[Cite as State v. Thompson, 2017-Ohio-8686.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLANT, CASE NO. 8-17-06
v.
DOUGLAS MARLIN THOMPSON, OPINION
DEFENDANT-APPELLEE.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 16 08 0217
Judgment Affirmed
Date of Decision: November 27, 2017
APPEARANCES:
Sarah J. Warren for Appellant
Patrick T. Clark for Appellee
Case No. 8-17-06
SHAW, J.
{¶1} The State of Ohio brings this appeal from the February 24, 2017,
judgment of the Logan County Common Pleas Court granting the motion to dismiss
of defendant-appellee, Douglas Thompson (“Thompson”). On appeal, the State
argues that the trial court erred by finding that pursuant to R.C. 2941.401 the State
failed to bring Thompson to trial within 180 days after Thompson caused to be
delivered to the “appropriate court” a written notice of his imprisonment and a
request for final disposition to be made of a pending complaint against him. In the
alternative, the State argues that the trial court at least abused its discretion in
declining to grant the State a continuance of the matter.
Relevant Facts and Procedural History
{¶2} The record indicates that on February 17, 2016, a complaint was filed
against Thompson in Bellefontaine Municipal Court alleging that Thompson
committed eight counts of Breaking and Entering in violation of R.C. 2911.13(A),
all felonies of the fifth degree.1 All eight counts alleged that the Breaking and
Entering took place on or about January 25, 2016.
{¶3} Prior to July of 2016, Thompson was incarcerated in the Chillicothe
Correctional Institution for crimes he committed in Hamilton County, Ohio, which
1
The complaint against Thompson was included as an exhibit at a later hearing. The Complaint was made
by Detective Tom Watson of the Logan County Sheriff’s Department. According to the complaint, a carbon
copy was sent to the Logan County Prosecutor.
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were unrelated to this case. On July 6, 2016, while he was incarcerated on the
unrelated case, Thompson signed a “Notice of Untried * * * Complaint and of
Rights to Request Disposition,” indicating that pursuant to R.C. 2941.401,
Thompson was requesting disposition for the complaint against him in Bellefontaine
Municipal Court. By way of context, R.C. 2941.401 reads as follows.
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, except
that for good cause shown in open court, with the prisoner or his
counsel present, the court may grant any necessary or reasonable
continuance. The request of the prisoner shall be accompanied by
a certificate of the warden or superintendent having custody of
the prisoner, stating the term of commitment under which the
prisoner is being held, the time served and 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 adult
parole authority relating to the prisoner.
The written notice and request for final disposition shall be given
or sent by the prisoner to the warden or superintendent having
custody of him, who shall promptly forward it with the certificate
to the appropriate prosecuting attorney and court by registered
or certified mail, return receipt requested.
The warden or superintendent having custody of the prisoner
shall promptly inform him in writing of the source and contents
of any untried indictment, information, or complaint against him,
concerning which the warden or superintendent has knowledge,
and of his right to make a request for final disposition thereof.
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***
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.
R.C. 2941.401.
{¶4} According to the record, pursuant to R.C. 2941.401, Thompson
delivered his “notice” to the warden and the warden then sent the notice to the
Bellefontaine Municipal Court’s Clerk of Courts and the Bellefontaine Municipal
Court Prosecuting Attorney. Both the clerk and the prosecuting attorney were at the
same address. Return receipts indicated that the documents that were sent were
received on July 15, 2016, both having been signed for by the same person.
{¶5} On August 9, 2016, an indictment was filed against Thompson in the
Logan County Common Pleas Court alleging eight counts of Breaking and Entering
in violation of R.C. 2911.13(A), all felonies of the fifth degree. The indictment
alleged that the crimes were committed between January 23, 2016, and January 25,
2016. It is not disputed that the crimes charged in the indictment were the same as
those that had been charged in the previously filed Bellefontaine Municipal Court
complaint.
{¶6} The record indicates that on August 16, 2016, the State dismissed the
original criminal complaint against Thompson in Bellefontaine Municipal Court.
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{¶7} On October 17, 2016, Thompson was arraigned on the indictment and
he pled not guilty to the charges.
{¶8} On February 15, 2017, Thompson filed a motion to dismiss, contending
that he complied with all the steps listed in R.C. 2941.401 and that his case should
be dismissed for failure to prosecute it within the 180 day timeline as more than 180
days had passed since the receipt of his “notice.”2
{¶9} On February 21, 2017, the State filed a memorandum opposing
Thompson’s motion to dismiss, arguing that Thompson did not provide the Logan
County Common Pleas Court or the county prosecutor’s office with his R.C.
