[Cite as State v. Hemingway, 2012-Ohio-476.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                              Nos. 96699 and 96700




                                   STATE OF OHIO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                              RICKY HEMINGWAY
                                                     DEFENDANT-APPELLEE




                              JUDGMENT:
                        REVERSED AND REMANDED


                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
                           Case Nos. CR-536518 and 539583

        BEFORE:           Keough, J., Kilbane, P.J., and Blackmon, A.J.

        RELEASED AND JOURNALIZED: February 9, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Margaret Troia
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

Avery H. Fromet
30195 Chagrin Blvd.
Suite 300
Cleveland, OH 44124




KATHLEEN ANN KEOUGH, J.:

       {¶ 1} In this consolidated appeal, plaintiff-appellant, the state of Ohio (“the State”),

appeals the trial court’s decision dismissing the indictments against defendant-appellee, Ricky

Hemingway (“Hemingway”), for violating his right to a speedy trial.       For the reasons that

follow, we reverse and remand.
       {¶ 2} In February 2010, Hemingway was charged by felony complaint in Case No.

2010 CRA 003222 in the Cleveland Municipal Court for breaking and entering the property of

Johnny and Company.     A registered warrant was issued for Hemingway’s arrest.

       {¶ 3} Hemingway was apprised of the pending case while serving a prison sentence in

Belmont Correctional Institution.   Pursuant to R.C. 2941.401, he requested that the warden

send a “Notice of untried indictments, information or complaint and of rights to request

disposition” (“Notice”) to the appropriate court and prosecuting attorney for Case No.   2010

CRA 003222.     No other case number was provided on the Notice.     The Notice was sent on

March 1, 2010, to the Cleveland Municipal Clerk of Courts and to the Cuyahoga County

Prosecuting Attorney.

       {¶ 4} On April 14, 2010, Hemingway was arrested on the outstanding registered

warrant issued in Cleveland Municipal Court Case No. 2010 CRA 003222 and bound over to

the Cuyahoga County Court of Common Pleas for disposition of the case.          On April 29,

Hemingway was charged by a bindover indictment filed in Cuyahoga County Common Pleas

Court in Case No. CR-536518 for three counts each of breaking and entering, theft, and

vandalism, and two counts of possessing criminal tools.     Three of these charges were the

basis for the Cleveland Municipal felony complaint in Case No. 2010 CRA 003222.

       {¶ 5} On June 23, 2010, Hemingway was charged by original indictment in Cuyahoga

County Common Pleas Court in Case No. CR-538577, which was later dismissed and
re-indicted on July 13, 2010 under Case No. CR-539583 for the offenses of burglary, breaking

and entering, theft, vandalism, and possessing criminal tools.        The record before this court

does not reveal that a Cleveland Municipal felony complaint was pending for this case while

Hemingway was in Belmont or when he sent his Notice from the correctional facility.

       {¶ 6} On January 25, 2011, and after various pretrials were held, discovery was

completed, and a competency evaluation and hearing were conducted, Hemingway moved to

dismiss the indictments against him in both cases, alleging a violation of his speedy trial rights

pursuant to R.C. 2941.401.        Following a hearing, the trial court granted Hemingway’s

motions.

       {¶ 7} The State appeals, contending in its sole assignment of error that the trial court

erred in granting Hemingway’s motions to dismiss based on speedy trial grounds because (1)

Hemingway was not entitled to the protection of R.C. 2941.401, and (2) even if R.C. 2941.401

applied, the time had not expired.

