[Cite as State v. Gutierrez, 2010-Ohio-4549.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 12-10-01

        v.

FELIPE GUTIERREZ, JR.                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2001 CR 99

                                       Judgment Affirmed

                          Date of Decision: September 27, 2010




APPEARANCES:

        John E. Hatcher for Appellant

        Gary L. Lammers for Appellee
Case No. 12-10-01


ROGERS, J.

       {¶1} Defendant-Appellant, Felipe Gutierrez, Jr., appeals the judgment of

the Court of Common Pleas of Putnam County convicting him of complicity to

trafficking in drugs and engaging in a pattern of corrupt activity, and sentencing

him to an aggregate seven-year prison term. On appeal, Gutierrez argues that the

trial court erred as a matter of law by overruling his motion to dismiss the charges

due to violation of the speedy trial statute. Based upon the following, we affirm

the judgment of the trial court.

       {¶2} In November 2001, the Putnam County Grand Jury indicted

Gutierrez on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten,

Eleven, and Twelve, all complicity to trafficking in drugs in violation of R.C.

2923.03(A)(2) and 2925.03(A)(1),(2),(C)(3)(f), felonies of the second degree; and,

Count Thirteen, engaging in a pattern of corrupt activity in violation of R.C.

2923.32(A)(1). The indictment arose after Gutierrez allegedly participated in a

Putnam County marijuana-trafficking enterprise from November 1999 until

November 2001 with multiple codefendants. On November 30, 2001, a warrant

for Gutierrez’s arrest was issued to the address of 1911 Lissner Street, Donna,

Texas (hereinafter “Lissner Street address”).

       {¶3} On August 21, 2009, Gutierrez was returned from Texas to Ohio on

the Putnam County warrant.



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       {¶4} On September 29, 2009, Gutierrez moved for extension of time to

file pretrial motions, which the trial court granted until October 8, 2009.

       {¶5} On October 6, 2009, Gutierrez moved for a continuance on the

motion hearing scheduled for October 9, 2009, and the jury trial scheduled for

November 2, 2009. Shortly thereafter, on October 7, 2009, Gutierrez filed a

motion to dismiss the indictment on the basis that his speedy trial rights were

violated under the mandates of R.C. 2945.71(C)(2). To his motion to dismiss,

Gutierrez attached a “Verification of Incarceration Form” from the Sheriff’s

Office of Hidalgo County, Texas, reflecting that he was arrested on a fugitive

warrant on June 25, 2002, and released on July 13, 2002, and was rearrested on

August 7, 2003, and released on September 10, 2003. Additionally, Gutierrez

attached a document from the 139th District Court of Hidalgo County, Texas,

reflecting that he had appealed an order of extradition dated August 25, 2003,

which the Texas Court of Appeals affirmed on January 24, 2007. Gutierrez also

attached his own affidavit, attesting that he was indicted in Putnam County in

November 2001; that he had always been a resident of Donna, Texas; that he

never fled Ohio because of the 2001 warrant; that he was arrested on the warrant

on June 25, 2002, in Texas and was released on July 13, 2002; that he was again

arrested in Texas on the warrant on August 7, 2003, appealed the extradition

proceedings, and was released after posting bond on September 10, 2003; that the



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extradition proceedings were affirmed on appeal, and, on January 24, 2007, he was

ordered to be extradited to Ohio; that, since January 24, 2007, he never received a

court date or summons to appear on the 2001 indictment; that he made no effort to

conceal his whereabouts; and, that, from January 24, 2007, until his arrest in Texas

for driving while under the influence of alcohol on July 12, 2009, he heard nothing

about the case.

       {¶6} On October 13, 2009, the State filed a reply to Gutierrez’s motion to

dismiss. To its reply, the State attached a warrant for Gutierrez’s arrest in Texas

on the Ohio warrant dated September 5, 2002; an order from the District Court of

Hidalgo, Texas, dated August 25, 2003, authorizing extradition to Putnam County,

Ohio; an order dated September 10, 2003, reflecting that Gutierrez was released on

bond pending appeal of the extradition order; and, a document dated January 24,

2007, reflecting that the Texas court’s judgment authorizing extradition was

affirmed by the Texas Court of Appeals on August 17, 2006, and was filed on

February 7, 2007.

       {¶7} On October 20, 2009, Gutierrez filed another motion to dismiss on

the basis that he was not brought to trial within 270 days of his initial arrest or

service of summons as required by R.C. 2945.71(C)(2). Shortly thereafter, the

trial court granted Gutierrez’s motion for a continuance and rescheduled the jury




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trial for December 14, 2009.     Additionally, the trial court held a hearing on

Gutierrez’s motion to dismiss, at which the following was heard.