2941.401 notice. The State argued that Thompson thus failed to notify the
appropriate court and the appropriate prosecuting attorney.
{¶10} On February 21, 2017, the trial court held a hearing on the motion to
dismiss wherein Thompson testified that he sent his R.C. 2941.401 notice to the
warden at Chillicothe Correctional Facility and the warden mailed it. A copy of the
notice and return receipts from the Bellefontaine Municipal Court and Bellefontaine
City Prosecutor’s Office were introduced into evidence. The trial court indicated
that it would take the matter under advisement and rule promptly.3
2
The return receipts for Thompson’s notice were stamped “Jul 15 2016.” One-hundred eighty days from
that date would have been January 11, 2017.
3
On February 22, 2017, Thompson filed a supplement to his motion to dismiss, citing State v. Hemingway,
8th Dist. Cuyahoga Nos. 96699, 96700, 2012-Ohio-476, and State v. Fox, 8th Dist. Cuyahoga No. 74641,
1998 WL 895265, as support for his position that the notice had been properly filed at the time it was sent.
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{¶11} On February 23, 2017, the trial court held a second hearing on the
motion to dismiss, allowing the parties to make additional arguments on the issue.
The State reiterated that there was no evidence that the “proper” court and
prosecutor’s office received Thompson’s notice. The State also claimed that the
notice never made it into the case file of either the municipal court or the common
pleas court. Further, the State argued that there were potential tolling events that
needed to be considered such as Thompson’s discovery demand. Finally, the State
indicated that it was within the trial court’s discretion pursuant to R.C. 2941.401 to
grant a reasonable continuance, so the State requested an additional 30 days to try
Thompson.
{¶12} After hearing the arguments, the trial court ruled in favor of
Thompson, granting the motion to dismiss. At the hearing, the trial court stated,
The – the fact that it didn’t get in the prosecutor’s file or it didn’t
get in the clerk’s file doesn’t mean that the defendant hasn’t done
what he was supposed to do. That, it’s a – everybody hates to see
a case decided on an error. The defendant and counsel were
present at the scheduling conferences and haven’t raised this issue
at the scheduling conference, but I think there’s some case law
that they don’t have to. So I think, unfortunately, you have to do
some educating with the municipal court prosecutor and the
municipal court in the future when they get these, they have to
communicate it to this court and to you, which they didn’t do. So
the motion’s granted. Case is dismissed.
(Feb. 23, 2017, Tr. at 8-9).
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{¶13} The trial court filed a judgment entry on February 24, 2017, further
indicating its reasoning for granting the motion to dismiss. In its entry, the trial
court indicated that, “[a]lthough these decisions may impose what appears to be an
unfair burden on the prosecutor and courts, from the standpoint of the defendant the
defendant has done what is required under the statute to put the parties on notice.”
(Doc. No. 38).
{¶14} It is from this judgment dismissing the indictment that the State
appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
The trial court erred by granting defendant-appellee’s motion to
dismiss pursuant to R.C. §2941.401.
Assignment of Error No. 2
The trial court erred by failing to grant plaintiff-appellee’s
request for a continuance.
First Assignment of Error
{¶15} In the State’s first assignment of error, the State argues that the trial
court erred by granting Thompson’s motion to dismiss. Specifically, the State
contends that because Thompson was charged with felony offenses the county
prosecutor alone had the authority to prosecute Thompson and thus his notice was
not compliant with the statute as it went to the wrong court and the wrong
prosecutor’s office.
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Standard of Review
{¶16} Generally, we review a trial court’s decision on a motion to dismiss
under an abuse of discretion standard. See State v. Keenan, 143 Ohio St.3d 397,
2015-Ohio-2484; State v. Heisey, 2d Dist. Miami No. 2014-CA-34, 2015-Ohio-
4610, ¶ 23. However, speedy trial issues present mixed questions of law and fact.
State v. Hemingway, 8th Dist. Nos. 96699, 96700, 2012-Ohio-476, ¶ 8. Therefore,
we apply a de novo standard of review to the legal issues but give deference to any
factual findings made by the trial court. Id. citing Cleveland v. Adkins, 8th Dist.
Cuyahoga No. 83295, 2004-Ohio-1118, ¶ 5.
