2005 Ohio 4281 | Ohio Ct. App. | 2005
{¶ 2} An Obetz police officer arrested appellant on May 13, 2004, and charged appellant with the following first-degree misdemeanors: (1) OVI, in violation of R.C.
{¶ 3} While appellant was in jail, the trial court arraigned appellant on the above charges on May 14, 2004. Additionally, the trial court arraigned appellant on an unrelated complicity to drug trafficking felony charge. At the arraignment, an attorney from the Franklin County Public Defender's Office entered an appearance as appellant's counsel, and appellant pled not guilty to all charges and asserted his speedy trial rights.
{¶ 4} On May 17, 2004, appellant posted bond and was released from jail. The trial court scheduled a pre-trial conference for May 26, 2004.
{¶ 5} On May 26, 2004, appellant's public defender withdrew because appellant refused to fill out the requisite financial eligibility form and because appellant desired to retain private counsel. That same day, the trial court continued the pre-trial conference to July 1, 2004, noting in the continuance entry that appellant requested private counsel.
{¶ 6} On July 1, 2004, the trial court set appellant's trial for August 9, 2004. Subsequently, on July 15, 2004, present counsel for appellant entered an appearance. On August 9, 2004, the trial court continued the trial to September 13, 2004, at appellant's attorney's request.
{¶ 7} On September 10, 2004, appellant's attorney filed a motion to dismiss, claiming that the trial court and appellee, the State of Ohio, failed to bring appellant to trial pursuant to his Ohio statutory speedy trial rights, and his state and federal constitutional speedy trial rights. In the motion, appellant argued that speedy trial time did not toll from the May 26, 2004 continuance to the rescheduled July 1, 2004 pre-trial conference.
{¶ 8} On September 13, 2004, the trial court rescheduled the trial to October 19, 2004, because the judge was ill and in the hospital. Afterwards, on October 19, 2004, the trial court issued a judgment entry that denied appellant's motion to dismiss. The trial court concluded that speedy trial time tolled from May 26, 2004 to July 1, 2004. The trial court reasoned that, after appellant's public defender withdrew on May 26, 2004:
* * * [Appellant] was asked what he wanted to do. The court's entry of May 26, 2004 reflects that the [appellant] requested a continuance to retain private counsel. The case was continued for another pretrial at [appellant's] request to retain private counsel until July 1, 2004.
Therefore, according to the trial court, speedy trial time tolled from May 26, 2004 to July 1, 2004, because appellant requested a continuance to retain private counsel.
{¶ 9} Appellant then pled no contest to OVI on October 19, 2004. Appellee dismissed the remaining counts and the trial court sentenced appellant. Because the OVI constituted appellant's third offense in six years, appellant faced a minimum of 30 days in jail and a maximum of one year in jail. R.C.
{¶ 10} Appellant appeals, raising two assignments of error:
1. The municipal court erred in finding that a continuance of a pretrial from May 26, 2004 to July 1, 2004 is exempted from consideration in the computation of speedy trial time, and therefore denying "Defendant's Motion To Dismiss For Denial Of Defendant's Constitutional And Statutory Rights To A Speedy Trial."
2. The municipal court erred in failing to record the proceedings of May 26, 2004.
{¶ 11} We begin with appellant's second assignment of error, by which appellant asserts that we must reverse his OVI conviction because the trial court failed to record the May 26, 2004 court proceeding. We disagree.
{¶ 12} Under Crim.R. 22, "all proceedings shall be recorded" "[i]n serious offense cases[.]" Pursuant to Crim.R. 2(C), a "serious offense" includes a misdemeanor "for which the penalty prescribed by law includes confinement for more than six months." Here, appellant's OVI charge carried a potential penalty of more than six months in jail. See R.C.
{¶ 13} Similarly, under Crim.R. 17.1, "[i]n any case in which the defendant is not represented by counsel, any pretrial conference shall be conducted in open court and shall be recorded as provided in Crim.R. 22." As noted above, appellant's public defender withdrew on May 26, 2004, the pre-trial conference date. Thus, we also examine the implications of Crim.R. 17.1 with the May 26, 2004 court proceeding.
{¶ 14} At oral argument, appellee argued that Crim.R. 22 and 17.1 recording requirements did not apply to the May 26, 2004 court proceeding because the trial court did not hold its scheduled pre-trial conference due to appellant's public defender withdrawing. In support, appellee relied on the section of Crim.R. 17.1 that states: "The court shall not conduct pretrial conferences in any case in which a term of imprisonment is a possible penalty unless the defendant is represented by counsel or counsel has been waived pursuant to Crim.R. 44."
