[Cite as State v. Tingler, 2016-Ohio-3376.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                     Court of Appeals No. OT-15-015

        Appellee                                  Trial Court No. 14CR044

v.

Charles Tingler                                   DECISION AND JUDGMENT

        Appellant                                 Decided: June 10, 2016

                                              *****

        Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

        James J. Popil, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Charles Tingler, appeals the May 13, 2015 judgment of the

Ottawa County Court of Common Pleas. For the reasons that follow, we affirm, in part,

reverse, in part, and remand for proceedings consistent with this decision.
       {¶ 2} Appellant sets forth four assignments of error:

              I. The trial court committed reversible error when it failed to credit

       appellant with the total number of days of jail time served[.]

              II. The trial court committed reversible error when it ordered

       appellant to pay restitution without a hearing pursuant to R.C. §

       2928.18(A)(1)[.]

              III. The trial court committed reversible error when it denied

       appellant’s motion to dismiss indictment as the state violated appellant’s

       constitutional right to a speedy trial[.]

              IV. Appellant was denied the effective assistance of counsel[.]

       {¶ 3} On April 21 and 25, 2014, several telephone calls were placed making either

a gun threat or bomb threats to schools. As a result of these calls, the Ottawa County

Grand Jury issued a nine-count indictment against appellant on May 14, 2014. Counts 1,

3 and 7 charged appellant with inducing panic, in violation of R.C. 2917.31(A)(1),

felonies of the second degree. Counts 2, 4 and 8 charged appellant with disrupting public

services, in violation of R.C. 2909.04(A)(3), felonies of the second degree. Counts 5 and

6 charged appellant with making false alarms, in violation of R.C. 2917.32(A)(1), first

degree misdemeanors. Count 9 charged appellant with aggravated menacing, in violation

of R.C. 2903.21(A), a first degree misdemeanor. Appellant was arrested, arraigned and

pled not guilty.




2.
       {¶ 4} On July 8, 2014, the state filed a motion to amend Counts 5 and 6 of the

indictment summary to read “‘Disrupting Public Services O.R.C. 2917.32(A)(1)’ instead

of ‘Disrupting Public Services O.R.C. 2909.04(A)(1).’” The amendments were allowed.

       {¶ 5} On November 12, 2014, appellant filed a motion to dismiss and/or quash the

indictment arguing the indictment set forth two separate crimes in Counts 5 and 6,

disrupting public services, in violation of R.C. 2909.04(A)(1) and making false alarms, in

violation of R.C. 2917.32(A)(1). In addition, appellant asserted the indictment alleged

Counts 2, 4 and 8 were felonies of the second degree, when these crimes were felonies of

the fourth degree.

       {¶ 6} On November 13, 2014, the state filed a motion to amend the indictment

summary requesting the summary reflect that Counts 2, 4 and 8 of the indictment were

felonies of the fourth degree and Counts 5 and 6 were violations of R.C. 2917.32(A)(1),

making false alarms. The trial court granted the motion to amend.

       {¶ 7} On February 11, 2015, the trial court granted appellant’s motion to dismiss

as to Counts 5 and 6 of the indictment, but denied the motion as to Counts 2, 4 and 8.

The trial court found amended Counts 5 and 6 changed the name of the crime, but

amended Counts 2, 4 and 8 decreased the penalty and did not change the name and

identity of the charge. On March 16, 2015, the state filed a motion to dismiss Counts 3

and 4 of the indictment; these counts were dismissed.

       {¶ 8} A jury trial commenced on March 17, 2015, as to Counts 1, 2, 7, 8 and 9 of

the indictment. On March 18, 2015, the jury found appellant not guilty of Count 2 of the




3.
indictment and guilty of Counts 1, 7, 8 and 9. The trial court held a sentencing hearing

on May 13, 2015, and filed its sentencing judgment entry on that same day. The court

sentenced appellant to a total of four years in prison. Appellant timely appealed.

                                    First Assignment of Error

       {¶ 9} In his first assignment of error, appellant contends the trial court failed to

include his jail-time credit in the May 13, 2015 judgment entry of sentence.

       {¶ 10} The state concedes appellant is entitled to credit for time served during his

pretrial incarceration, but argues the remedy is with the adult parole authority; a remand

to the trial court is not needed.

       {¶ 11} Pursuant to R.C. 2967.191 “the department of rehabilitation and correction

shall reduce the stated prison term of a prisoner * * * by the total number of days that the

prisoner was confined for any reason arising out of the offense for which the prisoner was

convicted and sentenced * * *.” However, it is the trial court’s responsibility to properly

calculate the jail-time credit and include it in the body of the sentencing order; the failure

to do so is plain error. State v. Collier, 184 Ohio App.3d 247, 2009-Ohio-4652, 920

N.E.2d 416, ¶ 18 (10th Dist.). Moreover, “a defendant may only contest a trial court’s

calculation of jail-time credit in an appeal from the judgment entry containing the

allegedly incorrect calculation.” State v. Lomack, 10th Dist. Franklin No. 04AP-648,

2005-Ohio-2716, ¶ 11.




