[Cite as State v. McKittrick, 2011-Ohio-5899.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE STATE OF OHIO, : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Appellee, : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 11-CA-36
CRAYTON E. MCKITTRICK JR., :
:
:
Appellant. : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal
Court Case No. 11-TRC-01816
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 9, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
STEPHANIE L. HALL CHARLES E. TAYLOR
Assistant City Prosecutor P.O. Box 1730
City of Lancaster Law Director’s Office Buckeye Lake, Ohio 43008
123 East Chestnut Street
P.O. Box 1008
Lancaster, Ohio 43130
[Cite as State v. McKittrick, 2011-Ohio-5899.]
Delaney, J.
{¶ 1} Defendant-Appellant Crayton E. McKittrick, Jr. appeals his conviction in
the Fairfield County Municipal Court for violating R.C. 4511.19(A)(1)(a), driving while
intoxicated, a first degree misdemeanor.
{¶ 2} Appellant raises what appears to be two Assignments of Error, though
they are not framed as such:
{¶ 3} “I. DOES A COURT HAVE JURISDICTION TO TRY A CITIZEN ON A
TRAFFIC OFFENSE WHERE NO UNIFORM TRAFFIC TICKET HAS BEEN
COMPLETED AND FILED WITH THE COURT AND NO AFFIANT HAS SIGNED AN
AFFIDAVIT ALLEGING A TRAFFIC OFFENSE AND THE PURPORTED AFFIDAVIT
WAS ONLY SIGNED BY [SIC] DEPUTY CLERK AS A NOTARY PUBLIC?
{¶ 4} “II. DID THE FILING OF A NEW COMPLAINT IN THE NAME OF THE
CITY OF LANCASTER AND HAVING THE BENCH WARRANT DELIVERED TO
LANCASTER’S POLICE DEPARTMENT WHERE IT WAS NOT WORK DEPRIVE THE
STATE OF THE RIGHT TO TOLL THE SPEEDY TRIAL STATUTE?”
{¶ 5} At the outset, we note this case comes to us on the accelerated calendar
governed by App. R. 11.1, which states the following in pertinent part:
{¶ 6} “(E) Determination and judgment on appeal
{¶ 7} “The appeal will be determined as provided by App. R. 11.1. It shall be
sufficient compliance with App. R. 12 (A) for the statement of the reason for the court’s
decision as to each error to be in brief and conclusionary form.
{¶ 8} “The decision may be by judgment entry in which case it will not be
published in any form.”
Fairfield County, Case No. 11-CA-36 3
I.
{¶ 9} Appellant argues in the first Assignment of Error that the Fairfield County
Municipal Court did not have jurisdiction to proceed against him, as the court lacked a
substantive complaint and affidavit, as required by Traf. R. 3.
{¶ 10} R.C. 2935.17 gives the Ohio Supreme Court the authority to provide by
rule for the uniform type and language to be used in any affidavit or complaint filed in
any court inferior to the common pleas court for violations in all moving traffic cases.
The Ohio Supreme Court has promulgated the Ohio Traffic Rules, which are to “be
construed and applied to secure the fair, impartial, speedy and sure administration of
justice, simplicity and uniformity in procedure, and the elimination of unjustifiable
expense and delay”. Traf. R. 1(B).
{¶ 11} Traf. R. 3(C) states that the Ohio Uniform Traffic Ticket shall be used in all
moving traffic cases and a ticket properly issued by a law enforcement officer shall be
accepted for filing and disposition in any court having jurisdiction over the offense
alleged.
{¶ 12} Traf. R. 3(E) provides:
{¶ 13} “(1) A law enforcement officer who issues a ticket shall complete and sign
the ticket, serve a copy of the completed ticket on the defendant, and, without
unnecessary delay, file the court copy with the court. If the issuing officer personally
serves a copy of the completed ticket on the defendant, the issuing officer shall note the
date of personal service on the ticket in the space provided. If the issuing officer is
unable to serve a copy of the completed ticket on the defendant, the completed ticket
may be served by another law enforcement officer of the law enforcement agency
Fairfield County, Case No. 11-CA-36 4
issuing the ticket or filed with the clerk of the court for issuance of a warrant or
summons pursuant to Crim. R. 4. * * *.”
{¶ 14} A valid complaint is a necessary condition precedent for the trial court to
obtain jurisdiction in a criminal matter. New Albany v. Dalton (1995), 104 Ohio App.3d
307, 311, 661 N.E.2d 1132. Appellate review of the validity of a complaint is de novo.
State v. Hoerig, 181 Ohio App.3d 86, 2009-Ohio-541, ¶ 12 (citation omitted). A
complaint prepared pursuant to Traf. R. 3 simply needs to advise the defendant of the
offense with which he is charged, in a manner that can be readily understood by a
person making a reasonable attempt to understand. Barberton v. O’Connor (1985), 17
Ohio St.3d 218, 221, 478 N.E.2d 803.
