[Cite as State v. Hernandez, 2011-Ohio-2219.]


                                       COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :      JUDGES:
                                                :
                                                :      Hon. William B. Hoffman, P.J.
                       Plaintiff-Appellee       :      Hon. Julie A. Edwards, J.
                                                :      Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :      Case No. 10-CA-52
JAIR ALEX HERNANDEZ                             :
                                                :
                                                :
                      Defendant-Appellant       :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court of
                                                    Common Pleas Case No. 08-CR-I-06-0321


JUDGMENT:                                           AFFIRMED

DATE OF JUDGMENT ENTRY:                             April 29, 2011


APPEARANCES:

For Plaintiff-Appellee:                                For Defendant-Appellant:

DOUGLAS DUMOLT 0080866                                 JOHN CORNELY 0072393
Assistant Prosecuting Attorney                         21 Middle Street
Delaware County                                        Galena, Ohio 43201
140 N. Sandusky St., 3rd Fl.
Delaware, Ohio 43015
[Cite as State v. Hernandez, 2011-Ohio-2219.]


Delaney, J.

        {¶1}     Defendant-Appellant, Jair Alex Hernandez, appeals the judgment of the

Delaware County Court of Common Pleas, denying his motion to dismiss his case on

the grounds that his speedy trial rights were violated. He thereafter pled no contest to

one count of identification fraud, a felony of the fifth degree in violation of R.C. 2913.49.

The State of Ohio is Plaintiff-Appellee.

        {¶2}     On May 23, 2008, Appellant was arrested and a complaint was filed

against him in Delaware County Municipal Court.          At the time he was booked, the

Department of Homeland Security (“DHS”) was contacted based on the fact that

Appellant admitted that he was an illegal immigrant.

        {¶3}     A federal immigration holder was placed on Appellant the following day

pursuant to 8 C.F.R. 287.7.

        {¶4}     On May 27, 2008, a bond was set by the municipal court judge in the

amount of $15,000.00. A preliminary hearing was scheduled for June 2, 2008. On

June 2, 2008, the case was dismissed without prejudice for presentation to the

Delaware County Grand Jury. As of June 2, 2008, Appellant was no longer being held

on the municipal court complaint; however, he was not released from the Delaware

County Jail as he was still being held on the DHS immigration detainer.

        {¶5}     On June 6, 2008, the Delaware County Grand Jury indicted Appellant on

one count of identity fraud, a felony of the fifth degree, in violation of R.C.

2913.49(B)(1), and two counts of forgery, felonies of fifth degree, in violation of R.C.

2913.31(A)(3). A warrant was issued for his arrest on that day. He was served with the

warrant in jail on June 6, 2008.
Delaware County, Case No. 10-CA-52                                                      3


       {¶6}   He was released from custody on June 9, 2008, to DHS pursuant to their

detainer, and Amy Bittner filed a notice of appearance on behalf of Appellant, who had

been served with the indictment. An arraignment date had not been scheduled and

bond had not been set.

       {¶7}   Counsel for Appellant never requested a date for the arraignment, nor did

the prosecutor. A warrant to convey was not issued to return Appellant to the Delaware

County Jail for arraignment. At some time after DHS removed Appellant from Delaware

County’s jurisdiction, he left the United States. It is unclear from the record whether he

did so on his own accord or whether he was deported due to his illegal status in the

U.S.

       {¶8}   On October 8, 2008, the trial court issued a Judgment Entry to Show

Cause as to why the case should not be dismissed for failure to prosecute. On October

10, 2008, the State requested, in writing, that a warrant be issued for the arrest of

Appellant, who was no longer in the jurisdiction of Delaware County. From October 10,

2008, Appellant was at large, subject to this arrest warrant. At some point prior to

January 23, 2010, Appellant reentered the United States illegally. On January 23, 2010,

he was arrested and returned to the Delaware County, Ohio, jail.

       {¶9}   On February 3, 2010, Appellant was scheduled to be arraigned and a

bond was set in the amount of $15,000.00 once again.            On February 10, 2010,

Appellant filed a Motion for Discovery and Request for Notice of Prosecutor’s Intention

to Use Evidence.     The State responded to the Motion for Discovery, but failed to

respond to the Notice of Intention to Use Evidence. Appellant then filed a Motion to
Delaware County, Case No. 10-CA-52                                                      4


Dismiss on speedy trial grounds on February 24, 2010.             The trial court denied

Appellant’s Motion to Dismiss in an entry dated March 30, 2010.

       {¶10} On April 7, 2010, Appellant entered a no contest plea to Count One of the

Indictment, which was one count of identity fraud, and the remaining two counts were

dismissed. Appellant was sentenced to five years of community control.