       {¶ 8} Speedy trial issues present mixed questions of law and fact.         State v. Hiatt, 120

Ohio App.3d 247, 261, 697 N.E.2d 1025 (4th Dist.1997).             Therefore, we apply a de novo

standard of review to the legal issues but give deference to any factual findings made by the

trial court. Cleveland v. Adkins, 156 Ohio App.3d 482, 2004-Ohio-1118, 806 N.E.2d 1007,

¶ 5 (8th Dist.), citing Hiatt.   In this case, the trial court made no findings of fact.
       {¶ 9} Hemingway moved to dismiss the indictments against him in both cases

pursuant to R.C. 2941.401.        He claimed that he invoked the protections of speedy trial under

R.C. 2941.401 when he filed his request for disposition of all remaining charges while he was

incarcerated at Belmont.      The State contends that R.C. 2941.401 does not apply because

Hemingway failed to comply with its mandates when he sent his request for trial to the

municipal court, rather than the common pleas court, and before the grand jury had even

issued an indictment.     The State further argues that even if Hemingway complied with the

requirements of R.C. 2941.401, the trial court erred in granting Hemingway’s motions to

dismiss because the statutory 180-day time-frame had not elapsed, so Hemingway’s speedy

trial rights were not violated.

       {¶ 10} After a careful review of the record, relevant cases, and statutory law, we find

that Hemingway complied with R.C. 2941.401, but that its protections were mooted when he

was released from prison.

       {¶ 11} R.C. 2941.401 controls the speedy trial rights of a defendant who is in prison.

State v. Smith, 140 Ohio App.3d 81, 89, 746 N.E.2d 678 (3d Dist.2000).

       {¶ 12} R.C. 2941.401 states, in relevant part:

       When a person has entered upon a term of imprisonment in a correctional
       institution of this state, and when during the continuance of the term of
       imprisonment there is pending in this state any untried indictment, information,
       or complaint against the prisoner, he shall be brought to trial within one
       hundred eighty days after he causes to be delivered to the prosecuting attorney
       and the appropriate court in which the matter is pending, written notice of the
       place of his imprisonment and a request for a final disposition to be made of the
       matter, except that for good cause shown in open court, with the prisoner or his
       counsel present, the court may grant any necessary or reasonable continuance.

       The written notice and request for final disposition shall be given or sent by the
       prisoner to the warden or superintendent having custody of him, who shall
       promptly forward it with the certificate to the appropriate prosecuting attorney
       and court by registered or certified mail, return receipt requested.

       {¶ 13} This 180-day speedy trial time does not begin to run until the incarcerated

defendant sends a request to the prosecuting attorney and the trial court for final disposition of

an “untried indictment, information, or complaint.”      State v. Ramey, 8th Dist. No. 69080,

1996 WL 112420 (Mar. 14, 1996); State v. Logan, 71 Ohio App.3d 292, 296, 593 N.E.2d 395

(10th Dist.1991).

       {¶ 14} In State v. Gill, 8th Dist. No. 82742, 2004-Ohio-1245, 2004 WL 528449, this

court, construing R.C. 2941.401 and the requirements and duties of the inmate and warden

regarding giving and sending proper notice, stated:

       [R.C. 2941.401] does not mean the inmate must personally insure the delivery
       of the documents to both the appropriate court and prosecutor, an unlikely task
       for a jailed inmate. Rather, the inmate must properly complete and forward all
       necessary information and documents to the warden for processing as
       prescribed by the statute. Where the inmate forwards incomplete, inaccurate,
       misleading or erroneous information, any subsequent errors by the warden or
       superintendent will be imputed to the inmate. Where, however, as here, the
       evidence is that the inmate fully complied with the statutory requirements of
       R.C. 2941.401, by including all the proper information, the error cannot be
       imputed to the inmate. Id. at ¶ 17.
       {¶ 15} A review of the record indicates that at the time Hemingway requested that his

Notice be sent, Case No. 2010 CRA 003222 was pending in Cleveland Municipal Court under

a felony complaint.   The warden sent the Notice to the proper court in this matter.    In State

v. Fox, 8th Dist. No. 74641, 1998 WL 895265 (Dec. 17, 1998), this court found that the Parma

Municipal Court and Parma city prosecutor were the appropriate parties to serve with the

notice of disposition because when the Notice was filed, the felony complaint was pending in

the city of Parma and the defendant had not yet been bound over to the court of common pleas

or indicted. Id.   Accordingly, we find that Hemingway complied with the requirements of

R.C. 2941.401 by requesting that the warden forward his Notice to the appropriate court.