       {¶8} Gutierrez testified that, prior to his July 2009 arrest, he resided at

600 South Border Road, in Alamo, Texas (hereinafter “South Border Road

address”); that, when he was released from jail following his arrest in Texas in

2003, Texas authorities put an electronic monitoring device on his leg, but

removed it soon after; that he was not informed in January 2007 that his appeal

regarding extradition had been decided; that he was employed at Harley Davidson

and Suzuki in Texas from 2002 or 2003 until 2009; that he filed Texas income tax

returns in 2007, 2008, and 2009; that no one contacted him after June 2007 to tell

him that there was a warrant for his arrest in Ohio; that, to his knowledge, no one

contacted his friends or relatives to inquire as to his whereabouts; that he did not

know if his bond required him to notify the court of any change of address; that he

moved from the Lissner Street address approximately eight or nine years ago; that,

the first time he was arrested back in 2002, he was residing at the South Border

Road residence; and, that his previous affidavit indicating that he had always been

a resident of Donna, Texas, did not conflict with his statement that he lived in

Alamo, Texas, for the last eight or nine years because “something happened to the

county * * * it used to be Donna where I lived at 600, but they moved it to

Alamo.” (Hearing Tr., p. 20).



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       {¶9} Deputy Roy Sargent of the Putnam County Sheriff’s Office testified

that he was involved in the investigation of Gutierrez; that he was aware that

Gutierrez was indicted in 2001 and arrested in Texas in 2002; that, thereafter, a

governor’s warrant was issued for his arrest; that an order of extradition was

issued as a result of the governor’s warrant; that Gutierrez appealed the extradition

order; that he monitored the progress of the appeal by contacting the attorney

handling the case for the state of Texas; that the attorney would always tell him

that the appeal “was still in proceedings, and he would let me know when it was

done and over with” (hearing tr., p. 22); that he would check with the attorney

approximately once every six months; that he believed he received notification

that the appeal was concluded in 2008; that, because the investigation involved

more than one defendant, he occasionally had the opportunity to speak with Texas

authorities about some of Gutierrez’s codefendants that had contacts with Texas;

that, while in Texas regarding the codefendants, he made inquiries of Texas

authorities as to Gutierrez’s whereabouts; that he travelled to Texas approximately

five times while the appeal was pending and inquired about Gutierrez; that, at one

point, Gutierrez was incarcerated when he travelled to Texas, however he had filed

an appeal and was then bonded out; that, after that point, Gutierrez was no longer

in custody of Texas authorities, and they did not know for certain where he was;

that he did not receive notification that Gutierrez was in Texas authorities’ custody



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until July or August 2009, and Putnam County authorities took custody of him

soon after; that he had travelled to the Lissner Street residence in Donna, Texas,

because that was the address listed in the Putnam County Court files; and, that he

attempted to talk to a Texas relative of Gutierrez regarding his whereabouts, but

that he would not talk to him.

       {¶10} In November 2009, the trial court made the following findings of

fact pursuant to Crim.R. 12(F):

       (1) An Indictment was issued on November 28, 2001.
       (2) A Warrant was issued effective November 30, 2001.
       (3) The Defendant was arrested on June 25, 2002 in the State
       of Texas.
       (4) The Defendant was released on bond on July 13, 2002.
       (5) A Governor’s Warrant from the State of Ohio was issued
       on September 5, 2002.
       (6) The Defendant was arrested on the Governor’s Warrant on
       August 7, 2003.
       (7) An order of extradition was issued on August 23, 2003.
       (8) The Defendant filed an Appeal from the Texas Extradition
       Order on September 9, 2003.
       (9) Bond was posted and provided for the Defendant’s release
       on September 10, 2003.
       (10) A decision by the Appellate Court of the State of Texas was
       filed on January 24, 2007. The Texas Court of Appeals issued a
       mandate ordering extradition to the state of Ohio on February
       7, 2007.
       (11) A capias was issued by the State of Texas on June 15, 2007.
       The Defendant was arrested on an unrelated charge on July 12,
       2009 and an extradition order was concluded. The Defendant
       was extradited and brought to Putnam County, Ohio on August
       21, 2009. Subsequent Motions were filed by the Defendant on
       September 30, 2009.




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(Nov. 19, 2009 Judgment Entry, pp. 1-2).          Without discussing its specific

calculations, the trial court concluded that the speedy trial period under R.C.

2945.71 through 2945.73 had not been exhausted, and overruled Gutierrez’s

motion to dismiss.

