[Cite as State v. Kitzmiller, 2018-Ohio-3769.]



             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                 COLUMBIANA COUNTY

                                           STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                     v.

                                      SHANE A. KITZMILLER,

                                         Defendant-Appellant.


                         OPINION AND JUDGMENT ENTRY
                                          Case No. 17 CO 0018


                                   Criminal Appeal from the
                      Court of Common Pleas of Columbiana County, Ohio
                                  Case No. No. 2016-CR-245

                                          BEFORE:
                  Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.


                                                 JUDGMENT:
                                                   Affirmed.

Atty. Robert Herron, Columbiana County Prosecutor and
Atty. Ryan P. Weikart, Assistant Prosecuting Attorney, 105 South Market Street, Lisbon,
Ohio 44432, for Plaintiff-Appellee

Atty. Timothy Young, Ohio Public Defender and
Atty. Stephen P. Hardwick, Assistant State Public Defender, Office of the Ohio Public
Defender, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215, for Defendant-
Appellant.

                                       Dated: September 17, 2018
                                                                                      –2–


WAITE, J.

       {¶1}   Appellant Shane A. Kitzmiller appeals a May 30, 2017 Columbiana County

Common Pleas judgment entry. Appellant argues that the state violated his speedy trial

rights by failing to bring him to trial within 90 days of his arrest in accordance with the

“triple count provision.” For the reasons provided, Appellant’s argument is without merit

and the judgment of the trial court is affirmed.

                              Factual and Procedural History

       {¶2}   On July 3, 2016, a 73-year-old woman was putting groceries into her car

at Aldi’s parking lot in Calcutta, Ohio. Appellant parked his car next to the woman and

got out. He grabbed her purse and ran back into his car. The woman chased him,

reached into his car window, and took hold of her purse. Appellant drove away as the

victim tried to hold onto the purse, knocking her to the ground. The victim’s checkbook

was inside her purse.

       {¶3}   Later on the same day, Appellant and his codefendant entered Walmart

and used one of the victim’s checks to purchase a large screen television set. Walmart

surveillance video showed Appellant and his codefendant purchasing the television set

with a check. The video showed the men attach the box to the roof of Appellant’s car.

The video also showed Appellant throw an item into a trashcan, which was later

discovered to be the victim’s purse.

       {¶4}   On July 4, 2016, an Ohio State Highway patrolman pulled over Appellant’s

car for a broken headlight. Appellant’s codefendant was in the passenger seat. The

patrolman discovered that Appellant was driving with a suspended license and ordered

him and his codefendant out of the car. As Appellant exited the car, a crack pipe fell

onto the ground. The patrolman searched the car and located a second crack pipe, the

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victim’s checkbook, and a check written out to Walmart. Appellant was arrested and

jailed.

          {¶5}   Because Appellant had a criminal conviction in Pennsylvania for which

these criminal charges in Ohio constituted a probation violation, on July 5, 2016, the

Board of Pennsylvania Probation and Parole issued a warrant and detainer based on

Appellant’s probation violation. On August 18, 2016, Appellant was indicted in Ohio on

one count of robbery, a felony of the second degree in violation of R.C. 2911.02(A)(2),

and one count of receiving stolen property, a felony of the fifth degree in violation of

R.C. 2913.51(A). On August 25, 2016, the trial court attempted to release Appellant on

an own recognizance bond (“OR bond.”) This would have allowed Appellant to remain

free pending trial or other resolution without posting a monetary amount as bail, but

required that he sign a bond form guaranteeing his appearance. Appellant refused to

sign the bond. Appellant filed a motion for discharge based on speedy trial grounds on

December 8, 2016. The trial court denied the motion.

          {¶6}   A jury convicted Appellant of both counts on May 25, 2017. The trial court

sentenced Appellant to eight years of incarceration on the robbery conviction and one

year on the receiving stolen property conviction. Although Appellant asserts that the

sentences were ordered to run consecutively, the trial court clearly ordered the

sentences to run concurrently for an aggregate total of eight years of incarceration.

Appellant timely appeals.

                                 ASSIGNMENT OF ERROR

          THE TRIAL COURT VIOLATED MR. KITZMILLER'S RIGHT TO A

          SPEEDY TRIAL. R.C. 2945.71(E); MOTION FOR DISCHARGE/SPEEDY




Case No. 17 CO 0018
                                                                                       –4–


       TRIAL (DEC. 8, 2016); STATE'S MEMORANDUM CONTRA (DEC. 21,

       2016).

       {¶7}     The parties agree for speedy trial purposes that Appellant had been jailed

143 days.     The sole issue on appeal is whether the triple count provision applies.

Pursuant to R.C. 2945.71(C)(2), the state must bring a defendant to trial within 270 days

after an arrest. However, if the defendant is held in jail in lieu of bail, each day is

counted as three days for speedy trial purposes. R.C. 2945.71(E). This rule is referred

to as the triple count provision.      The triple count provision applies only to those

defendants held in jail in lieu of bail solely on those pending charges. State v. Christian,

7th Dist. No. 12 MA 164, 2014-Ohio-2590, ¶ 9, citing State v. Dunkins, 10 Ohio App.3d

72, 74-75, 460 N.E.2d 688 (9th Dist.1983).

       {¶8}     Appellant argues that the triple count provision applies because the state

failed to prove that he was arrested pursuant to the Pennsylvania warrant. Appellant

also argues that the state cannot evade the triple count provision by offering a

defendant an OR bond. Thus, Appellant argues that his failure to sign the bond did not

constitute a waiver of the triple count provision.

