[Cite as State v. Sweeting, 2013-Ohio-2179.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 12-COA-030
WILLIAM SWEETING                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Municipal Court, Case No. 12-CRB-00479



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 28, 2013

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

RICHARD P. WOLFE II                                DANIEL E. PRICE
Ashland Law Director                               1210 East Main Street
W. DAVID MONTAGUE                                  Ashland, OH 44805
Assistant Law Director
1213 East Main Street
Ashland, OH 44805
[Cite as State v. Sweeting, 2013-Ohio-2179.]


Gwin, P.J.

        {¶1}      Defendant-appellant William Sweeting appeals the July 9, 2012 Judgment

of the Ashland County Municipal Court overruling his motion to dismiss and his motion

to suppress evidence. Plaintiff-appellee is the State of Ohio.

                                         Facts and Procedural History

        {¶2}      On April 23, 2012, Ohio State Highway Patrol Trooper Daniel Morrison

was on Interstate 71, near milepost 183 when he checked the speed of a vehicle at 81

miles per hour. The trooper executed a traffic stop of the offending vehicle at

approximately 15:08. Sweeting was a passenger in the vehicle that was driven by

Anthony Guinto.1

        {¶3}      Upon approaching the passenger's side of the vehicle, Trooper Morrison

noticed that both occupants had freshly lit cigarettes. He also observed several air

fresheners in the vents and on the dashboard. Trooper Morrison further testified that the

driver was "real shaky" with his driver's license. Trooper Morrison obtained consent to

pat down both Sweeting and Guinto. He then placed them in his cruiser. At that time,

Trooper Morrison requested a drug detection canine unit be dispatched to the location

of the traffic stop. Approximately 20 minutes later Trooper Norman arrived on the scene

with his drug detection dog.

        {¶4}      Trooper Norman walked his drug dog around the vehicle. The canine gave

a positive indication to the car at 15:38. A search of the vehicle resulted in two glass

pipes, one blue and clear, and the other one was blue. Both pipes had suspected

marijuana residue in them. The pipes were in the center console of the car. Sweeting

admitted ownership of the blue pipe.
        1
            Guinto has filed separate appeals in Fifth Dist. Case Nos. 12-COA031 and 12-COA-032.
Ashland County, Case No. 12-COA-030                                                    3


      {¶5}   Sweeting was charged with Possession of Drug Paraphernalia in violation

of R.C. 2925.14C1, a misdemeanor of the fourth degree. He was summoned to appear

in court on May 4, 2012.

      {¶6}   On May 1, 2012, the trial court filed an entry titled “Motion for

Continuance.” The entry indicates that,

             On    April   30,   2012,    at,   [sic.]   DEFENDANTS     MOTHER

      TELEPHONED and requested a Motion for Continuance in the case for

      the following reason:

             NEEDS A CONTINUANCE CAN NOT MAKE IT TO COURT ON

      05-04-12.

The Deputy Clerk of Court signed the entry. The entry further contained the following

beneath the area where the deputy clerk had signed,

                                 JUDGMENT ORDER

             Defendant’s Motion is hereby GRANTED, The above-styled case is

      scheduled for 05-18-12 at 09:00AM. Speedy trial is extended accordingly.

The trial judge signed the entry. Sweeting was advised of the new court date.

      {¶7}   Sweeting’s mother called the next day to request an earlier court day. By

entry filed May 1, 2012, the trial court scheduled the arraignment for May 11, 2012.

      {¶8}   Sweeting’s mother called a third time on May 10, 2012 to inform the court

that Sweeting could not appear on May 11, 2012 and requested his original arraignment

date of May 18, 2012 be reinstated. By judgment entry filed May 10, 2012, the trial court

granted the request to continue the arraignment to May 18, 2012.
Ashland County, Case No. 12-COA-030                                                      4


       {¶9}   On May 16, 2012, Sweeting’s attorney filed a Notice of Appearance, a

Request for Discovery and a request for Arraignment in Abstentia. The trial court

granted the request for arraignment in abstentia by Judgment Entry filed May 17, 2012.

       {¶10} At the arraignment on May 18, 2012, a pre-trial conference was scheduled

in Sweeting’s case for June 1, 2012. At the June 1, 2012 pre-trial conference, defense

counsel acknowledged that he did not request the videotape of the traffic stop in

Sweeting’s case, as he did in Guinto’s cases. A second pre-trial was set for June 18,

2012. However, that pre-trial was combined with the pre-trial in Guinto’s cases and took

place on June 15, 2012. At the combined pre-trials, a June 29, 2012 trial date was set

for both cases. During that hearing, Sweeting’s attorney informed the court that he

planned to file a motion to suppress and would request a hearing on such a motion.

