[Cite as State v. Morgan , 2012-Ohio-4750.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. BUSTER R. MORGAN Defendant-Appellant Appellate Case No. 2012-CA-06

Trial Court Case Nos. 05-CRB-4039 Trial Court Case Nos. 05-TRD-8299 (Criminal Appeal from Clark County ( Municipal Court)

. . . . . . . . . . . O P I N I O N

Rendered on the 12th day of October , 2012.

. . . . . . . . . . . ELIZABETH H. SMITH, Atty. Reg. #0079180, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee BUSTER MORGAN, #627-518, Allen Correctiona l Institution, 2338 North West Street, Lima, Ohio 45801 Defendant-Appellant, pro se 2



. . . . . . . . . . . . . HALL, J. {¶ 1} Buster R. Morgan appeals pro se from the trial court’s dismissal of several misdemeanor charges against him. {¶ 2} In his sole assignment of error, Morgan contends the trial cour t erred “by refusing to grant an order Discharging the charges in this matter.” The essence of his argument is that the

trial court should ha ve made its dismissal “with prejudice” due to the statutory speedy-trial time expiring and pre-indictment delay in charging him. 1 {¶ 3} The present appeal involves charges br ought against Morgan in two 2005 Clark County Municipal Court cases (case num ber 05TRD08299 and case number 05CRB04039). The charges included, inter alia, tra ffic violations, identify fraud, resi sting arrest, and falsification based on events occurring on June 11, 2005. The reco rd reflects that warra nts were issued for Morgan’s arrest in the two cases on Augu st 11, 2005. (Doc. #6 in case number 05TRD08299; Doc. #4 in case number 05CRB04039). The warrant s were executed, and Morgan was arrested in March 2010. ( Id .). The following month, he was tran sported to the Allen Correctional Institution to begin serving a five-year prison se ntence for an unrelated hit-skip conviction in Logan County. (Doc. #20-B in case numbe r 05TRD08299; Doc. #14-B in case number 05CRB04039). {¶ 4} While in prison, Morgan filed pro se Ja nuary 20, 2011 motions that he be brought

1 Although Morgan’s appellate brief makes an isolated reference to “the Statutory limitations for prosecution,” his argument belo w focused on his statutory speedy-trial right. As discussed infra, Morgan also filed his notice of appeal from the trial court’s denial of a motion for reconsideration that addressed only a speedy trial issue. Therefore, we do not perceive his argument on appeal to be that the statute of limitations had expired prior to the trial co urt’s dismissal. Rather, consistent with his argument below and his notice of appe al, we perceive his argument to be that the statutory speedy-trial time had expired. 3

 to trial in each municipal court case. (Doc . #12-A in case number 05TRD08299; Doc. #7-A in case number 05CRB04039). The trial court overru led the motions based on his failure to provide the warden’s certification re quired by R.C. 2941.401, which 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 stat e any untried indictment, information, or complaint against the prisoner, he shall be brought to tria l 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, wr itten notice of the place of his imprisonment and a request for a final dis position to be made of the matter * * *. 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 remain ing to be served on the sentence, the amount of good time ear ned, the time of paro le eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner. {¶ 5} Morgan renewed his requests for dispos ition of the two cases, with the required certification, on October 24, 2011. (Doc. #19, 20- A, 20-B in case number 05TRD08299; Doc. #13, 14-A, 14-B in case number 05CRB04039). Th e trial court sustained the motions on November 7, 2011, appointed counsel for the defenda nt and scheduled the cases for a pre-trial conference on December 12, 2011. {¶ 6} In light of Morgan’s imprisonment, a nd on the State’s motion, the prosecutor and 4

 defense counsel subsequently agreed to dismi ssal of the misdemeanor charges in both cases. (Doc. #25, 26 in case number 05TRD08299; Doc. #19, 20 in case number 05CRB04039). The trial court origin ally designated the dismissal as being “without prejudice.” Apparently, the trial court crossed out the without-prejudice design ation and initialed the change on December 9, 2011, to reflect a dismissal without any reference to prejudice or a lack thereof, but there is no separate file stamp for the amended dispositions. (Doc. #29 in case number 05TRD08299; Doc. #23 in case number 05CRB04039). {¶ 7} On December 21, 2011, Morgan moved for r econsideration in both cases, urging

the trial court to enter a di smissal with prejudice. (Doc. #30-A in case number 05TRD08299; Doc. #24-A in case number 05CRB04039). On December 22, 2011, the tr ial court overruled both motions. On January 23, 2012, Morgan filed pro se notices of appeal from the trial court’s

denial of reconsideration. (Doc. #34-A in case number 05TRD08299; Doc. #28-A in case number 05CRB04039). As set forth above, Morgan contends on appeal that the tr ial court should have dismissed the charges “with prejudice” due to the speedy-trial time expiring and pre-indictment delay. {¶ 8} We note that a general dismissal entry, without specifying whether the dismissal is “with prejudice” or “without prejudice,” “is considered to be without prejudice.” State v. Rodriguez , 2d Dist. Darke No. 1722, 2008-Ohio-3377, ¶ 15. In fact, “since neither Crim.R. 48(A) nor Crim.R. 48(B) expressly provides for a dismi ssal with prejudice, a dismissal or nolle with prejudice may be entered only where there is a deprivation of a defendant's constitutional or statutory rights, the violation of which woul d, in and of itself, bar further prosecution.” State v.

