IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO THE ...

IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO

THE STATE OF OHIO, :

Plaintiffs, : Case No. 12 CR 6

v. : Judge Berens

JASON T. BODE, : ENTRY Overruling Defendant’s
Defendants. Motion to Dismiss

:

This matter is before the Court upon Defendant’s Motion to Dismiss, filed April 5, 2012.

Defendant’s motion relates only to the first three counts of the Indictment. An oral hearing was

had on this matter on April 23, 2012. For the following reasons, Defendant’s motion is

OVERRULED.

STATEMENT OF THE CASE

Defendant has been indicted in this case on five counts of Operating a Motor Vehicle

Under the Influence of Drugs or Alcohol, each as a felony of the fourth degree. The first three

counts of the Indictment relate to events that allegedly occurred on May 28, 2011 and the last

two counts of the Indictment related to events that allegedly occurred on December 29, 2011.

Defendant’s motion relates only to the first three counts of the Indictment.
FINDINGS OF FACT

Based on the evidence presented at the oral hearing, the written stipulations of the parties,

and on the record of proceedings in this action the Court makes the following findings of fact:

1. On May 28, 2011 Defendant was arrested on suspicion of operating a vehicle under the

influence and a complaint was filed in the Fairfield County Municipal Court, which was

assigned Case Number TRC-11-5042. Defendant was released on bond in that case on

May 30, 2011.

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2. Defendant was again arrested on suspicion of operating a vehicle under the influence on
December 29, 2011. On that same day, the probation officer supervising Defendant on his
probation in Fairfield Count Municipal Court Case Number CRB-09-02086 placed a
probation holder on Defendant.

3. On December 30, 2011, the Fairfield County Municipal Court found probable cause for a
motion to revoke Defendant’s probation in Case Number CRB-09-0286 and ordered that
Defendant be held without bond pending a hearing on that motion.

4. On January 6, 2011, Defendant was indicted by the Fairfield County Grand Jury. That
indictment charged Defendant with five counts of Operating a Motor Vehicle Under the
Influence of Drugs or Alcohol, each as a felony of the fourth degree. That indictment
combined the charges stemming from Defendant’s arrests on May 28, 2011 and
December 30, 2011 into a single case to be tried in a single trial.

5. On January 11, 2012, Defendant requested discovery from the State.
6. On January 13, 2012, Defendant moved for substitution of counsel, which the Court

granted
7. On January 20, Defendant, through substituted counsel, requested discovery from the

State. The State responded to Defendant’s discovery request on February 13, 2011 and
supplied Defendant with additional documents on February 14, 2011.
8. On January 23, 2012, the Fairfield County Municipal Court revoked Defendant’s
probation in Case Number CRB-09-0286 and ordered Defendant to serve 30 days in jail
with credit for 25 days served.
9. On February 16, 2012, the State orally moved to sever Counts 1-3 from Counts 4 and 5 of
the Indictment. Defendant did not object to that motion and the Court granted the motion

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to sever and set Counts 1-3 and Counts 4 and 5 for separate trial dates.
10. On February 28, 2012, Defendant requested additional discovery from the State

pertaining to records of previous convictions. The State responded to that request on
March 6, 2012 and March 9, 2012, providing records of different convictions from
different courts on each of those dates.
11. On March 1, 2012, Defendant filed a motion to suppress/motion in limine regarding prior
convictions. The Court ruled on that motion on April 2, 2012.
12. On March 23, 2012, the State moved to continue the jury trial on Counts 1-3 to April 17,
2012 because of the unavailability of a witness subpoenaed to appear before another
court on the previously scheduled trial date. The Court granted that motion for good
cause shown.
13. On April 3, 2012, Defendant moved the Court to schedule all counts for a change of plea
hearing.
14. On April 4, 2012, Defendant filed the motion to dismiss now under consideration.

CONCLUSIONS OF LAW
The Sixth Amendment to the United States Constitution and Section 10, Article I of the
Ohio Constitution both guarantee persons accused of criminal offenses the right to a speedy trial.
Although there is a Constitutional analysis of the speedy trial right, the test for which was set
forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1971), the speedy trial analysis in Ohio is
ordinarily governed by whether the defendant has been brought to trial within the time limits set
forth in R.C. 2945.71. As it applies to the offenses for which Defendant has been indicted, R.C.
2945.71(C)(2) provides that Defendant “shall be brought to trial within two hundred seventy
days” after his arrest. In addition, R.C. 2945.71(E) provides that “each day during which the

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accused is held in jail in lieu of bail on the pending charge shall be construed as three days.”
In this case, some of the calculation of speedy trial days has been presented by agreement

of the parties. The State concedes, but only for the sake of the motion before the Court, that 213
days passed for speedy trial purposes as of Defendant’s arrest on December 29, 2011. The State
has argued, and Defendant has agreed, that an additional 13 days passed for speedy trial purposes
as of January 11, 2012. Defendant has further conceded that the time from January 11, 2012 to
February 13, 2012 was tolled by operation of 2945.72(E) because of the filings of various
motions by Defendant. Finally, Defendant has conceded that the time from March 1, 2012 to the
present has been tolled for the same reason.

