State v. Harvey

[Cite as State v. Harvey, 2013-Ohio-2332.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
Nos. 98906, 98907, 98908, and 98909

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

DEREK HARVEY
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-534780, CR-533891, CR-532898, and CR-534114

BEFORE: McCormack, J., Celebrezze, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: June 6, 2013
ATTORNEY FOR APPELLANT

Christopher R. Fortunato
13363 Madison Avenue
Lakewood, OH 44107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: John Patrick Colan
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

{¶1} In this consolidated appeal, defendant-appellant, Derek Harvey (“Harvey”),

appeals the trial court’s denial of his motion to dismiss the charges against him. We find

no merit to the appeal and affirm.

Substantive Facts and Procedural History

{¶2} This matter is a consolidated appeal of the following: (1) Cuyahoga C.P.

No. CR-532898, indicted by information on January 19, 2010, charging Harvey with

unauthorized use of a vehicle in violation of R.C. 2913.03(B) (Appeal No. 98908); (2)

Cuyahoga C.P. No. CR-534780, indicted on or about March 2, 2010, on two counts of

forgery in violation of R.C. 2913.31(A)(2), two counts of forgery in violation of R.C.

2913.31(A)(3), and one count of misdemeanor theft in violation of R.C. 2913.02(A)(3)

(Appeal No. 98906); (3) Cuyahoga C.P. No. CR-533891, indicted on or about March 3,

2010, on two counts of forgery in violation of R.C. 2913.31(A)(2), two counts of forgery

in violation of R.C. 2913.31(A)(3), and one count of theft in violation of R.C.

2913.02(A)(3) (Appeal No. 98907); and (4) Cuyahoga C.P. No. CR-534114, indicted on

March 8, 2010, on one count of forgery in violation of R.C. 2913.31(A)(2), one count of

forgery in violation of R.C. 2913.31(A)(3), and one count of theft in violation of R.C.

2913.02(A)(3) (Appeal No. 98909).
 {¶3} Harvey failed to appear at his arraignments on the above matters due to his

incarceration at the Ryan Correctional Facility in Michigan. Warrants for his arrest were

issued.

{¶4} On or about November 9, 2011, while incarcerated in Michigan, Harvey

filed a request for disposition of pending charges and notice of availability. This

document was entered in the trial court’s docket as a motion for writ of habeas corpus,

and it consisted of four pages: two pages of the writ, one request for disposition, and one

notice of availability. There is no page indicating service of this document upon the

prosecutor, including a certificate of service or a return receipt, and the prosecutor denies

ever being served a copy of Harvey’s request. The trial court, however, acknowledges

receipt of Harvey’s request.

{¶5} On April 2, 2012, Harvey filed a pro se motion to dismiss the charges

against him based upon the interstate agreement on detainers. Harvey was arraigned on

May 18, 2012. He was declared indigent, and counsel was appointed. Following

discovery, Harvey filed a second motion to dismiss the charges with the assistance of

counsel. The state opposed Harvey’s motion, claiming that Harvey failed to serve the

proper documentation required by statute. On June 26, the trial court denied Harvey’s

motion, stating:

The defendant’s Motion to Dismiss, filed 6/04/2012, is denied. The
defendant arguably served his notice of availability on the judicial branch
but there is no evidence that the notice was served on the executive branch,
i.e. the prosecuting attorney, in compliance, substantial or otherwise, with
R.C. 2941.401.
 {¶6} Thereafter, on August 1, 2012, Harvey withdrew a former plea of not guilty

and pleaded no contest to all of the charges in all four cases. He was found guilty and

sentenced on August 22, 2012.

Assignments of Error

I. The trial court erred when it overruled the appellant’s various motions to
dismiss holding the appellant did not serve the motion on the appellee
without holding a hearing in which to make findings.

II. The trial court erred when it failed to grant the defendant’s motion to

dismiss since the appellant had made himself available for transport to

Ohio.

Law and Analysis

{¶7} Harvey alleges that the trial court erred in denying his motion to dismiss the

charges against him. Essentially, Harvey claims that the state’s failure to bring him to

trial within 180 days of receiving his request for disposition violated the interstate

agreement on detainers. Harvey also claims that the court erred in not holding a hearing

on his motion to dismiss. We address the two assignments of error together.

{¶8} In reviewing the denial of Harvey’s motion to dismiss, we are required to

determine whether, as a matter of law, “‘the trial court erred in applying the substantive

law to the facts of the case.’” State v. Gill, 8th Dist. No. 82742, 2004-Ohio-1245, ¶ 8,

quoting State v. Williams, 94 Ohio App.3d 538, 641 N.E.2d 239 (8th Dist.1994).

{¶9} The interstate agreement on detainers, codified in R.C. 2963.30, governs the

procedures by which a criminal defendant incarcerated in another jurisdiction must be
brought to trial on outstanding charges in a party state. Its purpose is to “encourage the

expeditious and orderly disposition of [outstanding] charges” across all member states.

R.C. 2963.30, Article I.

{¶10} The agreement provides that a prisoner in another state must be brought to

trial within 180 days “after he shall have caused to be delivered to the prosecuting officer

and the appropriate court of the prosecuting officer’s jurisdiction written notice of the

place of his imprisonment and his request for a final disposition to be made of the

indictment, information or complaint * * *.” R.C. 2963.30, Article III(a). The prisoner’s

request must be accompanied by a certificate

of the appropriate official having custody of the prisoner, stating the term of
commitment under which the prisoner is being held, the time already
served, the time 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 state parole agency relating to the prisoner. Id.

