[Cite as State v. Detamore, 2016-Ohio-4682.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

STATE OF OHIO                                         C.A. No.       15AP0026

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DUWAYNE R. DETAMORE                                   COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2014 CRC-I 000379

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2016



        MOORE, Judge.

        {¶1}    Defendant-Appellant Duwayne R. Detamore appeals from the judgment of the

Wayne County Court of Common Pleas. We affirm.

                                                 I.

        {¶2}    While Mr. Detamore was serving a prison term on unrelated charges, on

September 10, 2012, he was indicted in the instant matter on two counts of aggravated

trafficking, two counts of trafficking in heroin, and one count of trafficking in counterfeit

controlled substances. An arrest warrant was issued and ordered to be served at an address in

Rittman.

        {¶3}    On October 28, 2014, Mr. Detamore was released from prison and was arrested

the same day under the instant indictment. On February 13, 2015, he filed a motion to dismiss

alleging that his right to a speedy trial was violated. The State responded in opposition. The trial

court subsequently denied the motion without holding a hearing.
                                                  2


       {¶4}    Thereafter, Mr. Detamore entered a no contest plea to two counts of aggravated

trafficking, one count of trafficking in heroin, and one count of trafficking in counterfeit

controlled substances. The remaining count was dismissed. Mr. Detamore was sentenced to

twelve months of community control.

       {¶5}    He has appealed, raising two assignments of error for our review.

                                                  II.

                                   ASSIGNMENT OF ERROR I

       [MR.] DETAMORE’S STATUTORY AND/OR CONSTITUTIONAL RIGHTS
       TO A SPEEDY TRIAL WERE VIOLATED, AND THE TRIAL COURT
       ERRED IN OVERRULING HIS MOTION TO DISMISS.

       {¶6}    Mr. Detamore asserts in his first assignment of error that the trial court erred in

denying his motion to dismiss. While he mentions both his constitutional and statutory speedy

trial rights, his motion in the trial court did not develop an argument with respect to his

constitutional rights, nor has he developed one here. See App.R. 16(A)(7). Accordingly, we will

only address whether his rights under R.C. 2941.401 were violated when the trial court denied

his motion to dismiss.

       {¶7}    “A trial court’s ruling on a motion to dismiss on speedy trial grounds presents a

mixed question of law and fact. When reviewing [Mr. Detamore’s] claim that the trial court

erred in denying his motion to dismiss, this Court applies the de novo standard of review to

questions of law.”       (Internal citation omitted.)   State v. Ondrusek, 9th Dist. Lorain Nos.

09CA009626, 09CA009673, 2010-Ohio-2811, ¶ 5.

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

* * In fact, R.C. 2941.401 supplants the provisions of R .C. 2945.71.” Id. at ¶ 6, quoting State v.

Skorvanek, 9th Dist. Lorain No. 08CA009400, 2010-Ohio-1079, ¶ 19.
                                               3


      {¶9}   R.C. 2941.401 provides:

      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
      request of the prisoner shall be accompanied by a certificate of the warden or
      superintendent having custody of the prisoner, stating the term of commitment
      under which the prisoner is being held, the time served and remaining to be
      served on the sentence, the amount of good time earned, the time of parole
      eligibility of the prisoner, and any decisions of the adult parole authority relating
      to the prisoner.

      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.

      The warden or superintendent having custody of the prisoner shall promptly
      inform him in writing of the source and contents of any untried indictment,
      information, or complaint against him, concerning which the warden or
      superintendent has knowledge, and of his right to make a request for final
      disposition thereof.

      Escape from custody by the prisoner, subsequent to his execution of the request
      for final disposition, voids the request.

      If the action is not brought to trial within the time provided, subject to
      continuance allowed pursuant to this section, no court any longer has jurisdiction
      thereof, the indictment, information, or complaint is void, and the court shall enter
      an order dismissing the action with prejudice.

      This section does not apply to any person adjudged to be mentally ill or who is
      under sentence of life imprisonment or death, or to any prisoner under sentence of
      death.

(Emphasis added.)

      {¶10} In examining the statute, the Supreme Court of Ohio concluded that it is not

ambiguous. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 20. Thus, the Supreme
                                                 4


Court has held that, “[f]ar from requiring the state to exercise reasonable diligence to locate an

incarcerated defendant, R.C. 2941.401 places the initial duty on the defendant to cause written

notice to be delivered to the prosecuting attorney and the appropriate court advising of the place

of his imprisonment and requesting final disposition; the statute imposes no duty on the state

until such time as the incarcerated defendant provides the statutory notice.” Id. “Further, a

warden or prison superintendent has a duty to inform the incarcerated defendant of charges only

when the warden or superintendent has knowledge of such charges.” Id. In concluding that the

statute’s plain language did not impose a duty of reasonable diligence, the Supreme Court stated

that, it “decline[d] to impose duties on prosecutors or courts not imposed by the legislature.” Id.

at ¶ 22.

           {¶11} In State v. Dillon, 114 Ohio St.3d 154, 2007-Ohio-3617, the Supreme Court again

analyzed R.C. 2941.401. There the Court held that “[a]n inmate’s awareness of a pending

indictment and of his right to request trial on the pending charges does not satisfy the notification

requirements of R.C. 2941.401, which requires a warden or prison superintendent to notify a

prisoner ‘in writing of the source and contents of any untried indictment’ and of his right ‘to

make a request for final disposition thereof.’” Id. at syllabus. Thus, a warden’s failure to

promptly notify a defendant in writing of an indictment of which it was aware violates R.C.

2941.401.       Dillon at ¶ 23.   Under such circumstances, the speedy-trial time calculation

commences when the warden is requested to serve the indictment on the defendant. Id.

           {¶12} Here, Mr. Detamore argues that his case is like neither Hairston nor Dillon, as

unlike the defendants in those cases, he had no knowledge of the possible charges against him
                                                5


until shortly before he was released from prison.1 Moreover, he contends that the State knew

where he was. In support of his argument, he points to the fact that the charges at issue in the

instant matter involved dates in January and February 2012, prior to when Mr. Detamore was

sentenced to prison in the prior case for a community control violation. Additionally, Mr.

Detamore notes that, between the time when he was imprisoned under the prior case and the

months surrounding when the indictment in the instant matter was filed, several documents were

filed in the prior case and a notice of costs was sent to Mr. Detamore in prison.2 Thus, Mr.

Detamore asserts that, because the prior case and the instant matter involved the same county,

the State was alerted to Mr. Detamore’s location.

       {¶13} Finally, Mr. Detamore argues that the Ohio Department of Rehabilitation and

Correction did not know about the warrant for Mr. Detamore in Wayne County until a records

search on September 15, 2014, revealed the pending warrant.3         At that point, due to Mr.

Detamore’s impending release from prison, the Ohio Department of Rehabilitation and

Correction maintained that there was not time to file for a speedy trial. According to the Ohio

Department of Rehabilitation and Corrections, prior records searches did not reveal the

outstanding warrant. The Wayne County Sheriff’s Department was notified of Mr. Detamore’s

release date via a letter dated September 22, 2014.




       1
           Mr. Detamore asserts that the indictment in this instant case was a secret indictment.
While no one disputes this, including the trial court, such is not clear from the face of the
indictment.
        2
          We note that Mr. Detamore did not attach any filings from the prior case to his motion
to dismiss. Thus, the only “evidence” from the prior case offered in support of his motion were
allegations and assertions. Nonetheless, the parties appear to have accepted these procedural
facts as true, and so for purposes of this appeal, we will as well.
        3
          Records from the Ohio Department of Corrections are contained in the record.
                                                 6


       {¶14} It is undisputed that Mr. Detamore did not cause written notice to be delivered to

the prosecuting attorney and the appropriate court advising of the place of his imprisonment and

requesting final disposition. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, at ¶ 20. Further,

Mr. Detamore has not argued that the warden or superintendent of the prison where he was held

ever had knowledge of the untried indictment and failed to provide the appropriate notification.

Dillon, 114 Ohio St.3d 154, 2007-Ohio-3617, at ¶ 23. Thus, Mr. Detamore has not demonstrated

that the speedy-trial clock under R.C. 2941.401 was triggered. See R.C. 2941.401; Ondrusek,

2010-Ohio-2811, at ¶ 11.

       {¶15} Mr. Detamore’s allegations that the State knew where he was are unavailing.

First, the State requested that the indictment be served on Mr. Detamore at an address in

Rittman, suggesting that the State did not know that Mr. Detamore was in prison. Second, Mr.

Detamore’s claim that the filings in the prior case (which are not in the record) should have

alerted those involved with this case that Mr. Detamore was in prison are somewhat speculative.

Finally, and most importantly, under the circumstances present here, the language of the statute

itself places no burden on the prosecutor or court. See R.C. 2941.401; see also Hairston at ¶ 20

(“[T]he statute imposes no duty on the state until such time as the incarcerated defendant

provides the statutory notice.”); Ondrusek at ¶ 11 (stating that the “contention that the State bore

the burden to inform [the incarcerated defendant] of the charges against him pursuant to R.C.

2941.401 is without merit.”).

       {¶16} While this Court is not unsympathetic to Mr. Detamore’s apparent predicament,

we are bound to apply the unambiguous language of the statute. See Hairston at ¶ 22. The

legislature could have included in the statute an obligation for the state to make reasonable

efforts to locate an indicted individual within a specific time period in order to trigger speedy
                                                  7


trial rights, but did not do so. Given the unambiguous language of the statue, the speedy-trial

time pursuant to R.C. 2941.401 does not apply to this matter. As noted above, Mr. Detamore

failed to develop an argument below or on appeal that his constitutional right to a speedy trial

was violated. See App.R. 16(A)(7). Thus, we do not address whether any such violation was

present under the facts of this case.

       {¶17} Mr. Detamore’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       IT WAS PLAIN ERROR TO DENY [MR.] DETAMORE’S MOTION TO
       DISMISS BECAUSE [R.C.] 2941.401 IS UNCONSTITUTIONAL AS APPLIED
       TO HIM UNDER THE PARTICULAR FACTS OF THIS CASE.

       {¶18} Mr. Detamore argues in his second assignment of error that it was plain error for

the trial court to deny his motion to dismiss because R.C. 2941.401 is unconstitutional as applied

to him.    Additionally, it appears that Mr. Detamore may be asserting that the trial court

committed plain error in denying his motion to dismiss because his constitutional right to a

speedy trial was violated. However, with respect to this latter argument, Mr. Detamore has not

developed an argument applying the constitutional standard and we decline to develop an

argument on his behalf. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No.

18349, 1998 WL 224934, *8 (May 6, 1998). Additionally, such an argument is outside the scope

of his stated assignment of error. State v. Bennett, 9th Dist. Lorain No. 14CA010579, 2015-

Ohio-2887, ¶ 13.

       {¶19} Mr. Detamore acknowledges that he failed to raise this issue of the

constitutionality of the statute in the trial court and thus has not preserved it for review. See In re

M.D., 38 Ohio St.3d 149, 150 (1988). “The failure to challenge the constitutionality of a statute

in the trial court forfeits all but plain error on appeal, and the burden of demonstrating plain error
                                                 8


is on the party asserting it.” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 2.

“[W]e require a showing that but for a plain or obvious error, the outcome of the proceeding

would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of

justice.” Id. at ¶ 16.

        {¶20} While Mr. Detamore spends a great deal of time in his brief arguing that he was

prejudiced, he fails to fully explain or analyze the legal basis of his assertion that the statute is

unconstitutional as applied to him. It is difficult to even fully discern which constitutional rights

he believes the statute violated. He mentions both equal protection and due process but does not

articulate how the statute as applied to him violated those rights. See Cardone at *8; App.R.

16(A)(7). Moreover, many of the facts that he asserts demonstrate prejudice are taken from the

sentencing hearing, a hearing that took place after the trial court denied his motion to dismiss.

Thus, the trial court would not have that information before it in ruling on the motion.

        {¶21} Overall, in light of Mr. Detamore’s failure to develop an argument explaining

how the statute as applied to him violated any specific constitutional right, we cannot say that he

has met his burden to demonstrate that the trial court made an obvious error in failing to sua

sponte conclude that R.C. 2941.401 was unconstitutional and grant his motion to dismiss.

        {¶22} Mr. Detamore’s second assignment of error is overruled.

                                                III.

        {¶23} The judgment of the Wayne County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

CLARKE W. OWENS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER and NATHAN R.
SHAKER, Assistant Prosecuting Attorneys, for Appellee.