{¶ 15} The record reflects Appellant was stopped and arrested on February 6,
2011, for driving under the influence in the Village of Millersport by Officer Matthew
Peddicord. Appellant was taken to the hospital instead of jail due to complaints of chest
pain. At the hospital, Appellant’s blood was taken, but due to his condition, Officer
Peddicord did not serve him with a citation. Instead, a citation was filed on February 24,
2011 in the Fairfield County Municipal Court and personally served upon Appellant at
his residence.
{¶ 16} Our examination of the instant citation shows it sets forth the numerical
designation of the statute violated, R.C. 4511.19(A)(1)(a), states “OVI” is the committed
offense, and was signed and sworn under oath by Officer Peddicord, the issuing law
enforcement officer. The record further reflects the citation was personally served upon
Appellant on March 2, 2011, after the issuance of a summons by the clerk of court.
Fairfield County, Case No. 11-CA-36 5
Appellant was also summoned to appear in Fairfield County Municipal Court on March
9, 2011.
{¶ 17} We find a proper Uniform Traffic Ticket was filed in the Fairfield County
Municipal Court, and therefore, the trial court had jurisdiction.
{¶ 18} The first Assignment of Error is overruled.
ll.
{¶ 19} In the second Assignment of Error, Appellant argues the trial court erred in
overruling his motion to dismiss on speedy trial grounds.
{¶ 20} The record reflects a bench warrant was issued on March 10, 2011 by the
Fairfield County Municipal Court because Appellant failed to appear on March 9th for
arraignment. The bench warrant was issued to the Lancaster Police Department even
though Appellant was stopped in the Village of Millersport.
{¶ 21} Appellant was arrested on April 4, 2011, and appeared for arraignment
that day. He plead not guilty and did not waive his speedy trial rights. He was released
on his own recognizance. A jury trial was scheduled on May 17, 2011. On May 12,
2011, a second complaint was filed against Appellant based upon the lab results which
reflected Appellant’s blood alcohol level was 0.196 g% and Appellant was also charged
under R.C. 4511.19(A)(1)(f). A second warrant to arrest was issued on May 12, 2011,
and Appellant was brought before the trial court the same day for arraignment.
Appellant again plead not guilty and did not waive his speedy trial rights.
{¶ 22} A bench trial was held on May 17, 2011. Appellant, through counsel,
moved to dismiss the charges based upon a violation of his speedy trial rights pursuant
to R.C. 2945.71. The trial court overruled the motion, stating:
Fairfield County, Case No. 11-CA-36 6
{¶ 23} “ * * *
{¶ 24} “This case is a misdemeanor of the first degree and therefore, this matter
must come to trial within 90 days of the date of incident.
{¶ 25} “ * * *
{¶ 26} “The Court computes the time for speedy trial to be 78 days. From
February 6, 2011 to March 9, 2011, there is a total of 33 days. The time frame from
April 4, 2011 to May 17, 2011 is a total of 45 days. The time between March 9, 2011 to
April 4, 2011 is tolled pursuant to R.C. 2945.72(D), which provides that the time is
extended because of neglect or improper act of the accused, ie: failure to appear for
arraignment.”
{¶ 27} The State presented its case and the Appellant did not present evidence.
By journal entry filed on May 20, 2011, the trial court found Appellant guilty of OVI, R.C.
4511.19(A)(1)(a).
{¶ 28} According to this Court’s calculations, 100 days elapsed between the date
of Appellant’s arrest and the May 17th trial date. The issue before this Court is whether
the Appellant’s failure to appear at the March 9th arraignment tolled the calculation until
his arrest on April 4, 2011. We agree with the trial court that the Appellant’s failure to
appear at the March 9th arraignment was a tolling event under R.C. 2945.72(D), which
states:
{¶ 29} “The time within which an accused must be brought to trial * * * may be
extended only the following:
{¶ 30} “ * * *
Fairfield County, Case No. 11-CA-36 7
{¶ 31} “(D) Any period of delay occasioned by the neglect or improper act of the
accused;
{¶ 32} “ * * *”.
{¶ 33} Therefore, we calculate that 27 days must be subtracted, leaving the time
charged to the State to be 73 days. Thus, the State did not exceed the statutory period
of 90 days.
{¶ 34} Appellant appears to argue he should not be charged with the total period
of delay due to his failure to appear at the March 9th arraignment because the warrant
was “not worked” by the Lancaster Police Department. He also claims the Lancaster
Police Department was the wrong law enforcement agency to serve the warrant.
{¶ 35} Upon review, we find Appellant has failed to present any evidence or
authority to support either contention. We further find that Appellant’s conduct in failing
to appear for the arraignment did not lose its character as a tolling event merely
because other events could have attributed to the delay. It also appears Appellant
made no effort to contact the court after failing to appear so it was reasonable to charge
the entire time of the delay against him.
{¶ 36} Accordingly, the second Assignment of Error is overruled.
Fairfield County, Case No. 11-CA-36 8
{¶ 37} The judgment of the Fairfield County Municipal Court is affirmed.
By: Delaney, J.
Gwin, P.J. and Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. McKittrick, 2011-Ohio-5899.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CRAYTON E. MCKITTRICK, JR. :
:
Defendant-Appellant : Case No. 11-CA-36
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Fairfield County Municipal Court is affirmed. Costs assessed to appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN