[Cite as State v. Sitko , 2021-Ohio-788.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-T-0016 - vs - : RODNEY J. SITKO, : Defendant-Appellant. :

Criminal Appeal from the Newton Falls Municipal Court, Case No. 2020 TRC 00681.

Jud g ment: Affirmed.

A. Joseph Fritz , Newton Falls Law Director, 19 North Canal Street, Newton Fall s, OH 44444 ( For Plaintiff-Appellee )

. Stephen A. Turner , Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 444 81 ( For Defendant-Appellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Rodney J. Sitko (“Mr. Sitko”), appeals from his conv iction for operating a vehicle under the influence of alcohol or drugs (“O VI”), his third OVI conviction within 10 years. {¶2} Mr. Sitko raises two assignments of error, contending that the trial court erred in overruling his motion to dismiss for a speedy trial vi olation, and the evidence was insufficient to sustain a verdict that he was operating a vehic le under the influence.2 {¶3} After a review of the record and relevant case law, we find Mr. Sitko’s assignments of error without merit. After counting the days of delay chargeable to either side, Mr. Sitko was brought to trial within 90 days as required by R.C. 2945.71(B)(2) for a misdemeanor charge. Time was tolled for mutually agreed pret rial conferences that were held in an attempt to settle the case before trial. {¶4} There was also sufficient evidence that Mr. Sitko was “under th e influence” on the night of the incident by way of the deputies’ testimonie s at trial. The deputies found Mr. Sitko slumped over the steering wheel of his vehicle, sleep ing, with an open beer bottle in his right hand, his car in drive, and the brakes appl ied in the middle of a roadway. The deputies observed several signs that indicated Mr. Sitko wa s under the influence prior to Mr. Sitko’s arrest in addition to his refusal to submi t to field sobriety tests and/or a breath sample. Whether there was evidence at trial that Mr. Sitko was later diagnosed with sleep apnea, and potentially had a medical issue on the ni ght of the incident, goes to the manifest weight of the ev idence and the credibility of t he witnesses. {¶5} The judgment of the Newton Falls Municipal Court is affirmed.

Substantive and Pr ocedural History {¶6} Mr. Sitko’s conviction stems from an incident that occurred on July 19, 2019, in which two deputies from the Trumbull County Sheriff’s Office , Deputy Stephanie Slusher (“Dep. Slusher”) and Deputy Eric Hermsdorfer (“Dep. Her msdorfer”), were dispatched to a disabled vehicle, which was parked in the middl e of the roadway on State Route 45 in Bloomfield Township. The deputies found the car wi th its brake lights on and shifted in drive and the driver, Mr. Sitko, slumped over the wh eel, sleeping, with an open beer bottle in his right hand.3 Case History {¶7} Mr. Sitko was arrested and subsequently charged with OVI, a fou rth-degree felony, in violation of R.C. 4511.19(A)(2)(B), and in a compani on case, OVI, a fourthdegree felony, in violation of R.C. 4511.19(A)(1)(A). {¶8} Mr. Sitko was arraigned in the Newton Falls Municipal Court, wh ere the court scheduled a preliminary hearing for July 30, 2019, and se t bond at a $10,000 surety, with conditions, including electronically monitored house arres t (“EMHA”), suspended motor vehicle privileges, and an alcohol monitor. At the preli minary hearing, Mr. Sitko waived the hearing, and his case was bound over to the Trumbull County Grand Jury. His bond was modified to a $5,000 surety. {¶9} On October 2, 2019, the Trumbull County Grand Jury handed down an indictment for two OVI charges, both first-degree misdemeanors, in violation of R.C. 4511.19(A)(1)(a) & (G)(1)(a)(ii) and R.C. 4511.19(A)(2)(b) & (G )(1)(a)(ii). Accordingly, the case was remanded to the Newton Falls Municipal Court on Oc tober 7, 2019. {¶10} Mr. Sitko pleaded not guilty at his arraignment on October 10, 2019. The court transferred his bond, with no change in conditions, and s et the matter for a pretrial conference on October 15. Two more pretrial conferences were h eld on November 7, 2019, and January 14, 2020. After a proposed Rule 11 plea agre ement was rejected by the court on January 14, 2020, trial was scheduled for February 19. {¶11} On February 18, 2020, the state filed a motion to dismiss both pending misdemeanor charges in order to file a new complaint charging M r. Sitko with one count of OVI, in violation of R.C. 4511.19, which was an unclassified misdemeanor inasmuch as this was his third OVI within ten years. He had been errone ously charged with first-4 degree misdemeanors, which is the proper designation for a firs t or second OVI offense in ten years. {¶12} Mr. Sitko filed a motion to dismiss for speedy trial violation on February 28,

