Opinion
C.A. No. 17CA011083
06-29-2018
STATE OF OHIO, CITY OF NORTH RIDGEVILLE Appellee v. RANDOLPH ROTH Appellant
APPEARANCES: RANDOLPH ROTH, pro so, Appellant. TONI L. MORGAN, Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE ELYRIA MUNICIPAL COURT COUNTY OF LORAIN, OHIO
CASE No. 2016TRD03464
DECISION AND JOURNAL ENTRY
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Randolph Roth, appeals his conviction and sentence for improper backing in the Elyria Municipal Court. For the reasons that follow, we affirm in part and reverse in part.
I.
{¶2} Following a traffic accident, Roth was charged with improper backing in violation of North Ridgeville Codified Ordinance ("N.R.C.O.") 432.12, a minor misdemeanor. Roth entered a plea of not guilty in the North Ridgeville Mayor's Court and the matter was subsequently certified to the Elyria Municipal Court and set for trial before a magistrate. Prior to trial, the State filed a motion for a continuance of the trial date due to the unavailability of a witness. The magistrate granted the motion and the trial was rescheduled. Roth thereafter filed a motion to dismiss on speedy trial grounds. The magistrate eventually denied Roth's motion and the trial court adopted the magistrate's decision over Roth's objection.
{¶3} The matter then proceeded to trial and the magistrate found Roth guilty of improper backing. The trial court adopted the magistrate's decision and sentencing recommendation over Roth's objections.
{¶4} Roth filed this timely appeal, raising six assignments of error for our review.
II.
Assignment of Error I
The trial court erred in denying [Roth]'s motion to dismiss due to a violation of his right to a speedy trial.
{¶5} In his first assignment of error, Roth contends that he was denied his right to a speedy trial. First, Roth argues that the trial court erred by denying his motion to dismiss the charges against him due to a violation of his right to a speedy trial. Second, Roth contends that none of the continuances in this matter were made at his request. Third, Roth argues that it took an unreasonable amount of time for the court to issue a written decision following trial. We disagree.
{¶6} A trial court's determination of speedy trial issues presents a mixed question of law and fact. State v. Fields, 9th Dist. Wayne No. 12CA0045, 2013-Ohio-4970, ¶ 8. "'When reviewing an appellant's claim that he was denied his right to a speedy trial, this Court applies the de novo standard of review to questions of law and the clearly erroneous standard of review to questions of fact.'" Id., quoting State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 36.
{¶7} "The right of an accused to a speedy trial is recognized by the Constitutions of both the United States and the State of Ohio." State v. Pachay, 64 Ohio St.2d 218, 219 (1980). The United States Supreme Court has "identified four factors to be assessed in determining whether an accused had been constitutionally denied a speedy trial: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) the prejudice to the defendant." State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶ 22, citing Barker v. Wingo, 407 U.S. 514, 530 (1972). In Ohio, "[t]he statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational effort to enforce the constitutional right to a public speedy trial of an accused charged with the commission of a felony or a misdemeanor * * * ." Pachay at syllabus. Thus, "for purposes of bringing an accused to trial, the statutory speedy trial provisions of R.C. 2945.71 et seq. and the constitutional guarantees found in the United States and Ohio Constitutions are coextensive." State v. O'Brien, 34 Ohio St.3d 7, 9 (1987). A. Motion to Dismiss
{¶8} In this case, Roth was charged with improper backing in violation of N.R.C.O. 432.12, a minor misdemeanor. Pursuant to R.C. 2945.71(A), a person "against whom a charge of minor misdemeanor is pending in a court of record, shall be brought to trial within thirty days after the person's arrest or the service of summons." Although "[t]he time for speedy trial begins to run when the accused is arrested * * * the actual day of arrest is not included in the calculation." State v. Armstrong, 9th Dist. Medina No. 03CA0064-M, 2004-Ohio-726, ¶ 5. Speedy trial statutes must be strictly construed against the State. City of Brecksville v. Cook, 75 Ohio St.3d 53, 55 (1996).
