[Cite as State v. Sherrer, 2016-Ohio-3198.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2015-CA-40
                                                    :
 v.                                                 :   Trial Court Case No. 2014-CR-565
                                                    :
 NICOLE L. SHERRER                                  :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                              Rendered on the 27th day of May, 2016.

                                               ...........

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Greene County Prosecuting
Attorney, 55 Greene Street, Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

BRADLEY R. HOYT, Atty. Reg. No. 0014600, 7577 Central Park Boulevard, Suite 216,
Mason, Ohio 45040
     Attorney for Defendant-Appellant

                                              .............



WELBAUM, J.

        {¶ 1} Defendant-appellant, Nicole L. Sherrer, appeals from her conviction and
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sentence in the Greene County Court of Common Pleas after she pled guilty to three

counts of trafficking heroin. Sherrer contends her constitutional rights to a speedy trial

and due process were violated by prosecutorial delay. She also contends the trial court

erred in failing to impose the prison sentence agreed to by the parties as part of her plea

agreement, and by improperly applying R.C. 2929.12 at sentencing. For the reasons

outlined below, the judgment of the trial court will be affirmed.

                           Facts and Course of Proceedings

       {¶ 2} Following an ongoing investigation by the A.C.E. Task Force, on October 13,

2014, the Greene County Grand Jury returned a nine-count indictment charging Sherrer

with three counts of trafficking heroin, four counts of possessing heroin, one count of

trafficking cocaine, one count of money laundering, and three forfeiture specifications.

The charges stemmed from allegations that Sherrer engaged in multiple controlled drug

transactions with a confidential informant on October 22 and 28, 2013, November 26,

2013, and from the execution of a search warrant at Sherrer’s residence on December

10, 2013.

       {¶ 3} Sherrer initially pled not guilty to the charges and subsequently filed various

pretrial motions, including a January 12, 2015 motion to dismiss for lack of speedy trial

and several amendments to that motion. As part of that motion, Sherrer claimed her

constitutional rights to a speedy trial and due process were violated by the State’s pre

and post-indictment delay in prosecuting her case.

       {¶ 4} On February 18, 2015, the trial court held a hearing on Sherrer’s motion to

dismiss. However, before a decision was rendered, on April 23, 2015, Sherrer pled guilty

to two first-degree-felony counts of trafficking heroin and one third-degree-felony count of
                                                                                           -3-


trafficking heroin, all in violation of R.C. 2925.03(A)(1). Sherrer also admitted to the three

forfeiture specifications.   In exchange for her plea, the State agreed to dismiss the

remainder of the charges and to recommend a prison sentence of eight years. As part

of the plea agreement, Sherrer also agreed to pay $500 for the laboratory analysis of the

evidence and $2,300 in restitution to the A.C.E. Task Force.

       {¶ 5} On June 18, 2015, the trial court sentenced Sherrer to an aggregate prison

sentence of ten years as opposed to the recommended eight years. Sherrer was also

ordered to pay a mandatory $10,000 fine, $500 for the laboratory analysis, and $2,300 in

restitution to the A.C.E. Task Force.      Sherrer now appeals from her conviction and

sentence, raising two assignments of error for review.

                                First Assignment of Error

       {¶ 6} Sherrer’s First Assignment of Error is as follows:

       THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT’S MOTION

       TO DISMISS FOR LACK OF SPEEDY TRIAL.

       {¶ 7} Under her First Assignment of Error, Sherrer claims her constitutional rights

to a speedy trial and due process were violated. With respect to her speedy-trial claim,

Sherrer alleges that between October 2013 and December 2013, several complaints were

filed against her in the Fairborn Municipal Court for the offenses at issue and that her

speedy-trial time should have begun to run from that period, not from the date of her

October 13, 2014 indictment in the common pleas court. Accordingly, Sherrer alleges

that there was a post-accusation delay of over a year, which she contends is

presumptively prejudicial. As for her due process claim, Sherrer contends she suffered

substantial prejudice as a result of the State’s delay in commencing the prosecution of
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her offenses, because it prevented her from identifying and accessing a witness. We

disagree with both of Sherrer’s claims.

                                        Speedy Trial

       {¶ 8} “The right to a speedy trial is a fundamental right guaranteed by the Sixth

Amendment to the United States Constitution, made obligatory on the states by the

Fourteenth Amendment. Section 10, Article I of the Ohio Constitution guarantees an

accused this same right.” (Citation omitted.) State v. Hughes, 86 Ohio St.3d 424, 425,

715 N.E.2d 540 (1999). Ohio’s statutory speedy trial provisions, R.C. 2945.71 et seq.,

constitute a rational effort to enforce the constitutional right to a speedy trial. State v.

Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980); State v. Parker, 113 Ohio St.3d 207,

2007-Ohio-1534, 863 N.E.2d 1032, ¶ 13.

       {¶ 9} It is well-settled that “a guilty plea waives a defendant’s ability to assert a

statutory speedy-trial violation on appeal[.]” (Emphasis sic.) State v. Johnson, 2d Dist.

Greene No. 2013-CA-1, 2013-Ohio-4077, ¶ 4. However, “Ohio courts have reached

different conclusions as to whether the same rule applies to alleged constitutional speedy-

trial violations.” (Emphasis sic.) Id. As we explained in Johnson:

              The Eighth District Court of Appeals has held that a guilty plea does

       not waive a defendant’s ability to raise a constitutional speedy-trial violation

       on appeal. State v. Kutkut, 8th Dist. Cuyahoga No. 98479, 2013-Ohio-

       1442, ¶ 9; State v. King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d

       399, ¶ 10 (8th Dist.). The First District Court of Appeals has reached a

       contrary conclusion. State v. West, 134 Ohio App.3d 45, 52, 730 N.E.2d

       388 (1st Dist.1999).
                                                                                          -5-

              This court has reached both conclusions. State v. Hawkins, 2d Dist.

      Greene No. 98CA6, 1999 WL 197932, *4 (April 9, 1999) (“Because a plea

      of guilty waives the defendant’s right to trial, it necessarily also waives any

      claim that the defendant was denied his statutory and constitutional rights

      to a speedy trial.”), citing Clark v. Maxwell, 177 Ohio St. 49, 50, 201 N.E.2d

      882 (1964); State v. Ellis, 2d Dist. Montgomery No. 18092, 2001 WL 28665,

       *1 (Jan. 12, 2001) (“The State points out, correctly, that Ellis’ guilty plea

       waived his right to challenge his conviction for a violation of the speedy trial

       requirements imposed by R.C. 2945.71(B)(2). [* * * The error which Ellis

       assigns concerns his Constitutional speedy trial rights, however, which are

       not likewise waived.]”). State v. Cordell, 2d Dist. Greene No.2009 CA 57,

      2010-Ohio-5277, ¶ 8 (“The second ‘potential assignment of error’ is

      ‘whether appellant was denied speedy trial rights.’ * * * [T]here is nothing in

      the record reflecting any possible constitutional speedy trial violation for pre-

      indictment delay. Furthermore, the plea of guilty effectively waived any

      such challenge.”).

(Footnote omitted.) Johnson at ¶ 4-5.

      {¶ 10} In this case, Sherrer entered a guilty plea and arguably waived her

constitutional right to a speedy trial. See State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48, ¶ 117 (holding a defendant who voluntarily, knowingly, and

intelligently enters a guilty plea with the assistance of counsel may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior

to the entry of the guilty plea); Hawkins at *1; Cordell at ¶ 8. However, even under the
                                                                                            -6-


contrary view, Sherrer’s claim still must fail because she otherwise waived her

constitutional right to a speedy trial by signing and filing a time waiver with the trial court

on October 24, 2014.

       {¶ 11} “It is well-settled law that an accused may waive his constitutional right to a

speedy trial provided that such a waiver is knowingly and voluntarily made.” State v.

King, 70 Ohio St.3d 158, 160, 673 N.E.2d 903 (1994), citing Barker v. Wingo, 407 U.S.

514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Supreme Court of Ohio has held

that the statutory speedy trial provisions set forth in R.C. 2945.71 are “coextensive with

constitutional speedy trial provisions,” and thus “an accused’s express written waiver of

his statutory rights to a speedy trial, made knowingly and voluntarily, also constitutes a

waiver of his speedy trial rights guaranteed by the United States and Ohio Constitutions.”

Id., citing State v. O'Brien, 34 Ohio St.3d 7, 516 N.E.2d 218 (1987), paragraph one of the

syllabus. “[T]o be effective, an accused’s waiver of his or her constitutional and statutory

right to a speedy trial must be expressed in writing or made in open court on the record.”

Id. at 161.

       {¶ 12} Here, the time waiver signed and filed by Sherrer provided the following:

              Now comes the Defendant, NICOLE L. SHERRER, and waives any

       and all rights that she has under Sections 2945.02 and 2945.71 et seq. of

       the Ohio Revised Code and the Ohio Rules of Criminal Procedure and the

       Ohio Rules of Superintendence as to the time for trial in the above-

       captioned matter. Defendant and her counsel acknowledge and consent

       to the time waiver by their signature below.