2020. {¶13} After holding a hearing, the court denied the motion on March 4 , 2020, and, on the following day, set trial for March 10, 2020. The Court’s Judgment Entry {¶14} The court issued a detailed judgment entry on March 9 denying M r. Sitko’s motion to dismiss, finding Mr. Sitko was brought to trial withi n the speedy trial time of 90 days for an unclassified misdemeanor. The court reviewed the p rocedural history of the case, noting that at the first pretrial on October 15, defense counsel delivered the file to the bailiff/court scheduler and requested that the matter be se t for a second pretrial. Defense counsel made the same request after the second pretrial on November 7. The trial court specifically found that “[e]ach of those pretrials were set at the request of defense counsel, and/ or at a mutual request of defense counsel and the prosecutor.” {¶15} On January 14, 2020, the attorneys again met in conference and a Rule 11 plea agreement was proposed; however, the court declined the pr oposal with regard to the sentencing recommendation. Mr. Sitko rejected any further modification of the sentence and, for the first time, asked for the matter to be se t for trial. {¶16} An oral hearing on Mr. Sitko’s motion to dismiss was held on Ma rch 3, 2020. (No transcript or agreed upon statement pursuant to App.R. 9 ha s been filed on appeal.) Per the court’s findings, both defense counsel and the prosecut or agreed at the hearing that the pretrial conferences were attempts to get the matter r esolved short of trial and5 that they were not at the request of the court or delays by the prosecution. Mr. Sitko did not seek to set a trial date until the Rule 11 plea agreement p roposed sentencing recommendation was rejected on January 14. Defense counsel arg ued that the mutual requests for pretrials were not formal written motions; thus, t hey did not toll the speedy trial date. The court noted that it was unaware of any caselaw that required the motions to be in writing. {¶17} The court found that if the speedy trial date was not tolled, t hen it expired on January 8, 2020, prior to the Rule 11 proposal. If tolled, the request for a pretrial conference on November 7, 2019, tolled the statute 23 days, and the request for the January 14, 2020, conference tolled the statute 68 days, making the speedy trial date April 8, 2020. {¶18} The court concluded that under these facts, there was no consti tutional violation of Mr. Sitko’s rights to a speedy trial since the del ay was not “uncommonly long”; he was as much to “blame” for the delay; he never asserted his right to a speedy trial until after the Rule 11 plea agreement was rejected; and there is no evidence that he suffered any prejudice as a result and/or that he has been languishing i n jail. He was not in jail while the misdemeanor case was pending. Further, while Mr. Sit ko did not file formal, written “motions,” there was “action made or instituted by the accused” pursuant to R.C. 2945.72(E). {¶19} Thus, the court denied Mr. Sitko’s motion to dismiss, finding t hat he was using the speedy trial guarantee as a “sword” rather than a “sh ield,” and “to require dismissal for failing to reduce the request to written motions under the circumstances here

