[Cite as State v. Hartman, 2010-Ohio-2299.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 2-10-05

        v.

JASON E. HARTMAN,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2009 CR 72

                                     Judgment Affirmed

                             Date of Decision:   May 24, 2010




APPEARANCES:

        Michael J. Short for Appellant

        Edwin A. Pierce for Appellee
Case No. 2-10-05



PRESTON, J.

         {¶1} Defendant-appellant, Jason Hartman (“Hartman”), appeals the

Auglaize County Court of Common Pleas’ judgment of conviction and sentence

entered after overruling his motion to dismiss for an alleged violation of his right

to a speedy trial. We affirm.

         {¶2} On June 27, 2009, Hartman was arrested and cited for six (6)

offenses, including: operating a vehicle under the influence (“OVI”) of alcohol in

violation of R.C. 4511.19(A)(1)(a); operating a vehicle with a prohibited blood

alcohol concentration in violation of R.C. 4511.19(A)(1)(h); driving under

financial responsibility law suspension in violation of R.C. 4510.16(A); driving

under (court) suspension in violation of R.C. 4510.11(A); failure to signal in

violation of R.C. 4511.39; and failure to reinstate a license in violation of R.C.

4510.21, all misdemeanors. (Joint Ex. C). These charges were originally filed in

the Auglaize County Municipal Court and assigned case no. 2009-TRC-3678.

(Id.).

         {¶3} At the time of his aforementioned OVI offense, Hartman was on

community control for unrelated previous offenses in Auglaize Municipal Court

case nos. 2008-CRB-376, 2008-CRB-0773. (Joint Exs. A & B). As a condition of

his community control, Hartman was prohibited from consuming alcohol. (Id.).



                                       -2-
Case No. 2-10-05


       {¶4} On June 29, 2009, both OVI counts in the complaint were dismissed

without prejudice, Hartman pled not guilty to the remaining charges, and the

Auglaize County Municipal Court set bond on the remaining charges at an Own

Recognizance (“OR”) Bond. (Joint Ex. C). On this same day, Hartman was

charged with violating the terms and conditions of his community control in case

nos. 2008-CRB-376, 2008-CRB-0773. (Joint Ex. B). The Municipal Court also

held an arraignment on the community control violations and ordered that

Hartman be held without bond. (Id.).

       {¶5} On July 23, 2009, the Auglaize County Grand Jury indicted Hartman

on three (3) counts, including: count one (1) of operating a vehicle while under the

influence of alcohol, in violation of R.C. 4511.19(A)(1)(a),(G)(1)(d) and R.C.

2941.1413, a fourth degree felony; count two (2) of operating a vehicle with a

prohibited    blood     alcohol    concentration     in    violation     of    R.C.

4511.19(A)(1)(h),(G)(1)(d) and R.C. 2941.1413, a fourth degree felony; and count

three (3) of operating a motor vehicle while under a license suspension in violation

of R.C. 4510.14, a first degree misdemeanor. (Doc. No. 1). Counts one and two

also included a specification that Hartman had five (5) prior OVI convictions

within the past twenty (20) years. (Id.). On this same day, Hartman appeared for a

bond hearing, and the Auglaize County Court of Common Pleas set bond on the

Indictment at $25,000.00, 10% cash provision plus an OR Bond. (Doc. No. 9).


                                       -3-
Case No. 2-10-05


       {¶6} On July 27, 2009, the balance of the citation filed in Auglaize

County Municipal Court case no. 2009-TRC-3678 was dismissed. (Joint Ex. C).

On July 30, 2009, Hartman was arraigned on the Indictment and entered pleas of

not guilty to the charges. (Doc. No. 15).

       {¶7} On October 6, 2009, Hartman filed a motion to dismiss the

indictment in the Auglaize County Court of Common Pleas based upon an alleged

violation of his right to a speedy trial pursuant to R.C. 2945.71(D) and (E). (Doc.

No. 32).    Specifically, Hartman claimed that R.C. 2945.71(E)’s triple-count

provision applied since the basis of his community control violation, for which he

was being held, arose from the same set of facts giving rise to the indictment. (Id.).

       {¶8} On October 9, 2009, the trial court held a hearing on the motion but

concluded that R.C. 2945.71(E)’s triple-count provision did not apply since the

Municipal Court’s community control violations and the felony OVI Indictment

did not share a common litigation history. (Doc. No. 34); (Oct. 9, 2009 Tr. at 43).

