[Cite as State v. Williams, 2013-Ohio-950.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, : Case No. 12CA12
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
KEVIN E. WILLIAMS, :
: RELEASED 02/28/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Kathryn Hapner, Hillsboro, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Kevin Williams appeals the trial court’s denial of his motion to dismiss the
indictment and argues that he was not brought to trial within the statutorily required 180-
day time limit. We agree with the trial court that charges in this case were not pending
at the time Williams filed his request for disposition and therefore under R.C. 2941.401
his motion to dismiss could not be granted on this basis. However, along with his
request for disposition, Williams also sent a notice of incarceration, which included his
location at Madison Correctional Institution, to the prosecutor. Therefore, we conclude
that Williams met his initial duty to notify the prosecutor of his place of incarceration
under R.C. 2941.401. Because the state did not serve him with a copy of the indictment
until nearly five months after it was filed, we construe this time against the state.
Accordingly, when Williams filed his motion to dismiss, the 180-day time limit had
expired and the trial court erred by not dismissing the charges against him.
Highland App. No. 12CA12 2
I. FACTS
{¶2} In May 2011, an officer stopped Kevin Williams for a minor traffic offense.
Following a canine sniff of the vehicle’s exterior, the Lynchburg Police Department
seized Williams’ vehicle and cash. However, they did not charge Williams with any
crime and released him. Subsequently in June 2011, the Highland County Court of
Common Pleas sentenced Williams to 11 months incarceration in an unrelated case.
{¶3} On September 26, 2011, Williams sent an “Inmate’s Notice of Place of
Imprisonment and Request for Disposition of Indictments, Information or Complaints” to
the Hillsboro Municipal Court and the Highland County Prosecutor pursuant to R.C.
2941.401. In this notice, Williams indicated that he was imprisoned at Madison
Correctional Institution in London, Ohio and requested final disposition of his pending
“indictment, information or complaint” for an unrelated theft offense. As a result, his
misdemeanor case was dismissed in municipal court.
{¶4} On December 6, 2011, the grand jury returned an indictment against
Williams for one count of aggravated possession of drugs and a forfeiture specification
based on the traffic stop in May 2011. Although the state attempted to serve Williams
with a summons and copy of the indictment, both were returned unserved on December
22, 2011, with the notation “in prison.”
{¶5} Upon his release from prison on May 2, 2012, Highland County deputies
served Williams with a warrant for his arrest and copy of the indictment. He was
arraigned the following day. On June 19, 2012, Williams filed a motion to dismiss the
indictment based on the state’s failure to bring him to trial within the required 180-day
time limit identified in R.C. 2941.401. After hearing arguments, the court overruled his
Highland App. No. 12CA12 3
motion finding that Williams did not file a request for a final disposition of his charges in
this case; rather his request pertained only to his unrelated case for theft in the Hillsboro
Municipal Court. Williams then pleaded no contest to the charges in the indictment and
the trial court sentenced him to eight months incarceration. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶6} Williams raises one assignment of error for our review:
1. “THE TRIAL [SIC] ERRED IN OVERRULING DEFENDANT/APPELLANT’S
MOTION TO DISMISS.”
III. LAW AND ANALYSIS
A. Legal Standard
{¶7} This case involves the interpretation of a statute, which we review de
novo, without deference to the trial court’s determination. In re Adoption of T.G.B., 4th
Dist. Nos. 11CA919, 11CA920, 2011-Ohio-6772, ¶ 4. “‘The primary goal of statutory
construction is to ascertain and give effect to the legislature’s intent in enacting the
statute. * * * The court must first look to the plain language of the statute itself to
determine the legislative intent.’” Id., quoting State v. Lowe, 112 Ohio St.3d 507, 2007-
Ohio-606, 861 N.E.2d 512, ¶ 9. If the meaning of a statute is unambiguous and definite,
we must apply it as written and without further interpretation. Mathews v. Waverly, 4th
Dist. No. 08CA787, 2010-Ohio-347, ¶ 23. Only if a statute is unclear and ambiguous,
may we interpret it to determine the legislature’s intent. State v. Chappell, 127 Ohio
St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. And because the Supreme Court
of Ohio has held that R.C. 2941.401 is not ambiguous, we need not interpret it; we must
simply apply it. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471,
¶ 13, 20; State v. Miller, 4th Dist. No. 11CA26, 2012-Ohio-1823, ¶ 7. “Furthermore,
Highland App. No. 12CA12 4
when reviewing the legal issues presented in a speedy trial claim, we must strictly
construe the relevant statutes against the state.” State v. Fisher, 4th Dist. No.
11CA3292, 2012-Ohio-6144, ¶ 8. See also State v. Brown, 131 Ohio App.3d 387, 391,
722 N.E.2d 594 (4th Dist.1998).
B. Pending Charges
{¶8} Williams argues that the trial court erred by denying his motion to dismiss
the indictment because at the time he made his request, charges were pending against
him based on the May 2011 traffic stop. Therefore, he claims that R.C. 2941.401 is
applicable to his case. And because the prosecution did not bring him to trial within the
statutory 180-day time period, he argues the trial court should have dismissed the
indictment.