{¶9} However, "[b]ecause the General Assembly recognized that some degree of flexibility is necessary, it allowed for extensions of the time limits for bringing an accused to trial in certain circumstances." State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 24. Accordingly, the time within which an accused must be brought to trial may be extended by the following:
(E) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;R.C. 2945.72.
* * *
(F) Any period of delay necessitated by a removal or change of venue pursuant to law;
* * *
(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;
{¶10} Mr. Roth was cited on April 22, 2016. On May 4, 2016, Roth entered a not guilty plea in the North Ridgeville Mayor's Court and did not waive his right to a speedy trial. Consequently, the Mayor's Court certified the record to the Elyria Municipal Court that same day. The transfer of a case from "the mayor's court to the municipal court is a 'removal' within the meaning of R.C. 2945.72(F), and the period of delay necessary to the removal is the time from arrest or summons to the date the mayor's court certifies the case to the municipal court." Cook, 75 Ohio St.3d at syllabus. Accordingly, the speedy trial clock began to run on May 5, 2016, and would have expired on Friday, June 3, 2016.
{¶11} After being certified to the Elyria Municipal Court, the matter was scheduled for trial before a magistrate on May 31, 2016. However, on May 25, 2016, the State filed a motion to continue for the reason that the witness and alleged victim would be on vacation until June 4, 2016 and was unable to attend the then scheduled trial. The motion included a certificate of service to Roth. The magistrate filed a notice of continuance on May 31, 2016, which was signed by Roth and stated: "State[']s continuance granted; No objection from Defendant. Defendant does not waive time. Case set for Mag Trial hearing on 06/08/2016 at 2:00PM." Additionally, a review of the transcript from the May 31, 2016 hearing shows that Roth did not object to the continuance, agreed to the June 8, 2016 trial date, and did not waive his right to a speedy trial.
{¶12} The Supreme Court of Ohio has recognized that "[w]hen a trial date is set beyond the limits of R.C. 2945.71 and the accused does not acquiesce in that date but merely fails to object to that date, the trial court's action does not constitute a continuance pursuant to R.C. 2945.72(H)." State v. McRae, 55 Ohio St.2d 149, 152 (1978). "However, the trial court has the discretion to extend the time limits of R.C. 2945.71 where counsel for the accused voluntarily agrees to a trial date beyond the statutory time limits." Id. "Moreover, the trial court's exercise of that discretion constitutes a continuance granted other than upon the accused's own motion under the second clause of R.C. 2945.72(H), and, as long as that continuance is reasonable, it extends the time limits of R.C. 2945.71 and does not deny an accused the right to a speedy trial." (Quotations and internal citations omitted.) Id. at 153. "Whether such a continuance is reasonable must be affirmatively demonstrated in some manner in the trial court." Id. at 153.
{¶13} "Ideally, when granting a continuance under the second half of R.C. 2945.72(H), '"the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial."'" State v. Vanscoy, 9th Dist. Summit No. 26964, 2014-Ohio-3482, ¶ 13, quoting Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, at ¶ 32, quoting State v. Mincy, 2 Ohio St.3d 6 (1982), syllabus. Nonetheless, "[i]f the trial court imperfectly handles continuances under R.C. 2945.72(H), then the appellate court 'may affirm a conviction challenged on speedy-trial grounds even if the trial court did not expressly enumerate any reasons justifying the delay when the reasonableness of the continuance is otherwise affirmatively demonstrated by the record.'" Vanscoy at ¶ 13, quoting Ramey at ¶ 33.
