                                                                    [Cite as State v. Busek,
                  2019-Ohio-1527.]

                          COURT OF APPEALS OF OHIO

                         EIGHTH APPELLATE DISTRICT
                            COUNTY OF CUYAHOGA

STATE OF OHIO,                             :

             Plaintiff-Appellant,          :
                                                             No. 107356
             v.                            :

HALLE BUSEK,                               :

             Defendant-Appellee.           :


                           JOURNAL ENTRY AND OPINION

             JUDGMENT: AFFIRMED
             RELEASED AND JOURNALIZED: April 25, 2019


       Criminal Appeal from the Cuyahoga County Court of Common Pleas
                           Case No. CR-17-624641-A


                                     Appearances:

             Michael C. O’Malley, Prosecuting Attorney, and Mary M.
             Frey, Assistant Prosecuting Attorney, for appellant.

             Robert Botnick, for appellee.


MARY EILEEN KILBANE, A.J.:

              Plaintiff-appellant, the state of Ohio (“State”), appeals the trial court’s

judgment dismissing defendant-appellee, Halle Busek’s (“Busek”), case on speedy

trial grounds. For the reasons set forth below, we affirm.
                  On March 4, 2017, Busek was stopped by an Ohio State Highway

Patrolman for a traffic violation. At the time of the traffic stop, the patrolman

discovered a “crack pipe” and four white pills, which were in Busek’s purse.1 Busek

admitted to the patrolman that the pills were Percocet, which the patrolman

identified in his report as schedule II pills. The patrolman advised Busek that she

would be charged with possession of schedule II pills.

                  On March 13, 2017, Busek was charged with possession of drug

paraphernalia in Cleveland Municipal Court. In April 2017, Busek entered into a

plea agreement with the city and pled no contest to an amended charge of disorderly

conduct. The court ordered Busek to pay a $50 fine and court costs.

                  On July 18, 2017, the Ohio Department of Public Safety reported that

the pills contained oxycodone. Then six months later, on January 12, 2018, Busek

was charged with one count of felony drug possession in Cuyahoga County Common

Pleas Court. The indictment lists oxycodone as the controlled substance.

                  On April 9, 2018, Busek moved to dismiss the charge against her. She

argued that her right to speedy trial was violated when she was not brought to trial

within 270 days from her initial encounter with law enforcement on March 4, 2017.

She noted that she was not charged with drug possession until January 12, 2018,

which was more than nine months after her drug paraphernalia charge was resolved

and more than ten months after her initial encounter with the highway patrol. The




1   The pills were sent to the Ohio Department of Public Safety for testing.
State opposed, arguing that the lab report constituted “new additional facts,” which

tolled the speedy trial time. The trial court agreed with Busek and dismissed the

case. The trial court found that:

      based on the 8th District case of State v. [Rutkowski, 8th Dist.
      Cuyahoga No. 86289], 2006-Ohio-1087, the court grants [Busek’s]
      motion.

      Other appellate districts have reached different conclusions concerning
      the speedy trial issue raised in this case and [Rutkowski] — primarily
      because certain key facts were determined to be “new additional facts”
      thereby extending the speedy trial time. However, in the case before
      this court, the facts closely resemble those in [Rutkowski].

      In [Rutkowski], the defendant admitted to possessing ecstasy. The
      delay in obtaining the indictment within 270 days of the speedy trial
      obligation occurred because the prosecutor sent the illegal drugs for
      testing. Thereafter, the prosecutor received the report; however, one
      year elapsed between receipt of the lab report confirming the admission
      by the defendant that the pills were, in fact, [ecstasy] and the date of
      the indictment. Under these circumstances, the Eighth District Court
      of Appeals held that defendant’s speedy trial rights were violated.

      While the Eighth District Court of Appeals in [Rutkowski] considered
      the confirmation that the illegal drugs were ecstasy as “new evidence,”
      that court nevertheless held defendant’s admission that the pills were
      ecstasy coupled with the year delay in processing this indictment after
      receipt of the lab report, “did not rise to the level to allow [defendant’s]
      speedy trial rights to be ignored.” Id.

      Based on the evidence in the case before this court, the police report
      states “defendant allegedly found to be in possession of oxycodone pills
      during a traffic stop,” and the defendant stated to the police, as
      documented in the police report, that “she admits to abusing drugs and
      is requesting treatment.” Thereafter, as in [Rutkowski], a significant
      delay occurred when the prosecutor had this case for six months after
      the illegal drugs were confirmed by the laboratory before an indictment
      was filed. A total of nine months lapsed from the time of her arrest
      until the indictment. As a result, [Busek’s] speedy trial rights were
      violated. Accordingly, [Busek’s] motion is granted. The case is
      dismissed.
               It is from this order that the State appeals, raising the following single

assignment of error for review:

                                  Assignment of Error

      The trial court erred when granting [Busek’s] motion to dismiss and
      dismissing this matter with prejudice.

               The State argues Busek’s statutory speedy trial clock for the drug

possession charge did not begin to run until Busek was indicted on January 12, 2018

because at the time of the traffic stop, the State had no method to determine the

chemical composition of the four pills it seized from Busek. The State needed

laboratory analysis to confirm that the pills were in fact oxycodone. It contends that

the laboratory testing for unknown drugs at the time of the original indictment

constitutes “additional facts” that trigger a new speedy trial clock, which begins to

run at the filing of the indictment for the offenses resulting from the test results.

               Appellate review of a motion to dismiss for speedy trial violation

involves a mixed question of law and fact. State v. McCaughey, 8th Dist. Cuyahoga

No. 106311, 2018-Ohio-3167, ¶ 8, citing State v. Loder, 8th Dist. Cuyahoga Nos.

93242 and 93865, 2010-Ohio-3085, citing State v. Easley, 4th Dist. Scioto No.

03CA2910, 2005-Ohio-767. We accord due deference to a trial court’s findings of

fact if supported by competent, credible evidence, but determine independently if

the trial court correctly applied the law to the facts of the case. Id. at ¶ 9, citing

Easley and State v. Kuhn, 4th Dist. Ross No. 97 CA 2307, 1998 Ohio App. LEXIS

2765 (June 10, 1998). In addition, when reviewing the legal issues presented in a

speedy trial claim, we must strictly construe the relevant statutes against the State.
Id., citing Brecksville v. Cook, 75 Ohio St.3d 53, 57, 1996-Ohio-71, 661 N.E.2d 706

and State v. Mustard, 4th Dist. Pike No. 04CA724, 2004-Ohio-4917.

               The Sixth and Fourteenth Amendments to the United States

Constitution, as well as Section 10, Article I of the Ohio Constitution, guarantee a

criminal defendant the right to a speedy trial by the state. State v. O’Brien, 34 Ohio

St.3d 7, 8, 516 N.E.2d 218 (1987), citing Klopfer v. North Carolina, 386 U.S. 213,

214, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In Barker v. Wingo, 407 U.S. 514, 523, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court declared that,

with regard to fixing a time frame for speedy trials, “the States * * * are free to

prescribe a reasonable period consistent with constitutional standards[.]” To that

end, the Ohio General Assembly enacted R.C. 2945.71 in order to comply with the

Barker decision.

               R.C. 2945.71(C)(2) provides that a person charged with a felony

“[s]hall be brought to trial within two hundred seventy days after the person’s

arrest.” Once the statutory limit has expired, the defendant has established a prima

facie case for dismissal. State v. Howard, 79 Ohio App.3d 705, 707, 607 N.E.2d 1121

(8th Dist.1992). The burden then shifts to the state to demonstrate that sufficient

time was tolled pursuant to R.C. 2945.72. McCaughey at ¶ 10, citing State v.

Geraldo, 13 Ohio App.3d 27, 468 N.E.2d 328 (6th Dist.1983).

               The Supreme Court of Ohio has noted that ‘“[w]hen 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. Baker, 78 Ohio St.3d 108, 110, 1997-

Ohio-229, 676 N.E.2d 883, quoting State v. Adams, 43 Ohio St.3d 67, 68, 538

N.E.2d 1025 (1989). However, “[i]n issuing a subsequent indictment, 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.” Id. at syllabus.

               We recognize that the ““‘holding in Baker is disjunctive and

specifically sets forth two scenarios, either of which will reset the speedy-trial

timetable for charges arising from a subsequent indictment.’”” McCaughey at ¶ 12,

quoting State v. Mohamed, 10th Dist. Franklin No. 08AP-960, 2009-Ohio-6658, ¶

30, quoting State v. Thomas, 4th Dist. Adams No. 06CA825, 2007-Ohio-5340, ¶ 17.

Therefore, “the key questions that must be considered are whether the additional

criminal charges arise from facts different from the original charges, and whether

the state knew of these facts at the time of the initial charge.” State v. Robertson,

8th Dist. Cuyahoga No. 93396, 2010-Ohio-2892, ¶ 18, citing Baker.

               In the instant case, our review of the record is contrary to the state’s

argument that there were new additional facts found in July 2017 when the state

received the laboratory results confirming the substance contained oxycodone.

Rather, the record demonstrates that at the time of the traffic stop, the state knew

Busek was in possession of oxycodone. Busek admitted to the patrolman that she

had four Percocet pills. In his report, the patrolman identified the pills as Schedule
II pills. We note that ‘“Percocet, which contains oxycodone, is a Schedule II

controlled substance’” under R.C. 3719.41. State v. Hill, 8th Dist. Cuyahoga No.

107058, 2019-Ohio-698, ¶ 20, quoting State v. Skorvanek, 182 Ohio App.3d 615,

2009-Ohio-1709, 914 N.E.2d 418, ¶ 15 (9th Dist.); State v. Keen, 11th Dist. Ashtabula

No. 2004-A-0016, 2005-Ohio-4773, ¶ 10.

              In addition, to the extent that the state argues that the instant case is

similar to this court’s decision in State v. Wangul, 8th Dist. Cuyahoga No. 79393,

2002-Ohio-589 (Feb. 14, 2002), and State v. Penn, 8th Dist. Cuyahoga No. 101982,

2015-Ohio-3473, we disagree. In Wangul, the defendant was arrested on July 31,

2001, after officers received a complaint from a neighbor that Wangul was growing

marijuana plants in his backyard. The officers responded to Wangul’s home and

observed marijuana plants in his backyard. The officers then seized the marijuana

plants and arrested Wangul on an unrelated outstanding felony arrest warrant for

grand theft charges. At the time of the arrest, no charges were brought against

Wangul regarding the marijuana plants. The officers then sent the marijuana plants

to the lab to be weighed in order to determine the level of the offense with which to

charge Wangul.

              After receiving the lab results, a subsequent indictment for cultivation

of marijuana was filed against Wangul on December 12, 2001. Wangul was arrested

on these charges on January 9, 2002. Wangul moved to dismiss the case on speedy

trial grounds. The trial court denied Wangul’s motion. On appeal, this court

affirmed the trial court’s denial, noting that “[s]ince the subsequent indictment for
cultivation of marijuana was not filed until after the marijuana was weighed and the

charges determined, this indictment was based on new and additional facts which

were not known at the time [Wangul] was arrested on the outstanding warrant for

grand theft.” Wangul at *6.

               In Penn, the defendant was arrested on August 14, 2012, as a result of

an incident occurring at Beachwood Place Mall. The officers found Penn to be in

possession of numerous gift cards and a counterfeit Pennsylvania driver’s license.

Penn was charged with obstruction of official business, a second-degree

misdemeanor on August 17, 2012. He pled no contest and entered a first-offender

program.

               In April and May 2013, the police received verification letters from

the credit card institutions, which verified that the gift cards confiscated from Penn

had stolen credit data on them. The police did not arrest Penn until January 27,

2014, and he was not indicted until February 10, 2014. The indictment charged

Penn with six fifth-degree felony counts of receiving stolen property, six first-degree

misdemeanor counts of petty theft, six first-degree misdemeanor counts of misuse

of credit cards, one fifth-degree felony count of possessing criminal tools, and one

first-degree misdemeanor count of falsification. Penn’s motion to dismiss the case

on speedy trial grounds was granted by the trial court.

               On appeal, this court reversed the trial court’s decision. We reasoned,

“the additional criminal charges that were brought against Penn arose from facts

different from the original charge. Simply put, the subsequent charges did not arise
from facts that related to the original charge but, rather, involved different facts

relating to the gift cards that were confiscated from Penn, which facts were not

known at the time of the initial indictment.” Id. at ¶ 18

               The instant case is distinguishable from Wangul and Penn. In

Wangul, the weight of the marijuana was unknown when officers discovered the

marijuana plants. The weight of the marijuana plants was necessary to determine

whether Wangul would be charged with a misdemeanor or felony level offense. In

Penn, the additional facts, which formed the basis of the subsequent charges,

became known upon the ensuing investigation into the gift cards and obtaining the

verification letters from the credit card institutions. Thus, the new and additional

facts in Wangul was the actual weight of the marijuana and in Penn was the

fraudulent use of the credit cards — facts that were not known at the time the officers

seized the plants and when the officers arrested Penn — not the lab results

confirming that the suspected pills were indeed oxycodone.

               Here, the highway patrolman suspected oxycodone and Busek

admitted that she had Percocet. Thus, there were no new facts when the state

received the lab results. We agree with the trial court that the instant case is similar

to this court’s ruling in Rutkowski, 8th Dist. Cuyahoga No. 86289, 2006-Ohio-1087,

and more recently in McCaughey, 8th Dist. Cuyahoga No. 106311, 2018-Ohio-3167.

               In Rutkowski, the defendant’s vehicle was searched after a traffic

stop and the arresting officers discovered baggies of marijuana and a baggie of

suspected ecstasy pills. Initially, Rutkowski was charged with the marijuana, but
was not charged with regards to the suspected ecstasy pills. The pills were sent for

testing and tested positive for ecstasy. Nearly one year after being charged in

municipal court with the marijuana charges, Rutkowski was indicted for felony

possession of drugs for the ecstasy pills. Rutkowski filed a motion to dismiss on

speedy trial grounds arguing that the only new or additional facts the state can point

to are the laboratory results indicating that the confiscated pills tested positive for

ecstasy. The trial court denied the motion to dismiss and Rutkowski entered a plea

of no contest to the charges.

               On appeal, we reversed the trial court’s judgment and Rutkowski’s

conviction. We found that:

      [n]o additional pieces of evidence were discovered by the police in
      regard to this case. The pills that [the lab] confirmed positive for
      ecstasy were discovered by the police at the same time as the evidence
      used against [Rutkowski] in his first conviction. Furthermore,
      [Rutkowski] admitted to having ecstasy prior to his first conviction.
      For some reason, however, the state did not secure [the lab report] until
      January 2004. Even then, the state waited almost a year after receiving
      that information to bring a second indictment against appellant. These
      facts do not arise to a level to allow appellant’s speedy trial rights to be
      ignored, and any charges to be made pursuant to any suspected drugs
      confiscated on the day of [Rutkowski’s] arrest should have culminated
      in a speedy trial from the date of that arrest.

               Likewise, in McCaughey, the defendant was arrested as a result of a

traffic stop for operating a vehicle under the influence of drugs and/or alcohol

(“OVI”). During the traffic stop, McCaughey admitted to the arresting officer that

she had cocaine on her person, and handed the drugs to the officer. She stated to

the arresting officer that the substance was cocaine.
                  McCaughey was charged in municipal court with OVI and various

minor traffic violations. She entered a no contest plea to the OVI charge, and the

state nolled the remaining minor traffic violations. McCaughey was not charged at

that time for the cocaine. Four months after the indictment, the state received the

results of the laboratory testing on the substance, which tested positive for cocaine.

Nearly 13 months after being charged in municipal court, McCaughey was indicted

with one count of drug possession. McCaughey filed a motion to dismiss on speedy

trial grounds, which the trial court granted.

                  On appeal, we affirmed the trial court’s judgment. We found that:

      the subsequent drug possession charge arose from facts that related to
      the original charge and involved the same facts. As in Rutkowski, these
      same facts were known at the time the OVI complaint was brought in
      municipal court in May 2016. The state argues that [McCaughey’s]
      speedy trial time started to run when the laboratory test results were
      returned to the state in September 2016. The state further argues that
      only in September 2016 did the state become aware that the substance
      in [McCaughey’s] possession was in fact cocaine. We find this
      argument to be unpersuasive.

      ***

      In the instant case, [McCaughey] stated to the actual arresting officer
      that the substance * * * was cocaine. Thus, these circumstances in the
      instant case are even more incurable than the circumstances we noted
      in Rutkowski.

Id. at ¶ 20-21.

                  Similarly, in the instant case the subsequent drug possession charge

arose from facts that related to the original charge and involved the same facts. As

in Rutkowski and McCaughey, these same facts were known at the time the drug

paraphenila complaint was brought in municipal court in March 2017. The highway
patrolman identified the pills as oxycodone (Schedule II) and Busek admitted that

the pills were Percocet. Accordingly, the speedy trial clock for the underlying

charges herein arose in March 2017, and Busek’s statutory speedy trial rights were

violated when she was indicted in January 2018 with drug possession. Therefore,

we find the trial court did not err in dismissing the case on speedy trial grounds.

              The state’s sole assignment of error is overruled.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court 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.


_______________________________________
MARY EILEEN KILBANE, ADMINSTRATIVE JUDGE

LARRY A. JONES, SR., J., and
RAYMOND C. HEADEN, J., CONCUR