Jones , 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13. When denying Morgan’s motion 5

 for reconsideration, the trial cour t made clear that it intended its dismissal to be without prejudice

in this case. {¶ 9} A criminal defendant typica lly cannot appeal the dismissal of charges against him without prejudice. City of Hudson v. Harger , 9th Dist. Summit No. CA 26208, 2012-Ohio-2604, ¶ 3-8. This is so because the defendant is placed in the same position he was in prior to the State filing the charges. 2 Id. at ¶ 8. Morgan argues that his case is different, however, because he has a right to be placed in a better position than if no charges had been filed. Due to an alleged speedy-trial violation and excessive pre-indictment delay, Morgan reasons that the State should not be allowed to charge him again. But see State v. Dickerson , 4th Dist. Athens No. 1277, 1986 WL 8797 (Aug. 13, 1986) (agreeing that “the proper time to address a defenda nt’s arguments that a court has erred by failing to dismiss a case with prejudice would be when the state might begin further prosecution”). {¶ 10} Even if we assume, arguendo, that Morgan can appeal the tria l court’s dismissal entry, his appeal is untimely. The trial court filed its original disposition on November 29, 2011, and although we don’t be lieve it had the authority to change the disposition on December 9, 2011, that is the apparent date the change was ma de. If the dismissal entry was an appealable order, then the trial court’ s subsequent December 22, 2011 entry overruling Morgan’s motion for reconsideration was a nullity. No authority exists for seeking reconsideration at the trial-court level of a final judgment in a criminal case. See , e.g. , State v. Harris , 11th Dist. Lake No.

2 A different rule applies when the State seeks to appeal the dismi ssal of criminal charges. A statute, R.C. 2945.67(A), “clearly affords the state the right to appeal, as a matter of right, any decision that grants a motion to dismiss, without requiring that the dismissal be with prejudice.” (Emphasis sic.) State v. Craig , 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 13. No statute grants a criminal defendant the same right. 6

 2011-L-127, 2011-Ohio-5600, ¶ 11. The appealable order, if any, was the tria l court’s November 29, 2011 original disposition or, giving the defenda nt the benefit of a ll doubt, from the court’s December 9, 2011 amended disposition. Morgan did not file his notice of appeal within thirty days of either date, as required by App.R. 4(A). He also did not f ile a motion for a delayed appeal pursuant to App.R. 5(A). {¶ 11} Finally, if we were to consider them , Morgan’s arguments are unpersuasive on their merits. The record does not reflect that the speedy-trial time expired prior to the trial court’s dismissal of the charges. Morgan was arre sted on the outstanding warrants on March 17, 2010.

He filed the notice and cer tification required by R.C. 2941.401 on October 24, 2011, thereby triggering the 180-day statutory speedy-trial time. The tr ial court dismissed the charges against him in December 2011, long before that time expired. {¶ 12} With regard to pre-indictment delay, Morgan argues: “[B]eing that these charges stemmed from an alleged offens e date of June 2005, and no indi ctment or warrant for this defendant surfaced until March 2010, there was a fifty-seven (57) month delay between the alleged commission of this offense, and the indictment therefore.” {¶ 13} Morgan’s argument is factually inaccurate. The charging instruments in the proceedings below were traffic citations and a criminal complain t, not an indictment as he alleges. Nevertheless, the ch arges were filed on August 11, 2005, and involved events occurring on June 11, 2005. As set forth above, warrants also we re issued for Morgan’s arrest in both cases on August 11, 2005. After the dismissals, in hi s January 12, 2012 Motions for Discharge (Doc. #32-A in case number 05TRD08299; Doc. #26-A in case number 05CRB04039), Morgan asserted that he was picked up and released by authorities five times in the 55 months between 7

 “indictment” and arrest. But he does not present any evidence of where he was detained, or under what circumstances, or that he ever attempted to appear in Cl ark County or the court. Thus, there is no evidence that he was anything other than a fugitive during the interim. Therefore, there was no demonstration of delay that w ould be charged against the State of Ohio before the cases were

dismissed. {¶ 14} Based on the reasoning set forth above, we overrule Morgan’s assignment of error and affirm the judgment of the Clark County Municipal Court.

. . . . . . . . . . . . . FROELICH, J., concurs. GRADY, P.J., concurring: {¶ 15} The statutory speedy-trial requirement s are set out in R.C. 2945.71. Paragraph (F) of that section states:

This section shall not be construed to modify in any way section 2941.401 or

sections 2963.30 to 2963.35 of the Revised Code. Therefore, R.C. 2941.401, and not R.C. 2945.71, gove rns the speedy-trial rights of persons serving a term of imprisonment in this state with respect to offenses with which they have been charged in an untried indictment or complaint. State v. Pesci , 11th Dist. Lake No. 201-L-026, 2002-Ohio-7131, ¶ 43. {¶ 16} Defendant-Appellant Morgan filed his R.C. 2941.401 reque st to be brought to trial on the two 2005 misdemeanor charges on October 24, 2011. The State was required to bring Morgan to trial within 180 days thereafte r, on or before April 22, 2012. The charges were dismissed by the court on November 29, 2011. That dismissal extinguished Defendant’s right to 8

 be brought to trial on those charge s. He cannot complain his righ t to a speedy trial was violated. {¶ 17} The two charges against Morgan are misdemeanor charges. A prosecution on misdemeanor charges is barred unless it is commenced within two years after the offense was committed. R.C. 2901.13(A)(1)(b). Therefore, Morgan’s prosecution on the 2005 misdemeanor charges is now barred, unless an y of the extension provisions in R.C. 2901.13 apply.

Copies mailed to:

Elizabeth H. Smith Buster R. Morgan Hon. Thomas E. Trempe