{¶ 15} We note that the trial court scheduled a pre-trial conference on May 26, 2004, "to give the parties an opportunity to discuss the case and provide meaningful insights into their respective positions." Crim.R. 17.1 confirms such objectives for pre-trial conferences and indicates that courts may schedule and conduct pre-trial conferences for parties "to consider such matters as will promote a fair and expeditious trial." Although the record is devoid of evidence that appellant, the prosecution, and the trial court actually discussed "meaningful insights into [the parties'] respective positions[,]" the trial court's October 19, 2004 judgment entry confirms that appellant nonetheless discussed "what he wanted to do" with his case after his public defender withdrew. While the judgment entry is unclear as to whether the trial court or the prosecution asked the above question to appellant, the above language in the judgment entry establishes the trial court's interest and involvement with the discussions about appellant's case.
{¶ 16} In State v. McFadden (May 11, 1979), Lucas App. No. L-78-218, the Sixth District Court of Appeals recognized the applicability of Crim.R. 22 to a "`formal proceeding[,]'" which, in McFadden, was a preliminary hearing where testimony and discussions are "`taken in a judicial atmosphere.'" Id., quotingState v. Arrington (1975),
{¶ 17} Furthermore, we conclude that the Crim.R. 17.1 recording requirements also applied because appellant's discussions about his case took place during the trial court's scheduled pre-trial conference after appellant's public defender withdrew. Given this scenario, we still apply Crim.R. 17.1 even though the parties failed to reach the ultimate goals of the pre-trial conference as stated by the trial court and in Crim.R. 17.1.
{¶ 18} In so concluding, we emphasize that our opinion does not cover informal discussions or plea negotiations between attorneys before or during a pre-trial conference. See State v.Palmer (1997),
{¶ 19} The trial court's failure to adhere to the Crim.R. 22 and 17.1 recording requirements does not require us to automatically reverse appellant's conviction. See Palmer at 554. We need not reverse a defendant's conviction even though a trial court failed to adhere to particular Criminal Rules of Procedure recording requirements if the defendant fails to demonstrate on appeal that: (1) he or she either requested that the trial court record the proceeding at issue or objected to the trial court's failure to comply with the recording requirements; (2) he or she made an effort on appeal "to comply with App.R. 9 and to reconstruct what occurred or to establish its importance"; and (3) "material prejudice resulted from" the trial court's failure to record the proceedings at issue. Palmer at 554;State v. Dennis, Franklin App. No. 04AP-595, 2005-Ohio-1530, at ¶ 17.
{¶ 20} We begin by analyzing the second prong of the Palmer test, which required appellant "to comply with App.R. 9 and to reconstruct what occurred or to establish its importance[.]" SeePalmer at 554. App.R. 9(C) allows an appellant to prepare for an appellate court a statement of unrecorded proceedings. The statement becomes part of the appellate record after the trial court reviews it "for settlement and approval." Id. Here, appellant did not prepare an App.R. 9(C) statement. Nonetheless, we find compliance with the second prong of the Palmer test because the trial court already "reconstruct[ed]" the May 26, 2004 court proceeding in its October 19, 2004 judgment entry.
{¶ 21} However, appellant has not satisfied the first prong of the Palmer test, which required appellant to request that the trial court record the pre-trial conference or to object to the trial court's failure to record the proceeding. Id. at 554. In particular, appellant's public defender, who represented appellant before the scheduled pre-trial, made no request that the trial court record any proceedings in this case. Likewise, appellant's subsequently retained counsel did not raise the recording issue with or separate from the motion to dismiss on speedy trial grounds. In so concluding, we emphasize that our decision on the first prong of the Palmer test is not based on appellant's own actions, as appellant evoked his
{¶ 22} Moreover, appellant has not satisfied the third prong of the Palmer test, which requires appellant to demonstrate on appeal that "material prejudice resulted from the failure to record the proceedings at issue." Id. at 554. Appellant contends that without a transcript of the May 26, 2004 court proceeding, the trial court "was free to attribute to [appellant] a desire for a continuance for a pretrial." However, as noted below, our opinion on appellant's speedy trial motion to dismiss depends not on the trial court indicating that appellant desired a continuance of the pre-trial conference, but turns on appellant's lack of counsel at the May 26, 2004 court proceeding. Appellant's public defender's motion to withdraw and the trial court's October 19, 2004 judgment entry confirms that appellant was without counsel during the May 26, 2004 court proceeding and that appellant's public defender withdrew because appellant desired to retain private counsel. Thus, we have adequate information to review the trial court's ruling on appellant's speedy trial motion to dismiss, and appellant suffered no "material prejudice" from the trial court's failure to record the May 26, 2004 court proceeding.