{¶14} In this case, the magistrate's notice of continuance, filed on May 31, 2016, was signed by Roth and stated: "State[']s continuance granted; No objection from Defendant. Defendant does not waive time. Case set for Mag Trial hearing on 06/08/2016 at 2:00PM." Although the continuance does not expressly state the reason why the magistrate was continuing the trial after the speedy trial deadline, a review of the State's motion granted in the order, shows that the victim and the State's primary witness, was unavailable for trial on May 31, 2016, due to vacation. The matter was then set for the "next available date for trial" on Wednesday June 8, 2016, five days beyond the speedy trial deadline, two days of which fell on a weekend. Moreover, Roth specifically acquiesced to the new trial date. Accordingly, we find that the reasonableness of the continuance was affirmatively demonstrated by the record. See State v. Saffell, 35 Ohio St.3d 90, 93 (1988) (concluding that a continuance due to the arresting officer being on vacation on the original trial date was not unreasonable where the record affirmatively demonstrated that the continuance was a necessity). B. Additional Continuances
{¶15} However, on June 8, 2016, approximately one hour prior to the scheduled start time of the trial, Roth filed a motion to dismiss arguing that his right to speedy trial had been violated. That same day, the magistrate filed a journal entry acknowledging receipt of the motion and granting the State until July 9, 2016 to file a response. The magistrate also granted Roth until July 20, 2016, to file a reply to the State's response. The State filed its response to Roth's motion on June 27, 2016, and Roth filed a reply to the State's response on July 7, 2016, and a supplement to his reply on July 11, 2016. The magistrate ultimately denied Roth's motion on July 28, 2016, and scheduled a trial for August 10, 2016. In her order, the magistrate specifically stated that August 10, 2016 was "the nearest available court date" and that time was tolled to Roth from June 8, 2016, until August 10, 2016.
{¶16} The magistrate then continued the date of trial to August 16, 2016, because the parties had until August 11, 2016, to file an objection to the magistrate's findings of fact and conclusions of law and "[Roth]'s counsel asserts that an objection will likely be filed." In the case that neither party filed an objection, the magistrate scheduled the trial for the next available date. On August 11, 2016, Roth filed an objection to the magistrate's findings of fact and conclusions of law on his motion to dismiss. The trial court thereafter filed an order granting the State ten days to respond to Roth's objections and rescheduled the Roth's trial for August 23, 2016. The State responded on August 22, 2016. The trial court ultimately denied Roth's objections to the magistrate's decision on August 23, 2016.
{¶17} Roth's motion to dismiss was a tolling event pursuant to R.C. 2945.72(E). Accordingly, time was tolled against Roth from June 8, 2016, until the trial court issued its decision on his objections to the magistrate's decision on August 23, 2016. In its August 23, 2016 order, the trial court ordered that "the matter proceed to Trial without further delay." The matter then proceeded to trial three days later, on August 26, 2016.
{¶18} Although Roth does not contend that the three day delay was unreasonable, we conclude that the three day delay from August 23, 2016, until August 26, 2016 was reasonable in light of the circumstances of this case. See Saffell, 35 Ohio St.3d 90, 93 (1988) (concluding that the record affirmatively demonstrated that a continuance was reasonable in light of its necessity or purpose). C. Delay in Issuance of Written Decision
{¶19} Following the August 23, 2016 trial, the magistrate issued a "magistrate's report" with findings of fact and conclusions of law on October 12, 2016, recommending that the trial court make a finding of guilty. Although Roth argues that this post-trial delay was unreasonable, he does not support this argument in any way. Pursuant to App.R. 16(A)(7), the brief of an appellant shall include "[a]n argument containing the contentions of the appellant * * * and the reasons in support of the contentions[.]" "Where an appellant fails to develop an argument in support of [its] assignment of error, we will not create one for [it]." State v. Powell, 9th Dist. Summit No. 28170, 2017-Ohio-5629, ¶ 22. "If an argument exists that can support [an] assignment of error, it is not this [C]ourt's duty to root it out." Cardone v. Cardone, 9th Dist. Summit Nos. 18349, and 18673, 1998 Ohio App. LEXIS 2028, at 22 (May 6, 1998).
{¶20} For the reasons cited above, Roth's first assignment of error is overruled.
Assignment of Error II
The trial court denied [Roth] his due process by not acquitting [Roth] because the testimony and exhibits were not sufficient to support his conviction for improper backing.
{¶21} In his second assignment of error, Roth contends that his conviction for improper backing was based on insufficient evidence. We disagree.
{¶22} A challenge to the sufficiency of the evidence to support a criminal conviction presents a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Upon review, "the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Although we conduct the review de novo, "we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775, ¶ 33.