      {¶11} On December 4, 2009, pursuant to a plea agreement, Gutierrez

withdrew his pleas of not guilty and entered a plea of no contest to Count One,

complicity in trafficking in drugs in violation of R.C. 2923.03(A)(2), a felony of

the second degree, and Count Thirteen, engaging in a pattern of corrupt activity in

violation of R.C. 2923.32(A)(1), a felony of the first degree. The trial court

dismissed the remaining counts at the State’s request.

      {¶12} In February 2010, the trial court sentenced Gutierrez to a seven-year

prison term on Count One and a seven-year prison term on Count Thirteen, to be

served concurrently.   Additionally, the trial court ordered Gutierrez to pay a

$7,500 fine.

      {¶13} It is from this judgment that Gutierrez appeals, presenting the

following assignment of error for our review.

      THE TRIAL COURT ERRED AS A MATTER OF LAW BY
      OVERRULING DEFENDANT’S MOTION TO DISMISS DUE
      TO VIOLATION OF THE SPEEDY TRIAL STATUTE.

      {¶14} In his sole assignment of error, Gutierrez argues that the trial court

erred when it overruled his motion to dismiss due to violation of his speedy trial



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rights. Specifically, he argues that he was not timely brought to trial because a

minimum of 360 days should be charged against the State in calculating the

speedy trial period. Alternately, he contends that, although Ohio’s speedy trial

statute does not generally apply to extradition proceedings, the State failed to

demonstrate that it exercised reasonable diligence in securing his availability as

required by R.C. 2945.72(A).       To his appellate brief, Gutierrez attached an

affidavit stating that he was first arrested in June 2002 at the South Border Road

address on the November 2001 Putnam County indictment; that, in June 2002, he

was informed of the charges by the U.S. Marshals, but was never provided with a

copy of the indictment; that, in July 2002, he posted bond and was released; that

he continually resided at that address until his arrest in Texas on unrelated charges

in June 2009; and, that he did not attempt to conceal his identity or change his

social security number.

       {¶15} “Our standard of review upon an appeal raising a speedy trial issue

is to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3d

Dist. No. 9-06-18, 2007-Ohio-335, ¶30, citing State v. DePue (1994), 96 Ohio

App.3d 513, 516. If any ambiguity exists, this Court will construe the record in

the defendant’s favor. King, 2007-Ohio-335, at ¶30, citing State v. Mays (1996),

108 Ohio App.3d 598, 609.




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       {¶16} “Both the United States and Ohio Constitutions guarantee a criminal

defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666,

2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-

229. In addition, Ohio statutes set forth specific time requirements necessary for

compliance with the speedy trial guarantee. The applicable statutory speedy trial

provision, R.C. 2945.71(C)(2), provides that “[a] person against whom a charge of

felony is pending * * * [s]hall be brought to trial within two hundred seventy days

after the person’s arrest.”

       {¶17} Additionally, R.C. 2945.73(B) provides that “[u]pon motion made at

or prior to the commencement of trial, a person charged with an offense shall be

discharged if he is not brought to trial within the time required by sections 2945.71

and 2945.72 of the Revised Code.”          Both R.C. 2945.71 and 2945.73 are

mandatory, and strict compliance is required by the State. King, 2007-Ohio-335,

at ¶32, citing State v. Pudlock (1975), 44 Ohio St.2d 104, 105. “Therefore, when a

criminal defendant shows that he was not brought to trial within the proper period,

the burden shifts to the State to demonstrate that sufficient time was tolled or

extended under the statute.” State v. Maisch, 173 Ohio App.3d 724, 2007-Ohio-

6230, ¶24, citing Masters, 172 Ohio App.3d 666, at ¶10, citing State v. Butcher

(1986), 27 Ohio St.3d 28, 31.




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      {¶18} The statutory time period begins to run on the date the defendant is

arrested; however, the date of arrest is not counted when computing the time

period. Masters, 172 Ohio App.3d 666, at ¶12, citing State v. Stewart (1998), 12th

Dist. No. CA98-03-021, 1998 WL 640909. Additionally, the triple-count statute,

R.C. 2945.71(E), provides that, for computation purposes, each day an accused

spends in jail in lieu of bond on the pending charge shall count as three days.

State v. Euton, 3d Dist. No. 2-06-35, 2007-Ohio-6704, ¶24. Time extensions are

permitted in limited circumstances under R.C. 2945.72, including:

      (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;

      ***

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

      (E) Any period of delay necessitated by reason of a plea in bar
      or abatement, motion, proceeding, or action made or instituted
      by the accused;

R.C. 2945.72(A), (D), (E).     Therefore, where the accused is unavailable for

hearing or trial due to the pendency of extradition proceedings, the State must

exercise reasonable diligence to secure his availability, or the time will still be




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charged to the State. State v. Tullis, 10th Dist. No. 04AP-333, 2005-Ohio-2205,

¶22.

