[Cite as State v. McKinney, 2011-Ohio-3951.]


                                       COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :     Hon. William B. Hoffman, P.J.
                       Plaintiff-Appellee      :     Hon. Sheila G. Farmer, J.
                                               :     Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :     Case No. 11-CA-26
DERRIAN R. MCKINNEY                            :
                                               :
                                               :
                      Defendant-Appellant      :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Delaware County
                                                   Municipal Court Case No. 10TRC12451


JUDGMENT:                                          AFFIRMED

DATE OF JUDGMENT ENTRY:                            August 10, 2011


APPEARANCES:

For Plaintiff-Appellee:                              For Defendant-Appellant:

JOSEPH E. SCHMANSKY 0071860                          SHAWN R. DOMINY 0068108
70 N. Union Street                                   3837 Attucks Drive
Delaware, Ohio 43015                                 Powell, Ohio 43065
[Cite as State v. McKinney, 2011-Ohio-3951.]


Delaney, J.

        {¶1}    Defendant-Appellant, Derrian McKinney, appeals the judgment of the

Delaware County Municipal Court, convicting him of one count of Operating a Vehicle

under the Influence (“OVI”), a misdemeanor of the first degree, in violation of R.C.

4511.19(A)(1)(j)(8)(i). The State of Ohio is Plaintiff-Appellee.

        {¶2}    On September 23, 2010, Appellant was arrested for OVI and was charged

with three counts pursuant to R.C. 4511.19(A)(1)(a), R.C. 4511.19(A)(1)(j)(8)(i), and

R.C. 4511.19(A)(1)(j)(8)(ii). When Appellant was arrested, the State obtained a urine

sample from him.

        {¶3}    The Ohio Highway Patrol Trooper who obtained the urine sample was not

qualified to perform an analysis of the sample pursuant to applicable statutes and

guidelines, therefore the sample was submitted to the State Highway Patrol’s laboratory

facility for chemical testing. The Trooper was, however, trained in identifying marijuana

and observed marijuana remnants in Appellant’s vehicle. Appellant admitted to the

trooper that he had recently smoked marijuana.

        {¶4}    The trooper believed that Appellant had marijuana in his system; he did

not believe that Appellant was under the influence of alcohol.

        {¶5}    On September 23, 2010, at Appellant’s arraignment, the State dismissed,

without prejudice, the OVI per se charges. Appellant entered pleas of not guilty to the

remaining charges and exercised his right to speedy trial.

        {¶6}    On November 15, 2010, the State completed chemical testing on the urine

sample, finding that Appellant had prohibited amounts of marijuana in his system. On
Delaware County, Case No. 11-CA-26                                                       3


December 9, 2010, the State refiled one count of OVI per se in case number

10TRC12451.

        {¶7}   On December 13, 2010, Appellant entered a plea of not guilty to the OVI

per se charge and did not waive his right to speedy trial.

        {¶8}   On January 3, 2011, Appellant filed a motion to dismiss the OVI per se

charge on the basis that the charge violated his right to speedy trial.

        {¶9}   On February 7, 2011, the trial court held a hearing on Appellant’s motion

to dismiss. No testimony was taken at the hearing.

        {¶10} On February 25, 2011, the trial court issued an entry overruling

Appellant’s motion to dismiss.

        {¶11} On March 21, 2011, Appellant entered a plea of No Contest to the charge

of OVI per se in case number 10TRC12451. The trial court imposed sentence on that

date.

        {¶12} Appellant raises one Assignment of Error:

        {¶13} “I. THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT’S

MOTION TO DISMISS THE COMPLAINT BECAUSE THE STATUTORY TIME LIMIT

FOR BRINGING THE DEFENDANT TO TRIAL HAD ELAPSED.”

                                             I.

        {¶14} In Appellant’s sole assignment of error, he argues that the trial court erred

in denying his motion to dismiss because his right to speedy trial was violated.

        {¶15} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a

person accused of a crime is a fundamental right made obligatory on the states through
Delaware County, Case No. 11-CA-26                                                      4

the Fourteenth Amendment. State v. Ladd (1978), 56 Ohio St.2d 197, 383 N.E.2d 579;

State v. Pachay (1980), 64 Ohio St.2d 218, 416 N.E.2d 589.

        {¶16} Our review of the trial court's decision regarding a motion to dismiss

based upon a violation of the speedy trial provisions involves a mixed question of law

and fact. State v. McDonald (June 30, 1999), 5th Dist. Nos. 97CA146 and 97CA148.

Due deference must be given to the trial court's findings of fact if supported by

competent, credible evidence. Id. However, we must independently review whether the

trial court properly applied the law to the facts of the case. Id. Furthermore, when

reviewing the legal issues presented in a speedy trial claim, an appellate court must

strictly construe the relevant statutes against the state. Id., citing Brecksville v. Cook

(1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706.

        {¶17} Pursuant to R.C. 2945.73, a person who is not brought to trial within the

proscribed time periods found in R.C. 2945.71 and R.C. 2945.72, “shall be discharged”

and further criminal proceedings based on the same conduct are barred.

        {¶18} R.C. 2945.71(B)(2) provides that a person who is charged with a first-

degree misdemeanor must be brought to trial within 90 days from the date of the

person’s arrest on that charge.

        {¶19} In the present case, Appellant was originally charged with OVI impaired

and OVI per se on September 23, 2010, when he was pulled over. On that same date,

the State dismissed the per se OVI charge because lab analysis had to be completed in

order to determine whether prohibited amounts of marijuana were present in Appellant’s

blood stream. The testing of Appellant’s urine sample was complete on November 15,

2010.    The State then again charged with OVI per se on December 9, 2010,
Delaware County, Case No. 11-CA-26                                                        5


approximately three weeks after the State completed chemical testing on the urine

sample Appellant provided on his arrest date of September 23, 2010.

       {¶20} Prior to that date, the State did not definitively know that Appellant had

prohibited amounts of marijuana in his blood stream pursuant to R.C. 4511.19(A)(1)(b)-

(j).

       {¶21} Appellant entered a no contest plea on March 21, 2011, after filing a

motion to dismiss, which took approximately two months to litigate.

       {¶22} In State v. Baker (1997), 78 Ohio St.3d 108, 676 N.E.2d 883, syllabus, the

Supreme Court stated, “In 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.”

       {¶23} The facts of the Baker case are instructive on the present case and will be

summarized here:

       {¶24} On June 10, 1993, Baker, a pharmacist, was arrested at his home by

Montgomery County Sheriff's Deputies after an investigation revealed that he had made

several illegal sales of prescription drugs to police informants. That same day, after

arresting Baker, deputies and other law enforcement agents, working in connection with

the Ohio State Board of Pharmacy, executed search warrants for two pharmacies that

Baker owned. As a result of these warrants, state agents seized numerous business

records from the pharmacies, which the state began analyzing to determine if there was

additional criminal conduct.
Delaware County, Case No. 11-CA-26                                                    6


      {¶25} Approximately one week after his arrest, Baker was indicted by a

Montgomery County Grand Jury and charged with two counts of trafficking in drugs, and

five counts of aggravated trafficking, stemming from the original controlled buys that

occurred before Baker's arrest and the search of his pharmacies.

      {¶26} While these original charges were brought against Baker, state agents

and sheriff's detectives were auditing the records seized at Baker's pharmacies. This

process involved analyzing prescription records and purchase reports to determine

possible drug shortages, which would indicate criminal or administrative violations of

law. The audits for the pharmacies were completed by August 18, 1993, and September

15, 1993, respectively. As a result of these audits, a second indictment was filed,

charging Baker with eight additional counts of drug trafficking, one count of aggravated

trafficking, and one count of Medicaid fraud. This subsequent indictment was filed on

June 1, 1994, almost a year after the arrest and the original filing of the indictment

against Baker, and nine months after the audits of Baker's pharmacy records were both

completed.

      {¶27} On July 27, 1994, Baker filed a motion to dismiss the second indictment,

alleging that his right to a speedy trial had been violated, arguing that the statute

required the state to bring him to trial on the second indictment within the same period

as the first, that is, 270 days from Baker's arrest on June 10, 1993. However, in

upholding the second indictment, the trial court held that the allegations and proof for

the two indictments were different from each other, and the state was justified in

delaying the second indictment until it was able to analyze Baker's extensive

pharmaceutical records for evidence of additional criminal misconduct. Baker agreed to
Delaware County, Case No. 11-CA-26                                                      7


enter negotiated pleas on both cases, and pled no contest to one count of trafficking in

drugs and one count of Medicaid fraud on the second indictment. On the original

indictment, the state reduced the five counts of aggravated trafficking to trafficking in

drugs, and Baker pleaded no contest to seven counts of trafficking in drugs.

       {¶28} On appeal, Baker challenged his convictions arising from the second

indictment, arguing his constitutional and statutory right to a speedy trial had been

violated. The court of appeals affirmed his judgment of conviction on the original

indictment, but agreed that Baker's statutory right to a speedy trial had been violated as

to the second indictment. The appellate court held that the speedy-trial clock as to the

second indictment began to run on the date of Baker's arrest on June 10, 1993;

however, the state was entitled to have time tolled from that date until September 15,

1993, the date when both audits were completed by the state concerning Baker's

pharmacy records. Despite this tolled period, the court established that the state had

failed to bring Baker to trial within the 270-day period, and the court reversed Baker's

judgment of conviction under the second indictment. The state appealed, arguing that

the 270-day time period concerning the additional charges should commence from the

date the second indictment was returned on June 1, 1994.

       {¶29} The Supreme Court, in reversing the appellate court, held “in issuing a

second indictment against the defendant, the state was not subject to the speedy-trial

time limits of the original indictment, since the subsequent charges were based on new

and additional facts which the state had no knowledge of at the time of the original

indictment. Additional crimes based on different facts should not be considered as

arising from the same sequence of events for the purposes of speedy-trial computation.”
Delaware County, Case No. 11-CA-26                                                        8

Baker, supra, at 110, citing, State v. Singleton (C.P.1987), 38 Ohio Misc.2d 13, 526

N.E.2d 121.

       {¶30} In the present case, since the charges in the second complaint stem from

additional facts which the State did not know at the time of the arrest, the state should

be accorded a new 90 day period beginning from the time when the second complaint

was returned on December 9, 2010. When additional criminal charges arise from facts

distinct from those supporting an original charge, or the State was unaware of such

facts at that time, the state is not required to bring the accused to trial within the same

statutory period as the original charge under R.C. 2945.71 et seq. Accord State v.

Skinner, 4th Dist. No. 06CA2931, 2007-Ohio-6320; State v. Cantrell (Sept. 7, 2001),

2nd Dist. No. 00CA0095.

       {¶31} Appellant, however, relies on the First District opinion in State v. Cooney

(1997), 124 Ohio App.3d 570, 706 N.E.2d 854. In Cooney, which was decided only

months after Baker, the court stated, “’[t]he state knew all the operative facts at the time

Cooney was originally charged under subsection (A)(1) for driving under the influence of

alcohol. The state had probable cause to believe that Cooney was driving with a

prohibited blood-alcohol content; otherwise the blood test would not have been

conducted. He could easily have been charged under subsection (A)(2) at that time.

While the state did not know what the exact results of the blood test would be, those

results were simply proof of the facts the state already knew or should have known.”

Cooney, supra, at 573.

       {¶32} However, in 2009, our brethren in the Tenth District discredited Cooney,

and argued that most other districts have followed the Baker analysis. State v.
Delaware County, Case No. 11-CA-26                                                   9

Mohamed, 10th Dist. No. 08AP-960, 2009-Ohio-6658, internal citations omitted. We find

the Tenth District’s reasoning to be persuasive.

       {¶33} The State originally filed impaired and per se OVI charges on September

23, 2010. The per se charge was dismissed on that same day on the basis that the

State was awaiting results from the testing of the urine samples. The State argues that

there was “insufficient evidence to proceed on OVI per se charges at this time.” The

testing was completed approximately two months later and Appellant was charged with

a new per se violation less than a month after that, on December 9, 2010. The State

was within its 90 days to prosecute Appellant.

       {¶34} Appellant’s assignment of error is overruled.

       {¶35} The judgment of the Delaware County Municipal Court is affirmed.

By: Delaney, J.

Hoffman, P.J. and

Farmer, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. SHEILA G. FARMER
[Cite as State v. McKinney, 2011-Ohio-3951.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                       Plaintiff-Appellee      :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
DERRIAN R. MCKINNEY                            :
                                               :
                      Defendant-Appellant      :    Case No. 11-CA-26
                                               :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Municipal Court is affirmed.            Costs assessed to

Appellant.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN


                                                   _________________________________
                                                   HON. SHEILA G. FARMER