The agreements and concessions of the parties have narrowed the dispute to a period of
17 days, running from February 13, 2012 to March 1, 2012. Defendant asserts that he is entitled
to have each day during that period be construed as three days under R.C. 2945.71(E). The State
has asserted that Defendant is entitled to the benefit of R.C. 2945.71(E) only for the three days
between February 13, 2012 and February 16, 2012, citing State v. Gordon, 5th Dist. No.
2010CA00132, 2011-Ohio-1227, for the proposition that an accused is not entitled to the triple-
count calculation when he is held pending a multiple-count indictment where the counts are not
all to be tried together.

The issue before the Court, then, is whether, during the period from February 13, 2012 to
March 1, 2012, Defendant was “held in jail in lieu of bail on the pending charge” for the
purposes of R.C 2945.71(E). In interpreting R.C. 2945.71(E), courts have frequently been faced
with situations in which an accused has been held in jail on multiple charges arising from
unrelated incidents. In such a situation, the inquiry focuses on whether the multiple charges
constitute a single “pending charge.” State v. Dankworth, 172 Ohio App.3d 159, 2007-Ohio-

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2588, 873 N.E.2d 902 (2d Dist.), ¶ 35.
In Dankworth, the Second District Court of Appeals noted that the Ohio Supreme Court

has not decided the question of whether multiple charges constitute a single pending charge. Id.
at ¶ 37. However, the Dankworth court agreed with those courts that have held “that when an
accused is charged with several unrelated offenses in a multiple-count indictment and all counts
are to be tried in a single trial, the indictment is treated as a single charge, and the accused is
entitled to the triple-count provision.” Id., citing State v. Collins, 91 Ohio App.3d 10, 14–15, 631
N.E.2d 666 (2d Dist. 1993), State v. Armstrong, 10th Dist. No. 87AP-1166, (May 25, 1989), and
State v. Bowman, 41 Ohio App.3d 318, 535 N.E.2d 730 (12th Dist. 1998), abrogated on other
grounds by State v. Palmer, 84 Ohio St.3d 103, 702 N.E.2d 72 (1998). In each of those cases, the
appellate court stressed that multiple unrelated offenses would constitute a single pending charge
for purposes of calculating speedy trial time if they were to be tried in a single trial. Bowman, at
para. 2 of the syllabus (“The triple-count provision of R.C. 2945.71(E) applies to a criminal
defendant held in jail in lieu of bail and charged with multiple counts under a single indictment,
if all counts are to be tried in a single trial.”); Collins, at 15, citing Bowman; Armstrong, at 3
(Finding that triple-count calculation was appropriate where “there is no indication that separate
trials were contemplated.”).

Defendant correctly notes that the court in Gordon did not specifically hold that the
accused is no longer entitled to benefit from the triple-count provision once the different counts
in a single indictment were set for separate trial. The pertinent language in Gordon reads,
“Thereafter, on November 2, 2009, appellant filed a Motion for Separate Trials. Both parties did
not dispute that the motion acted as a tolling event and that the triple count provision did not
apply.” Gordon, 2011-Ohio-1227, ¶ 33. That language does not lend itself easily to distillation

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into a specific holding that a motion to sever the counts for trial transforms multiple counts from

a single pending charge (as they are on account of being combined in a single indictment) into

multiple pending charges. However, the Gordon court applied only a single count calculation to

all of Gordon’s untolled time after the motion to separate was granted and did not give any

reason for doing so other than the motion to separate.

In light of the law cited above, and in light of the fact that the parties have treated Counts

1-3 and Counts 4 and 5 separately for the purposes of trials and motions, the Court finds that

Counts 1-3 and Counts 4 and 5 did not constitute a single pending charge for the purposes of

speedy trial calculation after the Court granted the motion to sever on February 16, 2012.

Therefore, the Court finds that Defendant was not entitled to triple-count calculation of the days

spend in jail in lieu of bail between February 13, 2012 and March 1, 2012.

Construing the facts and stipulations presented in light of the law as determined above,

the Court calculates the number of days Defendant has spent in jail in lieu of bail as follows:

From To Days Multiplier Total Days Passed
May 28, 2011 May 30, 2011 21
May 31, 2011 Dec. 29, 2011 Triple 6
Dec. 30, 2011 Jan. 11, 2012
Jan. 11, 2012 Feb. 13, 2012 213 Single 219

Feb. 13, 2012 Feb. 16, 2012 12 Single 231
Feb 17, 2012 Feb. 28, 2012
Feb. 28, 2012 Present Tolled under R.C. 2945.72(E) beginning with Defendant’s

initial request for discovery as agreed by the parties

3 Triple 240

11 Single 251

Tolled under R.C. 2945.72(E) beginning with Defendant’s

request for supplemental discovery on February 28, 2012

and thereafter as agreed by the parties.

Therefore, the Court finds that 251 days have passed for speedy trial purposes. Accordingly, the

time set forth in R.C. 2945.71(C)(2) has not expired.

1 The date of arrest is not counted. Crim.R. 45; State v. Stamps, 127 Ohio App.3d 219, 223, 712 N.E.2d
762 (1998).

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In light of the foregoing, the Court finds Defendant’s motion to dismiss not well taken
and it is therefore OVERRULED.

IT IS SO ORDERED.
________________________
Judge Richard E. Berens

Copies to:
Fairfield County Prosecuting Attorney – Attn. Darren Meade, Courthouse mailbox and email
Defense Counsel – Scott Wood, Courthouse mailbox and email
Filed May 2, 2012

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