Time Waiver (Oct. 24, 2014), Greene County Common Pleas Court Case No. 2014 CR
                                                                                            -7-


565, Docket No. 22.

       {¶ 13} The record also indicates that Sherrer waived her statutory speedy-trial

rights during her arraignment. See Arraignment Judgment Entry (Oct. 24, 2014), Greene

County Common Pleas Court Case No. 2014 CR 565, Docket No. 23.

       {¶ 14} We find the record devoid of any evidence indicating that Sherrer’s waiver

of her statutory right to a speedy trial was not knowing and voluntary. This is particularly

true here considering Sherrer did not raise any such argument before the trial court or in

this appeal. Therefore, because the statutory right to a speedy trial is coextensive with

the constitutional right to a speedy trial, Sherrer effectively waived her constitutional right

to a speedy trial when she signed and filed a written time waiver. Accordingly, Sherrer’s

constitutional speedy-trial claim is without merit.

                                        Due Process

       {¶ 15} Sherrer’s due process claim concerning the delay between the commission

of her offenses and her indictment also lacks merit. We note that pre-indictment delay

does not raise a speedy-trial issue because the right to a speedy trial attaches only after

criminal charges are instituted. Miamisburg v. Rinderle, 2d Dist. Montgomery No. 26094,

2015-Ohio-351, ¶ 13, citing State v. Ellis, 2d Dist. Montgomery No. 15963, 1997 WL

282313, *3 (May 30, 1997). However, “ ‘[a]n unjustifiable delay between the commission

of an offense and a defendant’s indictment therefor, which results in actual prejudice to

the defendant, is a violation of the right to due process of law under Section 16, Article I

of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States

Constitution.’ ” Ellis at *3, quoting State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097

(1984), at paragraph two of the syllabus.
                                                                                           -8-


       {¶ 16} “This court has recognized that pre-indictment delay not exceeding the

applicable statute of limitations is ‘not prejudicial in the absence of specific evidence to

the contrary.’ ” Rinderle at ¶ 14, quoting State v. Powell, 2d Dist. Montgomery No.

16013, 1997 WL 231196, *2 (May 9, 1997). “[I]n order to support a dismissal on the

basis of delay in indictment, a defendant must present evidence demonstrating an actual

and substantial prejudice.” State v. Carter, 2d Dist. Clark No. 2010-CA-25, 2011-Ohio-

751, ¶ 15. “Then after defendant has established actual prejudice, the State bears the

burden to produce evidence demonstrating a justifiable reason for the delay which

outweighs the prejudice defendant has suffered.” (Citation omitted.) State v. Conley,

2d Dist. Clark No. 01-CA-0013, 2001 WL 958834, *2 (Aug. 24, 2001).

       {¶ 17} “[T]he possibility that memories will fade, witnesses will become

inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.” State

v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 105, citing United

States v. Marion, 404 U.S. 307, 325-326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “The

burden upon a defendant seeking to prove that pre[-]indictment delay violated due

process is ‘ “nearly insurmountable,” ’ especially because proof of prejudice is always

speculative.” Id. at ¶ 100, quoting United States v. Montgomery, 491 Fed.Appx. 683,

691 (6th Cir.2012), quoting United States v. Rogers, 118 F.3d 466, 477 (6th Cir.1997), fn.

10.

       {¶ 18} In this case, Sherrer claims she was prejudiced by the State’s year-long

delay in indicting her because it resulted in her being unable to identify and access a

witness named “Wayne,” who allegedly introduced Sherrer to the confidential informant.

At the hearing on Sherrer’s motion to dismiss, the trial court indicated that it appeared as
                                                                                        -9-


though “Wayne” had no significance to the charges brought by the State, but felt more

information was needed to make the prejudice determination. Therefore, as a cautionary

measure, the trial court asked the State to contact and question the confidential informant

regarding “Wayne’s” alleged involvement, and to immediately report the confidential

informant’s response to the court and Sherrer.

       {¶ 19} In following the court’s order, the State reported in an amended response

to the motion to dismiss that the confidential informant advised that it was possible that

“Wayne” had introduced him to Sherrer, but that he did not know the identity of “Wayne”

and that “Wayne” was not present during the drug transactions that led to the charges

against Sherrer. The investigating detective’s report contained within the presentence

investigation (“PSI”) also provided that Sherrer was alone when she engaged in each of

the drug transactions with the confidential informant.

