[Cite as State v. Otero, 2022-Ohio-3960.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF LORAIN )

STATE OF OHIO

Appellant

v.

LUIS OTERO

Appellee

C.A. No. 22CA011845

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF LORAIN, OHIO

CASE No. 21 CR104597

DECISION AND JOURNAL ENTRY

Dated: November 7, 2022

CALLAHAN, Judge.

{¶1} Appellant, the State of Ohio, appeals from the judgment of the Lorain County Court 

of Common Pleas, granting Appellee, Luis Otero’s, motion to dismiss on speedy trial grounds. 

This Court reverses.

I.

{¶2} The Lorain Police Department suspected Mr. Otero and his brother were trafficking 

narcotics out of their residence in Lorain. Information the police received led them to believe the 

brothers were packaging narcotics inside their house and hiding the drugs outside in a neighboring 

lot. On August 18, 2020, the police executed a search warrant at the house and arrested Mr. Otero 

and his brother. The police found crack cocaine hidden inside Mr. Otero’s underwear and multiple 

items indicative of drug trafficking inside the house. Upon searching the neighboring lot, the 

police also found a hydraulic press and a white grocery bag containing what appeared to be 

narcotics. 
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{¶3} The grocery bag and suspected narcotics the police found in the neighboring lot 

were sent for forensic testing. The tests confirmed the grocery bag contained over 25 grams of 

cocaine and over 18 grams of fentanyl. Further, a forensic report completed on October 9, 2020, 

indicated that one major DNA profile was found on a swab taken from the grocery bag. That 

profile was consistent with Mr. Otero’s DNA profile.

{¶4} The State initially indicted Mr. Otero in Criminal Case No. 20CR103207 (“the first 

indictment”). His charges in the first indictment related strictly to the crack cocaine the police 

found in his underwear and the items seized from his house. He was not initially charged with any 

crimes related to the narcotics the police found in the neighboring lot.

{¶5} Mr. Otero decided to plead guilty to the first indictment. He entered his plea, and 

the matter was set for a sentencing hearing the following month. Before his sentencing hearing 

could occur, however, the State indicted Mr. Otero in Criminal Case No. 21CR104597 (“the 

second indictment”). His charges in the second indictment, which form the basis of this appeal, 

related to the narcotics the police found in the neighboring lot. Mr. Otero was arrested and served 

with the second indictment one day after he was sentenced on the first indictment.

{¶6} Mr. Otero moved to dismiss the second indictment based on a violation of his 

speedy trial rights. The State filed a brief in opposition to his motion, and the trial court scheduled 

the matter for a hearing. On the morning of the hearing, the State filed a supplement to its brief in 

opposition. The parties then appeared and presented arguments to the trial court. At the conclusion 

of the hearing, the trial court took the matter under advisement. The trial court later issued an 

entry granting Mr. Otero’s motion and dismissing the second indictment.
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{¶7} The State now appeals from the trial court’s judgment of dismissal and raises two 

assignments of error for review. For ease of analysis, this Court rearranges the State’s assignments 

of error.

II.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE NECESSARY 

FINDINGS PURSUANT TO CRIM.R. 48(B) WHEN DISMISSING THE 

INDICTMENT.

{¶8} In its second assignment of error, the State argues the trial court erred when it 

granted Mr. Otero’s motion to dismiss without making any factual findings in accordance with 

Crim.R. 48(B). Upon review, this Court sustains the State’s second assignment of error.

{¶9} When a court dismisses an indictment over the State’s objection, it must comply 

with Crim.R. 48(B). State v. Busch, 76 Ohio St.3d 613, 615 (1996). See also State v. Cole, 9th 

Dist. Summit No. 26190, 26191, 2012-Ohio-4027, ¶ 7 (“Crim.R. 48 governs the procedure by 

which a trial court may dismiss a complaint over the State’s objection * * *.”). That rule requires 

a trial court to “state on the record its findings of fact and reasons for the dismissal.” Crim.R. 

48(B). A trial court’s failure to comply with Crim.R. 48(B) by supporting its dismissal with 

findings will result in a reversal and a remand for further proceedings. See State v. Bales, 9th Dist. 

Lorain No. 11CA010126, 2012-Ohio-4426, ¶ 14; South Euclid v. Datillo, 8th Dist. Cuyahoga No. 

106687, 2018-Ohio-4711, ¶ 11-12.

{¶10} Mr. Otero moved to dismiss the second indictment based on a violation of his 

speedy trial rights. He argued the first indictment and the second indictment arose from the same 

set of facts, so the second indictment was subject to the same statutory limitation period as the first 

indictment. It was Mr. Otero’s position that any time waiver(s) he executed in defending against 
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the first indictment did not apply to the second indictment. Because more than 270 days of speedy 

trial time had elapsed from either the date of his original arrest or the date of the first indictment, 

Mr. Otero argued, he was entitled to a dismissal on speedy trial grounds.

{¶11} When the State initially opposed Mr. Otero’s motion to dismiss, the State argued 

that the second indictment arose from different factual circumstances than the first indictment. 

