34 Ohio St. 3d 7 | Ohio | 1987
Lead Opinion
The sole issue presented here is whether a written waiver by a criminal defendant of his right to a speedy trial as provided in R.C. 2945.71 may also amount to a waiver of his speedy trial rights as guaranteed by the United States and Ohio Constitutions. For the reasons which follow, we answer such query in the affirmative, provided the defendant is tried within a reasonable time under all of the attendant circumstances.
The defendant herein was charged with a violation of R.C. 4511.19(A), a first-degree misdemeanor. R.C. 4511. 99(A). As we noted in State v. Ladd (1978), 56 Ohio St. 2d 197, 200, 10 O.O. 3d 363, 364, 383 N.E. 2d 579, 581:
“The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to a speedy trial by the state. Klopfer v. North Carolina (1967), 386 U.S. 213, 41 O.O. 2d 168. This same right is assured an accused party by Section 10, Article I of the Ohio Constitution.”
The General Assembly, in its attempt to prescribe reasonable speedy trial periods consistent with these constitutional provisions, see Barker v. Wingo (1972), 407 U.S. 514, 523, enacted R.C. 2945.71 which provides, in part:
“(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
Hi *
We have determined that “* * * R.C. 2945.71 et seq., constitute a rational effort to enforce the constitutional right to a public speedy trial of an accused charged with the commis sion of a felony or a misdemeanor and shall be strictly enforced by the courts of this state.” State v. Pachay (1980), 64 Ohio St. 2d 218, 18 O.O. 3d 427, 416 N.E. 2d 589, syllabus; see, also, State v. Pudlock (1975), 44 Ohio St. 2d 104, 73 O.O. 2d 357, 338 N.E. 2d 524. Thus, for purposes of bringing an accused to trial, the statutory speedy trial provisions of R.C. 2945.71 et seq. and the constitutional guarantees found in the United States and Ohio Constitutions are coextensive.
Of course, the accused may waive his constitutional right to a speedy trial, provided such waiver is knowingly and voluntarily made. Barker v. Wingo, supra, at 529. Similarly, an accused, or his counsel, may validly waive the speedy trial provisions of R.C. 2945.71 et seq. State v. McBreen (1978), 54 Ohio St. 2d 315, 8 O.O. 3d 302, 376 N.E. 2d 593; Westlake v. Cougill (1978), 56 Ohio St. 2d 230, 10 O.O. 3d 382, 383 N.E. 2d 599. It follows, then, that a knowing, voluntary, express written waiver of an accused’s statutory speedy trial rights may equate with a waiver of the coextensive constitutional rights, at least for the time period provided in the statute.
However, although the statutory and constitutional speedy trial provisions are coextensive, the constitutional guarantees may be found to be broader than speedy trial statutes in some circumstances. As we noted in State v. Ladd, supra, at 201, 10 O.O. 3d at 365, 383 N.E. 2d at 582:
“* * * [I]t is clear that there may be situations wherein the statutes do not adequately afford the protection guaranteed by the federal and state constitutions, in which case it is our duty to see that an accused receives the protection of the higher authority * * *
The question thus becomes whether, under the circumstances of this case, the defendant’s express speedy trial waiver remained effective throughout the period of delays occasioned by the state. The waiver given by the defendant was unlimited in duration. In addition, the record fails to show any formal objections being made by the defendánt to the court’s continuance on August 22, 1985 or the state’s continuance on October 21, 1985.
The trial court is charged with the duty of scheduling trials, and it would seem to be reasonable to require the defendant to formally inform the court
Finally, even were we to decide that the defendant here renewed his speedy trial rights by objecting to the assistant prosecutor over the phone, it is clear he was brought to trial within a reasonable time. The United States Supreme Court set out a balancing test to determine such speedy trial issues in Barker v. Wingo, supra, at 530:
“* * * We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.)
The initial consideration is that of the specific delay occasioned by the state. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. It appears from the record that the total delay attributable to the state is one hundred thirty-eight days, from August 22, 1985 until trial on January 7, 1986, during which time the defendant was free on his own recognizance.
The judgment of the court of appeals must be reversed, and the defendant’s conviction and sentence reinstated.
Judgment reversed.
Section 10, Article I of the Ohio Constitution provides, in pertinent part:
“* * * In any trial, in any court, the party accused shall be allowed * * * to have * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; * * *”
The record reveals that the only objection was made to an assistant to the prosecutor by phone.
In Barker v. Wingo (1972), 407 U.S. 514, at 528, the Supreme Court stated:
“* * * We think the better rule is that
The court then commented that to condition the Sixth Amendment right to a speedy trial upon the demand of the accused would be too harsh and insensitive a treatment for this fundamental right. However, Barker did not deal with an express waiver of that right by the accused. Indeed, the court noted:
“* * * We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.” Id. at 529.
The record also reveals that defendant’s driver’s license was under suspension during this time due to an erroneous judgment entry, of which defendant had notice but took no steps to remove.
Dissenting Opinion
dissenting. In my opinion, the majority’s requirement that reassertion of constitutional rights to a speedy trial may only be accomplished by a formal written objection and demand for trial is both unreasonable and unnecessary; therefore, I must dissent from the majority decision herein.
The most troubling aspect of today’s decision is that it exalts administrative convenience over fundamental constitutional rights guaranteed by both the United States and Ohio Constitutions. I do not believe that the syllabus set forth by the majority is the logical product of the reasoning employed by the high court in Barker v. Wingo (1972), 407 U.S.
Unfortunately, while today’s majority opinion may save one conviction for the state, it may result in more administrative problems in future criminal cases. Given this decision, criminal lawyers and their clients maybe more hesitant in signing the standard speedy trial waiver forms because another standard form will now be required to revoke the prior form and to reassert one’s constitutional right to a speedy trial. Such may lead to a “bureaucratization” of the constitutional guarantee, since the assertion or reassertion of a constitutional right is reduced to a veritable “battle of the forms” that was once reserved almost exclusively to the areas of contract and commercial law.
In sum, I feel that this decision does nothing more than undermine the intent of the framers of the federal and state Constitutions. Certainly the constitutional right to a speedy trial should not exist as an uncertain mine field where one misstep or failure to file a form by the unwary will result in the denial of a fundamental constitutional right. In my view, the protection of a citizen’s constitutional rights is but one consideration that the state must be cognizant of when bringing an accused to justice. However, the protection of constitutional rights should take place at all times in the criminal prosecutorial process, and not be restricted to those times where an accused asserts or reasserts, formally and in writing, the rights guaranteed by the state or federal Constitution.
Based on these reasons, I would affirm the decision of the court of appeals.
