[Cite as State v. Lear,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : MICAH LEAR : Case No. 15-CA-72 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 13CRB00090

JUDGMENT: Reversed, Final judgment entered

DATE OF JUDGMENT: April 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TRICIA M. MOORE MICHAEL R. DALSANTO Assistant Law Director 3 South Park Place, Suite 220 40 W. Main Street Newark, Ohio 43055 Newark, Ohio 43055 Licking County, Case No. 15-CA-72 2

Baldwin, J.

{¶1} Appellant Micah Lear appeals a judgment of the Licking County Municipal

Court convicting him of theft (R.C. 2913.02) and sentencing him to thirty days

incarceration. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 13, 2013, Officer Phillips of the Newark Police Department was

called to Walmart in Newark, Ohio, in reference to a possible shoplifter. At the store he

met with a loss prevention officer, who stated that he observed two men in the electronics

department. One of the men, who was later identified as appellant, was cutting open

merchandise and concealing it on his person. The suspects eventually made their way

to an exit and appellant was observed passing the last point of sale without paying for the

concealed items. He was apprehended and the stolen property was taken from him.

{¶3} Appellant was charged with theft and a jury trial was scheduled for April 4,

2013. Appellant failed to appear and a bench warrant was issued. Jury trial was

rescheduled for September 26, 2013. Appellant again failed to appear, and a bench

warrant was issued. Appellant was arrested on a felony charge on December 30, 2013,

and the court reactivated the instant case. Jury trial was scheduled for February 27, 2014.

Appellant filed a motion to schedule the case for a change of plea hearing, and the change

of plea hearing and sentencing was set for March 26, 2014.

{¶4} On March 13, 2014, the Licking County Court of Common Pleas sentenced

appellant to eighteen months in prison. Because he had been transported to prison, Licking County, Case No. 15-CA-72 3

appellant failed to appear for his March 26, 2014 change of plea hearing, and the court

issued a bench warrant on May 8, 2014.

{¶5} After arriving in prison, appellant forwarded a request for final disposition of

his case to the Records Department in his facility. The form, which appears to be provided

by the Ohio Department of Rehabilitation and Control (ODRC), states, “If you have

outstanding charges that you wish to dispose of while you are incarcerated, please

provide the following information to the Central Record Office-Detainer Section at OSC.”

Appellant filled in the county and city of his offense, and included the case number of the

instant case. He noted that it was a misdemeanor offense of theft. The form was dated

April 4, 2014. The form further stated, “Once this form is filled out, sent [sic]it to the

Central Record Office – Detainer Section, via kite. The Central Record Office will contact

the appropriate authorities. You will be notified and offered a fast and speedy trial under

R.C. 2941.401 . . . if it is an untried indictment or complaint.”

{¶6} The form reflects that it was filed in the Bureau of Records Management on

April 10, 2014. On April 15, 2014, ODRC sent a letter to the Newark Police Department

requesting information relating to appellant’s warrant status. The letter stated that the

office had received information from appellant that he may have pending charges with the

police department, and to advise if they wish to have a detainer placed on appellant. No

other action appears to have been taken with respect to appellant’s request.

{¶7} Appellant completed his felony prison sentence in July of 2015. Because

he had an active warrant, he was transported to the Licking County Municipal Court on

July 28, 2015. On September 10, 2015, appellant filed a motion to dismiss on speedy Licking County, Case No. 15-CA-72 4

trial grounds, arguing that his prosecution was barred by R.C. 2941.401. The trial court

summarily overruled the motion the same day.

{¶8} Appellant entered a plea of no contest. At sentencing, the court stated its

reasons for overruling the motion to dismiss:

And just to supplement the record, the court would note that the basis

for the denial was that the whole issue of the speedy trail [sic] demand is

notice to The State, through no fault of its own, The State was not advised

of Mr. Lear’s demand for speedy trial, and The Court finds that he did not

therefore comply with the requirements of the statute. I think it’s 2945.041,

something along those lines. I’m thinking off the top of my head. Anyway,

so as to not be accused of acting arbitrarily or capriciously, the court’s basis

of denying it, is the fact that the requirements of the statute weren’t met.

And I think I would even concede that, that was no fault of Mr. Lear’s.

However, The State shouldn’t be prejudiced anymore by the warden’s

failure because it wasn’t their fault the warden didn’t do what he was

supposed to do either. Just like it wasn’t Mr. Lear’s fault. Now there may

be recourse for Mr. Lear against the warden, I don’t know. But for what’s

before this court, that’s the basis for this court’s ruling.

{¶9} The court convicted appellant upon his plea and sentenced him to thirty

days incarceration, with one day of jail time credit. Appellant assigns three errors:

{¶10} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT DENIED APPELLANT’S MOTION TO DISMISS; THE

APPELLANT COMPLIED WITH R.C.§2941.401 WHEN HE DELIVERED A REQUEST Licking County, Case No. 15-CA-72 5

TO THE WARDEN AND THE COURT SHOULD HAVE GRANTED THE MOTION TO

DISMISS.

{¶11} “II. ASSUMING ARGUENDO THAT THE TRIAL COURT DID NOT MAKE

SUFFICIENT FACTUAL FINDINGS RELATING TO THE APPELLANT’S DELIVERY OF

THE NOTICE AND DEMAND, THE TRIAL COURT ABUSED ITS DISCRETION BY

DENYING APPELLANT’S REQUEST FOR AN ORAL HEARING ON THE MOTION TO

DISMISS.

{¶12} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

DENIED THE APPELLANT’S REQUEST FOR SEVENTY-TWO (72) DAYS OF JAIL

TIME CREDIT.”

I.

{¶13} In his first assignment of error, appellant argues that the court erred in failing

to dismiss the complaint on speedy trial grounds pursuant to R.C. 2941.401, which reads:

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 Licking County, Case No. 15-CA-72 6

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. Licking County, Case No. 15-CA-72 7

{¶14} The Ohio Supreme Court has held that, pursuant to R.C. 2941.401, the

initial duty is placed on the defendant to notify the prosecutor and the court of his place

of incarceration and to request final disposition of outstanding charges. State v. Hairston,

,

,

. “In its plainest language, R.C.

2941.401 grants an incarcerated defendant a chance to have all pending charges

resolved in a timely manner, thereby preventing the state from delaying prosecution until

after the defendant has been released from his prison term.” Id. at 311,

.

This Court has previously held that the act of giving or sending the written notice and

request for disposition to the warden satisfies the “causes to be delivered” requirement of

the statute. State v. Colon, 5th Dist. Stark No. 09-CA-232,

, ¶26. We

concluded that ruling otherwise circumvents the remedy afforded an inmate under R.C.

2941.401, by allowing the warden to ignore or delay an inmate's request for final

disposition.

“The right of a defendant to a speedy trial should not be excused by the

failure of a state agent to perform his statutory duty. “

{¶15} The State relies on the Fourth District’s opinion in State v. Adams, 4th Dist.

Highland No. 15 CA 0001,

. In that case, the defendant used a form that

was identical in language to the form used in the instant case. However, Adams did not

specifically reference a case number, but represented that he believed he had a grand

theft charge dating from July or August. The form was sent from the Records Office to

the Common Pleas Court, accompanied by a letter advising that the office had been

informed that there may be outstanding charges pending against Adams. In finding that

Adams had not complied with R.C. 2941.401, the court held: Licking County, Case No. 15-CA-72 8

We agree with the trial court that although this may have been a first

step in the process, it by no means completed the process of officially

requesting, pursuant to R.C. 2941.401, a final disposition or trial on pending

charges or an untried indictment. In fact, the warden had no official

knowledge that Appellant had a pending untried indictment, as

contemplated in the statute. It appears the letter was sent to confirm or

verify that one existed. Both the letter and the form indicate that a formal

request for a final disposition would be offered or made available if it was

confirmed that there existed an untried indictment, not that the letter or form

were then requesting a final disposition. We simply cannot conclude that

the paperwork that was provided by Appellant and mailed by the prison was

sufficient to trigger the running of speedy trial time. Although Appellant did

make some effort, unlike Hairston, we do not believe his actions strictly

complied with the requirements of R.C. 2941.401. See, State v. Colon, 5th

Dist. Stark No. 09CA232, 2010–Ohio–2326, ¶ 21 (“[w]here an inmate

makes an application under R.C. 2941.401, strict compliance by the inmate

with the notice and information requirements in the statute are necessary in

order for the inmate to take advantage of the subsequent burden placed on

the warden and hence the state.”); State v. Gill, 8th Dist. Cuyahoga No.

82742, 2004–Ohio–1245, ¶ ¶ 12, 17 (expressly declining to adopt a

“substantial compliance” standard, but finding the defendant fully complied

with the statutory requirements of R.C. 2941.401).

{¶16} Id. at ¶13. Licking County, Case No. 15-CA-72 9

{¶17} In the instant case, unlike the defendant in Adams, appellant provided an

accurate case number. The letter forwarded to the Newark Police Department does not

request a speedy trial, and we find this letter to be irrelevant to our analysis. As we held

in Colon, supra, the act of giving or sending the written notice and request for disposition

to the warden satisfies the “causes to be delivered” requirement of the R.C. 2941.401. If

the notice sent by appellant is sufficient to trigger the speedy trial time set forth in the

statute, the letter sent by the ORDC upon receipt of the appellant’s request is irrelevant

to a discussion of whether or not appellant complied with the statute.

{¶18} Therefore, we limit our discussion to the form submitted by appellant and

whether that form was sufficient to trigger the speedy trial time set forth in the statute.

Although untitled, the form states at the top that if the prisoner has outstanding charges

that he wished to dispose of while incarcerated, to provide the following information.

Appellant specifically referenced the instant case by case number and set forth the

county, city and state of the offense. The language on the form instructed the prisoner to

send the completed form to the Central Record Office – Detainer Section, via kite. The

form further recited, “The Central Record Office will contact the appropriate authorities.

You will be notified and offered a fast and speedy trial under R.C. 2941.401 . . . if it is an

untried indictment or complaint (emphasis added).” We disagree with the conclusion of

the Fourth District that the form is a mere first step in the process. If the appropriate

information is provided, and it was in the instant case, the form represents to the prisoner

that the proper authorities will be notified and he will be offered a speedy trial pursuant to

R.C. 2941.401. Nothing in the language of the form suggests that this is a mere first step Licking County, Case No. 15-CA-72 10

in the process and the inmate has to do something further to receive speedy resolution

of his or her pending cases.

{¶19} As appellant caused written notice and request for disposition of his case to

be delivered to the warden, he satisfied the requirements of R.C. 2941.401, and his

speedy trial time began to run on April 10, 2014, the date the notice was received by the

prison records office. The failure of the warden to properly complete the process is

charged to the State, not to appellant pursuant to our decision in Colon, supra. Appellant

clearly was not tried within 180 days of the delivery of this notice, as his trial did not

proceed until September 22, 2015. The court erred in overruling appellant’s motion to

dismiss.

{¶20} The first assignment of error is overruled.

{¶21} Appellant’s second and third assignments of error are rendered moot by our

disposition of the first assignment of error.

{¶22} The judgment of the Licking County Municipal Court is reversed. Pursuant

to App. R. 12(B), we hereby enter final judgment dismissing the complaint against

appellant. Costs are assessed to appellee.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.