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Judge grants stay on old charges



Published: Tue, August 21, 2001 @ 12:00 a.m.



The judge had a status conference three days after the newspaper reported on the old and forgotten cases.

By PATRICIA MEADE

VINDICATOR CRIME REPORTER

YOUNGSTOWN -- Action, of sorts, has been taken on Zachary Howell's six cases -- the gun, drug and loud-music charges that lay untouched for 91/2 months in municipal Judge Robert P. Milich's court.

The action is a decision to wait.

On July 26, three days after The Vindicator reported that the time to prosecute the 24-year-old Howell's old and forgotten cases had likely passed, Judge Milich had a status conference. The judge noted on the files that the defendant intended to file a motion to stay -- postpone -- proceedings.

Howell's lawyer, Thomas E. Zena, filed the motion Aug. 8, asking that the old cases be held, pending disposition of Howell's new gun charge at Mahoning County Common Pleas Court. Zena, in his motion, waived any time limitations imposed upon the municipal court cases "that remain in existence."

Howell's new charge of carrying a concealed weapon was bound over to a grand jury July 20 by municipal Judge Elizabeth A. Kobly, and jurors handed up an indictment Aug. 9, records show.

On Aug. 13, Judge Milich granted Zena a stay on the six old charges and set another status conference for Sept. 17.

Zena said Monday that his motion to hold off on the municipal court cases now gives him time to deal with Howell's gun charge in common pleas court. The lawyer said he's also taking steps to recover from the federal Drug Enforcement Administration $4,760 that Howell had when police arrested him in June on the gun charge.

The stay, he said, doesn't affect the time constraints on the old cases, it just stops action on them now. "I don't look at my motion as waiving anything in the past," he said.

It's possible, Zena said, that the city prosecutor's office could suggest reduced charges or concurrent sentences with what happens at common pleas, "rather than fight and everyone go to the court of appeals." Zena said that if, however, no such offer is made, the time to prosecute has passed and he would pursue dismissal of the municipal court charges at the September status conference.

Charges from 2000: The six old charges -- two loud music, drug abuse, two counts of improper handling of a firearm in a motor vehicle and illegal possession of a firearm -- represent Howell's arrests in May and June 2000.

The last charge, illegal possession of a firearm, is a felony, which required a preliminary hearing in municipal court in order to bind it over to a grand jury. A defendant can waive such a hearing, which automatically binds the charge over, but Howell didn't do that.

Howell, of Lincoln Park Drive, failed to appear for a preliminary hearing on the charge in July 2000, and another one wasn't scheduled, records show.

There's no record that Howell waived his right to speedy trial on the six charges, so the misdemeanors should have come to trial in 90 days and the felony in 270 days.

Motion to dismiss: Until last month's status conference, Howell's six charges lay dormant in Judge Milich's court after a motion-to-dismiss hearing Oct. 5, 2000. That day, Atty. Anthony P. Meranto, who stepped in for Zena, wanted the judge to dismiss the two loud-music charges, contending the city ordinance was flawed.

The ordinance was revamped in February after Judge Kobly determined the original language was vague, unconstitutional and unenforceable.

Meranto said at the October hearing that "the other charges flow out of the stops for loud music" and that he thought the assistant prosecutor would address those charges at a later time.

Judge Milich took the loud-music cases under advisement and never rendered a decision. The clerk of courts asked about the cases in a Feb. 26 memo to the judge, but nothing was done.

The judge had no definitive explanation when interviewed last month as to why the clerk's memo didn't prompt him to act on the pending cases months ago. He said he had been working on it off and on.

City Prosecutor Dionne Almasy could not be reached Monday.

Possible argument: Law Director Robert E. Bush Jr., who wasn't completely familiar with the cases, said the city could argue that because Judge Milich had the loud-music cases under advisement, the time stopped on all Howell's cases assigned to the judge. The law director said he couldn't recall ever coming across a similar set of circumstances.

If the judge proceeded with the cases now and Howell was found guilty, his lawyer could argue the time issue through an appeal, Bush said. The judge could not be reached Monday.

Last month, Judge Milich told The Vindicator that Howell's cases fell through the cracks and he accepted responsibility. At the time, he said "it's a possibility" that the time had passed for the cases to be prosecuted.

Zena said then that he considered the time issue a "slam dunk."

meade@vindy.com




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