[Cite as State v. Harvey, 2018-Ohio-2777.]



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

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                        NORMAN HARVEY,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 MA 0023


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 16 CR 938

                                          BEFORE:
                   Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.

Atty. Paul J. Gains, Mahoning County Prosecutor and
Atty. Ralph M. Rivera, Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Atty. Katherine E. Rudzik, 26 Market Street, Suite 904, Youngstown, Ohio 44503, for
Defendant-Appellant.

                                         Dated: June 29, 2018


WAITE, J.
                                                                                       –2–


       {¶1}   Appellant Norman Harvey appeals the denial of his motion to dismiss

based on an alleged statutory speedy trial violation by the Mahoning County Court of

Common Pleas. Appellant was indicted on one count of burglary in violation of R.C.

2911.12(A), (D), a felony of the second degree, with a repeat offender specification

pursuant to R.C. 2941.149. He ultimately entered a no contest plea and was convicted

on the amended charge of burglary in violation of R.C. 2911.12(A)(3), (D), a felony of

the third degree. The trial court imposed an agreed term of two years of imprisonment.

This timely appeal followed.

       {¶2}   Appellant contends that the trial court erred in concluding that the state did

not engage in unreasonable delay during the extradition process. For the following

reasons, the judgment of the trial court is affirmed.

                                            Law

       {¶3}   The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution guarantee a criminal defendant the right to a speedy

trial. This guarantee is implemented in R.C. 2945.71, which provides the specific time

limits within which a person must be brought to trial. State v. Blackburn, 118 Ohio St.3d

163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 10.

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

of his or her arrest. R.C. 2945.71(C)(2). However, “each day during which the accused

is held in jail in lieu of bail on the pending charge shall be counted as three days.” R.C.

2945.71(E). This is referred to as the triple count provision. State v. Wright, 7th Dist.

No. 15 MA 0092, 2017-Ohio-1211, ¶ 29, appeal not allowed, 150 Ohio St.3d 1433,

2017-Ohio-7567, 81 N.E.3d 1272, ¶ 29.




Case No. 17 MA 0023
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       {¶5}   The trial time tolling provisions are set forth in R.C. 2945.72. Relevant to

this appeal, speedy trial is tolled for any time “during which the accused is unavailable

for hearing or trial * * * 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.”         R.C. 2945.72(A).       Where the

prosecution did not unreasonably delay extradition, arrest in another state on an Ohio

warrant and confinement awaiting extradition does not count toward the speedy trial

clock and the time is tolled until the defendant arrives in Ohio. State v. Helms, 7th Dist.

No. 14 MA 96, 2015-Ohio-1708, ¶ 24.

       {¶6}   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

relevant statutes, the defendant has made a prima facie case for discharge under R.C.

2945.73(B). State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). The

state then bears the burden of proving that actions or events chargeable to the accused

pursuant to R.C. 2945.72 sufficiently extended the time it had in which to bring the

defendant to trial. Id.

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

statutory speedy trial grounds involves a mixed question of law and fact. Deference is

given to the trial court's findings of fact, but an appellate court independently reviews

whether the trial court properly applied the law to the facts of the case. When reviewing

the legal issues in a statutory speedy trial case, the statutes are strictly construed

against the state. State v. Fant, 2016-Ohio-7429, 76 N.E.3d 518, ¶ 35 (7th Dist.).

                                            Facts




Case No. 17 MA 0023
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       {¶8}   Three witnesses testified at the hearing on the motion to dismiss on

November 9, 2016: David Sedon, an officer with the Pennsylvania Board of Parole and

Probation; Glen Riddle, a Detective/Sergeant with the Boardman Police Department

(“BPD”); and Appellant. The following facts are taken from the testimony and exhibits

offered at the hearing, as well as exhibits attached to the motion to dismiss.

       {¶9}   Appellant broke into and robbed Cirelli Jewelers in Boardman, Ohio on

August 18, 2015. He was shot in the hand as he fled by the owner, who lived in a

residential space attached to the store. Appellant dropped all of the jewelry he had

stolen in the parking lot of the jewelry store while making his escape. Appellant sought

medical treatment for his gunshot wound at Beaver Medical Center in Beaver,

Pennsylvania the following day.

       {¶10} Appellant was arrested on August 25, 2015 in Pennsylvania pursuant to a

warrant issued by the Pennsylvania Board of Probation and Parole (“PBPP”), for a

parole/probation violation. This violation was based on two detainers issued by the

Mahoning County Court.       (11/9/16 Hrg. Tr., pp. 20-21, State’s Exh. E.)      Appellant

concedes that Pennsylvania had independent grounds to detain him from August 25,

2015 to May 31, 2016.