       {¶9}     In response, the state urges that a defendant cannot create a speedy trial

issue by refusing to sign an OR bond. The state cites to two cases which held that a

defendant’s failure to recognize an OR bond waives application of the triple count

provision. See State v. Monroe, 4th Dist. No. 1243, 1980 WL 351016 (Apr. 18, 1980)

and State v. Long, 5th Dist. No. CA-619, 1980 WL 354258 (Dec. 12, 1980). The state

additionally argues that Appellant was held pursuant to the Pennsylvania warrant and

detainer, which is included within the record.




Case No. 17 CO 0018
                                                                                     –5–


        {¶10} Review of a trial court's decision regarding a motion to dismiss based on a

violation of the speedy trial provisions involves a mixed question of law and fact. State

v. High, 143 Ohio App.3d 232, 757 N.E.2d 1176 (7th Dist.2001), citing State v.

McDonald, 7th Dist. Nos. 97 C.A. 146, 97 C.A. 148, 1999 WL 476253 (June 30, 1999).

The trial court's findings of fact are given deference if supported by competent, credible

evidence. Id. However, a reviewing court must independently review whether the trial

court properly applied the law to the facts of the case. Id. Further, an appellate court

must strictly construe the relevant statutes against the state. Id., citing Brecksville v.

Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996).

        {¶11} Appellant concedes that he was given an OR bond and he refused to sign

the bond. Appellant argues that his refusal to accept the OR bond is irrelevant to a

determination of whether the triple count provision applies.         However, Appellant

misconstrues the triple count provision. The time in which a defendant must be brought

to trial after an arrest is reduced from 270 days to 90 days only when the defendant is

held in jail in lieu of bail.

        {¶12} Bail is defined as “security for the appearance of an accused to appear

and answer to a specific criminal or quasi-criminal charge in any court or before any

magistrate at a specific time or at any time to which a case may be continued, and not

depart without leave.” R.C. 2937.22. A person may be released from jail without bail:

“When from all the circumstances the court is of the opinion that the accused will appear

as required, either before or after conviction, the accused may be released on his own

recognizance.” R.C. 2937.29.

        {¶13} Here, Appellant was not held in jail by any security. Instead, the court

issued Appellant an OR bond which allowed him to leave detention without requiring a

Case No. 17 CO 0018
                                                                                   –6–


security interest. Additionally, a person released on an OR bond is not subject to a

monetary fine for failure to appear. The punishment for failure to appear is that the

defendant may be charged with an additional felony of the fourth degree. See R.C.

2939.19; R.C. 2937.99(B).

       {¶14} In Monroe, the defendant was given an OR bond which he refused to sign.

The Monroe Court explained that the purpose of the speedy trial statute is to protect

defendants from being jailed for long periods because they cannot afford bail. Because

the trial court allowed the defendant to be released on his own recognizance and he

refused, the court found that he had waived his right.      We agree with this logic.

Appellant’s refusal to accept an OR bond amounted to a waiver of the triple count

provision.

       {¶15} The state also argues that Appellant was held by a Pennsylvania warrant

and detainer which was issued the day after Appellant’s arrest. Appellant responds that

he was not arrested in Ohio or extradited pursuant to that warrant.       A copy of a

Pennsylvania warrant and detainer, which was issued on July 5, 2016, the day after

Appellant’s arrest, was attached to the state’s response to Appellant’s motion for

discharge. The document sought Appellant’s arrest and detainer for his parole violation.

The document included a provision signed by Appellant that stated: “I expressly waive

extradition to the Commonwealth of Pennsylvania from any jurisdiction in or outside of

the United States, where I may be found, and I shall not contest any effort by any

jurisdiction to return me to the United States or to the Commonwealth of

Pennsylvania[.]”   (12/21/16 Memo Contra Defendant’s Motion to Discharge/Speedy

Trial, Exh. 2.) As Appellant waived extradition to Pennsylvania, his argument in this

regard is flawed. While Appellant was clearly not arrested pursuant to the Pennsylvania

Case No. 17 CO 0018
                                                                                      –7–


warrant and detainer (which was only issued as a result of his Ohio criminal charges) he

could have been properly held based on this detainer.           Regardless, as we have

determined that Appellant’s refusal to accept his OR bond amounted to waiver of the

triple count provisions, the state was not required to prove that Appellant was being held

on the Pennsylvania detainer.

       {¶16} As Appellant refused to accept an OR bond, he cannot demonstrate that

he was in jail in lieu of bail. The triple count provision does not apply, here. As such,

the state was required to bring Appellant to trial within 270 days after his arrest.

Appellant concedes that he was brought to trial within 143 days of his arrest after

deducting tolled speedy trial time.     Accordingly, Appellant’s assignment of error is

without merit and is overruled.

                                       Conclusion

       {¶17} Appellant argues that the state failed to bring him to trial within 90 days of

his arrest in accordance with the triple count provision. Because Appellant refused to

sign an OR bond, the triple count provision does not apply. Accordingly, Appellant’s

argument is without merit and the judgment of the trial court is affirmed.


Robb, P.J., concurs.

Bartlett, J., concurs.




Case No. 17 CO 0018
[Cite as State v. Kitzmiller, 2018-Ohio-3769.]




        For the reasons stated in the Opinion rendered herein, the assignment of error is

overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.

        A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                         NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