{¶9} R.C. 2941.401 governs the time within which the state must bring an
incarcerated defendant to trial and provides:
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 * * * .
***
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.
{¶10} Looking at the plain language of the statute, it is clear that R.C. 2941.401
only applies to untried indictments, information, or complaints that are pending against
Highland App. No. 12CA12 5
the prisoner when he files his request for disposition. It is equally as clear that no
charges based on the May 2011 traffic stop were pending at the time Williams filed his
request. In fact, the state did not obtain the indictment against Williams until over two
months after he filed his request.
{¶11} Moreover, Williams concedes in his brief that he did not list a case for the
Highland County Common Pleas Court in his request for disposition because he “could
not list a case number for a case which had not yet been formally charged or indicted.”
He acknowledges that the case was still under investigation and the Highland County
Prosecutor “decided not to formally pursue charges against [him] for nearly a month and
a half” after receiving his request. Furthermore the record shows that during arguments
on the motion to dismiss, defense counsel agreed with the trial court that Williams did
not file his request with the Highland County Court of Common Pleas because “there
was nothing pending” at the time.
{¶12} Williams cites our recent decision in State v. Miller, 4th Dist. No. 11CA26,
2012-Ohio-1823, and argues that because the case was under investigation when he
served the Highland County Prosecutor with his notice of incarceration and request for
disposition, the state had a duty to comply with the 180-day time limit in R.C. 2941.401.
However, Miller is distinguishable from the facts of this case. In Miller, an incarcerated
defendant filed a request for disposition of his pending complaint in Athens County
Municipal Court. Id. at ¶ 3. In response the state dismissed the municipal court
complaint. Id. Subsequently after his release from prison, the state indicted the
defendant for burglary, based on the same facts that supported the municipal court
complaint. Id. at ¶ 4. We held that the trial court correctly dismissed the burglary
Highland App. No. 12CA12 6
indictment because it was based on the same facts as the Athens County Municipal
Court complaint and it was filed more than 180 days after the defendant served his
request for disposition. Id. at ¶ 10. Therefore, based on the plain language of R.C.
2941.401, dismissal was appropriate. Id. at ¶ 19.
{¶13} Here, the request for disposition filed by Williams concerned only his
municipal court case. And unlike the defendant’s situation in Miller, he concedes that
the indictment in this case was unrelated to his municipal court case and based on
different facts. Accordingly, our decision in Miller is not applicable. We agree with the
trial court that Williams did not have charges pending against him in this case when he
filed his request and his motion to dismiss could not be granted on this basis.
Nevertheless, for the reasons that follow we find that the trial court erred by failing to
dismiss the indictment.
C. Williams’ Notification of the Indictment
{¶14} Williams also argues that he served the Highland County Prosecutor with
his notice of incarceration and request for disposition so that the state would have
actual notice of his intent to request disposition of any future charges filed against him
as a result of the May 2011 traffic stop. More importantly, he claims his request
provided the state with notice of his incarceration and location. Because he notified the
state of his location, he contends that when he was subsequently indicted the state had
a duty to timely serve him with a copy of the indictment. And because it failed to do so,
he had no reason to file a subsequent request for disposition once charges were
pending, as the trial court decided was necessary. Consequently, he argues that R.C.
2941.401 should apply and the trial court erred by denying his motion to dismiss.
Highland App. No. 12CA12 7
{¶15} The state counters that the Supreme Court of Ohio held in State v.
Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, that R.C. 2941.401
does not place a duty of reasonable diligence on the state to discover the whereabouts
of an incarcerated defendant. Therefore, under R.C. 2941.401 the duty is on the
defendant to request disposition once charges are pending, and because Williams failed
to do so, the trial court properly denied his motion to dismiss.
{¶16} In Hairston, the defendant was originally charged by information, but the
charges were dismissed in anticipation of a possible indictment. Hairston at ¶ 6.
Subsequently, the grand jury returned an indictment against the defendant and his
parole was revoked. Id. at ¶ 6-7. While he was in the county jail, the summons sent to
his home came back unserved. Id. at ¶ 7. Thereafter, he was returned to the custody of
the Ohio Department of Rehabilitation and Corrections. Id. When he did not appear for
his arraignment, the trial court issued a capias for his arrest. Id. Nearly eight months
later and while still incarcerated, he received a detainer notifying him of the indictment
filed against him. Id. at ¶ 8. The defendant then filed a motion to dismiss and argued
that under R.C. 2941.401 the state had a duty to exercise reasonable diligence to
discover his whereabouts and failed to do so. Id.