The State later abandoned that argument when it filed a supplemental brief in opposition and 

appeared at the hearing on Mr. Otero’s motion to dismiss. At that time, the State argued the second 

indictment related back to the first indictment such that any tolling events applied equally to both 

cases. The State introduced as exhibits a transcript of the docket from the first indictment and 

copies of various filings that it construed as tolling events. Upon consideration of all the tolling 

events that had occurred, the State argued, Mr. Otero’s speedy trial time had yet to expire.

{¶12} At the conclusion of the hearing on Mr. Otero’s motion to dismiss, the trial court 

took the matter under advisement. The trial court then issued a journal entry that reads as follows:

This matter is before the Court upon [Mr. Otero’s] Motion to Dismiss. The State 

filed an opposition and supplemental opposition. A hearing on [Mr. Otero’s] 

Motion was held on January 27, 2022. [Mr. Otero’s] Motion is well-taken and is 

granted. Case dismissed.

The trial court did not issue any factual findings or offer any rationale in connection with its ruling 

on Mr. Otero’s motion.

{¶13} As noted, Crim.R. 48(B) specifically requires trial courts to state their findings of 

fact and reasons for dismissal on the record when dismissing an indictment over the State’s 

objection. Crim.R. 48(B). In this case, there was significant disagreement about whether Mr. 

Otero had waived any of his speedy trial time, whether any tolling events from litigating the first 

indictment applied to the second indictment, the date on which Mr. Otero’s speedy trial time 

commenced on the second indictment, and the exact calculation of his speedy trial time. Although 
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the trial court granted Mr. Otero’s motion to dismiss, the trial court failed to issue any factual 

findings or offer any reasons for its dismissal. Accordingly, it is not clear from the record why the 

trial court dismissed the second indictment. Because the trial court failed to comply with Crim.R. 

48(B), this matter must be reversed and remanded for the trial court to make findings on the record 

in the first instance. See Bales, 2012-Ohio-4426, at ¶ 14; Datillo, 2018-Ohio-4711, at ¶ 11-12. 

{¶14} Although Mr. Otero sets forth three reasons this Court should affirm the trial court’s 

judgment, this Court is not persuaded by Mr. Otero’s arguments. First, Mr. Otero argues that the 

trial court indicated its decision was based on his motion, so, in essence, the trial court incorporated 

the factual underpinnings of his argument in its judgment entry. By its plain language, however, 

Crim.R. 48(B) requires trial courts to tender their findings and reasons for dismissal “on the 

record[.]” (Emphasis added.) Crim.R. 48(B). Mr. Otero has not explained why this Court ought 

to deviate from the plain language of that rule.

{¶15} Second, Mr. Otero argues Crim.R. 48(B) does not apply because the trial court was 

only dismissing “some charges and not the entire indictment.” He argues the first indictment and 

the second indictment constitute a single case because they arose from the same facts and 

circumstances. Yet, the second indictment was filed under a different case number, not as a 

supplemental indictment, and Mr. Otero had already been sentenced under the first indictment at 

the time he was arrested on the second indictment. Because the second indictment stood separate 

and apart from the first indictment, Crim.R. 48(B) applied when the trial court dismissed the 

second indictment over the State’s objection.

{¶16} Finally, Mr. Otero argues Crim.R. 48(B) conflicts with his substantive right to a 

discharge for a violation of his speedy trial time. He argues that R.C. 2945.73(B) requires trial 

courts to discharge a defendant if he has not been brought to trial within the statutory allotted time 
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and Crim.R. 48(B) “cannot modify the Court’s obligation to discharge [him] * * *.” Mr. Otero is 

only entitled to a discharge, however, if his speedy trial time has, in fact, been violated. At this 

point, this Court cannot make that determination because the record does not contain any findings 

that would allow for a review of that issue. Because it is not yet clear whether Mr. Otero has a 

right to be discharged, any argument premised upon his right in that regard is premature.

{¶17} For the foregoing reasons, the State’s second assignment of error is sustained.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED BY DISMISSING THE INDICTMENT FOR A 

SPEEDY-TRIAL VIOLATION.

{¶18} In its first assignment of error, the State argues the trial court erred when it granted 

Mr. Otero’s motion to dismiss because there was no speedy trial violation. The State argues 

multiple events tolled the expiration of Mr. Otero’s speedy trial time such that it had yet to expire 

when he filed his motion. Given this Court’s resolution of Mr. Otero’s second assignment of error, 

his first assignment of error is moot, and this Court declines to address it. See App.R. 12(A)(1)(c).

III.

{¶19} The State’s second assignment of error is sustained. Based on that resolution, the 

State’s first assignment of error is moot. The judgment of the Lorain County Court of Common 

Pleas is reversed, and the cause is remanded for further proceedings consistent with the foregoing 

opinion.

Judgment reversed,

and cause remanded.

There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of 

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellee.

LYNNE S. CALLAHAN

FOR THE COURT

CARR, P. J.

SUTTON, J.

CONCUR.

APPEARANCES:

J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting 

Attorney, for Appellant.

GIOVANNA V. BREMKE, Attorney at Law, for Appellee.