[Cite as State v. Bayer, 2015-Ohio-4138.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 14-CA-55
CHRISTOPHER B. BAYER                           :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Fairfield Court of
                                                   Common Pleas, Case No. 2011-CR-0491



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 2, 2015



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GREGG MARX                                         SCOTT WOOD
DARREN L. MEADE                                    144 East Main Street
239 West Main Street, Ste. 101                     Lancaster, OH 43130
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-55                                                                    2

Gwin, P.J.

        {¶1}    Appellant, Christopher B. Bayer, II ["Bayer"] appeals his convictions and

sentences after a jury trial in the Fairfield County Court of Common Pleas for one count

of aggravated vehicular homicide, a felony of the second degree, one count of

vehicular homicide, a first degree misdemeanor, and two counts of operating a motor

vehicle while under the influence of alcohol, misdemeanors of the first degree.

                                   Facts and procedural History

        {¶2}    On October 15, 2011, Bayer was driving a motor vehicle that struck and

killed 69-year-old Mary Nutter while she was walking home on West Fair Avenue, in

Lancaster, Ohio. A subsequent breath test revealed Bayer's blood alcohol content to be

0.115.1

        {¶3}    On October 17, 2011, Bayer was charged by Complaint in the

Fairfield County Municipal Court with one count of aggravated vehicular

homicide, a felony of the second degree, in violation of R.C. 2903.06(A)(1)(a),

and one count of reckless homicide, a felony of the third degree, in violation of

R.C. 2903.041. On that same date, Bayer was arraigned and entered pleas of not

guilty. Bayer was placed on bond with a number of conditions, including a

requirement that he wear an alcohol monitor.

        {¶4}    On October 28, 2011, Bayer waived his right to a preliminary hearing

and agreed to be bound over to the Grand Jury. Bayer remained under the

conditions of his bond.

        {¶5}    On November 3, 2011, the transcript from the Fairfield County

        1A Statement of the Facts underlying Bayer’s conviction is unnecessary to our disposition of this
appeal. Any facts needed to clarify the issues addressed in Bayer's assignment of error shall be
contained therein.
Fairfield County, Case No. 14-CA-55                                                 3


Municipal Court was filed in the Fairfield County Common Pleas Court and assigned

Case Number 2011-CR-491.

      {¶6}   Case number 2011-CR-491 was dismissed by the state via a nolle

prosequi filed on June 20, 2012. The entry reads,

             This day comes the Assistant Prosecuting Attorney, on behalf of

      the State of Ohio, and in open Court, for good cause shown, hereby

      dismisses this case for the reason that the charge in this case will be

      presented to the Grand Jury for Indictment.

             Leave of Court is hereby granted to enter the above dismissal.

Nolle Prosequi (R.C.2941.33) June 12, 2012, filed June 20, 2012. The prosecuting

attorney and the trial judge signed the entry.

      {¶7}   On August 22, 2014, Bayer was indicted in Case Number 2014-CR-345

for aggravated vehicular homicide, a felony of the second degree, in violation of R.C.

2903.06(A)(1)(a), aggravated vehicular homicide, a felony of the third degree, in

violation of R.C. 2903.06(A)(2)(1), and two counts of operating a motor vehicle while

under the influence of alcohol, misdemeanors of the first degree, in violation of R.C.

4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d).

      {¶8}   On August 26, 2014, a jury trial commenced.

      {¶9}   On August 27, 2014, one day after the jury trial began, the trial court

ordered that Case Number 2014-CR-345 be consolidated with Case Number 2011-CR-

491 and that Case Number 2011-CR-491 be "reopened" for trial purposes.

      {¶10} On August 29, 2014, the jury returned a verdict of guilty on the charge

of aggravated vehicular homicide, a felony of the second degree, not guilty on the
Fairfield County, Case No. 14-CA-55                                                   4


charge of aggravated vehicular homicide, a felony of the third degree, but guilty

of the lesser included offense of vehicular homicide, a first degree misdemeanor,

and guilty on both counts of operating a motor vehicle while under the influence of

alcohol, misdemeanors of the first degree.

       {¶11} On September 25, 2014, Bayer was sentenced to four years in a state

penal institution on the aggravated vehicular homicide charge. Bayer was not sentenced

on the lesser-included offense of vehicular homicide, a first-degree misdemeanor, as it

merged with the aggravated vehicular homicide charge. For sentencing purposes, the

trial court merged the two OVI charges together and sentenced Bayer to, among other

conditions, five years of community control.