       {¶11} On June 17, 2016, an extradition case was opened by the Centre County

Prosecutor’s Office in Pennsylvania. On June 21, 2016, the Centre County Prosecutor

filed a criminal complaint charging Appellant with being a fugitive from justice, also

known as an arrest prior to requisition, and sought Appellant’s transfer from a Benner

Township, Pennsylvania facility to the Centre County Jail.




Case No. 17 MA 0023
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       {¶12} A motion to quash, which was ultimately denied, was filed on behalf of

Appellant on June 21, 2016. On June 22, 2016, Appellant posted bond on the arrest

prior to requisition and was released from jail. (11/9/16 Hrg. Tr., p. 103.) Appellant

testified that an extradition hearing was held on June 29, 2016, but that the matter was

continued because no application for requisition appeared to have been filed by

Mahoning County. (11/9/16 Hrg. Tr., p. 101.)

       {¶13} The application for requisition from Mahoning County, or Governor’s

warrant, was dated June 28, 2016. Appellant was re-arrested on July 21, 2016 and

detained in the Centre County Jail. The extradition hearing resumed on July 26, 2016,

and the extradition order was filed on July 27, 2016. Appellant filed a writ of habeas

corpus on August 4, 2016 challenging the extradition order, which was denied on

August 5, 2016. Appellant was taken to the Mahoning County Justice Center on August

15, 2016.

       {¶14} In order to establish that the state exercised reasonable diligence in its

efforts to extradite Appellant, Riddle testified that the Boardman warrant was entered

into the National Crime Information Center (“NCIC”), a national database for law

enforcement. This meant the warrant was accessible to law enforcement agencies in

Pennsylvania. He testified that he communicated to law enforcement in Pennsylvania

that he wanted to remove Appellant to Ohio “as soon as possible.” (11/9/16 Hrg. Tr., p.

66.)   According to Riddle, either he or someone at his direction contacted law

enforcement in Pennsylvania at least once a week to determine Appellant’s status and a

release or pickup date. (11/9/16 Hrg. Tr., p. 67.)




Case No. 17 MA 0023
                                                                                       –6–


       {¶15} Several documents were offered into evidence to establish BPD’s ongoing

efforts to retrieve Appellant from Pennsylvania at the earliest availability: Inmate locator

results from the internet confirming Appellant’s location in Benner Township on January

19, 2016 (State’s Exh. P); a facsimile cover sheet dated January 20, 2016 requesting

Appellant’s continued detention based upon BPD’s charges of felony one aggravated

burglary and misdemeanor theft (State’s Exh. N); a NCIC printout dated January 22,

2016 wherein BPD confirms the outstanding warrant and requests notification when

Appellant is “ready for pickup” (State’s Exh. O); an application for requisition dated June

28, 2016 submitted to the Governor of Pennsylvania seeking Appellant’s extradition to

Boardman, Ohio by Nicholas E. Modarelli, Chief Assistant Prosecutor for Mahoning

County, on August 15, 2016 (the amended complaint for aggravated burglary dated

August 18, 2015 is attached) (State’s Exh. S); a NCIC printout dated July 21, 2016

wherein the Beaver County Sheriff’s Office seeks information regarding the status of the

Boardman warrant and information regarding extradition (State’s Exh. Q); and a NCIC

printout dated July 21, 2016 wherein BPD confirms that the warrant is outstanding and

BPD intends to extradite (State’s Exh. R).

       {¶16} Riddle testified that the first notice he received regarding Appellant’s

availability for extradition was by electronic mail sent by Jessica Lathrop, an assistant

district attorney for Centre County, to Modarelli on August 15, 2016. This reads, in

pertinent part, “[a]fter a very drawn-out process our President Judge has finally denied

[Appellant’s] Petition for Writ of Habeas Corpus and he should be ready for extradition.”

(Emphasis in original.) (State’s Exh. I.) A second email in the chain, dated August 15,

2016 from Lisa Beam in the Mahoning County Sheriff’s Office to Riddle instructs him to




Case No. 17 MA 0023
                                                                                     –7–


collect Appellant and deliver him to the Mahoning County Justice Center. Riddle and

his partner drove to Centre County that same day and removed Appellant to the

Mahoning County Justice Center.

      {¶17} The trial court relied on the evidence offered at the hearing on the motion

to dismiss to conclude that the state exercised reasonable diligence in its efforts to

extradite Appellant to Ohio. Hence, the trial court held that the speedy trial clock began

to run on August 16, 2016, the day after Appellant was detained in the Mahoning

County Justice Center. (11/28/16 J.E., pp. 1-2.)

                                        Analysis

                           ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT VIOLATED MR. HARVEY'S RIGHT TO A SPEEDY

      TRIAL IN VIOATION [SIC] OF HIS RIGHTS UNDER THE 6TH AND 14TH

      AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1,

      SECTION 10 OF THE OHIO CONSTITUTION.

