Appeals court rules dismissal an error
By Ed Runyan
Another prosecutor could have taken Frenchko’s place, the appeals court said.
YOUNGSTOWN — The 7th District Court of Appeals ruled Judge John M. Durkin of Mahoning County Common Pleas Court erred in dismissing a criminal case last November in which an assistant prosecutor failed to appear because she was teaching a class.
The ruling means that the robbery, felonious assault and domestic violence case against Kenneth R. Miller, 28, of Martin Luther King Boulevard will go forward as previously planned, said Rhys B. Cartwright-Jones, appellate counsel for the Mahoning County Prosecutor’s office.
“Now we have a live case,” he said.
Miller’s trial had been scheduled for Nov. 13 in Judge Durkin’s courtroom, but Natasha Frenchko, the assistant county prosecutor handling the case, did not appear that morning.
In her place was Gina Arnaut, another assistant county prosecutor, who asked Judge Durkin for a postponement of the trial.
The reason Frenchko did not appear was that she was presenting a seminar for nurses at St. Elizabeth Health Center on how to interview rape and domestic violence victims.
Judge Durkin dismissed the charges against Miller, saying he did so because Miller’s speedy trial clock had expired and because of Frenchko’s failure to appear for trial.
But the prosecutor’s office appealed Judge Durkin’s ruling on the grounds that Miller’s speedy trial clock had not expired and that the judge had abused his discretion in dismissing the charges as a punishment against Frenchko.
Speedy trial time is the amount of time the government has to bring defendant to trial. With limited exceptions, Ohio law requires that defendants be tried within 90 days after their arrest if they’re in jail or within 270 days if they’re out on bond unless they waive their speedy trial rights.
Miller hadn’t waived a speedy trial.
Cartwright-Jones said he has filed a request with Judge Durkin’s court for a status conference to discuss either a plea agreement or new trial date with Miller and his attorney, Jeffrey Limbian.
Miller was arrested in May 2007 after being accused of committing the offenses against a Youngstown woman.
The passage of seven more months since the case was dismissed doesn’t create any additional speedy trial time problems or double-jeopardy issues, Cartwright-Jones said, because those issues are suspended when an appeal is filed in such a case.
In the appeals court’s ruling, the justices said Judge Durkin’s judgment entry does not spell out the reasons for dismissal of Miller’s case, but it notes the judge did discuss the matter during a hearing Nov. 13.
During the hearing, Judge Durkin said he was dismissing the case because of speedy trial issues, as well as Frenchko’s actions “in completely disregarding the notice of jury schedule and trial in this case.”
The appeals court noted that Judge Durkin had detailed the steps his office took to ensure that Frenchko knew the trial date.
The appeals court wrote that the prosecutor’s office had not requested a single postponement in the case before Nov. 13 and had sent a stand-in prosecutor to court Nov. 13 who could have stepped in if necessary.
Cartwright-Jones said Arnaut or another prosecutor could have handled jury selection for several hours if necessary until Frenchko could have arrived.
The appeals court said Judge Durkin also erred in determining that the speedy trial time in the case had expired.
runyan@vindy.com