STATE OF OHIO, Plaintiff-Appellant v. JOSEPHINE CIMPAYE, Defendant-Appellee
Appellate Case No. 28304
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
May 1, 2020
2020-Ohio-2740
Trial Court Case No. 2018-CRB-4581 (Criminal Appeal from Municipal Court)
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Rendered on the 1st day of May, 2020.
TROY B. DANIELS, Atty. Reg. No. 0084957 and HOPE L. SMALLS, Atty. Reg. No. 0091610, City of Dayton Assistant Prosecuting Attorneys, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419 Attorney for Defendant-Appellee
{¶ 1} Plaintiff-appellant State of Ohio appeals an order of the Dayton Municipal Court, which granted the motion to dismiss filed by defendant-appellee Josephine Cimpaye. The State filed a timely notice of appeal with this Court on February 20, 2019.
{¶ 2} The record establishes that on July 28, 2018, Cimpaye was arrested for domestic violence and transported to the Montgomery County Jail. On July 29, 2018, the State filed complaints against Cimpaye charging her with two counts of domestic violence, in violation of
{¶ 3} On July 31, 2018, an employee at the Montgomery County Jail contacted the trial court and indicated that an interpreter had visited Cimpaye at the jail. After speaking with Cimpaye, the interpreter reported to jail staff that she was exhibiting troublesome mental health issues such as talking to someone who was not there. Cimpaye also told the interpreter that the walls were speaking to her. A jail employee informed the trial court that, pursuant to its authority under
{¶ 4} On August 10, 2018, the Montgomery County Sheriff‘s Department transported Cimpaye to Northcoast Behavioral Health (“Northcoast“) for emergency treatment pursuant to
{¶ 5} At the scheduled pretrial hearing on August 20, 2018, the trial court notified the State and defense counsel that Cimpaye was receiving treatment at Northcoast. The trial court further stated that it was tolling speedy trial time as of the date of the pretrial hearing until Cimpaye‘s condition could be assessed by mental health professionals and communicated back to the trial court. Tr. 10-11, 44-45. On August 30, 2018, the trial court issued an entry ordering a competency and sanity evaluation of Cimpaye.4 Although the order was faxed to Northcoast, a representative from the facility later represented that Northcoast had no knowledge of the order. Tr. 46.
{¶ 6} The agreed to a timeline of events as set forth by the court at the motion to dismiss hearing. This timeline established that on November 15, 2018, Cimpaye voluntarily committed herself for additional treatment at Northcoast as the civil commitment laws require a reevaluation after 90 days. Cimpaye remained at Northcoast as a voluntary patient until she was discharged on January 15, 2019, at which point she was transported back to the Montgomery County Jail.
{¶ 7} On January 16, 2019, Cimpaye appeared before the trial court represented by counsel but without an interpreter. At that time, Cimpaye‘s counsel indicated that she intended to file a motion to dismiss Cimpaye‘s case on speedy trial grounds. The trial court then scheduled a motion to dismiss hearing to be held on January 22, 2019, and set bond at $10,000 cash/surety. Cimpaye‘s counsel filed a motion to dismiss the next day, January 17, 2019, in which she argued that Cimpaye‘s speedy trial time had expired pursuant to
{¶ 8} On January 22, 2019, the trial court held a hearing on Cimpaye‘s motion to dismiss. At the hearing, Cimpaye argued that her speedy trial time had expired pursuant to
{¶ 9} Ruling from the bench, the trial court found that Cimpaye had been held in custody for 179 days, from July 28, 2018, until January 22, 2019. The trial court also found that tolling the time Cimpaye spent at Northcoast was “unreasonable and unjustified” due to the “length of the delay.” Tr. 53. The trial court concluded the tolling had to be a “date certain.” Tr. 55. The trial court further found that while Cimpaye was at Northcoast, both involuntarily and voluntarily, she was under a “police hold,” and therefore charged all of that time against the State. The trial court calculated a total of 124 days chargeable to the State, which exceeded the 90 days permitted pursuant to
{¶ 10} It is from this judgment that the State now appeals.
{¶ 11} The State‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT DISMISSED THE STATE‘S CASE ON SPEEDY TRIAL GROUNDS.