Argument and Analysis
{¶17} In this case, the trial court determined that Thompson complied with
the statutory requirements of R.C. 2941.401 based on the copy of Thompson’s
notice that was entered into evidence at the hearing on the motion to dismiss,
Thompson’s testimony at the same hearing indicating he provided the written notice
to the warden of his institution, and the return receipts from the Bellefontaine
Municipal Court and the Bellefontaine City Prosecutor’s Office indicating that the
notice had been delivered. The trial court found that Thompson’s actions placed
him in compliance with the requirements of R.C. 2941.401, triggering the 180-day
timeline.
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{¶18} The primary dispute in this case is over whether Thompson’s notice
went to the “appropriate” court and the “appropriate” prosecutor’s office pursuant
to the statute. The State maintains that Thompson was charged with felonies and
thus the common pleas court and the county prosecutor’s office were the
“appropriate” parties to receive notice, and they never did. The State argues that
Thompson’s notice never even made it into the municipal court file, though we
cannot verify this claim as we do not have the municipal court file and it was not
entered into evidence.
{¶19} What the State ignores in this case is that when Thompson filed his
notice pursuant to R.C. 2941.401, the complaint that was pending against him had
been filed in Bellefontaine Municipal Court. Thompson fulfilled his duties pursuant
to the statute by providing written notice under R.C. 2941.401 to the warden and
then having the warden send the notice to the “appropriate” court at that time. It is
through no fault of Thompson that his notice was—allegedly—never filed in the
municipal court file despite having been received or that the notice was not
communicated from the municipal court to the common pleas court. Given that the
municipal court case against Thompson was dismissed after his indictment, and that
Thompson was not bound over, it makes sense that some communication must have
occurred between the municipal prosecutor and the common pleas court prosecutor
regarding his case.
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{¶20} Furthermore, under similar facts as the case sub judice, the Fourth
District Court of Appeals rejected comparable arguments made by the State in State
v. Miller, 4th Dist. Athens No. 11CA26, 2012-Ohio-1823. In Miller, a defendant
was charged with various felony crimes including Aggravated Burglary in a
complaint in Athens County Municipal Court. Miller was then incarcerated on an
unrelated charge in a separate case. While he was incarcerated on the separate case,
Miller filed notice pursuant to R.C. 2941.401 to have a timely disposition of the
Athens County Municipal Court complaint against him. The case against Miller in
Athens County Municipal Court was then dismissed; however, the State later
indicted Miller in Athens County Common Pleas Court for Burglary based on the
same facts as the Municipal Court complaint that had been dismissed. When Miller
was not brought to trial within 180 days of filing his R.C. 2941.401 notice, he moved
to dismiss the indictment pursuant to R.C. 2941.401, and that motion to dismiss was
granted. The State appealed, and the Fourth District affirmed on appeal, reasoning
as follows.
“In 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.” [State v.] Hairston, [101 Ohio St.3d 308, 2004-Ohio-
369] at ¶ 25.
As stated above, Miller served his request for disposition on
the state on July 26, 2010. Thus, under R.C. 2941.401, the state
had to bring Miller to trial within 180 days. Instead, the state
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dismissed the complaint against Miller without prejudice. An
Athens County grand jury later indicted Miller for burglary on
June 27, 2011. The indictment was based on the same facts as the
Athens County municipal court complaint. Additionally, the
June 27, 2011 indictment was more than 180 days after Miller
served his request for disposition. Moreover, the trial court did
not grant any necessary or reasonable continuance based on a
showing of good cause pursuant to R.C. 2941.401. Thus, after
applying the plain language of the statute, we conclude that the
state failed to bring Miller to trial within the time period provided
by R.C. 2941.401.
The state argues that, once it dismissed the municipal court
complaint against Miller, there were no charges pending. As a
result, the state contends that the general statute of limitations
governing Miller’s alleged crime applied, not the 180–day time
period under R.C. 2941.401. The state argues that “a complaint
is no longer pending once it has been dismissed in Municipal
Court and prior to an Indictment being filed.” * * *
The state’s argument lacks merit. * * * The state * * * has
provided no reason why we should deviate from applying the
plain language R.C. 2941.401.
(Internal Citations omitted) Miller at ¶¶ 9-12.
{¶21} We find the Fourth District’s decision in Miller persuasive here.
Moreover, in addition to Miller, other Ohio Appellate Courts have upheld dismissals
pursuant to R.C. 2941.401 where notice has been sent to the wrong court through
no fault of the defendant. State v. Brown, 6th Dist. Huron No. H-13-019, 2014-
Ohio-154, ¶ 18 (finding that where an early disposition request was given to the
warden and the warden mailed the notice to the Huron County Common Pleas Court
instead of the Norwalk Municipal Court where the charges were actually pending,
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“appellee should not suffer the consequences of the Warden’s mistakes.”); see also
State v. Gill, 8th Dist. Cuyahoga No. 82742, 2004-Ohio-1245.