is more form over substance.”6 The Trial {¶20} A one-day bench trial was held in which the state presented the evidence and testimony of the two deputies from the Trumbull County Sher iff’s Office who responded to the incident, Dep. Slusher and Dep. Hermsdorfer. {¶21} Dep. Slusher testified that she and Dep. Hermsdorfer were dispa tched to the scene for a disabled vehicle parked in the middle of the ro adway on State Route 45 in Bloomfield Township, Trumbull County. As they approached th e vehicle, she could see that the brake lights were on and the windows were foggy. Dep. Slusher went to the passenger side and Dep. Hermsdorfer approached the driver’s sid e. They observed the driver slumped over the steering wheel, sleeping, with a glass beer bottle in his right hand and the car in drive. Dep. Hermsdorfer knocked on the window s everal times to get the attention of the driver. “Once the driver kind of came to, he looked up, kind of peered around, like, trying to see where he was at.” {¶22} The driver attempted to drive away, but stopped after several f eet. The deputies each opened a front door and were overwhelmed by the s mell of alcohol. Dep. Slusher reached in from the passenger side and placed the vehic le in park. She was then able to turn the car off and take the keys out of the ignition. Dep. Hermsdorfer asked the driver if he had a medical issue, but the driver failed to resp ond – he was “awake and looking, but there was no verbal response.” {¶23} Mr. Sitko exited the vehicle at Dep. Hermsdorfer’s instruction and walked with the deputy’s assistance because “he had no balance.” Mr. Sitko refused to answer Dep. Hermsdorfer’s questions and was placed under arrest for su spicion of OVI. When Dep. Slusher removed the beer bottle from the vehicle, she noti ced it was still cold and7 “partially full.” She reiterated on cross examination that she heard Dep. Hermsdorfer ask Mr. Sitko multiple times whether he was having a medical issue. {¶24} Dep. Hermsdorfer testified that upon waking, Mr. Sitko showed s igns of being confused and was “not able to follow any of the simple ve rbal commands” to put his vehicle in park and turn it off. He noticed that Mr. Sitko ’s eyes were bloodshot and glossy and that upon asking him to exit the vehicle, he was “sl ow-moving” and off balance. Dep. Hermsdorfer could smell alcohol “on or about” Mr. Sitko’s person while he was speaking to him. {¶25} Mr. Sitko refused to answer any of Dep. Hermsdorfer’s questions ; he just “looked forward, and he had what had appeared to be, like, the thousand-mile stare.” Mr. Sitko refused to speak and/or comply with field sobriety tests. The deputies discovered this was Mr. Sitko’s sixth OVI within 20 years. While Dep. Slu sher was walking Mr. Sitko to Dep. Hermsdorfer’s police vehicle, he observed that “she had to help him walk, more so to prevent him from falling down.” {¶26} Dep. Hermsdorfer was unable to obtain a warrant for a blood sam ple due to the early hour of the morning (3:00 am) and decided to trans port Mr. Sitko to the Cortland Police Department for a breathalyzer test. {¶27} While placing Mr. Sitko in his police cruiser, Dep. Hermsdorfer continued to ask him if he needed medical assistance. Mr. Sitko responded b y asking, “Is my dad okay?” Dep. Hermsdorfer was “confused on that statement,” and asked, “Well, where is your dad?” “He said, he’s in the front seat. So he was – appe ared that he was starting to hallucinate, that he thought his father was in the front sea t of the vehicle, when there were no other occupants inside of the vehicle. He then said th at his, his lawyer wanted8 to talk to him, when – in fact, wanted to talk to him on the ph one when Mr. Sitko was not on the phone. So he was not acting normal.” On the way to the station, Mr. Sitko was “mumbling to himself.” {¶28} Dep. Slusher assisted Mr. Sitko into the station, and once ther e, he became verbally aggressive, interrupting the deputy as he was trying t o read the BMV breathalyzer form and commenting “about taking this to the feds.” After mul tiple offers to take a breathalyzer test, Mr. Sitko “just kind of looked up, gave me a funny-looking grin,” and “further refused to submit to a breath test.” Dep. Hermsdorfer transported Mr. Sitko to the Trumbull County Jail. Sentencing {¶29} The trial court found Mr. Sitko guilty of OVI, in violation of R.C. 4511.19(A)(1)(a), which was an unclassified misdemeanor since t his was his third conviction within ten years. The court sentenced him to 365 da ys jail, with 275 days suspended and credit for 20 days served; a $1,500 fine; a six-y ear driver’s license suspension; and a three-year term of probation. The court also granted Mr. Sitko’s motion to stay for “30 days or until the appeal is filed and thereafte r” and ordered him to remain on EMHA during the stay. {¶30} Mr. Sitko raises two assignments of error on appeal: {¶31} “[1.] The trial court erred when it failed to dismiss the char ge for a violation of appellant’s statutory speedy-time rights. {¶32} “[2.] The state failed to produce evidence that was legally su fficient to sustain the verdict that appellant operated a vehicle while und er the influence (OVI).”9 Statutory Speedy Trial Violation {¶33} In his first assignment of error, Mr. Sitko contends the court erred in denying his motion to dismiss for speedy trial violation because the sp eedy-time period for the misdemeanor charges began when he was arrested on the original felony charge and the subsequent charges invol ved the same incident. {¶34} The right to a speedy trial is set forth in the Sixth Amendment to the United States Constitution and is obligatory on the states via the Fou rteenth Amendment. State v. Broughton , 62 Ohio St.3d 253, 256 (1991). R.C. 2945.73(B) requires a pe rson charged with an offense to be discharged if he is not brought to trial within the applicable speedy trial time, and discharge bars “any further criminal proceeding s against him based on the same conduct.” R.C. 2945.73(D). {¶35} “The standard of review of a speedy-trial issue is to count the days of delay chargeable to either side and determine whether the case was tr ied within the time limits set by R.C. 2945.71.” State v. Kist , 173 Ohio App.3d 158, 2007-Ohio-4773, ¶ 17 (11th Dist.); see also State v. Pierson , 149 Ohio App.3d 318, 2002-Ohio-4515, ¶ 12 (11th Dist.). {¶36} “Speedy-trial issues present mixed questions of law and fact.” Kist at ¶ 18. When reviewing a defendant’s claim that he or she was denied th e right to a speedy trial, we apply a de novo standard of review to questions of law and t he clearly erroneous standard to questions of fact. State v. Evans , 11th Dist. Trumbull No. 2003-T-0132, 2005- Ohio-1787, ¶ 32. {¶37} Pursuant to R.C. 2945.71(B)(2), “a person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a co urt of record, shall be brought to trial * * * [w]ithin ninety days after the person’s arrest or the service of10 summons, if the offense charged is a misdemeanor of the first o r second degree, or other misdemeanor for which the maximum penalty is imprisonment for m ore than sixty days.” {¶38} R.C. 2945.72 specifies the reasons for which a trial court may extend the limits of R.C. 2945.71. R.C. 2945.72 states, in relevant part: {¶39} “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended on ly by the following: {¶40} “ * * * {¶41} “(E) Any period of delay necessitated by reason of a plea in ba r or abatement, motion, proceeding, or action made or instituted by the accused; {¶42} “ * * * {¶43} “(H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion[.]” {¶44} A defendant establishes a prima facie case for dismissal once h e demonstrates that he was not brought to trial within the applic able statutory speedy trial time limit, and the burden then shifts to the state to prove th at the defendant’s right has not been violated in light of applicable tolling periods. Kist at ¶ 22; State v. Smith , 11th Dist. Ashtabula No. 2000-A-0052, 2001 WL 901016, *5 (Aug. 10, 2 001). {¶45} We begin by counting the days chargeable to either side for del ay. Mr. Sitko argues that time began running from the date of his original ar raignment, July 22, 2019. He was bound over to the Trumbull County Grand Jury, which retu rned an indictment on two misdemeanors on October 2, and the following day, remanded the case back to the11 Newton Falls Municipal Court. Mr. Sitko was arraigned on Octob er 10, 2019, which is the date the court began its counting. {¶46} When an original charg e is later reduced to a lesser offense ba sed upon the same conduct, the speedy trial limitations of R.C. 2945.71 begi n to run anew on the date