{¶ 23} Accordingly, pursuant to Palmer, we need not reverse appellant's OVI conviction, even though the trial court failed to record the May 26, 2004 court proceeding. As such, we overrule appellant's second assignment of error.
{¶ 24} We next address appellant's first assignment of error. In his first assignment of error, appellant contends that the trial court erred by denying the motion to dismiss that he filed on statutory and constitutional speedy trial grounds. We disagree.
{¶ 25} We first address appellant's statutory speedy trial rights. Under Ohio's speedy trial statutes, a trial court shall discharge a defendant if the trial court and prosecution fail to bring the defendant to trial within the time required by R.C.
{¶ 26} "[W]hen a defendant moves for discharge on the basis that he has not been brought to trial within the time limits set forth in [the speedy trial statutes], and he presents a prima facie case that he is entitled to discharge, the burden of production of evidence shifts to the state." State v. Price
(1997),
{¶ 27} Under R.C.
{¶ 28} We recognize that appellant entered a no contest plea and did not take his case to trial. Thus, to comply with the speedy trial statutes, the trial court needed to determine appellant's guilt or innocence on the no contest plea within 90 days after appellant's arrest. See State v. Mintz (1991),
{¶ 29} "For purposes of computing time * * * each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." R.C.
{¶ 30} In so concluding, we note that the trial court arraigned appellant on a separate, unrelated felony drug charge on May 14, 2004, while appellant was in jail on the misdemeanor charges. The triple count provision in R.C.
{¶ 31} In assessing the triple-count provision to the speedy trial calculation, we note that, after appellant's arrest, he spent time in jail from May 14, 2004 until May 17, 2004, the date of appellant's release upon posting bond. "The date the defendant posts bond and is released from jail counts as a day in jail for the triple-count provision." State v. Brown, Ashtabula App. No. 2003-A-0092, 2005-Ohio-2879, at ¶ 22. Therefore, appellant is entitled to a four-day triple-count credit (12 days) on the speedy trial calculation for May 14, 2004 through May 17, 2004.
{¶ 32} We next calculate the remaining 78 days of speedy trial time and come to August 3, 2004. The trial court found appellant guilty on his no contest plea on October 19, 2004, which is after August 3, 2004. Therefore, appellant established a prima facie case that the trial court should have discharged him for statutory speedy trial violations. Price at 68; Elliott at ¶ 9; Mintz at 69. As such, the burden shifted to appellee to demonstrate that the speedy trial statutes sufficiently extended the requisite speedy trial time. Price at 68; Elliott at ¶ 9.
{¶ 33} As appellee asserts, provisions in R.C.
{¶ 34} Nonetheless, we are not authorized to reverse a correct judgment on the basis that some or all of the trial court's reasons are erroneous. State ex rel. McGrath v. OhioAdult Parole Auth.,
{¶ 35} Specifically, we conclude that the May 26, 2004 continuance falls under the other provision in R.C.
{¶ 36} As noted above, the trial court had discretion to schedule and conduct pre-trial conferences under Crim.R. 17.1 for the parties "to consider such matters as will promote a fair and expeditious trial." Similarly, Loc.R. 4.07 of the Franklin County Municipal Court allows trial courts to schedule pre-trial conferences. Accordingly, pursuant to its discretion, the trial court scheduled the May 26, 2004 pre-trial "by custom * * * to give the parties an opportunity to discuss the case and provide meaningful insights into their respective positions." Through this language, the trial court underscored that it considered the pre-trial conference an essential proceeding in its trial schedule. However, when appellant decided to replace his public defender at the May 26, 2004 pre-trial conference and have his public defender withdraw, the trial court needed to balance its desire to proceed with the pre-trial conference against appellant's speedy trial rights, his
{¶ 37} Nonetheless, appellant contends that the May 26, 2004 continuance was not reasonable under R.C.
