State v. KeslerState v. Kesler
{¶1} Defendant-appellant Eric E. Kesler (“Kesler”) brings this appeal from the judgment of the Court of Common Pleas of Seneca County denying his motion to dismiss for speedy trial violations. For the reasons set forth below, the judgment is affirmed.
{¶2} On April 15, 2013, a complaint was filed in the Tiffin Municipal Court alleging that Kesler had violated the requirement that he register as a sexual offender, in violation of
{¶3} On May 8, 2008, the Seneca County Grand Jury issued an indictment alleging that Kesler had failed to provide notice of his change of address for his residence, in violation of
{¶4} On July 24, 2013, Kesler filed a motion to dismiss based upon violation of his speedy trial rights. Doc. 24. The State filed its response that same day. Doc. 25. The trial court overruled the motion to dismiss, finding that the time for the speedy trial was tolled by the defense’s failure to respond to the State’s discovery answer and by the delay in arraignment because appointed counsel was not available. Doc. 26. The trial was held on July 25, 2013, and Kesler was found guilty. Doc. 27. A sentencing hearing was held on August 22, 2013. Doc. 30. Kesler filed his notice of appeal on August 28, 2013. Doc. 31. On appeal, Kesler raises the following assignments of error.
First Assignment of Error
The trial court erred by overruling [Kesler’s] motion to dismiss on speedy trial grounds.
Second Assignment of Error
[Kesler’s] trial attorney failed to provide adequate counsel thereby denying him his constitutional right to effective counsel.
(C) A person against whom a charge of felony is pending:
* * *
(2) Shall be brought to trial within two hundred seventy days after the person’s arrest.
* * *
(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days.
The time within which an accused must be brought to trial * * * may be extended only by the following:
* * *
(E) Any period of delay necessitated by reason of a * * * motion * * * made or instituted by the accused.
* * *
(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.
When reviewing a speedy-trial issue, an appellate court must calculate the number of days chargeable to either party and determine whether the appellant was properly brought to trial within the time limits set forth in
R.C. 2945.71 . * * * Additionally, our review involves a mixed question of law and fact. We must defer to the trial court’s findings of fact if supported by competent, credible evidence, but we independently review whether the trial court properly applied the law to those facts.
State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).
Sua sponte continuances are continuances “granted other than on the accused’s own motion.”
R.C. 2945.72(H) . To toll the speedy trial time, the record must reflect that the period of the continuance was “reasonable.” To satisfy that standard, “when sua sponte granting a continuance underR.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 limits prescribed inR.C. 2945.71 for bringing a defendant to trial.”
State v. Ramey, 2d Dist. Clark No. 2010 CA 19, 2012-Ohio-6187, ¶12 (quoting State v. Mincy, 2 Ohio St.3d 6, 9, 441 N.E.2d 571 (1982)). The reasonableness of the delay is determined based upon the specific facts and circumstances of each case. State v. Daugherty, 110 Ohio App.3d 103, 673 N.E.2d 664 (3d Dist. 1996). This court has previously held that delaying proceedings until the next available date was a reasonable delay. See Id. and State v. Glass, 3d Dist. Auglaize No. 2-04-01, 2004-Ohio-4402.
{¶7} Once it has been determined that the trial date is outside of the speedy trial limits, the next issue to be addressed is whether the time for trial could be extended for any of the statutory reasons. The trial court in this case provided two instances in which it extended the time for trial. The first was the five days between when the arraignment was scheduled and when it actually occurred. According to the record, the arraignment was delayed due to the unavailability of appointed counsel on the original date. The court stated that it was concerned because it was unusual for counsel to not appear. May 15, 2013 Tr. 3. The trial court stated “I’m gonna continue the arraignment because I suspect he would like me to reconsider bond as well, at least I suspect so.” Id. The original date of arraignment was on Wednesday, May 15, 2013. When counsel was unavailable, the trial court sua sponte continued the arraignment until counsel could be present. The trial court specified in its journal entry of May 15, 2013, that defense counsel “was not available and the Court finds that this matter should be continued.” Doc.
{¶8} The second extension the trial court found was the failure of defense counsel to respond to its reciprocal duty to provide discovery as required by Criminal Rule 16.
(A) This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large. All duties and remedies are reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement their disclosures.
{¶9} Further support for the above position is found in the Supreme Court’s opinion of State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, 989 N.E.2d 1006. In Athon, the defense did not request discovery from the State, but did make a public records request. The Supreme Court determined that although the defendant may make a public records request, the same information could have been obtained through a discovery request to the State. “When an accused directly or indirectly makes a public records request for information that could be obtained from the prosecutor through discovery, the request is the equivalent of a demand for discovery and triggers a duty to provide reciprocal discovery as contemplated by
{¶10} In our case, no action was taken by the defendant that would trigger the reciprocal duty to provide discovery pursuant to Criminal Rule 16. The State
{¶11} Having determined that the trial court erred in extending the time for trial based on the failure to provide reciprocal discovery within 30 days, we now look to the record to see if there are any other statutorily provided reasons for an extension. According to the record, Kesler was originally scheduled for an initial hearing on April 22, 2013, but requested a continuance until April 26, 2013. Doc. 1. This continuance request was made by Kesler himself and he specifically requested a delay until April 26, 2013. Pursuant to
{¶13} Here, Kesler claims that his counsel was ineffective for not responding to the State’s request for discovery within thirty days. This court has previously addressed this issue and found that the reciprocal duty to respond to the State’s discovery was not triggered pursuant to Criminal Rule 16 because Kesler never requested discovery. Since Kesler’s counsel had no reciprocal duty to respond, he was not ineffective for failing to respond within thirty days. For this reason, the second assignment of error is overruled.
{¶14} Having found no prejudice in the particulars assigned and argued, the judgment of the Court of Common Pleas of Seneca County is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr