Lead Opinion
{¶ 2} On March 11, 2004, Palmer was arrested for aggravated burglary. Following a continuance requested by Palmer, he appeared in Kent Municipal Court on March 26, 2004. At this appearance, Palmer waived his preliminary hearing and agreed to be bound over.
{¶ 3} Palmer subsequently was indicted on one count of aggravated burglary, a first degree felony, R.C.
{¶ 4} On April 28, 2004, Palmer filed a motion for discovery and a motion for a bill of particulars. On April 29, 2004, the trial court put on a case management order scheduling the matter for trial on July 13, 2004. The state responded to Palmer's discovery motion on May 3, 2004, and filed a reciprocal request for discovery the same day. Palmer responded to the state's discovery request on July 2, 2004. On July 6, 2004, Palmer moved to dismiss the indictment on speedy trial grounds. On July 13, 2004, the trial court denied Palmer's motion to dismiss and the state filed a bill of particulars. On July 16, 2004, Palmer pleaded no contest to each charge in the indictment. Palmer was sentenced on October 28, 2004.
{¶ 5} Palmer timely appealed the trial court's judgment, raising one assignment of error:
{¶ 6} "The trial court erred in not granting the motion to dismiss indictment filed on July 6, 2004."
{¶ 7} A person charged with a felony "[s]hall be brought to trial within two hundred seventy days after the person's arrest." R.C.
{¶ 8} We have consistently held that speedy trial statutes are to be strictly construed against the state. See, e.g., Statev. Miller (1996),
{¶ 9} Pursuant to R.C.
{¶ 10} A defendant sets forth a prima facie case for dismissal if he demonstrates he was not brought to trial within the applicable time limits. State v. Ambrose (Dec. 18, 1998) 11th Dist. Nos. 98-T-0033, 98-T-0034, and 98-T-0035,
{¶ 11} R.C.
{¶ 12} "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:
{¶ 13} "* * *
{¶ 14} "(D) Any period of delay occasioned by the neglect or improper act of the accused;
{¶ 15} "(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;
{¶ 16} "* * *
{¶ 17} "(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; * * *."
{¶ 18} Palmer was arrested March 11, 2004; however, the day of arrest does not count against the state in the calculation of speedy trial time. State v. Gibson, 11th Dist. No. 2002-T-0055,
{¶ 19} Palmer filed a waiver of time for his preliminary hearing on March 19, 2004, and the preliminary hearing was rescheduled for March 26, 2004. Thus, the state is charged with eight days (March 12-19) against the speedy trial time. The time was tolled from March 20 until March 26, pursuant to R.C.
{¶ 20} On April 28, 2004, Palmer filed motions for discovery and a bill of particulars. The state responded to Palmer's discovery request on May 3, 2004. The state is charged with 33 days (March 27 — April 28.) The parties agree the time was tolled between April 29 and May 3 under State v. Brown,
{¶ 21} The issue in the instant case is what period of time, if any, was tolled between May 3, 2004 and July 6, 2004, when Palmer filed his motion to dismiss. The state, citing Brown, first contends the speedy trial time was tolled from April 28, 2004 to July 13, 2004, when the state filed the bill of particulars. Alternatively, the state argues the time was tolled between the date the state filed its motion for reciprocal discovery, May 3, and the date Palmer filed his response, July 2.
{¶ 22} Palmer argues the state's delay in responding to the motion for a bill of particulars was unreasonable and that the speedy trial time was not tolled by the state's request for discovery. We agree.
{¶ 23} We first note a mathematical anomaly in the state's position with regard to its first argument. The state contends, "[A]ppellant's speedy trial rights were not violated because April 28, 2004 to July 13, 2004, is a reasonable period offorty-five days tolled pursuant to Brown." (Emphasis added.) However, April 28 to July 13, is 79 days. Thus, the state actually argues 79 days was a reasonable amount of time to prepare the bill of particulars. This argument (be it 45 or 79 days) is unpersuasive.
{¶ 24} In Gibson, we held, "any delay in complying with a request for a bill of particulars must be reasonable." Id. at ¶ 22. We continued, "[w]hen determining whether a delay was reasonable, a court should consider all relevant factors before it, including `the nature of the motion itself, whether other motions were pending during the same period, and the presence of any extenuating circumstances which made ruling on the motion extremely difficult.'" Id., quoting State v. Ritter (Dec. 17, 1999), 11th Dist. No. 98-A-0065,
{¶ 25} In Gibson we held a delay of 43 days was reasonable. Of course, there the defendant was charged with fourteen crimes involving the sexual abuse of his stepdaughter over a period of six years. The criminal rules do not mention specific periods of time to respond to motions filed by either appellant or the state.
{¶ 26} The time period must be reasonable, assuming all facts at issue in the case are determined strictly against the state. The state and a defendant are not on equal footing in a criminal proceeding as to discovery or as the right to a speedy trial.
{¶ 27} The
{¶ 28} R.C.
{¶ 29} The state cannot affirmatively toll or take away the rights of any defendant to a speedy trial.
{¶ 30} It is black letter law that only the defendant through his own affirmative acts can toll and/or waive the speedy trial requirement.
{¶ 31} The state is presumed to have all of its facts and its witnesses prepared and ready to go prior to seeking its indictments, as they choose the time and place to proceed. It is unfathomable that they do not have their discovery and do not have the information readily available in their file to formulate a bill of particulars. If the time, the date, and the offense information are not available to them, they should not seek an indictment or charge a defendant until they are prepared.
{¶ 32} It is true that there may be an unusually complicated set of facts or additional evidence that may be discovered after the charges are brought, however, again the state is charged with providing this to the defendant within a reasonable time.
{¶ 33} The mere filing of a request for discovery cannot act as an automatic toll of the defendant's speedy trial rights, especially when there was no demand for discovery or motion to compel filed by the state as required by Crim. R. 16(C).
{¶ 34} In the instant case, the state contends, "[t]he record reflects that due to the unusual circumstances of the offenses, the Appellant's case involved an extensive police report." The police report is not part of the record so we cannot determine whether it was "extensive." The bill of particulars prepared from this "extensive" police report is three pages long (five pages if we count the two-page supplement filed on July 14, 2004.) We fail to see how a delay of 79 (or even 45) days was reasonable under the facts of this case.
{¶ 35} The state alternatively argues the time was tolled between the date it filed its motion for reciprocal discovery, May 3, and the date Palmer filed his response, July 2, pursuant to R.C.
{¶ 36} Palmer, citing State v. Borrero, 8th Dist. No. 82595,
{¶ 37} At the heart of this appeal is the rule set out inBorrero II. The issue of that case was, as is here, whether or not the statutory time is extended by the state's demand for reciprocal discovery. In the instant case, the state filed for reciprocal discovery on May 3, 2004, and the request was responded to on July 2, 2004.
{¶ 38} The court delineated the three types of delays to be had under R.C.
{¶ 39} Further, in the Borrero II decision the court states, "[t]here is no question that the burden of going forward rested with the state. If the delay was caused by the failure to receive information, the state had within its power the tools to remedy that delay. Crim.R. 16(C). The record indicates, however, that the state made no motion to compel, nor did the state provide evidence that the information it sought was necessary for its case. In other words, there is no evidence that the proceedings in the case at bar were delayed because of the defendant's lack of a response to the state's discovery.
{¶ 40} In the case at bar, the state filed for reciprocal discovery and made no other demands upon the accused for information. In its response to the motion to dismiss the indictment, the state cited the proposition that the speedy trial statute was tolled until this discovery request was answered. The trial court also cited this fact in calculating the days necessary to bring the matter to bar. The Borerro II court cited several cases dealing with the tolling of the statute until the defendant complies with the discovery request, but those cases dealt with the fact that a motion to compel had been issued by the state. In the instant case, the state did not avail itself of this remedy under the criminal rules. State v. Litteral
(Jan. 4, 1999), 12th Dist. No. CA98-02-002,
{¶ 41} We also agree with the reasoning in State v. Knight,
2nd Dist. No. 03-CA0-14,
{¶ 42} The foregoing decisions are in accord with the proposition that the running of the speedy trial clock is tolled when the defendant has caused a delay. R.C.