                           ASSIGNMENT OF ERROR NO. 2

      THE TRIAL COURT COMMITTED REVERSERABLE [SIC] ERROR BY

      DENYING MR. HARVEY'S MOTION TO DISMISS THEREBY VIOLATING

      HIS STATURTORY [SIC] RIGHT TO A SPEED TRIAL UNDER ORC

      2945.71 AND 2941.401.

      {¶18} Appellant was transferred to the Mahoning County Justice Center on

August 15, 2016, and was indicted on that same day. While he was represented by

counsel, he filed pro se motions on September 14, 2016 seeking a writ of habeas




Case No. 17 MA 0023
                                                                                    –8–


corpus and to suppress evidence, which he voluntarily withdrew on September 22,

2016. Appellant filed the motion to dismiss at issue in this appeal on October 3, 2016.

       {¶19} Appellant argues that the following calculation demonstrates a statutory

speedy trial violation in this case:

May 31, 2016 – issuance of PBPP order rescinding detention order
to
June 17, 2016 – filing of the extradition proceeding
                                                 17 days x3      51 days

July 21, 2016 – re-arrest for extradition hearing
to
August 15, 2016 – extradition to Ohio
                                                 25 days x3         75 days

August 15, 2016 – transfer to Mahoning County jail
to
October 3, 2016 – motion to dismiss filed
                                             49 days x3             147 days

October 3, 2016 – motion to dismiss filed
to
October 13, 2016 – additional motions filed by Appellant
                                                11 days x3          33 days

October 13, 2016 – additional motions filed by Appellant
to
October 17, 2016 – the only thing filed on October 17, 2016 was return of subpoenas
                                                4 days x3          12 days

                             Total                                  315 days

       {¶20} We note that the time between May 31, 2016 and June 17, 2016 is

attributable to Pennsylvania, not Ohio.       Pennsylvania was responsible for the

commencement of the extradition proceedings, which occurred just over two weeks

after Appellant was released from PBPP custody. However, even if the speedy clock

was not tolled for this time period, Appellant still cannot demonstrate a speedy trial

violation.



Case No. 17 MA 0023
                                                                                         –9–


      {¶21} Simply stated, but for the failure to file the Governor’s warrant for the

purpose of the June 26, 2016 hearing, a defect that was remedied within a few days,

there is no evidence of record that the state engaged in any delay in extraditing

Appellant to Ohio. Accordingly, assuming that the speedy trial clock began running on

June 1, 2016 (the day after Appellant was released from PBPP custody), it was

suspended on June 17, 2016 and did not resume until August 16, 2016 because of the

ongoing extradition proceedings. R.C. 2945.72(A).

      {¶22} In his speedy trial calculation, Appellant’s next mistake lies in his failure to

stop the clock for his pro se motions filed on September 14, 2016 and withdrawn on

September 22, 2016. Although short-lived, any motion by the accused tolls the running

of the clock.   Tolling of the time within which an accused must be brought to trial

includes any period of delay necessitated by reason of motion, proceeding, or action

made or instituted by the accused. R.C. 2945.72(E).

      {¶23} Appellant’s third mistake is based on his assumption that filing of his

motion to dismiss based on alleged speedy trial violations does not toll the running of

the clock.   His motion was filed on October 3, 2016 and was not resolved until

November 29, 2016. In the meantime, on November 11, 2016, Appellant filed a motion

to continue his trial, and the trial was first continued to January 17, 2017, and then to

January 30, 2017. Prior to this time, a motion to suppress was filed on December 13,

2016, and the trial date was converted to a hearing on the motion to suppress. Before

this date arrived, on January 27, 2017 Appellant entered his guilty plea.

      {¶24} Therefore, this record reveals that the correct calculation is as follows:

May 31, 2016 – June 17, 2016                    17 days x3            51 days




Case No. 17 MA 0023
                                                                                  – 10 –


(issuance of PBPP order rescinding detention order to filing of the extradition
proceeding)

August 15, 2016 – September 14, 2016           30 days x3            90 days
(transfer to Mahoning County Justice Center to filing of pro se motions)

September 22, 2016 – October 3, 2016              11 days x3           33 days
(withdrawal of pro se motions to filing of motion to dismiss)

                            Total                                      174 days

       {¶25} Based on the foregoing calculation, no statutory speedy trial violation

occurred in this case. Assuming arguendo that the clock began to run on May 31, 2016

as asserted by Appellant, this record reflects that with time tolled pursuant to R.C.

2945.72, fewer than 270 days expired between May 31, 2016 and October 3, 2016, the

day the motion to dismiss was filed. Therefore, Appellant’s assignments of error are

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


Donofrio, J., concurs.

Robb, P.J., concurs.




Case No. 17 MA 0023
[Cite as State v. Harvey, 2018-Ohio-2777.]




        For the reasons stated in the Opinion rendered herein, the assignments of error

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

Court of Common Pleas of Mahoning 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.