                                     Assignments of error

       {¶12} Bayer raises two assignments of error,

       {¶13} "I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶14} "II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT."

                                                I.

       {¶15} In his first assignment of error, Bayer contends that his trial counsel was

ineffective for failing to file a motion to dismiss on speedy trial grounds.

       {¶16} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
Fairfield County, Case No. 14-CA-55                                                        5

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

       {¶17} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251(2009).

       {¶18} Recently, the United States Supreme Court discussed the prejudice prong

of the Strickland test,

              With respect to prejudice, a challenger must demonstrate “a

       reasonable probability that, but for counsel’s unprofessional errors, the

       result of the proceeding would have been different. A reasonable

       probability is a probability sufficient to undermine confidence in the

       outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the

       errors had some conceivable effect on the outcome of the proceeding.”

       Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to

       deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at

       687, 104 S.Ct. 2052.

              “Surmounting Strickland’s high bar is never an easy task.” Padilla v.

       Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

       (2010). An ineffective-assistance claim can function as a way to escape

       rules of waiver and forfeiture and raise issues not presented at trial, and

       so the Strickland standard must be applied with scrupulous care, lest

       “intrusive post-trial inquiry” threaten the integrity of the very adversary
Fairfield County, Case No. 14-CA-55                                                  6

      process the right to counsel is meant to serve. Strickland, 466 U.S., at

      689–690, 104 S.Ct. 2052. Even under de novo review, the standard for

      judging counsel’s representation is a most deferential one. Unlike a later

      reviewing court, the attorney observed the relevant proceedings, knew of

      materials outside the record, and interacted with the client, with opposing

      counsel, and with the judge. It is “all too tempting” to “second-guess

      counsel’s assistance after conviction or adverse sentence.” Id., at 689,

      104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,

      152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113

      S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s

      representation amounted to incompetence under “prevailing professional

      norms,” not whether it deviated from best practices or most common

      custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).

      {¶19} In cases involving a failure to make a motion on behalf of the defendant or

oppose a motion by the state, a defendant is required to: (1) show that the motion or

opposition thereto was meritorious, and (2) show that there was a reasonable

probability that the verdict would have been different had the motion been made or

opposed. State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798(2001); State v. Lott, 51

Ohio St.3d 160, 555 N.E.2d 293(1990).

      {¶20} An appellant’s failure to file a motion to dismiss on speedy trial grounds

prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue on

appeal. See State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶37;
Fairfield County, Case No. 14-CA-55                                                         7

State v. Talley, 5th Dist. Richland No. 06 CA 46-D, 2007-Ohio-2902, ¶ 41; State v.

Thompson, 97 Ohio App.3d 183, 186-187, 646 N.E.2d 499(6th Dist 1994).

       Speedy trial.

       {¶21} The right to a speedy trial is a fundamental right of a criminal defendant

that is guaranteed by the United States and Ohio Constitutions. Sixth Amendment to the

U.S. Constitution; Ohio Constitution, Article I, Section 10; State v. Ramey, 132 Ohio St

.3d 309, 2012–Ohio–2904, ¶14. In Ohio, an accused has a statutory right to a speedy

trial. State v. Jackson, 9th Dist. Lorain No. 11 CA010012, 2012–Ohio–3524, ¶ 8.

Speedy trial statutes “constitute a rational effort to enforce the constitutional right to a

public speedy trial of an accused charged with the commission of a felony or a

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

Accordingly, “[t]he prosecution and the trial courts have a mandatory duty to try an

accused within the time frame provided by the statute” and “[s]trict compliance with the

statute is required.” Ramey at ¶14. A person charged with a felony must be brought to

trial within 270 days of his or her arrest and each day the accused is held in jail in lieu of

bail will be counted as three days. R.C. 2945.71(C)(2); R.C. 2945.71(E). The accused’s

speedy trial clock begins to run on the day after arrest or service of summons. State v.

Szorady, 9th Dist. Lorain No. 02CA008159, 2003–Ohio–2716, ¶ 12. “However, R.C.

2945.72 lists various events that will toll the running of the speedy-trial clock.” State v.

Stevens, 9th Dist. Lorain No. 11 CA009995, 2012–Ohio–4095, ¶ 5. “In addition to

meticulously delineating the tolling events, the General Assembly jealously guarded its

judgment as to the reasonableness of delay by providing that time in which to bring an

accused to trial ‘may be extended only by’ the events enumerated in R.C. 2945.72(A)
Fairfield County, Case No. 14-CA-55                                                     8

through (I).” Ramey at ¶ 24, quoting R.C. 2945.72. Thus, the “‘extensions are to be

strictly construed, and not liberalized in favor of the state.’" Ramey at ¶ 24, quoting

State v. Singer, 50 Ohio St.2d 103, 109, 362 N.E.2d 1216 (1977).

      {¶22} In the case at bar, Bayer was originally charged on October 17, 2011. The

initial charges were dismissed by Judgment Entry filed on June 20, 2012. Pursuant to

the express dictates of R.C. 2945.71, the speedy-trial statute shall run against the state

only during the time in which an indictment or charge of felony is pending. See R.C.

2945.71(C). Accordingly, 247 days is chargeable against the state for speedy trial

purposes.

      {¶23} Bayer was subsequently indicted on August 22, 2014. In State v.

Bonarrigo, the Ohio Supreme Court noted,

             In State v. Spratz (1979), 58 Ohio St.2d 61, 62, at fn. 2, 388 N.E.2d

      751, we expressly noted that the entry of a nolle prosequi on a felony

      charge tolled the running of statutory speedy trial time until such time as

      the accused was re-indicted. Similarly, in Westlake v. Cougill (1978), 56

      Ohio St.2d 230, 383 N.E.2d 599, we excluded from the computation of

      speedy trial time a period between a nolle prosequi of misdemeanor

      charges and the service of summons of a second filing of misdemeanor

      charges arising out of the same conduct. In both cases, credit was given

      the accused for the period of time the charges based on the same conduct

      were pending prior to entry of the nolle prosequi.

62 Ohio St.2d 7, 9-10, 402 N.E.2d 530(1980). It is well-established that for purposes of

computing how much time has run against the state under R.C. 2945.71 et seq., the
Fairfield County, Case No. 14-CA-55                                                     9


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). State v. Broughton, 62 Ohio St.3d 253, 581 N.E.2d

541 (1991), paragraph one of the syllabus.

        {¶24} Bayer's trial commenced on August 26, 2014. Thus, 5 days are

chargeable against the state for speedy trial purposes. However, upon indictment, the

247 days chargeable to the state in the original case is added to the speedy-trial time.

Thus, a total of 252 days of the 270 days had expired prior to the commencement of

Bayer's trial. Thus, there was no speedy trial violation.

        Release from bond.

        {¶25} However, Bayer contends that the speedy trial time continued to run

following the dismissal on June 20, 2012 because the court never officially released him

from bond.

        {¶26} In State v. Broughton 62 Ohio St.3d 253, 258, 581 N.E.2d 541, the Ohio

Supreme Court stated “the speedy trial statute shall run against the state only during the

time in which an indictment or charge of felony is pending.” Thus, the Broughton Court

held:

              For 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
Fairfield County, Case No. 14-CA-55                                                     10


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

       released on bail pursuant to Crim.R. 12(I).

Id. at syllabus para. 1. (Footnote omitted).

       {¶27} Further, Broughton noted that solely because a defendant may have

suffered anxiety or apprehension during the period between the dismissal of the first

indictment and reindictment does not mean the time period must be counted and

attributed to the State for speedy trial purposes. 62 Ohio St.3d at 258, 581 N.E.2d 541.

(Citations omitted).

       {¶28} Appellate districts, included our own, interpreting Broughton have

subsequently found that a trial court’s failure to explicitly declare that a defendant is

released from bail in the entry of dismissal pursuant to Crim.R. 48(A) does not

necessarily mean that the defendant’s bail is continued pursuant to Crim.R. 12(J).2

       {¶29} In State v. Buck, 4th Dist. Ross No. 98CA2438, 1999 WL 253485( Aug.

20, 1999), the Fourth Appellate District found no evidence in the record indicating that

the trial court continued the defendant’s bail following the dismissal of the original

indictment pursuant to Crim.R. 12(J). Further, the appellate court noted that the

defendant’s recognizance form required him to comply with the bond terms “until such

case is finally disposed of,” and concluded that once the criminal charges were

dismissed, the bail obligations were also extinguished. Accordingly, the appellate court

concluded that the trial court had intended for the defendant’s bail obligation to

terminate upon dismissal of the indictment and, pursuant to Broughton, found that the

time period between the dismissal and the refilling was tolled. Accord, State v. Biser, 5th

Dist. Licking No. 06CA00045, 2007-Ohio-1960, ¶23; State v. Gearhart, 5th Dist Licking

       2   Formerly Crim.R. 12(I).
Fairfield County, Case No. 14-CA-55                                                     11

No. 99CA107, 2000WL329670 (Mar. 10, 2000); State v. Heft, 3rd Dist. Logan No. 8-09-

08, 2009-Ohio-5908, ¶45; State v. Alexander, 4th Dist. Scioto No. 08CA3221, 2009-

Ohio-1401, ¶27.

      {¶30} In the case at bar, we find nothing in the record before us that the trial

court ordered Bayer's bond continued subsequent to the entry for the dismissal. A nolle

prosequi concludes a prosecution and it cannot be reinstated at a later date. Any action

taken subsequent to the filing of a nolle prosequi is a nullity. Indian Hill v. Ledgerwood,

1st Dist. Hamilton No. C-120448, 2013-Ohio-1812, ¶13 (citing State v. Eubank, 6th Dist.

No. L–11–1211, 2012–Ohio–3512, ¶ 7; Gates Mills v. Yomtovian, 8th Dist. No. 88942,

2007–Ohio–6303, ¶ 21–22).

      Nolle prosequi not properly entered.

      {¶31} Bayer further contends that the nolle prosequi was not properly entered;

therefore, time continued to run from the date of his initial arrest for speedy trial

purposes.

      {¶32} R.C. 2941.33, Nolle prosequi, which was enacted October 1, 1953 states,

"The prosecuting attorney shall not enter a nolle prosequi in any cause without leave of

the court, on good cause shown, in open court. A nolle prosequi entered contrary to this

section is invalid."(Emphasis added). In State v. Mucci, the Court noted,

             These rules and statutes have been promulgated and enacted in

      order to curb abuses of executive prerogative. Under the common-law

      rule, a prosecutor had unlimited discretion to enter a nolle prosequi

      without any court involvement; however, the legislators and courts of this

      state and the federal government have acted to take this unlimited
Fairfield County, Case No. 14-CA-55                                                                   12


        postindictment discretion away from the prosecutor. See 1944 Advisory

        Committee Notes to Fed.Crim.R. 48(A). See, also, Restatement of the

        Law, Contracts (1932), Section 549 (the prosecutor can bargain to

        recommend dismissal but not to secure dismissal). Therefore, a court in

        this state functions as a check and balance to the discretion of a

        prosecutor to dismiss an indictment.

150 Ohio App.3d 493, 2002-Ohio-6896, 782 N.E.2d 133, ¶27. Accord, State v. Neely,

11th Dist. Lake No. 2004-L-197, 2005-Ohio-7045, ¶42.

        {¶33} Crim.R. 48(A) provides, “The state may by leave of court and in open

court file an entry of dismissal of an indictment, information, or complaint and the

prosecution shall thereupon terminate.” (Emphasis added). Crim.R. 48 was adopted

July 1, 1973, nearly 20 years after R.C. 2941.333.

        {¶34} In State v. Pendleton, this Court found,

                [T]he term ‘open court’ means that court is in session and the judge

        is on the bench.” State v. Monroe, (June 14, 2000) 4th Dist. No. 99CA632,

        (citing Linden v. Bates Truck Lines Inc., (1982) 4 Ohio App.3d 178, 180,

        446 N.E.2d 1139).

5th Dist. Licking Nos. 10 CA 81, 10 CA 82, 2011-Ohio-2024, ¶39. We note in the case

at bar the trial court approved the state's dismissal of the charges by Judgment Entry

filed June 20, 2012. The reason for the dismissal was that the state was going to

present the case to the grand jury for indictment.



        3 Statutes in conflict with the rules promulgated by the Ohio Supreme Court have been declared
invalid and to have no force and effect. Hiatt v. Southern Health Facilities, Inc., 68 Ohio St.3d 236, 626
N.E.2d 71(1994); In re Coy, 67 Ohio St.3d 215, 616 N.E.2d 1105(1993).
Fairfield County, Case No. 14-CA-55                                                      13


       {¶35} Under Article I, Section 10 of the Ohio Constitution, “no person shall be

held to answer for a capital, or otherwise infamous, crime, unless on presentment or

indictment of a grand jury.” The Constitution of Ohio requires, except in rare cases, that

felonies be prosecuted by indictment. Constitution, Article I, Section 10. “There can be

no trial, conviction, or punishment for a crime without a formal and sufficient accusation.

In the absence thereof the court acquires no jurisdiction whatever, and if it assumes

jurisdiction, a trial and conviction are a nullity.” Stewart v. State, 41 Ohio App. 351, 181

N.E. 111(4th Dist. 1932), (citing Doyle v. State, 17 Ohio 222, 1848 WL 101 (Ohio

1848)). Accord, State v. Manns, 5th Dist. Richland No. 11-CA-28, 2012-Ohio-234, ¶31.

       {¶36} In addressing this issue in the context of the federal counterpart to Civ.R.

48(A) the Fifth Circuit has stated,

              [I]t seems altogether proper to say that the phrase “by leave of

       court” in Rule 48(a) was intended to modify and condition the absolute

       power of the Executive, consistently with the Framer’s concept of

       Separation of Powers, by erecting a check on the abuse of Executive

       prerogatives. But this is not to say that the Rule was intended to confer on

       the Judiciary the power and authority to usurp or interfere with the good

       faith exercise of the Executive power to take care that the laws are

       faithfully executed. The rule was not promulgated to shift absolute power

       from the Executive to the Judicial Branch. Rather, it was intended as a

       power to check power. The Executive remains the absolute judge of

       whether a prosecution should be initiated and the first and presumptively

       the best judge of whether a pending prosecution should be terminated.
Fairfield County, Case No. 14-CA-55                                                      14


       The exercise of its discretion with respect to the termination of pending

       prosecutions should not be judicially disturbed unless clearly contrary to

       manifest public interest.

United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975).

       {¶37} In Rinaldi v. United States, 434 U.S. 22, 29–30, 98 S.Ct. 81, 54 L.Ed.2d

207 (1977), the Supreme Court observed,

              The words “leave of court” were inserted in Rule 48(a) without

       explanation. While they obviously vest some discretion in the court, the

       circumstances in which that discretion may properly be exercised have not

       been delineated by this Court. The principal object of the “leave of court”

       requirement is apparently to protect a defendant against prosecutorial

       harassment, e.g., charging, dismissing, and recharging, when the

       Government moves to dismiss an indictment over the defendant’s

       objection....But the Rule has also been held to permit the court to deny a

       Government dismissal motion to which the defendant has consented if the

       motion is prompted by considerations clearly contrary to the public

       interest.

Rinaldi, 434 U.S. at 30, note 15, 98 S.Ct. 81 (internal citations omitted).

       {¶38} Crim.R. 48 does not require that the state file a motion; rather the rule

dictates that the state request leave of court to file "an entry of dismissal." The state is

not required to obtain the defendant's consent prior to dismissing the case. U.S. v.

Delagarza, 650 F.2d 1166, 1167(10th Dist. 1981); U.S. v. Valencia, 492 F.2d 1071,

1074(9th Cir. 1974); U.S. v. Manbeck, 514 F.Supp. 152(S.C. 1981).               Rather the
Fairfield County, Case No. 14-CA-55                                                               15


question that the court must consider when the state requests leave to file an entry of

dismissal is whether the prosecutor has abused the prosecutorial discretion afforded

him or whether the dismissal is clearly contrary to the public interest. Accordingly, in the

case at bar, it cannot be said that the state's motivation for dismissing the charges while

awaiting grand jury indictment discloses an improper motive on the state's part or that

the   dismissal is contrary to manifest public interest. Bayer has neither argued nor

suggested either in his brief. Bayer has failed to assert before this Court any legal

argument, meritorious or otherwise, in opposition to the granting of the nolle prosequi.

       {¶39} On August 17, 2012, Bayer did file a motion to release his motor vehicle.