       {¶11} On June 26, 2012, Sweeting filed a Motion to Dismiss contending that he

was not brought to trial within 45 days as required by R.C. 2945.71(B)(1). Also on that

date, Sweeting filed a motion to suppress evidence.

       {¶12} The trial court conducted an evidentiary hearing on the motion to suppress

on June 29, 2012. At that hearing, Sweeting waived his speedy trial rights to allow the

court to issue a written decision. The trial court by written decisions filed July 9, 2012

overruled Sweeting’s motion to dismiss and motion to suppress.

       {¶13} At the trial date of July 11, 2012, Sweeting changed his plea to no contest

and was found guilty by the court of one count of possession of drug paraphernalia. The

trial court sentenced Sweeting to 25 days in jail, a fine of $250.00 plus court costs.

                                      Assignments of Error

       {¶14} Sweeting raises three assignments of error,
Ashland County, Case No. 12-COA-030                                                  5


      {¶15} “I. TRIAL COURT ERRED IN ITS DETERMINATION WHEN THE

DEFENDANT MOVED FOR DISCHARGE ON THE BASIS THAT HE HAD NOT BEEN

BROUGHT TO TRIAL WITHIN THE TIME LIMITS SET FORTH IN R.C. 2945.71, THE

BURDEN OF PRODUCTION OF EVIDENCE SHIFTED TO THE STATE AND THE

STATE FAILED TO PRODUCE ANY EVIDENCE IN REBUTTAL, SO DISCHARGE

WAS REQUIRED.

      {¶16} “II. TRIAL COURT ERRED IN FINDING DEFENDANT/APPELLANT

GUILTY BECAUSE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

DISMISS FOR VIOLATIONS OF RIGHT TO SPEEDY TRIAL UNDER R.C. 2945.71

AND IMPROPERLY TOLLED TIME AGAINST DEFENDANT/APPELLANT.

      {¶17} “III. DID TRIAL COURT ERR IN FINDING DEFENDANTS/APPELLANTS

GUILTY BECAUSE TRIAL COURT ERRED BY DENYING APPELLANTS MOTION TO

SUPPRESS EVIDENCE BECAUSE IT DID NOT RECOGNIZE AND RULE PROPERLY

ON THE ILLEGAL DETENTION AND ARREST OF APPELLANTS AND THE TRIAL

COURT DID NOT RECOGNIZE, APPLY AND RULE PROPERLY ON THE

CONSTITUTIONAL LAWS, STATUTES, CASE LAW AND SPECIFIC FACTS OF THIS

CASE CONCERNING THE LIMITED SCOPE AND DURATION OF THE STOP?

                                             I, II

      {¶18} Sweeting’s first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together. Both

assignments contend that Sweeting was denied his right to a speedy trial.

      {¶19} A person charged with a fourth degree misdemeanor shall be brought to

trial within forty-five days after the person's arrest or the service of summons.” R.C.
Ashland County, Case No. 12-COA-030                                                    6


2945.71(B)(1). “Upon motion made at or prior to the commencement of trial, a person

charged with an offense shall be discharged if he is not brought to trial within the time

required by sections 2945.71 and 2945.72 of the Revised Code.” R.C. 2945.73(B).

“[S]uch discharge is a bar to any further criminal proceedings against him based on the

same conduct.” R.C. 2945.73(D).

      {¶20} R.C. 2945.72 provides for a tolling of the time limitations under certain

circumstances,

             The time within which an accused must be brought to trial, or, in the

      case of felony, to preliminary hearing and trial, may be extended only by

      the following:

             (A) Any period during which the accused is unavailable for hearing

      or trial, by reason of other criminal proceedings against him, within or

      outside the state, 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;

             (B) Any period during which the accused is mentally incompetent to

      stand trial or during which his mental competence to stand trial is being

      determined, or any period during which the accused is physically

      incapable of standing trial;

             (C) Any period of delay necessitated by the accused's lack of

      counsel, provided that such delay is not occasioned by any lack of

      diligence in providing counsel to an indigent accused upon his request as

      required by law;
Ashland County, Case No. 12-COA-030                                                   7


             (D) Any period of delay occasioned by the neglect or improper act

      of the accused;

             (E) Any period of delay necessitated by reason of a plea in bar or

      abatement, motion, proceeding, or action made or instituted by the

      accused;

             (F) Any period of delay necessitated by a removal or change of

      venue pursuant to law;

             (G) Any period during which trial is stayed pursuant to an express

      statutory requirement, or pursuant to an order of another court competent

      to issue such order;

             (H) The period of any continuance granted on the accused's own

      motion, and the period of any reasonable continuance granted other than

      upon the accused's own motion;

             (I) Any period during which an appeal filed pursuant to section

      2945.67 of the Revised Code is pending.

      {¶21} A speedy-trial claim involves a mixed question of law and fact. State v.

Larkin, 5th Dist. No. 2004-CA-103, 2005-Ohio-3122. As an appellate court, we must

accept as true any facts found by the trial court and supported by competent, credible

evidence. With regard to the legal issues, however, we apply a de novo standard of

review and thus freely review the trial court’s application of the law to the facts. Id.

When reviewing the legal issues presented in a speedy-trial claim, we must strictly

construe the relevant statutes against the state.
Ashland County, Case No. 12-COA-030                                                                    8


        {¶22} In the case at bar, the citation served upon Sweeting on April 23, 2012

ordered him to appear in the Ashland Municipal Court on May 4, 2012. At the behest of

Sweeting’s mother, that arraignment was continued to May 18, 2012.

        {¶23} On May 16, 2012, Sweeting filed a request for discovery. The time during

which a discovery motion filed by a defendant is pending tolls the speedy trial clock.

State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus.

Sweeting agreed that the state partially responded to his discovery request on May 29,

2012. (See, Motion to Dismiss, Due Process Violation, filed June 26, 2012). On June

26, 2012, Sweeting filed motions to dismiss and to suppress. Accordingly, for speedy

trial purpose the time is as follows,

        April 24, 2012 to May 4, 2012(date of original arraignment)2                       11 days

        May 4, 2012 to May 18, 2012(continued at Sweeting’s request)                       tolled

        May 16, 2012 to May 29, 2012(state’s partial response to discovery)                 tolled

        May 29, 2012 to June 26, 2012(Sweeting’s filing of motions)                         29 days

        Total days counted toward speedy trial                                        40 days

        {¶24} In State v. Bickerstaff, 10 Ohio St.3d 62, 461 N.E.2d 892(1984) the Ohio

Supreme Court noted with respect to R.C.2945.72(E), "[i]t is evident from a reading of

the statute that a motion to dismiss acts to toll the time in which a defendant must be

brought to trial." Id. at 67, 461 N.E.2d 892. In Bickerstaff, supra, the Court found no

prejudice from a five-month delay between the filing of the Motion to Dismiss and the

trial court's ruling upon the motion. Id.


        2
           The day of arrest is not included when computing the time within which a defendant must be
brought to trial under R.C. 2945.71. State v. Steiner, 71 Ohio App.3d 249, 593 N.E.2d 368(9th Dist. 1991)
(citing R.C. 1.14 and Crim.R. 45).
Ashland County, Case No. 12-COA-030                                                      9


      {¶25} In the case at bar, the trial court overruled Sweeting’s motion to dismiss

and motion to suppress by entries filed July 9, 2012. Accordingly, the time between

June 26, 2012 and the trial court's ruling on the Motions on July 9, 2012 is not included

for speedy trial purposes. Sweeting entered his plea on July 11, 2012. Thus, at the time

of his plea, only 42 of the 45 days had elapsed for speedy trial purposes.

      {¶26} The trial court correctly ruled that Sweeting's right to a speedy trial was not

abridged. Accordingly, Sweeting's first and second assignments of error are overruled.

                                               III.

      {¶27} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That
Ashland County, Case No. 12-COA-030                                                      10

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences

drawn from those facts by resident judges and local law enforcement officers.” Ornelas,

supra at 698, 116 S.Ct. at 1663.

       {¶28} In his third assignment of error, Sweeting argues the trial court erred by

overruling his Motion to Suppress. The parties agree that the vehicle was lawfully

stopped. The question in the case at bar is whether the lawful detention for the traffic

infraction became an unlawful detention when the officer decided to call for the use of a

narcotics-detection dog to sniff around exterior of the vehicle.