       {¶ 20} Based on the record, we find that Sherrer has not demonstrated actual and

substantial prejudice resulting from prosecutorial delay, as “Wayne” appeared to have no

involvement in the drug transactions at issue, and it is otherwise speculative as to how

his absence prejudiced Sherrer’s case. Moreover, we find the State’s reason for delay

was justified, as the record indicates the delay resulted from an ongoing investigation of

continuing criminal activity, pending lab analysis results, and measures taken to ensure

the safety of the confidential informant. Accordingly, Sherrer’s due process claim is

likewise without merit.

       {¶ 21} Sherrer’s First Assignment of Error is overruled.

                             Second Assignment of Error

       {¶ 22} Sherrer’s Second Assignment of Error is as follows:
                                                                                            -10-


       THE TRIAL COURT ERRED BY NOT ACCEPTING THE STATE’S

       AGREED PLEA [AND] BY NOT PROPERLY APPLYING ORC 2929.12 IN

       SENTENCING.

       {¶ 23} Under her Second Assignment of Error, Sherrer claims the trial court erred

in failing to impose an eight-year prison sentence that was agreed to by the parties as

part of the plea agreement. However, a review of the record reveals that there was no

jointly agreed-upon sentence presented to the trial court; rather, the State merely

recommended an eight-year prison sentence in exchange for Sherrer’s guilty plea.

       {¶ 24} It is well-established that “ ‘[a] trial court does not err by imposing a sentence

greater than “that forming the inducement for the defendant to plead guilty when the trial

court forewarns the defendant of the applicable penalties, including the possibility of

imposing a greater sentence than that recommended by the prosecutor.” ’ ” State ex rel.

Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting State

v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.),

quoting State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014, 2002 WL 652371, *3

(Apr. 22, 2002).

       {¶ 25} Here, the trial court informed Sherrer at the plea hearing that the charges

she was pleading guilty to carried a maximum prison term of 25 years and a minimum

prison term of three years, and that the State recommended she receive eight years as

part of the plea agreement.       The court then advised Sherrer that before making a

sentencing decision, it was going to have a PSI prepared so that the court could learn

more about her. The court also advised Sherrer that it was not making any promises

with respect to the final disposition. Based on the foregoing, we find that the trial court
                                                                                        -11-


did not err in sentencing Sherrer to more than the recommended eight years, as the

record indicates that Sherrer was sufficiently forewarned of that possibility and of the

applicable penalties.

      {¶ 26} Sherrer also contends the trial court erred in applying the recidivism factors

under R.C. 2929.12, as she claims the court considered a false statement during its

analysis. Specifically, Sherrer takes issue with the trial court questioning her alleged

unawareness of her fiancé’s drug trafficking business and the level of her involvement in

the business based on a report that she picked up a vehicle containing $50,000 and

delivered it to an unnamed individual at her fiancé’s request.        Sherrer claims this

information is inaccurate and that it was improper for the court to consider it when

sentencing her.

      {¶ 27} In State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, this court

recognized that:

      [A] trial court may rely on “a broad range of information” at sentencing.

      State v. Bowser, 186 Ohio App.3d 162, 926 N.E.2d 714, 2010-Ohio-951,

      ¶ 13. “The evidence the court may consider is not confined to the evidence

      that strictly relates to the conviction offense because the court is no longer

      concerned * * * with the narrow issue of guilt.” Id. at ¶ 14 * * *. Among

      other things, a court may consider hearsay evidence, prior arrests, facts

      supporting a charge that resulted in an acquittal, and facts related to a

      charge that was dismissed under a plea agreement. Id. at ¶ 15-16 * * *.

      “[B]ased on how the court perceives true facts in a case, it may believe that

      the offender committed a crime other than, or in addition to, the one to which
                                                                                         -12-

       he pleaded.” Id. at ¶ 20 * * *. Notably, a court may consider “allegations

       of uncharged criminal conduct found in a PSI report[.]” Id. at ¶ 15 * * *.

Bodkins at ¶ 43.

       {¶ 28} After a thorough review of the record, we find that the trial court did not

make any improper considerations when sentencing Sherrer. The information Sherrer

complains of was part of the investigating detective’s report that was contained in the PSI.

The court was free to consider that information when sentencing her.

       {¶ 29} Sherrer’s Second Assignment of Error is overruled.

                                       Conclusion

       {¶ 30} Having overruled both assignments of error raised by Sherrer, the judgment

of the trial court is affirmed.

                                     .............



FAIN, J. and FROELICH, J., concur.




Copies mailed to:

Elizabeth A. Ellis
Bradley R. Hoyt
Hon. Stephen Wolaver