the defendant is served with the indictment on the lesser offen se at the arraignment.

State v. Clark , 11th Dist. No. 2007-L-139, 2008 -Ohio-2760, ¶ 30. The additio nal number of days that the state receives to try the defendant for the le sser charge, however, cannot exceed the date of the speedy trial deadline of the original ch arge. Id. Thus, the new speedy trial deadline must be “‘computed by comparing the deadl ines for the original and reduced charges and using the earlier of the two deadlines.’” Id. , quoting State v.

Besimer , 4th Dist. Ross No. 95CA2110, 1996 WL 87461, *7 (Feb. 28, 1996 ). {¶47} We agree with the court below that time began running on the da te he was arraigned on the misdemeanor indictment in the Newton Falls Mun icipal Court, i.e., October 10, 2019, and that 90 days from October 10, 2019 (Janua ry 8) is the earlier of the two deadlines. Thus, if we began counting from the date of Mr. Sitko’s original felony charges, i.e., July 22, 2019, the speedy trial limit would be 2 70 days (April 17, 2020). {¶48} Time was then tolled on October 15, 2019, until November 7, 201 9, and then again until January 14, 2020, for the pretrial conferences , which were mutually scheduled by the prosecutor and defense counsel in an attempt t o settle the case before trial. It was not until January 14, 2020, when the Rule 11 ple a agreement was rejected by the court, that Mr. Sitko demanded a trial date be set. {¶49} The court found that both parties agreed during the hearing on Mr. Sitko’s motion to dismiss that the pretrial conferences were scheduled at their mutual request.12 Mr. Sitko failed to file a transcript or agreed upon statement of the motion hearing pursuant to App.R. 9; thus, we must presume the regularity of t he proceedings. Knapp