{¶ 38} However, Reuschling is inapposite. In Reuschling, the trial court merely scheduled a pre-trial conference after the defendant requested such a conference at arraignment. Id. at 83. Conversely, here, the trial court had already scheduled a pre-trial conference for May 26, 2004, in accordance with its desired course towards trial. However, the trial court continued the May 26, 2004 pre-trial conference after appellant decided to retain private counsel and have his public defender withdraw. Such circumstances differ from Reuschling, where the defendant's request for a pre-trial conference neither delayed previously scheduled proceedings nor constituted a continuance to reschedule a previously scheduled pre-trial conference. Id. at 82-83.
{¶ 39} For these reasons, we likewise find misplaced appellant's reliance on the Sixth District Court of Appeals' decision in State v. Wirtanen (1996),
{¶ 40} Additionally, the plain language of the provision in R.C.
{¶ 41} Consequently, in Elliott, we held that speedy trial time extended from a defendant's request to continue a pre-trial in order for the defendant to obtain new counsel. Id. at ¶ 14-16. Thus, although factually different from appellant's case,Elliott implicitly recognized that R.C.
{¶ 42} We further emphasize that a defendant cannot use the speedy trial statutes to deprive the trial court of its ability to control its own proceedings. See State v. Robb (2000),
{¶ 43} Thus, under the facts and circumstances of this case, we conclude that the trial court's continuance of the May 26, 2004 pre-trial conference was reasonable. See Saffell at 91. Accordingly, the reasonable continuance extended speedy trial time under R.C.
{¶ 44} Likewise, "[a]ny period of delay necessitated by the accused's lack of counsel" extends speedy trial time "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.
{¶ 45} Therefore, based on the above, we conclude that speedy trial time tolled from May 26, 2004 to July 1, 2004 pursuant to R.C.
{¶ 46} Thereafter, speedy trial time also tolled from the trial court's sua sponte continuance that rescheduled the trial from September 13, 2004 to October 19, 2004. The trial court continued the trial because the judge was ill and in the hospital. Thus, the trial court based the continuance on its unavailability, a factor that extends speedy trial time under R.C.
{¶ 47} Also significant to our speedy trial calculation is appellant's September 10, 2004 motion to dismiss on speedy trial grounds. Under R.C.
{¶ 48} Ultimately, appellant pled no contest on October 19, 2004, and the trial court found appellant guilty on that date. Because only 59 of the requisite 90 days elapsed when the trial court found appellant guilty on his no contest plea, appellant sustained no statutory speedy trial violations.
{¶ 49} We next consider appellant's constitutional speedy trial rights. We note that appellant does not specifically challenge in his brief the constitutional speedy trial violation. Rather, as noted above, appellant focuses on the statutory speedy trial violations. Nonetheless, the language of appellant's first assignment of error raises the constitutional speedy trial violation.
{¶ 50} The
{¶ 51} Because we found no statutory speedy trial violation in appellant's case, appellant must demonstrate that the trial court and prosecution violated his constitutional speedy trial rights. State v. Gaines, Lorain App. No. 00CA008298, 2004-Ohio-3407, at ¶ 16. In order to determine whether a defendant sustained constitutional speedy trial violations, we balance four factors: "`Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" O'Brien at 10, quoting Barker v. Wingo
(1972),
{¶ 52} The United States Supreme Court describes the "length of delay" as a double inquiry. Doggett v. United States (1992),
{¶ 53} Courts have generally found that a delay approaching one year becomes "presumptively prejudicial." Dogget at 652, fn. 1. Thus, the Fourth District Court of Appeals concluded that "presumptive prejudice" did not stem from a 186-day time period between a defendant's arrest for a first-degree misdemeanor OVI and the date that the trial court found him guilty on the offense. State v. Webb, Washington App. No. 01CA32, 2002-Ohio-3552, at ¶ 15, 26. Likewise, here, the trial court found appellant guilty five months after his arrest, well within one year. Therefore, this five-month time period does not rise to the level of "presumptive prejudice." See Dogget at 652, fn. 1;Webb at ¶ 26. Because we find no "presumptive prejudice," we conclude that appellant sustained no constitutional speedy trial violations.
{¶ 54} Having determined that appellant sustained no statutory or constitutional speedy trial violations, we conclude that the trial court did not err when it denied appellant's motion to dismiss on speedy trial grounds. Therefore, we overrule appellant's first assignment of error.
{¶ 55} In summary, we overrule appellant's first and second assignments of error and, accordingly, affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
Bryant and McGrath, JJ., concur.