Article III(b) of the statute further requires the prisoner send the written notice requesting

final disposition “to the warden, commissioner of corrections, or other official having

custody of him.”

{¶11} Essentially, Article III of this act defines the procedure when a defendant

detainee initiates the process for trial and sets the speedy trial time at 180 days. Id.; State

v. Levy, 8th Dist. No. 83114, 2004-Ohio-4489, ¶ 10. This 180-day time period begins to

run when a prisoner substantially complies with the requirements of the statute as outlined

above. State v. Quinones, 168 Ohio App.3d 425, 2006-Ohio-4096, 860 N.E.2d 793, ¶ 17

(8th Dist.), citing State v. Mourey, 64 Ohio St.3d 482, 486, 597 N.E.2d 101 (1992)
(rejecting the strict compliance rule, finding substantial compliance to be more supportive

of the stated purpose of the statute). “‘Substantial compliance’ requires the defendant to

do ‘everything that could be reasonably expected.’” Quinones at ¶ 17, quoting State v.

Ferguson, 41 Ohio App.3d 306, 311, 535 N.E.2d 708 (10th Dist.1987).

{¶12} In this case, Harvey contends that his request for final disposition of the

charges contained in the consolidated cases substantially complied with R.C. 2963.30.

Our review of the record, however, indicates it did not.

{¶13} The issue in this case is whether Harvey “caused to be delivered to the

prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction”

written notice of the place of his imprisonment and his request for disposition. “The key

to determining when the 180-day period begins * * * is delivery upon the receiving state

and its court.” State v. Pierce, 8th Dist. No. 79376, 2002-Ohio-652, ¶ 9 (interpreting Fex

v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993)). What is important

“is there be documentary evidence of the date of delivery to the officials of the receiving

state.” Id. This court has previously determined that in order to comply with the

“substantial compliance” standard set forth in Mourey, a detainee must file his request for

final disposition by certified mail with the prosecutor and the court. Levy at ¶ 33. Filing

only with the court is insufficient. Id.

{¶14} In this matter, there is no evidence in the record to suggest that Harvey

successfully filed his request for final disposition or notice of availability with the

prosecutor. Harvey’s request for disposition that is contained in the court file, rather,
consists of a writ of habeas corpus, request for disposition, and notice of availability.

There is no evidence of service upon the prosecutor, such as a certificate of service or

return receipt attached to this document or otherwise filed in the record. Furthermore,

the state denies receiving such request from Harvey. The fact that Harvey filed a request

for disposition with the court alone does not compel a finding of substantial compliance

where Harvey failed to send the request to the prosecutor’s office as well. Harvey did

not do all that the law required of him, or what was reasonably expected. We, therefore,

hold that the trial court did not err in denying Harvey’s motion to dismiss.

{¶15} We note that the trial court incorrectly referenced R.C. 2941.401 in its

journal entry denying Harvey’s motion to dismiss. R.C. 2941.401 states that “when a

person has entered upon a term of imprisonment in a correctional institution of this state *

* * he shall be brought to trial within 180 days * * *.” This statute, therefore, applies

when the prisoner is in custody in an Ohio facility and seeks to have untried charges

resolved in Ohio. Levy, 8th Dist. No. 83114, 2004-Ohio-4489, ¶ 13.

{¶16} Harvey, however, was in custody in a Michigan facility while requesting

final disposition of charges against him in Ohio. As such, R.C. 2941.401 does not apply.

Nonetheless, the law regarding substantial compliance with R.C. 2941.401 applies

equally to R.C. 2963.30, where a criminal defendant is in custody in a facility of a

different state. See Gill, 8th Dist. No. 82742, 2004-Ohio-1245 (holding that substantial

compliance is the proper standard under R.C. 2941.401 “in those instances where

documents actually reach a location, regardless if mailed by the inmate or institution * *
*.”); see also Quinones, 168 Ohio App.3d 425, 2006-Ohio-4096, 860 N.E.2d 793 (8th

Dist.) (holding that substantial compliance is the proper standard under R.C. 2963.30, the

interstate agreement on detainers that applies to defendants in out-of-state prisons). The

trial court’s analysis under R.C. 2941.401, therefore, does not change the outcome of this

case.

{¶17} Finally, Harvey contends that the trial court erred in not holding a hearing

on his motion to dismiss, stating “there is nothing stated in the record that demonstrates

the trial court made the proper findings that R.C. 2963.30 was complied [with].” We

find Harvey’s argument without merit.

{¶18} Crim.R. 12(F), which governs pretrial motions, provides that a court may

adjudicate a motion “based upon briefs, affidavits, the proffer of testimony and exhibits, a

hearing, or other appropriate means.” The rule does not require the court to hold an

evidentiary hearing. State v. Perry, 4th Dist. No. 05CA2839, 2006-Ohio-220, ¶ 22.

Moreover, Harvey’s motion to dismiss contained nothing to suggest that an evidentiary

hearing would aid the court in ruling upon the motion. The trial court could review the

entire record and decide the merits of the case based upon Harvey’s motion, the exhibits

attached thereto, and the filings in the case. Thus, the trial court did not err in not holding

a hearing on Harvey’s motion to dismiss.

{¶19} Accordingly, Harvey’s first and second assignments of error are overruled.

{¶20} Judgment affirmed.

It is ordered that appellee recover of appellant 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________
TIM McCORMACK, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR