COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76148 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : JEROME E. GIBSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 2000 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case Nos. CR-365667 CR-338791 and CR-339553 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: MARK J. MAHONEY, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: SHAWN P. MARTIN, ESQ. 200 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 ANN DYKE, A.J.: Appellant, Jerome E. Gibson, is appealing his conviction for -2- breaking and entering, theft (prior conviction), vandalism, failure to comply with order/signal, possession of criminal tools, drug abuse and robbery. For the following reasons, we affirm. Appellant pled no contest to the above-listed charges. Appellant claims that his right to speedy trial was violated. Appellant was arrested for three criminal cases, on February 15, March 13, and April 12, 1996. His arraignment was scheduled for June 19, 1996. He did not appear. A bond capias was issued. He did not appear because he was in the Mahoning County jail. The State was aware of appellant's presence in the Mahoning County jail, as the North Randall detectives interviewed him there. The file and docket reflect that a letter of apprehension was sent to Mahoning County on August 30, 1996. Appellant testified that he went from the Mahoning County jail to the Trumbull County jail. He was in Trumbull County for three to four months and plea bargained to burglary charges. Appellant went back to Mahoning County jail, then to Guernsey County jail, to plea bargain a case there. In May, 1998, after appellant was sentenced on the case in Mahoning County, he went to Lorain Correctional Institute. A detainer was issued from Cuyahoga County on May 11, 1998. Appellant was returned to Cuyahoga County on May 27, 1998. Appellant further testified that the case in Mahoning County was stayed until Guernsey and Trumbull Counties resolved their cases. Defendant said he was doing undercover work in the Mahoning -3- County jail and was not awaiting trial.1 The trial judge found that appellant was not available for return to Cuyahoga County until Guernsey and Mahoning Counties completed their proceedings. The trial court dismissed appellant's motion to dismiss for violation of speedy trial rights. Appellant's assignments of error are interrelated and will be discussed together. They state: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO DISMISS AS THE EVIDENCE CLEARLY ESTABLISHED THAT APPELLANT'S RIGHT TO A SPEEDY TRIAL HAD BEEN VIOLATED. THE JOURNAL ENTRY DENYING THE APPELLANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS FAILS TO ENUMERATE THE STATE OF OHIO'S COMPLIANCE WITH APPELLANT'S RIGHT TO A SPEEDY TRIAL. Appellant was required to be brought to trial within 270 days of arrest. R.C. 2945.71(C)(2). Appellee contends the time for speedy trial was extended by: 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. R.C. 2945.72(A) (emphasis added). If the defendant is incarcerated in the county jail of another Ohio county, and the prosecution is 1The dissent claims the statement that appellant testified he was doing undercover work is a creative recitation of the facts . The record supports that appellant claimed he was doing undercover work. Appellant's attorney argued that appellant was doing undercover work in the Mahoning County jail. Appellant testified he had ongoing activity with the warden's office in Mahoning County. Appellant argued below that he was not awaiting trial, so the speedy trial time was not tolled. As we have stated in this opinion, the trial court found that appellant was being held for trial in Mahoning County. -4- aware of the defendant's whereabouts, the record must show that the prosecutor exercised reasonable diligence to have the defendant appear before the court. State v. Coatoam (1975), 45 Ohio App.2d 183; City of Newark v. Barcus (Sept. 29, 1994), Licking App. No. 94CA0015, unreported. In Coatoam, and Barcus the record was devoid of any effort to secure the defendant for trial. Issuance of a capias and execution within a reasonable time constitute reasonable diligence to secure the defendant. See State v. Grubb (Aug. 27, 1981), Franklin App. No. 81AP-217, unreported; State v. Howard (March 4, 1982), Cuyahoga App. No. 43750, unreported; State v. Gilbert (July 29, 1988), Lake App. No. 12-204, unreported. In this case, a capias was issued to the Cuyahoga County Sheriff and a letter of apprehension was issued to Mahoning County. Appellant was dispatched to Cuyahoga County immediately after he was done with the cases in the three other counties. Given these facts, the trial court could find that the State exercised reasonable diligence to bring appellant to Cuyahoga County. The trial court did not err in finding