       {¶ 16} We also find that the notice was sent to the proper prosecuting attorney’s office.

 Although the case was pending in the Cleveland Municipal Court, the case was pending

under a felony complaint.    This court addressed a similar situation in State v. Doane, 8th

Dist. No. 60097, 1992 WL 161142 (July 9, 1992), where a defendant was charged in the city

of Lakewood under a felony complaint prior to the defendant entering a period of

incarceration on a county probation violation.   In Doane, the defendant forwarded the proper

documentation and information to the warden, who then sent the notice to the Cuyahoga

County Clerk of Courts, the Lakewood Police Department, and to the municipal prosecuting

attorney.   This court found that the inmate substantially complied with R.C. 2941.401
because although no indictment was pending, there were charges pending against the

defendant at the municipal level; thus service to the city prosecutor was sufficient. Id. at *3.

       {¶ 17} As in Doane, the charges were pending against Hemingway at the municipal

level. A city prosecutor can certainly pursue and sign felony charges and then transfer the case

to the common pleas court for further proceedings, but “a city prosecutor does not have

authority to handle the final disposition of felony cases.”   State v. Sims, 9th Dist. No. 22677,

2006-Ohio-2415, 2006 WL 1329655, ¶ 24.           Moreover, it is the customary practice within

this court’s reviewing jurisdiction that any felony complaint pending in the Cleveland

Municipal Court is managed and controlled by the county prosecuting attorney’s office.

Finally, the State has never maintained or argued that it did not have knowledge of or receive

Hemingway’s Notice.

       {¶ 18} Accordingly, we find that Hemingway complied with the requirements of R.C.

2941.401 by sending the Notice to the county prosecutor and the municipal court for Case No.

2010 CRA 003222 (which would later become Common Pleas Case No. CR-536518), thereby

invoking the 180-day speedy trial time.

       {¶ 19} However, the speedy trial protections and provisions of R.C. 2941.401 only

apply when the incarcerated defendant remains in the state facility while the unresolved case is

pending.
       {¶ 20} R.C. 2941.401 expressly limits its application to those individuals who enter a

term of imprisonment and remain in prison during the pendency of the untried case.

       When a person has entered upon a term of imprisonment in a correctional
       institution of this state, and when during the continuance of the term of
       imprisonment there is pending in this state any untried indictment, information,
       or complaint against the prisoner, he shall be brought to trial within one
       hundred eighty days after he causes to be delivered to the prosecuting attorney
       and the appropriate court in which the matter is pending, written notice of the
       place of his imprisonment and a request for a final disposition to be made of the
       matter * * * .” (Emphasis added.)

       {¶ 21} In State v. Ramey, 8th Dist. No. 69080, 1996 WL 112420 (Mar. 14, 1996),

appeal not allowed 77 Ohio St.3d 1419, 670 N.E.2d 1006 (1996), this court held that although

the incarcerated defendant properly filed his notice of disposition invoking the speedy trial

provisions of R.C. 2941.401, once the defendant was released from prison, the application of

R.C. 2941.401 was “mooted” and speedy trial was governed by R.C. 2945.71 et seq. Id. at

*6, citing State v. Thompson, 19 Ohio App.3d 261, 483 N.E.2d 1207 (8th Dist.1984). See

also State v. Beverly, 4th Dist. No. 04CA2809, 2005-Ohio-4954, 2005 WL 2293581, ¶ 8,

14-15; State v. Beckett, 7th     Dist. No. 06 HA 584, 2007-Ohio-3175, 2007 WL 1806084;

State v. Clark, 12th Dist. No. CA2007-03-037, 2008-Ohio-5208, 2008 WL 445996, appeal not

allowed 121 Ohio St.3d 1409, 2009-Ohio-805, 902 N.E.2d 34.