       {¶11} Appellant now appeals and raises one Assignment of Error:

       {¶12} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO DISMISS FOR THE VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.”

                                            I.

       {¶13} 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.

       {¶14} 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

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.

       {¶15} 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
Delaware County, Case No. 10-CA-52                                                         5

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.

       {¶16} 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.

       {¶17} A person charged with a felony must be brought to trial within 270 days

unless they waived that right to a speedy trial. If a person is held in jail in lieu of bond,

then each day that the suspect is in custody counts as three days. R.C. 2945.71(E).

This “triple count” provision is applied only when the defendant is being held in jail solely

on the pending charge. State v. MacDonald (1976), 48 Ohio St.2d 66, 357 N.E.2d 40,

paragraph one of the syllabus.

       {¶18} Specifically, R.C. 2945.71(C) provides, in pertinent part:

       {¶19} “ A person against whom a charge of felony is pending:

       {¶20} “(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B),

shall be accorded a preliminary hearing within fifteen consecutive days after the

person's arrest if the accused is not held in jail in lieu of bail on the pending charge or

within ten consecutive days after the person's arrest if the accused is held in jail in lieu

of bail on the pending charge;

       {¶21} “(2) Shall be brought to trial within two hundred seventy days after the

person's arrest.”

       {¶22} However, R.C. 2945.72 provides various circumstances under which the

270 days may be tolled:
Delaware County, Case No. 10-CA-52                                                       6


         {¶23} “The time within which an accused must be brought to trial, or, in the case

of felony, to preliminary hearing and trial, may be extended only by the following:

         {¶24} “(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;

         {¶25} “(B) Any period during which the accused is mentally incompetent to stand

trial or during which his mental competence to stand trial is being determined, or any

period during which the accused is physically incapable of standing trial;

         {¶26} “(C) Any period of delay necessitated by the accused's lack of counsel,

provided that such delay is not occasioned by any lack of diligence in providing counsel

to an indigent accused upon his request as required by law;

         {¶27} “(D) Any period of delay occasioned by the neglect or improper act of the

accused;

         {¶28} “(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;

         {¶29} “(F) Any period of delay necessitated by a removal or change of venue

pursuant to law;

         {¶30} “(G) Any period during which trial is stayed pursuant to an express

statutory requirement, or pursuant to an order of another court competent to issue such

order;
Delaware County, Case No. 10-CA-52                                                    7


       {¶31} “(H) The period of any continuance granted on the accused's own motion,

and the period of any reasonable continuance granted other than upon the accused's

own motion;

       {¶32} “(I) Any period during which an appeal filed pursuant to section 2945.67 of

the Revised Code is pending.”

       {¶33} The triple count provision does not apply when a defendant is being held

in custody pursuant to other charges. MacDonald, supra. Moreover, it does not apply

when the accused is being held on a parole or probation violation holder. State v.

Brown (1992), 64 Ohio St.3d 476, 479, 597 N.E.2d 97; State v. Martin (1978), 56 Ohio

St.2d 207, 211, 383 N.E.2d 585.

       {¶34} As the Ohio Supreme Court held in State v. Sanchez, 110 Ohio St.3d 274,

2006-Ohio-4478, 853 N.E.2d 283, the running of speedy trial time can only be tolled for

reasons set forth in R.C. 2945.72, supra.

       {¶35} In Sanchez, the Court determined the effect of an immigration detainer,

pursuant to Section 287.7(a), Title 8, C.F.R., which provides:

       {¶36} “A detainer serves to advise another law enforcement agency that the

Department [of Homeland Security] seeks custody of an alien presently in the custody

of that agency, for the purpose of arresting and removing the alien. The detainer is a

request that such agency advise the Department, prior to release of the alien, in order

for the Department to arrange to assume custody, in situations when gaining immediate

physical custody is either impracticable or impossible.”

       {¶37} The Sanchez court found that this provision does not indicate that DHS

seeks to “hold” the accused.        Rather, it found that the provision declares the
Delaware County, Case No. 10-CA-52                                                       8


government’s intention to seek custody in the future and requests notification before the

accused is released from his or her current confinement. Sanchez, supra, at ¶15. At

most, the Sanchez court stated, “the ICE detainer may lead to future custody by federal

immigration authorities to allow for an administrative complaint and possible

deportation. Prieto v. Gluch, 913 F.2d at 1163; Campillo v. Sullivan, 853 F.2d at 595.”

Sanchez, ¶19.

       {¶38} In the present case, Appellant argues that a total of 654 days of time

should be counted towards speedy trial time.        Appellant argues that the Delaware

County Sheriff wrongfully released Appellant to DHS and to the Immigration and

Customs Enforcement (“ICE”) Bureau for deportation prior to the completion of case in

the trial court below.    Appellant, however, cites no authority that this was in fact,

misconduct on the part of the Delaware County Sheriff or the State.