The court heard that motion on September 5, 2012. Clearly Bayer could have, but did

not, object to the state's dismissal of the charges against him. Bayer neither filed an

objection in the trial court to the dismissal nor appealed the trial court’s dismissal entry.4

       {¶40} If consent of a defendant prior to dismissal is not necessary, Bayer cannot

show he was prejudiced by the failure of the court to notify him prior to dismissing the

charges. Bayer did not lose his right to raise his speedy trial challenge when the

indictment was subsequently issued. Bayer has not separately briefed and argued that

any delays, other than those attributable to the "failure to release from bail" argument is

chargeable to the state under the statute. Nor has Bayer briefed and argued that 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, his right to due process

under the Fifth Amendment to the United States Constitution and Article I, Section 16 of

the Ohio Constitution have been abrogated by the delay between his initial arrest and


       4  Bayer could have sought leave to file a delayed appeal from the trial court's June 20, 2012
dismissal entry pursuant to App.R. 5.
Fairfield County, Case No. 14-CA-55                                                  16

eventual indictment. See generally, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33

L.Ed.2d 101(1972).

      {¶41} In State v. Biser, this Court noted,

             Like the Court in Buck, we find no evidence in the record from

      which we can conclude the trial court continued appellant’s bail pursuant

      to Crim. R.12 (I) following the August 29, 2005 dismissal entry. We

      recognize Broughton and Buck, as well as other cases reviewed by this

      Court appear distinguishable from the instant action, as it appears the

      defendants in those cases were on notice of the dismissal of the original

      charges against them, whereas appellant herein was not provided with

      either notice of the motion to dismiss not the actual dismissal. Despite the

      State’s failure to serve appellant with the motion to dismiss and the trial

      court’s subsequent failure to serve appellant with the dismissal entry, we,

      nevertheless, find Broughton controls and further find the speedy trial time

      was tolled during the period from August 30, 2005, to November 8, 2005.

      Thus, we find no violation of appellant’s right to a speedy trial.

5th Dist. Licking No. 06CA00045, 2007-Ohio-1960, ¶23 (footnote omitted).

                                           Conclusion

      {¶42} The state sought and obtained leave of court to dismiss the original

charges against Bayer on June 20, 2012. Therefore, time was tolled for speedy trial

considerations until Bayer was indicted on August 22, 2014. Accordingly, only 252 of

the 270 days mandated by R.C. 2845.71 had expired prior to the commencement of trial

on August 26, 2014. There was no speedy trial violation.
Fairfield County, Case No. 14-CA-55                                                   17

      {¶43} Bayer has not asserted any argument that an objection to nolle prosequi

would have been meritorious or that there was a reasonable probability the trial court

would have denied the state leave to file a nolle prosequi. Therefore, Bayer cannot

show prejudice under the second prong of Strickland.

      {¶44} Accordingly, trial counsel was not ineffective by failing to file a motion to

dismiss on speedy trial grounds.

      {¶45} Bayer's first assignment of error is overruled

                                              II.

      {¶46} In his second assignment of error, Bayer argues the OVI charges should

have merged with the aggravated vehicular homicide charge because the OVI's are a

lesser-included offense. Accordingly, Bayer submits, the trial court erred in sentencing

him to the underlying OVI charge after sentencing him on the charge of aggravated

vehicular homicide.

      {¶47} In State v. Dunham, 5th Dist. Richland No. 13CA26, 2014–Ohio–1042,

this Court concluded that even if the offenses were allied offenses of similar import,

“R.C. 2929.41(B)(3) creates an exception to the general rule provided in R .C. 2941.25

that allied offenses must be merged [and] the trial court had the discretion, pursuant to

R.C. 2929.419(B)(3), to enter convictions * * * and to sentence [defendant] to serve

consecutive sentences for” these crimes. Id. at ¶¶76-77(citing State v. Bayer, 10th Dist.

Franklin No. 11AP–733, 2012–Ohio–5469): Accord, State v. Bigerton, 5th Dist. Fairfield

No. 14-CA-59, 2015-Ohio-2565, ¶6; State v. Demirci, 11th Dist. Lake No.2011–L–142,

2013–Ohio–2399; State v. Earley, 8th Dist. Cuyahoga No. 100482, 2014–Ohio–2643, ¶

7–21. However, several districts have found the offenses to be allied offenses of similar
Fairfield County, Case No. 14-CA-55                                                   18

import. State v. West, 2d Dist. Montgomery No. 23547, 2010–Ohio–1786, ¶ 43; State v.