that the time for a speedy trial was extended by the time he was in jail pending criminal proceedings in the counties. Accordingly, appellant's assignments of error are overruled. The decision of the trial court is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ROCCO, J., CONCURS KILBANE, J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R.22(B), 22(D) and 26(A); Loc.App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76148 STATE OF OHIO : : Plaintiff-Appellee : DISSENTING OPINION : -vs- : : JEROME E. GIBSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DATE: NOVEMBER 9, 2000 ANNE L. KILBANE, J., DISSENTING: On this appeal from an order of Judge Pat Kelly and three judgments of conviction by Judge David J. Matia, I respectfully dissent from the majority opinion because it is not supported by the facts of this case. I include the following recitation of the facts pertinent to this appeal because several have been misstated by the majority. The record discloses the following: On February 15, 1996, Gibson, then forty-three years old, was arrested in Cleveland on the drug abuse charge, apparently released, and then arrested on March 13, 1996 for a breaking and entering charge involving a Convenient Food Mart. On March 16, 1996, he was arraigned in Cleveland Municipal Court and released on a $6,000 surety bond. On April 12, 1996, while Gibson was in jail in Mahoning County on an unrelated aggravated robbery charge, North Randall police detectives arrested him for the March 30, 1996 aggravated robbery of a Pier One store, and placed a holder on him. On June 5, 1996, Gibson was indicted on charges arising from the breaking and entering of the Convenient Food Mart and a second -7- indictment on the charges from the Pier One robbery. On June 12, 1996, he was indicted on the drug abuse charges. Due to a defect in the body of the Pier One robbery indictment, Gibson was re- indicted on those charges on June 30, 1996.2 On June 19, 1996, Gibson, still incarcerated in the Mahoning County jail, failed to appear before Judge Gail Rose Kane for his arraignment on all three indictments so she ordered a bond forfeiture and issued three capiases on indictment identifying Gibson at a Youngstown address. Two journal entries dated June 28, 1996, and August 16, 1996, continued the original capiases. A copy of two of the capiases on indictment dated June 19, 1996 contained in the record include the notation, 8-30-96 sent letter of appreh to Mahoning Co. So., Youngstown, Ohio and the clerk's file stamp dated August 30, 1996. Prior to the Cuyahoga County indictments, Gibson had aggravated robbery indictments pending in Trumbull and Guernsey counties. It appears the Mahoning County case was stayed pending resolution of those charges. Over the next twenty-two months, Gibson was transferred to Trumbull where he negotiated a plea and was sentenced to eight to fifteen years imprisonment; returned to Mahoning and then taken to Guernsey where another negotiated plea resulted in a sentence of eight to fifteen years imprisonment to be served concurrent with that of Trumbull; 2This indictment was also defective because it contained aggravated burglary language while captioned aggravated robbery. Gibson was subsequently indicted on July 20, 1998 on one count of aggravated robbery and one count of having a weapon while under a disability. -8- transferred back to Mahoning where, again, a negotiated plea resulted in a sentence, on May 1, 1998, of eight to fifteen years imprisonment concurrent with those sentences of Trumbull and Guernsey.3 He was sent to Lorain Correctional Institute to serve his sentences. Other copies of the June 19, 1996 capiases on indictment contained in the record have the notation, 5/11/98 Sent detainer to Lorain Correc, and the clerk's file stamp dated 5/12/98. Through a May 20, 1998 journal entry, a capias and warrant for removal ordered Gibson returned from Lorain County and he came into the custody of the Cuyahoga County Jail. On June 1, 1998, Gibson was arraigned on the three indictments, was given an appointed defense counsel and the cases were assigned to the docket of Judge Kelly. On July 21, 1998, the prosecutor noted for the record that the Pier One robbery charges contained in the indictment again were defective and explained that, on July 20, 1998, the State presented the charges to the grand jury a third time to correct the continued defect. The prosecutor then moved the court to nolle, for housekeeping purposes, the charges contained in Case Nos. 339404 and 341326. On July 22, 1998, the grand jury re-indicted Gibson on the robbery and disability charges contained in Case No. 365667. 3The majority opinion incorrectly claims that Gibson testified he was doing undercover work in the Mahoning County jail and was not awaiting trial. He was there prior to April 12, 1996, on a pending robbery charge. Sept. 30 trans. Pgs. 28-29. -9- On September 22, 1998, Gibson's lawyer filed a motion to dismiss all charges with a supplement alleging a violation of his client's right to a speedy trial. At a September 30, 1998 hearing, Gibson testified and his lawyer and the prosecutor presented their arguments. Contrary to the majority's creative recitation of the facts, Gibson never testified he was doing undercover work in the Mahoning County jail and was not awaiting trial. 4 On December 23, 1998, the judge denied the motion to dismiss. On February 22, 1998, after Judge Matia, who assumed Judge Kelly's docket, denied his oral motion to dismiss on the same speedy trial basis, Gibson withdrew his not guilty pleas and entered no contest pleas to the indictments from which the prosecutor had requested that firearm, aggravated felony and violent specifications be deleted. The judge accepted the pleas and sentenced Gibson to six months incarceration on the drug abuse charge, an accumulative concurrent minimum of one and one-half years to a maximum of ten years on the Convenient Mart charges, and three to five years incarceration on the Pier One charges, all to run concurrent with each other and concurrent with the sentences being served by Gibson in the Ohio penitentiary system. Gibson asserts two assignment of error 4See majority opinion at n.1. As the majority points out, it was Gibson's attorney not Gibson who asserted that he was involved in some mysterious undercover work at the Mahoning County Jail. It is axiomatic that statements of an attorney are not evidence. Regardless, the majority cites no authority for the proposition that an accused's agreement to work undercover while awaiting trial acts to toll the statutory speedy trial mandates. -10- I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO DISMISS AS THE EVIDENCE CLEARLY ESTABLISHED THAT APPELLANT'S RIGHT TO A SPEEDY TRIAL HAD BEEN VIOLATED. II. THE JOURNAL ENTRY DENYING THE APPELLANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS FAILS TO ENUMERATE THE STATE OF OHIO'S COMPLIANCE WITH APPELLANT'S RIGHT TO A SPEEDY TRIAL. Gibson contends that, for purposes of his right to a speedy trial, time began to run, at the very latest, on April 12, 1996 when the North Randall detectives arrested him in the Mahoning County Jail. As a result, the 270-day limit expired in early 1997. Because Cuyahoga County did not call him to answer for these charges until May 29, 1998, well after the expiration of the time set forth in R.C. 2945.71((C)(2), and the State has not shown that the time was otherwise tolled, Gibson argues he must be discharged. Moreover, he asserts the journal entry is defective because it does not include reasons to extend the time for speedy trial. Finally, Gibson submits the State failed to show that it exercised reasonable diligence to bring him to trial. The State does not challenge the facts contained in the September 1998 hearing transcript. It counters that the time for a speedy trial on these matters commenced when Gibson was returned to Cuyahoga County on May 27, 1999 via the June 19, 1996 capiases sent to the correctional facility. It noted that Gibson never refuted the simple basic fact that he spent most of the next two years traversing three counties resolving, by way of plea bargains, the charges pending against him in those counties and asserts the June 19, 1996 capiases referenced in the challenged journal entry -11- are sufficient to satisfy the reasonable diligence requirement set forth in R.C. 2945.72(A). A person charged with a felony [s]hall be brought to trial within two hundred seventy days after the person's arrest. R.C. 2945.71(C)(2). However, the time within which the State must bring the accused felon to preliminary hearing and trial may be extended, in part, by [a]ny period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, *** provided that the prosecution exercises reasonable diligence to secure his availability[.] R.C. 2945.72(A). An accused, however, is not required to show that he was prejudiced by a delay beyond the time limits provided in R.C. 2945.71. State v. Coatoam (1975), 45 Ohio App.2d 183, 341 N.E.2d 635. Once an accused shows he is entitled to discharge for the delay, under R.C. 2945.73, the burden then shifts to the State to show the length of time tolled during this period so as to extend the speedy trial time limitation. State v. Butcher (1986), 27 Ohio St.3d 28, 500 N.E.2d 1368. The correct interpretation of R.C. 2945.72(A) requires that the State exercise reasonable diligence to secure a defendant for trial under all of the circumstances set forth in the statute. State v. McCowin (Apr. 14, 1997), Columbiana App. 94-C-87, unreported. If the state fails to produce such evidence in rebuttal, the accused must be discharged. State v. Price (1997), 122 Ohio App.3d 65, 68, 701 N.E.2d 41, citing Butcher, supra. -12- Gibson presented a prima facie case through evidence that showed the State did not comply with the 270-day limitation set forth R.C. 2745.71(C)(2). Gibson testified that he resided in Mahoning County Jail for a two-year period between April 1996 through May 1998, except for brief periods of time when he faced charges in Trumbull and Guernsey Counties. The record also reveals the Cuyahoga County authorities were aware of his location as early as April 12, 1996, when he was arrested by the North Randall police in the Mahoning County Jail, and as late as August 30, 1996, when Cuyahoga County authorities notified Mahoning County authorities of the existence of the June 16, 1996 capiases. The record fails to disclose any effort on behalf of the State to secure Gibson's availability for trial until May 20, 1998, when a judge issued a capias and warrant for his removal from Lorain Correctional Institute. I cannot say that the single effort in August 1996 is proof of reasonable diligence which would allow the State, 627 days later and 767 days after the April 12, 1996 arrest, to secure Gibson's availability for trial. Cf. State v. Howard (Mar. 4, 1982), Cuyahoga App. No. 43750, unreported (where state and court made reasonable efforts to secure the defendant for trial). The majority's result-oriented opinion cites three unreported cases to buttress its contention that a June 19, 1996 capias and an August 30, 1996 letter of apprehension sent to Mahoning County constituted reasonable diligence to secure Gibson's person. A review of those cases reveals the authority for this contention does not stand for the proposition the majority espouses. -13- In State v. Gilbert (July 29, 1988), Lake App. No. 12-204, unreported, the defendant was arrested in May 1986, in Lake County, was indicted on June 30, 1986, and on August 1, 1986, upon learning Gilbert was in a Hamilton County Jail, the Lake County Sheriff's Department, requested a holder be placed on him. Hamilton authorities were also contacted about the possibility of transferring Gilbert back to Lake County. After learning that Gilbert had been transferred to Cuyahoga County, he was brought from Cuyahoga County to Lake County on December 15, 1986, arraigned and then returned to Cuyahoga County. Gilbert was imprisoned on the Hamilton County conviction on January 27, 1987. Although it is unclear when he returned to Lake County, on March 19, 1997, 293 days after his arrest, Gilbert filed a motion to dismiss. The appeals court found that less than 270 days had elapsed due to the delay occasioned by or actions instituted by the accused. It also found that the request for a holder and an attempt to bring Gilbert back to Lake County exempted 136 days under R.C. 2945.72, because the prosecution exercised reasonable diligence in seeking his return. In State v. Grubb (August 27, 1981), Franklin App. No. 81AP- 217 the court of appeals found that the defendant, himself, had caused the delay in being tried within 270 of his arrest for aggravated vehicular homicide. Its comments on the prosecution's exercise of reasonable diligence by only issuing a capias seeking Grubb's return from Michigan centered more on whether it was reasonable for the judge to determine, 50 days after the capias was -14- issued, that the case would be indefinitely continued because of defendant's unavailability. Finally, the case of State v. Howard (Mar. 4, 1982), Cuyahoga App. No. 43750, is also distinguishable from the one sub judice. This court found that the prosecution lacked specific knowledge of the defendant's whereabouts, that the capias issued seeking Howard's return from where he may be, and that reasonable efforts : *** do not include special investigatory efforts to secure the accused's presence where his whereabouts are not specifically made known or to employ special efforts in every situation where a capias has been issued. Howard, supra, at 12-13. It is also possible that the majority's opinion is based upon the idea that Gibson suffered no prejudice when his right to a speedy trial was violated because his sentence is concurrent with those of Trumbull, Guernsey and Mahoning Counties. Whatever the reasons, the majority opinion gives the prosecution serious misdirection.5 Therefore, in my opinion, the prosecution failed to satisfy its burden to show that it exercised reasonable diligence to secure Gibson's availability for trial and it was error to deny the motion to discharge. I would vacate the judgments of conviction entered in these cases and discharge Gibson subject to the unrelated sentences he currently serves in the Lorain Correctional Institution. 5 Injustice anywhere is a threat to justice everywhere. Martin Luther King, Jr. Letter from the Birmingham jail, published in The Atlantic Monthly (1963). .