v. Edwards Laboratories , 61 Ohio St.2d 197, 199 (1980) (Without a transcript or App.R. 9 equivalent, we must presume the regularity of the lower court ’s proceedings and affirm). {¶50} We agree that the pretrial conferences tolled the speedy trial time (23 days and 68 days, respectively), since they were a period of delay “ necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused.” R.C. 2945.72(E). Further, a motion filed by the def endant does not have to be written and filed; it can be an oral motion made in open court. State v. Angstrom , 11th Dist. Geauga No. 1392, 1988 WL 32959, *2 (Mar. 11, 1988). {¶51} The next motion that tolled the running of the speedy trial clo ck was Mr. Sitko’s motion to dismiss for speedy trial violation on Februar y 28, 2020. Like motions to suppress and motions in limine, motions to dismiss toll the spe edy trial period. Broughton at 262. The court denied the motion on March 4, 2020. Mr. Sit ko was convicted on March 10, 2020. {¶52} Thus, the applicable time periods are as follows: {¶53} October 10, 2020 – October 15, 2020 = 5 days {¶54} January 14, 2020 – February 28, 2020 = 44 days {¶55} March 4, 2020 – March 10, 2020 = 6 days {¶56} Since Mr. Sitko was brought to trial within 55 days, he was bro ught to trial well within the applicable time period. The rationale supporti ng speedy-trial legislation is to prevent inexcusable delays caused by indolence within the ju dicial system. State v.

Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 8. A review of the cas e history reveals13 the instant case is devoid of any inexcusable delays, and the p arties were attempting to

settle the case without the need for a trial. {¶57} Mr. Sitko’s first assignment of error is without merit. Sufficiency of the Evidence {¶58} In Mr. Sitko’s second assignment of error, he contends the stat e failed to produce sufficient evidence that he was driving while intoxicat ed since there was a “possibility he was suffering from some medical issue.” {¶59} The standard of review for a sufficiency of the evidence claim is whether after viewing the probative evidence and the inferences drawn t herefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. The claim of insufficie nt evidence invokes an inquiry about due process. It raises a question of law, the re solution of which does not allow the court to weigh the evidence. In essence, sufficiency is a test of adequacy; whether the evidence is legally sufficient to sustain a verdict

. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency of the evidence tests the burden of production. Id. {¶60} Mr. Sitko was convicted of R.C. 4511.19(A)(1)(a), which states that “[n]o person shall operate any vehicle * * * within this state, if, a t the time of the operation, * * * [t]he person is under the influence of alcohol, a drug of abu se, or a combination of them.” {¶61} “The term ‘under the influence’ means that ‘the defendant consu med some [alcohol], * * * in such a quantity, whether small or great, th at it adversely affected and appreciably impaired the defendant’s actions, reactions, or men tal processes under the circumstances then existing * * *.’” State v. Clark , 8th Dist. Cuyahoga No. 88731, 2007-14 Ohio-3777, ¶ 12, quoting Ohio Jury Instructions , CR Section 545.25. “[T]he state can rely on physiological factors (e.g., odor of alcohol, glossy or bloo dshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical an d mental ability to drive was impaired.” State v. Kilbane , 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 23. “The state may also submit evidence that a person refused to su bmit to a chemical test to determine alcohol consumption, and use lay-witness testimony to establish that an

individual is intoxicated. Maumee v. Anistik , 69 Ohio St.3d 339, 344, 632 N .E.2d 497 (1994); State v. Zetner , 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19, citing State v. DeLong , 5th Dist. Fairfield No. 02CA35, 2002-Ohio-5289.” State v. May , 2018- Ohio-1510, 111 N.E.3d 48, ¶ 24 (8th Dist.). {¶62} A review of the evidence presented at trial by way of the deput ies’ testimony

reveals the state introduced more than sufficient evidence from which a trier of fact could find Mr. Sitko was under the influence of alcohol while operati ng a vehicle. Both deputies testified that Mr. Sitko was found slumped over his steering wh eel, sleeping, with a beer bottle in his right hand, with the car in drive and the brake a pplied, in the middle of the roadway. When the deputies opened the doors to the vehicle, th ey were overwhelmed by the smell of alcohol. Mr. Sitko was incoherent, at times ag gressive, and so unsteady on his feet that he required the assistance of Dep. Slusher whe n walking to the car at the scene and then again at the Cortland Police Station. Dep. Herm sdorfer testified Mr. Sitko had red and glossy eyes, was slow-moving and off-balance, and s melled of alcohol once he stepped outside of his vehicle. He refused to submit to a b reathalyzer test and/or field sobriety tests.15 {¶63} Simply because Mr. Sitko suffers from sleep apnea does not mean there

was insufficient evidence that he was under the influence of al cohol. Conflicting evidence goes to the manifest weight of the evidence, not the sufficienc y of the evidence. On review for sufficiency, courts are to assess not whether the st ate’s evidence is to be believed, but whether, if believed, the evidence against a defe ndant would support a

conviction. Thompkins at 390 (Cook J., concurring). {¶64} Mr. Sitko’s second assignment of error is without merit. {¶65} The judgment of the Newton Falls Municipal Court is affirmed.

CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J.,

concur.