       {¶29} The use of a drug detection dog does not constitute a "search" and an

officer is not required, prior to a dog sniff, to establish either probable cause or a

reasonable suspicion that drugs are concealed in a vehicle. See Illinois v. Caballes, 543

U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842(2005); United States v. Place, 462

U.S. 696, 707, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110(1983); State v. Carlson, 102 Ohio

App.3d 585, 594, 657 N.E.2d 591(9th Dist. 1995); United States v. Seals, 987 F.2d

1102, 1106(5th Cir. 1993). Further, if a trained narcotics dog alerts to the odor of drugs

from a lawfully detained vehicle, an officer has probable cause to search the vehicle for

contraband. United States v. Reed, 141 F.3d 644(6th Cir. 1998), (quoting United States

v. Berry, 90 F.3d 148, 153( 6th Cir. 1996), cert. denied 519 U.S. 999 (1996)); accord,

United States v. Hill, 195 F.3d 258, 273(6th Cir. 1999); United States v. Diaz, 25 F.3d

392, 394(6th Cir. 1994); State v. French, 104 Ohio App.3d 740, 663 N.E.2d 367(12th

Dist. 1995), abrogated on different grounds, City of Dayton v. Erickson, 76 Ohio St.3d 3,

665 N.E.2d 1091(1996).
Ashland County, Case No. 12-COA-030                                                     11


      {¶30} The Ohio Supreme Court has held,

             “[W]hen detaining a motorist for a traffic violation, an officer may

      delay the motorist for a time period sufficient to issue a ticket or a warning.

      State v. Keathley (1988), 55 Ohio App.3d 130, 131 [562 N.E.2d 932]. This

      measure includes the period of time sufficient to run a computer check on

      the driver's license, registration, and vehicle plates. State v. Bolden,

      Preble App. No. CA2003–03–007, 2004-Ohio-184 [2004 WL 77617], ¶ 17,

      citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391 [59

      L.Ed.2d 660]. “In determining if an officer completed these tasks within a

      reasonable length of time, the court must evaluate the duration of the stop

      in light of the totality of the circumstances and consider whether the officer

      diligently conducted the investigation.” State v. Carlson (1995), 102 Ohio

      App.3d 585, 598–599 [657 N.E.2d 591], citing State v. Cook (1992), 65

      Ohio St.3d 516, 521–522 [605 N.E.2d 70], and U.S. v. Sharpe (1985), 470

      U.S. 675, 105 S.Ct. 1568 [84 L.Ed.2d 605].

State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶12. In order

to justify a continued detention beyond the normal period required to issue a citation the

officer must have a "reasonable, articulable suspicion of criminal activity beyond that

which prompted the initial stop." Batchili, ¶15. "In determining whether a detention is

reasonable, the court must look at the totality of the circumstances." State v. Matteucci,

11th Dist. No. 2001-L-205, 2003-Ohio-702, ¶30, citing State v. Bobo, 37 Ohio St.3d 177,

178, 524 N.E.2d 489(1988).
Ashland County, Case No. 12-COA-030                                                    12


      {¶31} The time from the initial stop until the drug dog alerted on the car was

approximately thirty-one (31) minutes. During this time, Trooper Morrison was running

the car, driver and passenger's information through his car computer, was waiting on

the current insurance card for the driver and was asking questions of the occupants

based upon the "indicators" of potential drug use/possession that the Trooper observed.

Specifically, Trooper Morrison was waiting for the pair to find a valid proof of insurance

document for the driver, Guinto. The citation had not been completed before the drug

dog arrived on the scene. Thus, Trooper Morrison’s delay was attributable to the

necessity that the driver provide valid proof of insurance. Once the drug dog alerted to

the vehicle, police had probable cause to search that vehicle for contraband.

      {¶32} No violation of Sweeting's Fourth Amendment rights has been

demonstrated. Therefore, we find the trial court correctly denied Sweeting's motion to

suppress evidence.

      {¶33} Sweeting’s third assignment of error is overruled.
Ashland County, Case No. 12-COA-030                                       13


      {¶34} Accordingly, the judgment of the Ashland Municipal Court, Ashland

County, Ohio is affirmed.

By Gwin,P.J.,

Farmer, J., and

Delaney, J., concur


                                       _________________________________
                                       HON. W. SCOTT GWIN


                                       _________________________________
                                       HON. SHEILA G. FARMER


                                       _________________________________
                                       HON. PATRICIA A. DELANEY




WSG:clw 0508
[Cite as State v. Sweeting, 2013-Ohio-2179.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
WILLIAM SWEETING                                  :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 12-COA-030




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Ashland Municipal Court, Ashland County, Ohio is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