{¶23} This matter implicates Roth's conviction for improper backing in violation of N.R.C.O. 432.12. That ordinance provides that "[b]efore backing, operator of vehicles shall give ample warning, and while backing they shall exercise vigilance not to injure person or property on the street or highway."
{¶24} Melissa Bittker and Officer Callicoat of the North Ridgeville Police Department testified on behalf of the State. Ms. Bittker testified that on April 22, 2016, at approximately 11:52 a.m. she backed out of her driveway on to State Route 83. She stated that when backing she uses her side mirrors, rearview mirror, and turns to look because she does not "always trust the side mirrors." Ms. Bittker also stated that her vehicle was less than a year old and had a backup camera and a proximity alarm that alerts if a vehicle is approaching while the vehicle is backing. Ms. Bittker testified that she backed out of her "driveway with no beep, beeps, nothing in [her] mirrors." She stated further that she was sitting in the road "at a dead stop going from reverse, just getting ready to put it into drive" when she observed another vehicle back out of a different driveway and hit her vehicle. Ms. Bittker stated that after the collision, the driver of the other vehicle moved his vehicle back into the driveway and she moved her vehicle to the side of the road and called the police.
{¶25} Ms. Bittker testified that after the collision, once the drivers parked their vehicles, she immediately took pictures of the damage to both her vehicle and the vehicle that had backed into her. The State admitted the pictures Ms. Bittker took as evidence. Those pictures show a scratch near the center of the bumper of the vehicle that backed into Ms. Bittker's vehicle as well as a dent to the right front fender of Ms. Bittker's vehicle. Although the pictures in the record are black and white, Ms. Bittker testified that her vehicle was red and that she could see red transfer in the picture of the damage to the vehicle that backed into her. Ms. Bittker stated that the damage shown in the picture of her vehicle was a result of the collision and that her vehicle did not have any damage to the front passenger side prior to the collision.
{¶26} Officer Callicoat testified that on April 22, 2016, at 11:52 a.m. he was dispatched to an incident involving a minor accident between two vehicles on State Route 83. When he arrived at the scene, Roth's vehicle was in a residential driveway and Ms. Bittker's vehicle was "pulled forward a little to the north" on State Route 83. At that time, the officer noticed that Ms. Bittker's vehicle had dents in the front right fender and Roth's vehicle had a scratch toward the center of the back bumper. Officer Callicoat stated that the damage to the vehicles was consistent with the explanation of the incident he was given by Ms. Bittker. He further testified that between a vehicle in a private driveway and a vehicle on a state route, the vehicle on the roadway had the right-of-way. Officer Callicoat stated that he issued Roth a citation for improper backing.
{¶27} Roth bases his argument that there was insufficient evidence to support his conviction for improper backing in part on the contention that Officer Callicoat's testimony included improper hearsay evidence and that the magistrate improperly allowed Officer Callicoat to testify as an accident reconstruction expert. However, "[b]ecause the State cannot retry a defendant following a reversal on the sufficiency of the evidence, 'the interest in the administration of justice dictates that the appellate court review the issue of sufficiency in consideration of all evidence presented by the [S]tate in its case in chief, whether such evidence was properly admitted or not.'" (Emphasis sic.) State v. Meinke, 9th Dist. Lorain Nos. 15CA010738 and 15CA010739, 2017-Ohio-7787, ¶ 10, quoting State v. Vanni, 182 Ohio App.3d 505, 2009-Ohio-2295, ¶ 15 (9th Dist.), citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. Consequently, we must consider all testimony regardless of any alleged error in its admission. Id.
{¶28} Therefore, viewing the evidence in a light most favorable to the prosecution, we conclude that the State presented sufficient evidence to allow a rational trier of fact to conclude beyond a reasonable doubt that Roth improperly backed his vehicle.
{¶29} Roth's second assignment of error is overruled.
Assignment of Error III
[Roth]'s conviction for improper backing was against the manifest weight of the evidence in violation of Article IV, Section 3, of the Ohio Constitution.
{¶30} In his third assignment of error, Roth contends that his conviction is against the manifest weight of the evidence because the greater weight of the evidence shows that Roth did not fail to give ample warning and did not fail to exercise vigilance while backing. We disagree.