4.
       {¶ 12} Here, we find the trial court erred by failing to specify in the sentencing

judgment entry the number of days of jail-time credit to which appellant was entitled.

Accordingly, appellant’s first assignment of error is well-taken.

                               Second Assignment of Error

       {¶ 13} In his second assignment of error, appellant contends the trial court erred

when it ordered him to pay restitution without holding a hearing, pursuant to R.C.

2928.18(A)(1).

       {¶ 14} R.C. 2929.18(A) provides in relevant part:

              [T]he court imposing a sentence upon an offender for a felony may

       sentence the offender to any financial sanction * * * authorized under this

       section * * *. Financial sanctions that may be imposed pursuant to this

       section include, but are not limited to, the following:

              (1) Restitution by the offender to the victim of the offender’s crime

       * * *, in an amount based on the victim’s economic loss. If the court

       imposes restitution, the court shall order that the restitution be made to the

       victim in open court[.] * * * If the court decides to impose restitution, the

       court shall hold a hearing on restitution if the offender * * * disputes the

       amount. (Emphasis added.)

       {¶ 15} “R.C. 2929.18 permits a trial court to impose financial sanctions on a

defendant, including restitution and reimbursements, subject to the defendant’s




5.
opportunity to dispute the amounts imposed.” State v. Dahms, 6th Dist. Sandusky No.

S-11-028, 2012-Ohio-3181, ¶ 15.

       {¶ 16} Here, a review of the record reveals at the sentencing hearing the court

stated, “[a]s to restitution, is that an agreed amount or is that to be set for a hearing?”

The prosecutor replied, “I don’t know, Your Honor. I haven’t spoken to - - [.]” The

court responded, “- - All right. We will set that for a hearing.” However, no hearing was

held. Then, in the sentencing judgment entry, the court set forth “[p]ursuant to the

agreement of the parties Defendant shall pay restitution in the amount of $1,605.03 * * *

and $945.99.” There is nothing in the record which indicates the parties agreed upon

these amounts of restitution. Since no restitution was ordered at the sentencing hearing

and there is no evidence of an agreement concerning the amounts of restitution, appellant

was denied the opportunity to dispute the amounts imposed. We find the trial court erred

in failing to hold a hearing on restitution. Accordingly, appellant’s second assignment of

error is well-taken.

                                Third Assignment of Error

       {¶ 17} In his third assignment of error, appellant argues the trial court should have

granted his motion to dismiss because his right to a speedy trial was violated. Appellant

contends after he was indicted, he signed time waivers on June 5 and July 15, 2014.

Subsequently, the indictment was amended twice, but appellant did not sign any time

waiver for the amendments to the indictment. Appellant submits the time waivers he

executed were relative to the original indictment not the amendments.




6.
       {¶ 18} The state contends appellant did not move to dismiss the indictment on

speedy-trial grounds before trial and therefore waived this argument on appeal.

       {¶ 19} A criminal defendant is afforded the right to a speedy trial under the federal

and state constitutions. Sixth and Fourteenth Amendments to the U.S. Constitution; Ohio

Constitution, Article I, Section 10. In Ohio, that right is set forth in the speedy trial

statute, R.C. 2945.71, which requires a defendant to be tried within 270 days of arrest.

       {¶ 20} A defendant can waive his right to a speedy trial, when a defendant,

knowingly and voluntarily, executes an express written waiver. State v. O’Brien, 34

Ohio St.3d 7, 516 N.E.2d 218 (1987), paragraph one of the syllabus. “For a waiver to be

entered into knowingly, it is elementary that the defendant understand the nature of the

charges against him, as well as know exactly what is being waived and the extent of the

waiver.” State v. Adams, 43 Ohio St.3d 67, 69, 538 N.E.2d 1025 (1989). “The United

States Supreme Court found that impairment of an accused’s defense was the most

serious interest protected by the speedy-trial provisions, ‘because the inability of a

defendant adequately to prepare his case skews the fairness of the entire system.’” Id. at

70, quoting Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

       {¶ 21} When a defendant executes an express written waiver of unlimited duration

of his speedy-trial rights, the defendant is not entitled to a dismissal due to a delay in

bringing him to trial unless the defendant has filed a formal written objection to any

further continuances and has made a demand for trial. O’Brien at paragraph two of the

syllabus. However, if a defendant files a motion to dismiss on speedy-trial grounds, any




7.
prior waiver of the right to a speedy trial is revoked. Toledo v. Sauger, 179 Ohio App.3d

285, 2008-Ohio-5810, 901 N.E.2d 826, ¶ 19 (6th Dist.).

       {¶ 22} Here, appellant did not file any formal written objections to the trial court’s

continuances, nor did he file a formal demand for trial. Appellant did file a motion to

dismiss, which included a speedy-trial argument. Therefore, the issue of appellant’s right

to a speedy trial was preserved for appeal.

       {¶ 23} Appellant observes the trial court granted the state’s motion to amend

Counts 5 and 6 of the indictment, which allowed the state to add new, different charges,

and the trial court also allowed the state to amend Counts 2, 4 and 8 to reflect these

charges were fourth degree felonies, not second degree felonies as set forth in the original

indictment. Appellant claims he did not sign any time waiver for the amendments to the

indictment. Appellant notes the trial court reversed its order as to amended Counts 5 and

6, ruling these counts must be dismissed. Appellant argues between November 19, 2014

and February 11, 2015, there was an invalid, defective amended indictment with no time

waiver. Appellant asserts he “had not knowingly, voluntarily or intelligently waived his

speedy trial time as to charges he was not aware.”

       {¶ 24} Crim.R. 7(D) provides “the trial court may at any time before, during or

after a trial amend the indictment * * * provided no change is made in the name or

identity of the crime charged.” However, there is distinction between an amendment to

the original charge and a different charge based on the same facts and circumstances as

the original charge. State v. Butt, 2d Dist. Montgomery No. 16215, 1997 WL 568013, *2




8.
(Aug. 29, 1997). A different charge creates an additional burden on the defendant’s

liberty interests. Id. An amendment which does not change the name or identity of the

crime charged creates no additional burden to the defendant’s liberty. State v. Campbell,

150 Ohio App.3d 90, 2002-Ohio-6064, 779 N.E.2d 811, ¶ 24 (1st Dist.). So long as the

amendment is consistent with Crim.R. 7(D), the speedy trial time waiver applicable to the

original charge relates to the amended charge. Id.

       {¶ 25} An amendment which changes the degree or penalty of a crime is not

permitted if the amendment increases the degree or penalty or fundamentally alters the

nature of the charge to the prejudice of the defendant. State v. Davis, 121 Ohio St.3d

239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 12. When an indictment is amended to

decrease the degree or penalty associated with the crime charged, the amendment is

permissible. Grove City v. Ricker, 10th Dist. Franklin No. 13AP-766, 2014-Ohio-1808,

¶ 7.

       {¶ 26} Here, there were two amended indictments against appellant, one involving

Counts 5 and 6 and the other concerning Counts 2, 4 and 8. Ultimately, amended Counts

5 and 6 were dismissed by the trial court because the name of the crime was changed.

Amended Counts 2, 4 and 8 remained pending.

       {¶ 27} Since amended Counts 5 and 6 were dismissed prior to trial and appellant

has not shown he was prejudiced by these amended charges, any speedy-trial argument

appellant may have had regarding these charges is moot. Regarding amended Counts 2, 4

and 8, the amendments are consistent with Crim.R. 7(D). In addition, appellant’s ability




9.
to defend himself as to these amended counts was not impaired as he remained apprised

of the charges against him, only the penalty had decreased. Thus, the speedy-trial

waivers appellant signed for the original charges relate to amended Counts 2, 4 and 8.

Since the applicability of the waivers was the only issue raised by appellant in support of

his speedy-trial challenge, we find appellant’s right to a speedy trial was not violated.

Therefore, appellant’s third assignment of error is not well-taken.

                               Fourth Assignment of Error

       {¶ 28} Appellant argues his three court-appointed trial attorneys were ineffective

for several reasons. The first attorney, appointed May 16, 2014, did not oppose the

state’s motion to amend Counts 5 and 6 of the indictment or file any pleadings with

respect to the defective indictment. The second attorney, who was appointed August 25,

2014, did not file any pleadings relative to the defective indictment. Appellant submits

both attorneys should have filed motions to dismiss, and their failure to do so prejudiced

him “as the timeframe for his case to proceed to trial was postponed through no fault of

Appellant.” The third attorney was appointed October 22, 2014, and thereafter filed the

motion to dismiss. Appellant maintains he was prejudiced by the months long delay

before five of the nine charges against him were dismissed. Appellant also argues he was

prejudiced when his third attorney filed an untimely motion to suppress evidence.

       {¶ 29} Appellant asserts his attorneys failed to advocate for him and failed to

zealously represent his interests, and their actions and inactions prejudiced him and

directly impacted the outcome of the proceedings.




10.
       {¶ 30} In order to prevail on a claim for ineffective assistance of counsel, an

appellant must show trial counsel’s performance fell below an objective standard of

reasonable representation and prejudice resulted from counsel’s deficient performance.

State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the

syllabus, following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Trial attorneys are entitled to a strong presumption that their conduct falls

within the wide range of reasonable assistance. Strickland at 688.

       {¶ 31} Here, appellant identified several errors his court-appointed attorneys may

have made during the time they represented appellant in the trial court. However, there is

no evidence that appellant was prejudiced by these alleged errors or by the delay caused

by the alleged errors. As appellant has not met the burden of proof for demonstrating

ineffective assistance of counsel, his fourth assignment of error is not well-taken.

       {¶ 32} For the foregoing reasons, the judgment of the Ottawa County Court of

Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to the

Ottawa County Court of Common Pleas for resentencing with a hearing on the amount of

restitution, and inclusion of appellant’s jail-time credit for his pretrial period of

incarceration. Costs of this appeal are to be split evenly between the parties pursuant to

App.R. 24.


                                                                   Judgment affirmed, in part,
                                                                        and reversed, in part.




11.
                                                               State v. Tingler
                                                               C.A. No. OT-15-015




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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