{¶17} The Court held that R.C. 2941.401 does not place a duty upon the state to
exercise reasonable diligence to discover the location of an imprisoned defendant
against whom charges are pending. Id. at ¶ 20. Rather, the court found that the statute
actually “places the initial duty on the defendant to cause written notice to be delivered
to the prosecuting attorney and the appropriate court advising of the place of his
imprisonment and requesting final disposition; the statute imposes no duty on the state
Highland App. No. 12CA12 8
until such time as the incarcerated defendant provides the statutory notice.” Id.
Applying the statute, the Court found that the defendant “never caused the requisite
notice of imprisonment and request for final disposition to be delivered to either the
prosecuting attorney or the court; therefore, he never triggered the process to cause
him to be brought to trial within 180 days of his notice and request.” Id. at ¶ 21.
{¶18} The Court concluded that “[i]n 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. It does not, however, allow a defendant to
avoid prosecution simply because the state failed to locate him.” Id. at ¶ 25. And
because the defendant knew of his arrest, knew he had been apprehended at the
scene, knew that the police had seized cash found on his person, and knew that the
prosecutor had charged him by information, but waited nearly eight months to seek
enforcement of R.C. 2941.401, the court held that he could not avail himself of the 180-
day time limit in the statute. Id.
{¶19} Although the state urges us to find Hairston controlling here, the facts of
our case are distinguishable. “‘While in general, the one hundred eighty day time
requirement of R.C. 2941.401 does not begin to run until an inmate demands a speedy
resolution of a pending charge, this is premised on the prosecutor exercising
reasonable diligence in properly notifying the inmate concerning the indictment. The
state cannot avoid the application of R.C. 2941.401 by neglecting to inform the custodial
warden or superintendent of the source and content of an untried indictment. * * * The
state cannot rely upon the prisoner’s failure to make demand for speedy disposition, but
Highland App. No. 12CA12 9
must count the time as having commenced upon the first triggering of the state’s duty to
give notice of the right to make demand for speedy disposition. * * * If a prosecutor has
not exercised reasonable diligence in notifying an inmate of pending charges, the
proper remedy is a motion to dismiss for denial of a speedy trial.’” Cleveland Metroparks
v. Signorelli, 8th Dist. No. 90157, 2008-Ohio-3675, ¶ 16, quoting State v. Rollins, 10th
Dist. No. 92 AP-273, 1992 WL 344925, *5-6 (Nov. 17, 1992).
{¶20} Unlike the defendant in Hairston, Williams sent a notice of incarceration
and request for disposition to the prosecutor in this case pursuant to R.C. 2941.401.
During arguments on the motion, the state acknowledged that it received the notice on
September 29, 2011. Thus unlike Hairston, here the state knew where Williams was
incarcerated and did not need to exercise “reasonable diligence” to locate him. And
despite this knowledge, the record shows that on December 22, 2011, the copy of the
indictment and summons issued for Williams were returned unserved with the notation
“in prison.” Moreover, in Hairston the Court noted that despite having been arrested,
having money seized from his person as evidence, and having been charged once by
complaint, the defendant never filed a notice of incarceration and waited nearly eight
months to enforce R.C. 2941.401. Here, having knowledge that his vehicle and cash
had been confiscated by the Lynchburg Police Department and that he was under
investigation, Williams filed his notice of incarceration with the Highland County
Prosecutor. Accordingly, unlike the defendant in Hairston, it is difficult to see what more
Williams could have done to ensure receipt of any future indictment and secure his
rights under R.C. 2941.401. Therefore, applying the plain language of R.C. 2941.401
Highland App. No. 12CA12 10
we find that by notifying the prosecutor of his place of incarceration, Williams met his
initial duty under the statute.
{¶21} Because we have determined that Williams met his initial duty under R.C.
2941.401 to notify the prosecutor of his place of incarceration, we “must count the time
as having commenced upon the first triggering of the state’s duty to give notice of the
right to make demand for speedy disposition.” Cleveland Metroparks, 8th Dist. No.
90157, 2008-Ohio-3675, at ¶ 16, quoting Rollins, 10th Dist. No. 92 AP-273, 1992 WL
344925, at *5-6 (Nov. 17, 1992). See also State v. Nero, 4th Dist. No. 1392, 1990 WL
42269, *2 (Apr. 4, 1990). Based on the fact that the prosecutor received Williams’
demand on September 29, 2011, we conclude that the state’s duty to give Williams
notice of his right to make a demand for speedy disposition arose upon the filing of the
indictment on December 6, 2011. See State v. Green, 4th Dist. No. 97CA2308, 1998
WL 321579, *6 (June 10, 1998). Because more than 180 days had passed when
Williams filed his motion to dismiss on June 19, 2012, we agree that the trial court erred
by failing to dismiss the indictment and sustain his assignment of error.
JUDGMENT REVERSED AND
CAUSE REMANDED.
Highland App. No. 12CA12 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Hoover, J.: Concurs in Judgment and Opinion.
McFarland, P.J.: Dissents.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
State v. Williams
Combined Opinion