{¶31} A manifest weight challenge is legally distinct from a sufficiency challenge. Thompkins, 78 Ohio St.3d at 387. To determine whether a criminal conviction is against the manifest weight of the evidence, we "must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten, 33 Ohio App.3d 339, 339 (9th Dist.1986). "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" (Emphasis sic.) Thompkins at 387. Nonetheless, "[a]n appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases." State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.
{¶32} Roth was convicted of improper backing in violation of N.R.C.O. 432.12, which provides that "[b]efore backing, operator of vehicles shall give ample warning, and while backing they shall exercise vigilance not to injure person or property on the street or highway."
{¶33} Officer Callicoat testified that he did not ask Herman Roth, Roth's passenger, whether he had observed or witnessed anything about the accident. Nonetheless, Herman Roth did testify at Roth's trial. Herman Roth testified that as a passenger in Roth's vehicle he observed the front end of a red car across the street. He stated that when Roth was backing, he looked "all around the car" and there were no cars coming from either direction. He also stated that he observed Roth looking both ways and "all around." Herman Roth further testified that Roth backed "very, very slowly." However, when asked if he observed the collision, he stated he did not see the impact nor did he observe the damage to the vehicles at that time. He did, however, state that he believed the damage to Roth's rear bumper was a result of the collision.
{¶34} Roth also testified. He stated that prior to backing, he did as he always does, and looked both ways, looked in the rearview mirror, and turned "all the way around to look" and there were no cars on the road. He stated that he backed very slowly, pumping his brakes, and creeping a little bit at a time and was startled by the impact because he did not see Bittker's vehicle or the impact. Roth further testified that he did not believe Bittker's vehicle was at a dead stop as she had testified because he did not believe she could "have backed out in that length of time when her car [was] forward in that driveway." He stated that he "acted cautiously" and that in his opinion Bittker "must have barreled out there like a bat out of hell in order to get out of there" and that he was the "victim." Roth also stated that he did not know where on the red vehicle the impact occurred, but that the damage to Bittker's front fender could have happened at any time.
{¶35} Based on this evidence and the testimony outlined above, we cannot say that the magistrate lost her way in this matter. See Thompkins, 78 Ohio St.3d at 387; Otten, 33 Ohio App.3d at 340. "This Court has repeatedly held that the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly." State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. "'[T]he [trier of fact] is free to believe all, part, or none of the testimony of each witness.'" State v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 24, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. Moreover, "[a] verdict is not against the manifest weight of the evidence because the finder of fact chooses to believe the State's witnesses rather than the defendant's version of the events." State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.
{¶36} Therefore, Roth's third assignment of error is overruled.
Assignment of Error IV
The [m]agistrate violated [Roth]'s Sixth Amendment right to counsel when she proceeded to trial without obtaining a voluntary, knowing[,] and intelligent waiver of that right.
{¶37} In his fourth assignment of error, Roth contends that the magistrate violated his Sixth Amendment right to counsel when she proceeded to trial without obtaining a voluntary, knowing, and intelligent waiver of that right. We disagree.
{¶38} The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to counsel for his defense. Accord Ohio Constitution, Article I, Section 10. Pursuant to Crim.R. 44, "[w]hen a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel."
{¶39} Nonetheless, in this case, Roth was charged with a minor misdemeanor for which no sentence of confinement was available. Therefore, we conclude that Roth's Sixth Amendment right to counsel did not arise. See In re Kriak, 30 Ohio App.3d 83, 84 (9th Dist.1986) ("As Kriak was not incarcerated, we find that his Sixth Amendment right to counsel did not arise.") citing State v. Haag, 49 Ohio App.2d 268, 271 (9th Dist.1976); see also State v. Harris, 2d Dist. Montgomery No. 27083, 2017-Ohio-4095, ¶ 4-7 ("[B]ecause a minor misdemeanor does not carry the possibility of incarceration, [the defendant] had no right to court-appointed counsel, and the trial court was not required to inform her of her right to counsel and to obtain a waiver of her right to counsel."), citing State v. Wheeler, 2d Dist. Montgomery No. 26702, 2016-Ohio-2964, ¶ 23-24.