       {¶19} Initially, we will discuss Gutierrez’s argument that the State failed to

demonstrate that it exercised reasonable diligence in securing his availability as

required by R.C. 2945.72(A).

       {¶20} Courts have found that the State exercised reasonable diligence in

securing a defendant’s availability where the police promptly issued a warrant for

a defendant’s arrest, repeatedly attempted to interview the defendant’s family in

Ohio, contacted New York authorities where the defendant also had family,

mailed a copy of the warrant to the defendant’s New York relatives, and aired the

case on “America’s Most Wanted,” Tullis, supra; and, where, at the time the

indictment was issued, the defendant was not a resident of the charging county, the

defendant changed residences twice between the date of the indictment and his

arrest, the defendant had no directory listing in the charging county, and,

immediately upon receiving the indictment, summons, and warrant, the authorities

sent copies to the sheriff’s office in the county of the defendant’s last known

residence, State v. Packard (1988), 52 Ohio App.3d 99.

       {¶21} In contrast, courts have found that the State failed to exercise

reasonable diligence where there was no evidence that the defendant attempted to

avoid prosecution or changed residences, and where the sheriff’s office simply



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entered the arrest warrant into the NCIC database and took no further action, State

v. Baker, 12th Dist. No. CA2008-03-008, 2009-Ohio-674; where the defendant

was living at the address of record, the record contained no evidence that any

affirmative action was taken to serve or arrest the defendant, and the State did not

attempt to serve the defendant via mail, State v. Hayman, 3d Dist. No. 13-09-22,

2010-Ohio-1264; and, where the charging county sent a teletype and letter

advising authorities in Michigan, where the defendant was incarcerated on another

charge, of its warrant and then took no action for over a ten-year period, State v.

Major, 180 Ohio App.3d 29, 2008-Ohio-6534.

      {¶22} Here, the evidence demonstrated that Putnam County authorities

obtained a governor’s warrant for Gutierrez’s arrest in 2002; that a Texas court

ordered Gutierrez’s extradition, which he appealed; that the extradition appeal was

pending in Texas for several years, during which Putnam County authorities

contacted the Texas state attorney every six months to monitor the case, and

learned that Texas authorities had released Gutierrez on bond and did not know his

whereabouts; that, while Gutierrez’ appeal was pending, Putnam County

authorities spoke with Texas authorities about his whereabouts approximately five

times while in Texas regarding his codefendants; that Putnam County authorities

travelled to the Lissner Street address, the address of record with the court for

Gutierrez; that Putnam County authorities attempted to speak with Gutierrez’s



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relative in Texas; and, that Putnam County authorities mailed two copies of the

summons to Gutierrez at the Lissner Street address, which were returned to the

trial court marked “Return to Sender, Not Deliverable as Addressed, Unable to

Forward.” Additionally, we note that, although numerous Texas court documents

appear in the record, none list Gutierrez’s address. We find that, in light of the

preceding case law, the State demonstrated it exercised reasonable diligence in

attempting to secure Gutierrez’s availability, and, consequently, the time period

during which Gutierrez’s extradition proceedings were pending should be tolled.

       {¶23} Further, where a defendant challenges extradition, the speedy trial

period will not begin until the charging state obtains custody of the defendant.

State v. Adkins (1982), 4 Ohio App.3d 231, 232; State v. Godley, 3d Dist. No. 13-

91-31, 1992 WL 52760; State v. Hirsch (1998), 129 Ohio App.3d 294, 316, citing

R.C. 2945.72(A); Tullis, 2005-Ohio-2205, at ¶22.      Here, despite his multiple

previous arrests in Texas, Gutierrez was not actually arrested and returned to the

custody of Ohio authorities until August 21, 2009. Consequently, the speedy trial

period began to run on that date.

       {¶24} We find that the speedy trial period ran from Gutierrez’s

apprehension in Ohio on August 21, 2009, until his filing of a motion for a

continuance on September 29, 2009. This 40 day period is subject to triple-count

computation pursuant to R.C. 2945.71(E), as Gutierrez was not released on bond,



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which constitutes a total period of 120 days charged to the state. We find the

remainder of time, from Gutierrez’s filing of a motion for a continuance on

September 29, 2009, until his no contest plea on December 4, 2009, to be charged

to Gutierrez due to the pendency of his two motions to dismiss and his subsequent

request for a continuance of the trial date until December 14, 2009. Accordingly,

only 120 days of the 270 day statutory period elapsed, and we find that Gutierrez’s

speedy trial rights were not violated.

       {¶25} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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