{¶22} While the State argues here as they did in Miller that the municipal
court case against Thompson was dismissed after he filed his R.C. 2941.401 notice,
disposing of the claim against him, it is undisputed that the eight counts of breaking
and entering in the common pleas court case are based on the same facts as set forth
in the municipal court complaint that was dismissed. In fact, they were the exact
same eight charges. The State essentially seeks to circumvent R.C. 2941.401 by
filing a new case with the same charges. Allowing the State to do so would render
the purpose of the statute, which is to have timely adjudication of pending claims
against an incarcerated individual, meaningless. As we have held previously, the
Ohio speedy trial statutes must be “construed strictly against the [S]tate.” State v.
Masters, 3d Dist. Crawford No. 3-06-20, 2007-Ohio-4229, ¶ 9. Construing R.C.
2941.401 against the State in this matter, the State’s argument is not well-taken.
{¶23} Finally, the State asserts that Thompson did not raise the R.C.
2941.401 issue at pretrial hearings. The State cites no legal authority to support its
position that this would warrant overturning the trial court’s decision. To find for
the State on this matter, we would have to find that the State should not be imputed
knowledge of the notice filing because it did not have actual knowledge of it. The
State would have us construe R.C. 2941.401 against Thompson through no action
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of his own. Again, the State seeks to take advantage of either the Warden’s actions
despite the fact that he notified the court where the charge was pending, or the lack
of communication between various courts and prosecutors. We cannot find under
these circumstances that the trial court erred in declining to agree.4
{¶24} Based on the record before us, we cannot find that the trial court erred,
therefore the State’s assignment of error is overruled.
Second Assignment of Error
{¶25} In the State’s second assignment of error, the State argues that the trial
court erred by refusing to grant the State a continuance. While the heading for the
second assignment of error indicates that the State contests the trial court’s failure
to grant a continuance, the State actually seems to contend in the body of its
argument that tolling events should have been calculated in favor of the State,
putting it under the 180-day timeline even if it was applied in this case.
{¶26} Contrary to the State’s arguments the record does not support any
delays caused by Thompson until he filed the motion to dismiss. Thompson did file
a discovery demand but, as the State concedes in its brief, the State had already filed
4
The State attempts to support its arguments by relying on State v. McDonald, 7th Dist. Mahoning Nos. 97
CA146, 97CA 148, 1999 WL 476253 (June 30, 1999). However, the McDonald court actually upheld a trial
court’s grant of a motion to dismiss under R.C. 2941.401, thus it is of little value to the State. Moreover,
perhaps the principle holding that came out of McDonald, which does not benefit the State, was that,
“[s]ubstantial compliance is all that is required of a defendant under R.C. 2941.401.” *4. We note that there
appears to be a split in the districts over whether substantial compliance with R.C. 2941.401 or strict
compliance is necessary. C.f. State v. McDonald, 7th Dist. Mahoning Nos. 97CA146, 97CA148, 1999 WL
476253 (June 30, 1999) with State v. Gilbert, 9th Dist. Lorain No. 14CA010600, 2016-Ohio-3209.
Regardless of whether strict or substantial compliance is applied, the facts support the trial court’s finding
that Thompson was in strict compliance in this case.
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discovery prior to the demand, thus no days were tolled for this issue.5 Based on
the record before us we cannot find that the trial court erred in any calculation of
tolling events.
{¶27} As to the State’s claim that the trial court erred by failing to grant a
“reasonable” continuance, granting a continuance is within the court’s sound
discretion and we cannot find that the trial court erred here. State v. Unger, 67 Ohio
St.2d 65, 67 (1981) (“The grant or denial of a continuance is a matter which is
entrusted to the broad, sound discretion of the trial judge.”). The State cites no legal
authority and makes no additional argument to establish how the trial court abused
its discretion. For these reasons the State’s second assignment of error is not well-
taken, and it is overruled.
Conclusion
{¶28} For the foregoing reasons the State’s assignments of error are
overruled and the judgment of the Logan County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
5
The State seems to contend that days should be counted from the date that Thompson made his first
appearance; however, the plain language of the statute indicates 180 days from the day notice is delivered.
We see no reason to deviate from the plain language of the statute here.
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