Phelps, 12th Dist. Butler No. CA2009–09–243, 2010–Ohio–3257, ¶ 28–32; State v.

Mendoza, 6th Dist. Wood No. WD–10–008, 2012–Ohio–5988, ¶ 10–11.

      {¶48} As the Second District Court of Appeals has noted,

             In October 2014, the Supreme Court of Ohio accepted a certified

      conflict between the decision in Earley and the decisions in West, Phelps,

      and Mendoza. See State v. Earley, 140 Ohio St.3d 1450, 2014–Ohio–

      4414, 17 N.E.3d 597 (Table). The court described the certified question as

      follows:

             When the offense of operating a motor vehicle while under the

      influence in violation of R.C. 4511.19(A)(1) is the predicate conduct for

      aggravated vehicular assault in violation [of] R.C. 2903 .08(A)(1), are the

      two offenses allied, and if so, does R.C. 2929.41(B)(3) create an

      exception that allows a trial court to impose a sentence for both offenses?

State v. Schidecker, 2nd Dist. Montgomery No. 26334, 2015-Ohio-1400, ¶27.

      {¶49} We shall adhere to our previous analysis that R.C. 2929.41(B)(3) creates

an exception to the general rule provided in R .C. 2941.25 that allied offenses must be

merged and, therefore, the trial court had the discretion, pursuant to R.C.

2929.419(B)(3), to enter convictions and to sentence Bayer for these crimes until further

instruction from the Ohio Supreme Court.
Fairfield County, Case No. 14-CA-55                                                    19


      {¶50} Bayer's second assignment of error is overruled.

      {¶51} The judgment of the Court of Common Pleas, Fairfield County, Ohio is

affirmed.

By Gwin, P.J., and

Wise, J., concur;

Baldwin, J., dissents




Baldwin, J., dissenting

      {¶52} I respectfully dissent from the majority's disposition of the first assignment

of error. I would find that the time was not tolled from June 20, 2012 to August 22,

2014, because the nolle prosequi was not properly entered.
Fairfield County, Case No. 14-CA-55                                                    20


       {¶53} Crim. R. 48(A) provides that, “[t]he state may by leave of court and in open

court file an entry of dismissal of an indictment, information, or complaint and the

prosecution shall thereupon terminate.”       Similarly, R.C. 2941.33 provides, “The

prosecuting attorney shall not enter a nolle prosequi in any cause without leave of the

court, on good cause shown, in open court. A nolle prosequi entered contrary to this

section is invalid.”

       {¶54} Under both the rule and the statute, a hearing on a motion of this type,

made by the prosecution, is available upon request by the defense for such a hearing.

State v. Monroe, 4th Dist. Pike No. 99CA 632, 2000 WL 807228 (June 14, 2000). In

most cases, the defendant is not prejudiced by the dismissal of charges against him,

and dismissal may be entered in chambers, or by entry, with the knowledge of

defendant, or defendant's counsel. Id. Therefore, when the defendant does not have

notice of the nolle prosequi, the dismissal is invalid and the speedy trial time continues

to run. Id. Based on the reasoning in Monroe, the Ninth District similarly concluded that

a nolle prosequi entered without notice to the defendant is null and void, and the

dismissal does not toll the time within which the defendant must be brought to trial for

speedy trial purposes. State v. Davis, 9th Dist. Lorain No. 08CA009412, 2008-Ohio-

6741, ¶20.

       {¶55} In order for the "open court" requirement set forth in the statute and the

rule to have meaning, the defendant must be notified of the motion and be given an

opportunity respond or to request a hearing. The record does not reflect that appellant

was so notified in the instant case, and I would therefore conclude that the nolle

prosequi was invalid and the speedy trial time continued to run. Appellant was not
Fairfield County, Case No. 14-CA-55                                                     21


brought to trial until August 26, 2014, well beyond the 270 day time limit imposed by

R.C. 2945.71(C). Accordingly, I would find that counsel was ineffective for failing to file

a motion to dismiss based on violation of appellant's right to a speedy trial and sustain

the first assignment of error.




                                          HON. CRAIG R. BALDWIN