{¶ 13} The right to a speedy trial is guaranteed by the United States and Ohio Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Ohio‘s speedy trial statute,
{¶ 14} The time limits for bringing a defendant to trial are found in
{¶ 15} Pursuant to
{¶ 16} Although the time limits contained in
{¶ 17} In the instant case, Cimpaye was arrested on July 28, 2018. When computing speedy trial time, the day of arrest is not counted. State v. Cline, 2d Dist. Champaign No. 2002-CA-05, 2003-Ohio-4712, ¶ 27, rev‘d on other grounds, 103 Ohio St.3d 471, 816 N.E.2d 1069, 2004-Ohio-5701 (2004). Therefore, the time for bringing Cimpaye to trial began running on July 29, 2018, the day after her arrest. Id.
{¶ 18} As previously stated, Cimpaye was transported on August 10, 2018, by the Montgomery County Sheriff‘s Department to Northcoast for emergency treatment pursuant to
{¶ 19} In support of its argument for reversal, the State cites State v. Buhr, 1st Dist. Hamilton No. C-780337, 1979 WL 208730 (Mar. 14, 1979), wherein the defendant was civilly committed while charges were pending against him. Id. at *1. Prior to being bound over, however, he was transported to a state hospital for emergency treatment due to psychiatric issues. Id. On appeal, the issue decided by the court was whether the defendant should have received a hearing and legal representation prior to being committed. The Buhr court stated that “the commitment * * * made pursuant to a psychiatric clinic report that [the defendant] was a danger to himself and needed immediate hospitalization * * * should not be charged against the state.” Id. at *2.
{¶ 20} The State also cites State v. Claprood, 5th Dist. Licking No. 94 CA 34, 1995 WL 495258 (May 10, 1995), wherein the defendant attempted to hang himself in jail after being arrested for abduction. Id. at *1. Accordingly, the defendant was committed to a psychiatric hospital by a probate court. Id. On appeal for speedy trial issues, the Claprood court stated that the time spent in the psychiatric hospital as a result of his suicide attempt would not be charged against the State for speedy trial purposes. Id. at *5. The State argues that based upon the language from the Buhr and Claprood opinions, it is “implied that the time was tolled during the period” in which Cimpaye was civilly committed for psychiatric issues by the Montgomery County Sheriff‘s Department.
{¶ 21} However, as noted by the State in its brief, “a comparison of
{¶ 22} As previously stated, however, on August 20, 2018, the trial court held a hearing wherein it notified the State and defense counsel that Cimpaye was receiving treatment at Northcoast. The trial court further stated that it was tolling speedy trial time beginning on August 20, 2018, until Cimpaye‘s condition could be assessed by mental health professionals and related back to the trial court. Tr. 10-11, 44-45. Significantly, defense counsel did not object to the decision of the trial court
{¶ 23}
The court shall conduct the hearing required or authorized under division (B) of this section within thirty days after the issue is raised, unless the defendant has been referred for evaluation in which case the court shall conduct the hearing within ten days after the filing of the report of the evaluation * * *.
(Emphasis added).
{¶ 24} Additionally, we find that Cimpaye‘s reliance on
No defendant shall be required to undergo treatment, including any continuing evaluation and treatment, under division (B)(1) of this section for longer than whichever of the following periods is applicable:
* * *
(3) Sixty days, if the most serious offense with which the defendant is charged is a misdemeanor of the first or second degree[.]
{¶ 25} Only after the hearing before the trial court regarding the defendant‘s competency would the procedures established in
If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant‘s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant‘s defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.)
(Emphasis added).
{¶ 26} As previously stated, the trial court ordered Cimpaye to submit to the competency evaluation at Northcoast in an entry filed on August 30, 2018. However, no evaluation report was submitted to the trial court prior to the motion to dismiss hearing held on January 22, 2019. Because it had yet to receive the competency evaluation from Northcoast, the trial court was unable to hold a competency hearing pursuant to
{¶ 27} We further conclude that it was error for the trial court to hold that all of the days that Cimpaye remained hospitalized at Northcoast were chargeable to the State for speedy trial purposes. As previously stated, Northcoast failed to perform a competency evaluation of Cimpaye pursuant to court order while she was hospitalized at the facility in the time frame set forth in the order and by statute. Nevertheless, the Ohio Supreme Court has addressed the issue of whether
{¶ 28}
{¶ 29} Notably, as soon as Cimpaye was discharged from Northcoast and returned to the Montgomery County Jail on January 15, 2019, defense counsel filed a motion to dismiss on speedy trial grounds on January 17, 2019. The trial court, however, never made a competency determination regarding Cimpaye, and therefore, the tolling of
{¶ 30} As pertinent to this appeal,
Regardless of whether a longer time limit may be provided by sections 2945.71 and 2945.72 of the Revised Code, a person charged with misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting trial on the pending charge:
(1) For a total period equal to the maximum term of imprisonment which may be imposed for the most serious misdemeanor charged[.]
