795 N.E.2d 701 | Ohio Ct. App. | 2003
{¶ 2} Appellant was arrested on April 17, 2001. He was held in jail, where he remained until trial. Appellant pled not guilty to the indictment and after numerous pretrial conferences and continuances, trial was set for September 23, 2002. On that day, prior to the commencement of trial, the trial court heard argument regarding appellant's motion to dismiss for violation of his speedy trial rights, which was filed on July 13, 2002.
{¶ 3} At the hearing, defense counsel argued that more than 270 days had elapsed since appellant's arrest on April 17, 2001. The prosecutor responded that all of the continuances of the trial date had been requested by defense counsel in chambers. The prosecutor conceded, however, that she did not have copies of the *681 court's journal entries regarding the continuances. The trial judge then deferred ruling on the motion to dismiss until the following day, instructing the prosecutor as follows:
{¶ 4} "I will direct the State's attention to Section
{¶ 5} "See you here tomorrow morning. I will count on you, Ms. Hilow, to present tomorrow morning whatever evidence you may have that the motion for continuance was granted for the defendant on oral motion."
{¶ 6} When trial inexplicably resumed later that day, the judge stated on the record:
{¶ 7} "And, for the record, the prosecutor has handed to the Court several pages — several documents, the last one of which reads [`]Trial continued to September 23, 2002 at 9:00 at the defendant's request.['] And today is September 23, 2002. The Court was prepared to start at 9:00 a.m. this morning. And the other documents here demonstrate, show, reveal that the continuances, trial continuances were at the defendant's request, or the defendant's lawyer's request." Trial then commenced.
{¶ 8} The jury subsequently found appellant guilty of drug possession, preparation of drugs for sale, and possession of criminal tools. The trial judge sentenced appellant to ten years incarceration on the underlying offenses, plus five years on the major drug offender specification, for a total of 15 years.
{¶ 9} Appellant timely appealed, asserting nineteen assignments of error for our review.
{¶ 10} In his first assignment of error, appellant contends that the trial court erred in denying his motion to dismiss for violation of his constitutional and statutory speedy trial right.
{¶ 11} The record in this case reflects the following:
{¶ 12} April 17, 2001 — Appellant arrested.
{¶ 13} July 2, 2001 — Appellant indicted.
{¶ 14} July 6, 2001 — Appellant arraigned; pled not guilty to the indictment.
{¶ 15} July 13, 2001 — Appellant files request for bill of particulars, motion to examine exculpatory and mitigatory material, and demand for discovery.
{¶ 16} August 9, 2001 — Pretrial held; trial set for October 2, 2001 at appellant's request.
{¶ 17} October 2, 2001 — Trial continued to November 5, 2001 at appellant's request. *682
{¶ 18} November 19, 2001 — Appellant files a motion to suppress evidence and requested oral hearing.
{¶ 19} May 13, 2002 — Trial is set for July 8, 2002 at appellant's request.
{¶ 20} June 24, 2002 — The State responds to appellant's discovery requests and to appellant's motion for a bill of particulars, 11 months after appellant's motions were filed.
{¶ 21} July 3, 2002 — Appellant files a motion to dismiss based upon speedy trial violation.
{¶ 22} July 8, 2002 — Trial is continued to July 17, 2002 at appellant's request.
{¶ 23} July 17, 2002 — Trial is continued to September 23, 2002 at appellant's request.
{¶ 24} September 23, 2002 — Trial commences.
{¶ 25} The right to a speedy trial is guaranteed by the Constitutions of both the United States and the State of Ohio. Sixth Amendment VI to the Constitution of the United States; Section
{¶ 26} R.C.
{¶ 27} It is well established that once an accused has demonstrated that the applicable speedy trial time has expired, he or she has established a prima facie case for dismissal and the burden shifts to the State to demonstrate any tolling or extensions of time permissible under the law. State v. Taylor, Portage App. No. 2000-P-0121, 2002-Ohio-7120, ¶ 8, citing State v. Geraldo (1983),
{¶ 28} Here, it is undisputed that appellant was arrested on April 17, 2001 and that trial commenced on September 23, 2002. Therefore, counting from the day following appellant's arrest to the date of commencement of his trial, 522 days elapsed. See State v. Steiner
(1991),
{¶ 29} "Once appellant has demonstrated a prima facie case for discharge, it becomes the State's obligation to produce evidence demonstrating the defendant was not entitled to be brought to trial within the limits of R.C.
{¶ 30} In its brief on appeal, the State contends that the triple-count provision of R.C.
{¶ 31} The record, however, does not contain any evidence whatsoever regarding any other cases. As the transcript clearly indicates, on September 23, 2002, the prosecutor supplied the trial court with copies of the court's journal entries regarding trial date continuances requested by appellant. The prosecutor presented no documentary or testimonial evidence regarding any other cases, however.
{¶ 32} In State v. Butcher (1986),
{¶ 33} Subsequently, in State v. Brown (1992),
{¶ 34} In Brown, the defendant challenged the existence of a valid parole holder, which prevents application of the triple-count provisions of R.C.