{¶40} Therefore, Roth's fourth assignment of error is overruled.
Assignment of Error V
The [m]agistrate violated [R.C.] 2938.11(F) by failing to announce her finding in open court not more than forty-eight hours after submission of the case to her.
{¶41} In his fifth assignment of error, Roth contends that the magistrate violated R.C. 2938.11(F) by failing to announce her finding in open court not more than forty-eight hours after submission of the case. We disagree.
{¶42} This Court has held, that "a defendant who has rested his case and placed his fate in the hands of the trial judge is entitled to a judgment within a reasonable time thereafter * * * ." Sheffiled v. Nieves, 52 Ohio App. 2d 187, 188 (9th Dist.1976). Although Roth argues that this post-trial delay was unreasonable, he bases this argument entirely on R.C. 2938.11(F). That statute provides that "[a]ny verdict * * * or finding determined by the judge or magistrate in trial to the court, shall be announced and received only in open court as soon as it is determined. Any finding by the judge or magistrate shall be announced in open court not more than forty-eight hours after submission of the case to him." Nonetheless, the Supreme Court of Ohio has determined that the time requirement in R.C. 2938.11(F) is directory, not mandatory. State ex. rel. Martin v. Mannen, 113 Ohio St.3d 373, 2007-Ohio-2078, ¶ 6. "This is consistent with the general rule that 'a statute which provides a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure.'" Id. quoting State ex rel. Jones v. Farrar, 146 Ohio St. 467, 472 (1946).
{¶43} Therefore, Roth's fifth assignment of error is overruled.
Assignment of Error VI
The trial court erred when it pronounced sentence upon [Roth] for a minor misdemeanor without [Roth] being present, where the court imposed the sentence based on the magistrate's recommendation, and [Roth] was not present when the magistrate made her recommendation.
{¶44} In his sixth assignment of error, Roth contends that the trial court erred when it pronounced a sentence upon him outside of his presence when Roth was also not present when the magistrate made her recommendation. In its merit brief, the State concedes that the magistrate erred and that Roth should be resentenced while present in the trial court. We agree.
{¶45} Pursuant to Crim.R. 43(A), "the defendant must be physically present at every stage of the criminal proceeding and trial, including * * * the imposition of sentence, except as otherwise provided by these rules." Crim.R. 19(C)(1)(h) permits a magistrate to conduct the trial of any misdemeanor case that will not be tried to a jury, however, pursuant to Crim.R. 19(D)(4)(a), "a magistrate's decision is not effective unless adopted by the court." Accordingly, a trial court errs where it issues a judgment entry adopting a magistrate's decision and imposing sentence where the defendant is not present before the trial court and was also not present before the magistrate when the magistrate pronounced the recommended sentence. See State v. Gilreath, 174 Ohio App.3d 327, 2007-Ohio-6899, ¶ 31 (2d Dist.)
{¶46} In this case, a review of the record shows that the magistrate did not pronounce her recommended sentence in open court when Roth was before her. Rather she pronounced the recommended sentence in a written decision and the trial court adopted the sentencing recommendation of the magistrate in a written decision. Accordingly, Roth was not physically present at the imposition of his sentence. See Crim.R. 43(A).
{¶47} Therefore, we vacate the sentence imposed and remand the matter to the court for resentencing.
{¶48} Roth's sixth assignment of error is sustained.
III.
{¶49} Roth's first, second, third, fourth, and fifth assignments of error are overruled. Roth's sixth assignment of error is sustained. Therefore, the judgment of the Elyria Municipal Court is affirmed in part and reversed in part and the matter is remanded for further proceedings consistent with this opinion.
Judgement affirmed in part, and reversed in part, and remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal Court, 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 equally to both parties.
/s/_________
JULIE A. SCHAFER
FOR THE COURT HENSAL, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
RANDOLPH ROTH, pro so, Appellant. TONI L. MORGAN, Prosecuting Attorney, for Appellee.