{¶ 31} Here, the trial court incorrectly found that Cimpaye was in custody for 179 days from July 28, 2018, through January 15, 2019. Nevertheless, by the trial court‘s own calculation of 179 days, the time limit set forth in
{¶ 32} In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court established a balancing test for determining whether a defendant‘s constitutional right to a speedy trial has been violated. The four factors are “[l]ength of delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the defendant.” Barker at 530. “[T]hese four factors are balanced considering the totality of the circumstances, with no one factor controlling.” State v. Perkins, 2d Dist. Clark No. 08-CA-0081, 2009-Ohio-3033, ¶ 8.
{¶ 33} In our view, Cimpaye‘s argument that she was prejudiced by the delay while she was in treatment at Northcoast is undermined by the fact that she voluntarily elected to remain at the mental health facility on November 15, 2018. Thus, a significant portion of the delay in the instant case, from November 15, 2018, to January 15, 2019, was solely attributable to Cimpaye, who voluntarily chose to remain in treatment at Northcoast when she could have elected to return to Montgomery County and face the charges for which she was being accused. “We by no means advocate the failure of an examiner to timely file a report. However, if a defendant is dissatisfied with the slow response time, he or she can petition the court to enforce its order or request a hearing.” State v. Palmer, 84 Ohio St.3d 103, 702 N.E.2d 72 (1998), fn.1.
{¶ 34} We note that the record does not contain an entry appointing counsel for Cimpaye at arraignment. However, we note that on August 15, 2018, Attorney Navay Vaughn from the Montgomery County Public Defender‘s Office filed a “NOTICE OF ATTORNEY” in the instant case. Furthermore, to the extent Cimpaye argues that she was not represented by counsel, the record establishes that she was in fact represented by counsel from the public defender‘s office at every stage of the case: 1) July 30, 2018, Arraignment, Attorney Chuck Grove, Tr. 3; 2) July 31, 2018, Phone Conference, Attorney Rusch, Tr. 9; 3) August 20, 2018, Attorney Navay Vaughn, Tr. 8; 4) January 16, 2019, Attorney Michael Walczak, Tr. 14; 5) January 17, 2019, Attorney Navay Vaughn, Tr. 21; 6) January 22, 2019, Attorney Hope Smalls, Tr. 38.
{¶ 35} Lastly, in support of her argument that her speedy trial time was not tolled while she was in treatment at Northcoast, Cimpaye cites State v. Johnson, 8th Dist. Cuyahoga App. Nos. 78097-78099, 2001 WL 233401 (Mar. 8, 2001), which analyzed Palmer and tolling for a competency determination under
{¶ 36} In conclusion, from July 29, 2018, (the day after Cimpaye‘s arrest) to August 19, 2018, the 22 days she spent in jail were chargeable against the State. Counting
{¶ 37} The State‘s assignment of error is sustained.
{¶ 38} The State‘s sole assignment of error having been sustained, the judgment of the trial court is reversed, and this matter is remanded for proceedings consistent with this opinion.
FROELICH, J., concurs.
HALL, J., concurring:
{¶ 39} I agree with my colleagues that when the trial court ordered tolling of speedy trial time on August 20, 2018 because Cimpaye‘s mental health condition was being assessed as an inpatient at Northcoast, that stopped the speedy trial clock. That event was followed by the trial court‘s August 30, 2018 order of competency and sanity evaluations for Cimpaye which, for whatever reasons, were never completed before she appeared in court for a hearing on her motion to dismiss on January 22, 2019. Accordingly, all that time is not chargeable against the State because
{¶ 40} I write separately though to express my opinion, contrary to that stated in the majority opinion paragraph 21, that speedy trial time was also tolled on or before August 10, 2018, when Cimpaye was civilly committed under
Copies sent to:
Troy B. Daniels
Hope L. Smalls
Carlo C. McGinnis
Hon. Deirdre E. Logan