{¶ 35} In this case, however, the record does not provide us withany basis from which we could conclude that appellant was held in jail in lieu of bail on additional charges. The only reference in the record to other charges was after trial, at sentencing, when the prosecutor stated, "I believe he was held on another case." She produced no evidence to the court to support her belief, however, and defense counsel did not agree with her statement. Accordingly, we hold that the State failed to meet its burden of demonstrating the existence of additional charges and, therefore, we must apply the triple-count provision of R.C.
{¶ 36} As previously stated, appellant was brought to trial 522 days after his arrest. Thus, this court must review the record in the case to determine whether the trial court's judgment denying appellant's motion to dismiss for speedy trial violation is legally justified and supported by the record.
{¶ 37} The time constraints of R.C.
{¶ 38} "The time within which an accused must be brought to trial, or in the case of felony, to preliminary hearing and trial, may be extended only by the following:
{¶ 39} "* * *
{¶ 40} "(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused. *685
{¶ 41} "* * *
{¶ 42} "(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."
{¶ 43} Recently, in State v. Brown,
{¶ 44} The Court of Appeals for Fayette County then certified to the Ohio Supreme Court a conflict between its judgment and judgments of the First and Fifth District Courts of Appeals regarding whether the defendant's filing of a request for discovery or for a bill of particulars, and the State's response thereto, extends the time within which a defendant must be brought to trial under Ohio's Speedy Trial Statute, R.C.
{¶ 45} In considering the question, which was an issue of first impression for the Court, the Ohio Supreme Court agreed that discovery requests are tolling events pursuant to R.C.
{¶ 46} "Discovery requests by a defendant divert the attention of prosecutors from preparing their case for trial, thus necessitating delay. If no tolling is permitted, a defendant could attempt to cause a speedy trial violation by filing discovery requests just before trial. Courts could grant case-by-case exceptions, but would then be in the unenviable position of deciding how close to trial is too close to request additional discovery. Further, prosecutors could be forced to make hurried responses to discovery requests to avoid violating the speedy trial statute. We conclude that allowing a defendant's discovery requests to toll the running of the speedy trial period is the most sensible interpretation of R.C.
{¶ 47} "`The rationale supporting [the speedy trial statute] was to prevent inexcusable delays caused by indolence within the judicial system." State v. Ladd *686
(1978),
{¶ 48} Likewise, in State v. Gee (June 2, 1994), Cuyahoga App. Nos. 64410, 64411, this Court held that "the speedy trial time limit was tolled by appellant's demand for a bill of particulars and request for discovery until the State responded in a reasonably timely fashion." In that case, however, we found that we did not have to determine whether the State's response was timely because appellant's subsequent waivers of his speedy trial rights rendered the question moot.
{¶ 49} Here, however, the issue is significant. Eighty-six days ran between April 18, 2001, the day after appellant's arrest, and July 13, 2001, when appellant filed his request for a bill of particulars and demand for discovery. Pursuant to Brown, supra, appellant's requests tolled the running of the speedy trial period until the State responded in a reasonably timely manner. Significantly, however, the State did not respond to appellant's requests until June 24, 2002, more than 11 months after the motions were filed. We cannot conclude that the State's response was "reasonably timely" such that the speedy trial time was tolled for the entire 11 months it took the State to respond.
{¶ 50} The record reflects that subsequent to filing his discovery requests on July 13, 2001, on August 9, 2001, appellant requested a continuance of trial until October 2, 2001. On that date, appellant requested that the trial be continued until November 5, 2001. As set forth in R.C.
{¶ 51} It is not clear from the record, however, regarding what happened on November 5, 2001. There is no journal entry indicating why trial was again continued on that day. Where we find ambiguity, we construe the record in favor of the accused. State v. Singer (1977),
{¶ 52} We note that as of November 5, 2001, nearly four months after appellant's request for a bill of particulars and discovery motions were filed, the State still had not responded to the requests. Without attempting to set a bright-line rule for every case, it is apparent that, in this case, the State should have responded to appellant's discovery demands well before it did. A "reasonably timely" response pursuant to Brown, supra, should have been filed prior to November 5, 2001.1 Accordingly, we hold that as of November 5, 2001, the time *687 for bringing appellant to trial was no longer tolled by appellant's request for a bill of particulars and discovery requests filed on July 13, 2001. Therefore, because there was no applicable tolling, and the record is ambiguous regarding who requested the continuance on November 5, the 13 days between November 5, 2001 and November 19, 2001, when appellant filed a motion to suppress evidence, are imputed to the State.
{¶ 53} Adding these 13 days to the 86 days that accrued between April 18, 2001 and July 13, 2001, it is apparent that as of November 19, 2001, appellant had been held in jail without being brought to trial for 99 days — a clear violation of his speedy trial rights. Appellant's first assignment of error is therefore well taken. The judgment of the trial court is reversed; appellant's conviction is vacated and defendant is discharged.
{¶ 54} Because appellant's first assignment of error renders the other assignments of error moot, we need not consider them. See App.R. 12(A)(1)(c).
Judgment reversed; conviction vacated; defendant discharged.
PATRICIA A. BLACKMON, P.J. and COLLEEN CONWAY COONEY, J. concur.