       {¶ 22} Like the defendant in Ramey, Hemingway was released from prison while the

charges remained pending.      Therefore, and although Hemingway properly invoked his speedy

trial rights pursuant to R.C. 2941.401, once he was released from prison prior to the expiration
of the 180-day time limit, his speedy trial rights on the charges pending were governed by

R.C. 2945.71, which provides that a defendant charged with a felony be brought to trial within

270 days.
             1




         {¶ 23} Pursuant to R.C. 2945.71, a person against whom a felony charge is pending

must be brought to trial within 270 days after the person’s arrest or service of summons.    For

purposes of computing this time period, each day in which the accused is held in jail in lieu of

bail is counted as three days.   R.C. 2945.71(E).    When the defendant moves for discharge

on speedy trial grounds and demonstrates that the State did not bring him to trial within the

time limits set forth in the speedy trial statutes, the defendant has made a prima facie case for

discharge. State v. Monroe, 4th Dist. No. 05CA3042, 2007-Ohio-1492, 2007 WL 942095, ¶

27.    The State then bears the burden of proving that actions or events chargeable to the

accused under R.C. 2945.72 sufficiently extended the time it had to bring the defendant to

trial. Id.

         {¶ 24} In Case No. CR-536518, Hemingway sent his Notice on March 1, 2010;

therefore, time began to run for speedy trial purposes on March 2, 2010.          He moved to

dismiss the indictment on speedy trial grounds on January 25, 2011, at which time over 330

days had elapsed.




        The time between service of the inmate’s notice and the inmate’s release from prison is
         1


counted against the State for speedy trial purposes.
       {¶ 25} In Case No. CR-539583, the record before this court does not indicate that a

complaint, indictment, or information was pending while Hemingway was incarcerated in

Belmont for these charges.         Therefore, the Notice does not apply to this case, and

Hemingway’s speedy trial time did not begin to run until he was served with notice of the

indictment.

       {¶ 26} Hemingway argued in his motions to dismiss that, excluding any applicable

tolling time periods, approximately 297 days had elapsed in both cases.                Accordingly,

Hemingway made a prima facie showing that he was not brought to trial within the requisite

270 days. Therefore, the burden shifted to the State to show that time had been tolled.         The

State argues that Hemingway’s time was tolled where the record reflects that the continuances

were at the defendant’s request.

       {¶ 27} During the pendency of the cases, various pretrials were held and a competency

evaluation and hearing was conducted.          A thorough review of the case files and dockets

reveal that the majority of the trial court’s journal entries provide that the continuances were

“at the defendant’s request,” thereby tolling any time for speedy trial purposes.              R.C.

2945.72.      Although Hemingway argues that the journal entries erroneously included this

boilerplate language, we find that if the journal entries were incorrect, Hemingway had the

duty to file a motion to correct the record or file an appropriate App.R. 9(C) statement with

this court reflecting the error in the trial court record.   A court speaks only through its journal
entries and not by oral pronouncement.            State v. Brooke, 113 Ohio St.3d 199,

2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47.          Accordingly, absent any facial deficiency, a

majority of the continuances were at Hemingway’s request, and the time for speedy trial will

be tolled during those times.

       {¶ 28} The record before us is insufficient to calculate the exact number of days the

State has remaining to bring Hemingway to trial on these cases.      Specifically, it is unclear

when Hemingway was released from prison in correlation to when he was arrested on the

outstanding warrant and also if he was being held in jail on other pending cases.

Nevertheless, we find that the trial court erred in dismissing the indictments against

Hemingway on speedy trial grounds.

       {¶ 29} In Case No. CR-536518, the case was tolled from May 19, 2010 until

Hemingway filed his motion to dismiss in January 2011.       And in Case No. CR-539583, the

case was tolled from July 20, 2010 until the motion to dismiss was filed.

       {¶ 30} Deducting those tolled days from Hemingway’s own calculations, we find that

the time for speedy trial has not expired in violation of R.C. 2945.71.     We find that the trial

court erred in granting Hemingway’s motions to dismiss on speedy trial grounds.       The State’s

assignment of error is, therefore, sustained.

       Judgment reversed and case remanded for further proceedings consistent with this

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

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.




KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, A.J., CONCUR
