendant

a chance to have all pending charges resolved in a timely manner, thereby preventing

the state from delaying prosecution until after the defendant has been released from his

prison term.” Hairston at ¶ 25.

       {¶ 10} As stated above, Miller served his request for disposition on the state on

July 26, 2010. Thus, under R.C. 2941.401, the state had to bring Miller to trial within

180 days. Instead, the state dismissed the complaint against Miller without prejudice.

An Athens County grand jury later indicted Miller for burglary on June 27, 2011. The

indictment was based on the same facts as the Athens County municipal court

complaint. Additionally, the June 27, 2011 indictment was more than 180 days after

Miller served his request for disposition. Moreover, the trial court did not grant any

necessary or reasonable continuance based on a showing of good cause pursuant to

R.C. 2941.401. Thus, after applying the plain language of the statute, we conclude that

the state failed to bring Miller to trial within the time period provided by R.C. 2941.401.

       {¶ 11} The state argues that, once it dismissed the municipal court complaint

against Miller, there were no charges pending. As a result, the state contends that the
Athens App. No. 11CA26                                                               5


general statute of limitations governing Miller’s alleged crime applied, not the 180-day

time period under R.C. 2941.401. The state argues that “a complaint is no longer

pending once it has been dismissed in Municipal Court and prior to an Indictment being

filed.” Appellant’s Merit Brief at 3, relying on State v. Bonarrigo, 62 Ohio St.2d 7, 402

N.E.2d 530 (1980), and State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, 859

N.E.2d 532.

       {¶ 12} The state’s argument lacks merit. Initially, we note that the state relies

upon cases analyzing R.C. 2945.71 (i.e., the “speedy-trial statute”), not R.C. 2941.401.

The state, however, has provided no reason why we should deviate from applying the

plain language R.C. 2941.401. Consequently, we need not analyze the cases cited by

the state.

       {¶ 13} Nevertheless, even if we were to apply the cases the state relies upon,

those cases do not support the state’s argument in this case. Indeed, in Bonarrigo, the

court held that “the speedy-trial statute [R.C. 2945.71] was tolled after a misdemeanor

charge was nolled until the felony indictment, based upon the same conduct, was

issued.” Azbell at ¶ 16 (summarizing the holding in Bonarrigo). However, the Supreme

Court of Ohio premised this rule upon the defendant not being incarcerated during the

time the speedy-trial statute is tolled. In fact, the Bonarrigo court noted as follows:

              “After the Government’s dismissal of the complaint against

              him appellant * * * was no longer under any of the restraints

              associated with arrest and the pendency of criminal charges

              against him. He was free to come and go as he pleased.

              He was not subject to public obloquy, disruption of his
Athens App. No. 11CA26                                                             6


               employment or more stress than any citizen who might be

               under investigation but not charged with a crime. Unless

               and until a formal criminal charge was filed against him,

               neither he nor the public generally could have any legitimate

               interest in the prompt processing of a nonexistent case

               against him.” (Omission sic.) Bonarrigo at 11, fn. 5, quoting

               U.S. v. Hillegas, 578 F.2d 453, 458 (2d Cir.1978).

Thus, in Bonarrigo, the court based its holding, in part, on the defendant being “free to

come and go as he pleased” following the initial dismissal by the state. Id.

       {¶ 14} Additionally, the Supreme Court of Ohio has also held that, “[f]or purposes

of computing how much time has run against the state under R.C. 2945.71 et seq., the

time period between the dismissal without prejudice of an original indictment and the

filing of a subsequent indictment, premised upon the same facts as alleged in the

original indictment, shall not be counted unless the defendant is held in jail or released

on bail pursuant to Crim.R. 12(I).” (Emphasis added.) State v. Broughton, 62 Ohio

St.3d 253, 581 N.E.2d 541 (1991), paragraph one of the syllabus. Thus, Broughton

makes clear that the speedy-trial clock under R.C. 2945.71 is not tolled between a

dismissal without prejudice by the state and a later indictment when the defendant

remains in jail.

       {¶ 15} Furthermore, Azbell provides no support for the state’s argument. In

Azbell, the court analyzed whether the speedy-trial clock under R.C. 2945.71 runs

between (1) the time when a person is arrested and released with no charges being

filed and (2) the later filing of an indictment based upon the same incident. See Azbell,
Athens App. No. 11CA26                                                                 7


112 Ohio St.3d 300, 2006-Ohio-6552, 859 N.E.2d 532, at ¶ 20-21. The court held that

the speedy-trial clock did not begin to run until the filing of the indictment because the

defendant “was never subject to ‘actual restraints imposed by arrest and holding to

answer a criminal charge.’” Id. at ¶ 20, quoting U.S. v. Marion, 404 U.S. 307, 320, 92

S.Ct. 455, 30 L.Ed.2d 468 (1971). Moreover, “[the defendant’s] liberty was not in

jeopardy,” which is “one of the overriding concerns of speedy-trial violations.” Azbell at

¶ 20, citing United States v. Loud Hawk, 474 U.S. 302, 310-312, 106 S.Ct. 648, 88

L.Ed.2d 640 (1986).

       {¶ 16} Here, after Miller served his request for disposition, he remained in prison

for the entire 180-day period provided by R.C. 2941.401. As a result, the cases the

state relies upon do not support the argument that the 180-day time period under R.C.

2941.401 should be tolled following the state’s dismissal of the municipal court

complaint.

       {¶ 17} Additionally, the state argues that the time period following the dismissal

of the municipal court complaint should be tolled because the municipal court lacked

jurisdiction to reach a final resolution of the felony complaint against Miller. The state

claims that, because Miller could not be tried on felony charges in a municipal court, the

speedy-trial clock should be tolled until the indictment was filed in the court of common

pleas. The plain language of R.C. 2941.401, however, does not support such a result.

As indicated above, R.C. 2941.401 applies “when during the continuance of the term of

imprisonment there is pending in this state any untried indictment, information, or

complaint against the prisoner[.]” There is nothing in the statute that requires an

“untried indictment, information, or complaint” to be pending in the court that will
Athens App. No. 11CA26                                                                8


ultimately decide the matter. Thus, even though the state could not bring Miller to trial

on felony charges in the Athens County Municipal Court, the 180-day time period under

R.C. 2941.401 was not tolled for the time period between the dismissal of the municipal

court complaint and the filing of the indictment.

       {¶ 18} Finally, the state asserts that, “[s]hould this Court find that the speedy trial

clock did not stop when the case was dismissed, this would open the floodgates to all

law enforcement agencies having to indict charges on a defendant within that time

frame if they are under investigation.” Appellant’s Reply Brief at 3. We note that it is

not our province to disregard the plain language of R.C. 2941.401 in an attempt to avoid

the result suggested by the state. The state’s “floodgates” argument is more properly

directed to the General Assembly.

       {¶ 19} For the foregoing reasons, the state’s arguments that the 180-day period

under R.C. 2941.401 ceased to run following the state’s dismissal of the municipal court

complaint lack merit. As a result, after Miller served his request for disposition on the

state on July 26, 2010, the state had 180 days to bring Miller to trial under R.C.

2941.401. The state failed, however, to bring Miller to trial within the 180-day time

period. Consequently, the trial court correctly dismissed the indictment against Miller.

       {¶ 20} Therefore, we overrule the state’s sole assignment of error, and we affirm

the judgment of the trial court.

                                                                   JUDGMENT AFFIRMED.
Athens App. No. 11CA26                                                             9


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Athens County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and Harsha, J.: Concur in Judgment and Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