       {¶39} While this Court acknowledges that an ICE detainer does not toll the

speedy trial statute, Sanchez, supra, we do find that Appellant’s own improper act of

being in the country illegally, therefore causing his deportation before the culmination of

the present case, does meet the requirements of R.C. 2945.72(D), and is a tolling

event. At some point between June 9, 2008, and January 23, 2010, Appellant left the

United States and returned illegally, and was arrested on his outstanding October 10,

2008, warrant in the present case.

       {¶40} When reviewing the time that does count against the State for purposes of

this case, we find the following:

       {¶41} Appellant was arrested on May 23, 2008, and was held until June 2, 2008,

on the municipal complaint. Under the speedy trial triple count provisions, he is entitled
Delaware County, Case No. 10-CA-52                                                        9


to thirty days of jail time credit for those days. On June 6, 2008, he was indicted in case

number 08-CR-I-06-321 and was served with the indictment and warrant in the case.

He was released from jail on June 9, 2008 on case number 08-CR-I-06-321.

Accordingly, under the triple count provision, he receives nine days of jail time credit for

that time period.

       {¶42} From June 9, 2008, until January 23, 2010, Appellant absented himself

from the jurisdiction of Delaware County, Ohio, either by his own illegal act of being in

the country illegally and subjecting himself to deportation, or by absconding from the

jurisdiction to avoid prosecution.

       {¶43} He was arrested on January 23, 2010, and was in jail until the conclusion

of the case below on April 7, 2010. However, certain tolling events also occurred in that

time period. From January 23 until February 10, 2010, Appellant received 54 days of

jail time credit for the eighteen days that he was held in jail. On February 10, 2010, his

trial counsel filed a Motion for Discovery and a Notice of Intention to Use Evidence by

the Prosecution. The State responded to the Motion for Discovery on February 17,

2010, so time is tolled for those seven days.

       {¶44} From February 17, 2010, until February 24, 2010, the triple count

provision again applies, and appellant received 21 days of jail time credit.

       {¶45} On February 24, 2010, Appellant’s trial counsel filed a motion to dismiss

on speedy trial grounds. The State responded on March 5, 2010, and a hearing was

held on the matter on March 22, 2010.           The Court denied Appellant’s motion via

judgment entry on March 30, 2010, therefore time was tolled from February 24 until

March 30, 2010.
Delaware County, Case No. 10-CA-52                                                      10


       {¶46} On April 7, 2010, Appellant entered a no contest plea and was sentenced

to five years of community control. Accordingly, the triple count provision applied from

March 30 until April 7, which provides Appellant with an additional 24 days of jail time

credit. Appellant’s total days of time in jail during the pendency of this action total 138

days, which falls well within the 270 days the State had to prosecute Appellant.

       {¶47} Moreover, as the trial court stated during the hearing on the motion to

dismiss, “[T]he key here is that ICE did pick up Mr. Hernandez. Obviously, he wasn’t

available to the prosecution for purposes of trial at that point. He was deported; he then

was not subject to trial since he was not in this country.

       {¶48} “Apparently, although there’s no evidence except by Mr. Hernandez being

here today, he returned to the United States and was arrested. That occurred January

23, 2010. So he has not been available for purposes of trial, particularly if he returned

sometime between June 9, 2008, and January 23, 2010. Obviously, he’s been in this

county for some time and hasn’t made himself available.

       {¶49} “So the court, certainly, would put some responsibility on Mr. Hernandez

and based on the Motion to Dismiss on statutory grounds and constitutional grounds,

the Court would deny that Motion to Dismiss.”

       {¶50} We find that the trial court properly reached this conclusion.

       {¶51} Accordingly, Appellant’s assignment of error is overruled.
Delaware County, Case No. 10-CA-52                                              11


      {¶52} For the foregoing reasons, the judgment of the Delaware County Court of

Common Pleas is affirmed.

By: Delaney, J.

Hoffman, P.J. and

Edwards, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. WILLIAM B. HOFFMAN



                                     HON. JULIE A. EDWARDS
[Cite as State v. Hernandez, 2011-Ohio-2219.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                       Plaintiff-Appellee       :
                                                :
                                                :
-vs-                                            :    JUDGMENT ENTRY
                                                :
JAIR ALEX HERNANDEZ                             :
                                                :
                      Defendant-Appellant       :    Case No. 10-CA-52
                                                :




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

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to Appellant.



                                                    _________________________________
                                                    HON. PATRICIA A. DELANEY


                                                    _________________________________
                                                    HON. WILLIAM B. HOFFMAN


                                                    _________________________________
                                                    HON. JULIE A. EDWARDS