That same day, Hartman withdrew his previously tendered plea of not guilty to

count one (1) and entered a no contest plea, and the State dismissed counts two (2)

and three (3) of the indictment, pursuant to a negotiated plea agreement. (Doc. No.

36). The trial court found Hartman guilty on count one of the indictment and, on

November 18, 2009, sentenced him to twenty-nine (29) months incarceration.

(Doc. Nos. 37, 51).


                                        -4-
Case No. 2-10-05


      {¶9} On December 8, 2009, Hartman filed a notice of appeal, but this

Court dismissed the appeal for lack of a final appealable order on December 17,

2009. (Doc. Nos. 79, 88).

      {¶10} On December 22, 2009 and January 7, 2010, the trial court filed two

separate nunc pro tunc entries of sentencing. (Doc. Nos. 89, 94).

      {¶11} On January 14, 2010, Hartman filed a subsequent notice of appeal

from the trial court’s second corrected sentencing entry. (Doc. No. 100). On

February 3, 2010, this Court granted Hartman’s motion for delayed appeal. (Doc.

No. 109).

      {¶12} Hartman now appeals raising one assignment of error for our review.

                            ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED IN NOT APPLYING THE
      TRIPLE-COUNT PROVISIONS OF R.C. 2945.71(E) TO THE
      DEFENDANT’S CASE.

      {¶13} In his sole assignment of error, Hartman argues that the trial court

erred by not applying R.C. 2945.71(E)’s triple-count provision for purposes of

calculating speedy trial time. Specifically, Hartman argues that the triple-count

provision should apply since his community control violation for consumption of

alcohol arose out of the same incident for which he was indicted, and thus, has a

“common litigation history” within the meaning of R.C. 2945.71.




                                       -5-
Case No. 2-10-05


       {¶14} R.C. 2945.71(E) provides, in pertinent part, “[f]or purposes of

computing time under divisions (A), (B), (C)(2), and (D) of this section, each day

during which the accused is held in jail in lieu of bail on the pending charge shall

be counted as three days.” (Emphasis added).

       {¶15} The Ohio Supreme Court in State v. Parker held that “when multiple

charges arise from a criminal incident and share a common litigation history,

pretrial incarceration on the multiple charges constitutes incarceration on the

‘pending charge’ for the purposes of the triple-count provision of the speedy-trial

statute, R.C. 2945.71(E).” 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d

1032, ¶21. In reaching its holding in Parker, the Ohio Supreme Court noted that:

       Criminal charges arising out of the same criminal incident and
       brought simultaneously will always be deemed to have a
       “common litigation history” for the purposes of establishing
       incarceration solely on the “pending charge” within the meaning
       of R.C. 2945.71(E), even if they are prosecuted in separate
       jurisdictions.

2007-Ohio-1534, at ¶25.

       {¶16} Hartman cites this language from Parker and concludes that his

community control violation, which arose out of the same criminal incident and

was filed simultaneous to the indictment, must too be deemed to have a “common

litigation history” for purposes of R.C. 2945.71(E). We disagree.




                                       -6-
Case No. 2-10-05


       {¶17} Unlike the defendant in Parker, Hartman was being held without

bond on a violation of community control, which arose from the indicted criminal

incident, not additional misdemeanor charges pending in municipal court. 2007-

Ohio-1534, at ¶¶2-3. This case is more analogous to State v. Martin (1978), 56

Ohio St.2d 207, 383 N.E.2d 585, wherein the Court determined that R.C.

2945.71(E)’s triple-count provision was inapplicable when the accused was being

held pursuant to a probation-violation holder that stemmed from the alleged

criminal incident.   Similarly, the Ohio Supreme Court has found that R.C.

2945.71(E)’s triple-count provision does not apply when the defendant is being

held in custody pursuant to a parole-violation holder. State v. Brown (1992), 64

Ohio St.3d 476, 597 N.E.2d 97. The Ohio Supreme Court has recognized the

continued viability of these rules of law as recently as 2006 in State v. Sanchez,

and we are not persuaded that its holding in Parker has altered these well-

established rules of law. 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283,

¶11. Therefore, the trial court did not err in finding R.C. 2945.71(E)’s triple-count

provision inapplicable here. Furthermore, since Hartman admits that he entered

his no contest plea in less than two hundred seventy (270) days from the date of

arrest, no violation of R.C. 2945.71(C)(2) occurred either. (Appellant’s Brief at 4).

As such, the trial court did not err in overruling Hartman’s motion to dismiss.

       {¶18} Hartman’s assignment of error is overruled.


                                        -7-
Case No. 2-10-05


       {¶19} 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

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




                                        -8-