{¶ 43} In the instant case, Palmer's failure to respond to the state's discovery request did not toll the period between May 3, 2004 and July 2, 2004 under R.C.
{¶ 44} Palmer filed his motion to dismiss on July 6, 2004. The trial court denied the motion on July 13, 2004. The speedy trial time was tolled during this period. R.C.
{¶ 45} In conclusion, for purposes of calculating the speedy trial time under R.C.
{¶ 46} For the foregoing reasons, appellant's sole assignment of error is with merit, and the judgment of the Portage County Common Pleas Court is reversed and appellant's conviction is vacated.
O'Neill, J., concurs,
Ford, P.J., dissents with Dissenting Opinion.
Dissenting Opinion
{¶ 47} "`The rationale supporting [the speedy trial statute] was to prevent inexcusable delays caused by indolence within the judicial system.'" State v. Brown,
{¶ 48} In reaching its decision, the majority begins its analysis with two invalid suppositions. First, the majority states, "It is black letter law that only the defendant through his own affirmative acts can toll and/or waive the speedy trial requirement." However, the speedy trial statute itself contemplates some limited tolling for reasons other than the defendant's affirmative acts. R.C.
{¶ 49} The majority then asserts that the state failed to respond to appellant's request for a bill of particulars within a reasonable time. Here the majority makes its second false supposition when it states:
{¶ 50} "The state is presumed to have all of its facts and witnesses prepared and ready to go prior to seeking its indictments, as they choose the time and place to proceed. It is unfathomable that they do not have their discovery and do not have the information readily available in their file to formulate a bill of particulars. If the time, the date, and the offense information are not available to them, they should not seek an indictment or charge a defendant until they are prepared."
{¶ 51} The majority offers no support for this supposition and in fact, Ohio Supreme Court case law refutes this argument. In Brown, the Supreme Court was asked to decide, "`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 the defendant must be brought to trial under the Ohio speedy trial statute, * * *.'" Id. at ¶ 6. The Supreme Court held that such requests tolled the speedy trial time and stated:
{¶ 52} "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. 2945.72(E)." Id. at ¶ 23.
{¶ 53} Thus, the Ohio Supreme Court clearly recognizes that prosecutors may, and often do, seek indictments prior to having their case completely ready for trial. Any one who has acted in a prosecutorial capacity is aware that in a criminal prosecution the state's investigative exercises, including forensic reports and expert opinions, are often not finalized until shortly before the commencement of trials. Certainly, the defense criminal bar is equally attuned to this reality.
{¶ 54} The majority next cites State v. Borrero, 8th Dist. No. 82595,
{¶ 55} The majority also makes much of the state's failure to seek an order compelling discovery; however, in doing so, the majority ignores the reality that Crim.R. 16 is self-actuating, i.e., it places an affirmative duty on the defendant to respond to the states discovery requests. The rule states, "Upon written request each party shall forthwith provide the discovery herein allowed." (Emphasis added.) Crim.R. 16(A). As the Ninth District stated in State v. Larsen, 9th Dist. No. 2363-M,
{¶ 56} "While it is true that a demand for discovery made to the opposing party does not invoke the court's jurisdiction to issue an order, the Criminal Rules contemplate that discoverable information will not be unreasonably withheld. Accordingly, the court's role in regulating discovery is limited to those instances where a party fails to comply with a discovery request and the opposing party files a motion with the court to compel such discovery. However, we are not persuaded that `neglect' or an `improper act' as contemplated in R.C.
{¶ 57} The majority opinion allows a defendant carte blanche to ignore the mandates of Crim.R. 16.
{¶ 58} Finally, the majority argues the state failed to show prejudice resulting from the delay. Of course, prior to the majority's decision, there was no requirement that the state demonstrate prejudice from the delay. R.C.
{¶ 59} The majority of courts which addressed this issue have concluded that the time during which the state is awaiting the defendant's responses to discovery tolls the speedy trial time. See, Village of Chagrin Falls v. Vartola, 8th Dist. Nos. 51571 51572,
{¶ 60} As the Eighth District stated in Vartola, a defendant "* * * can hardly ignore a lawful request for information, and then claim [he] was not timely tried * * *." Id. at 4.
{¶ 61} In the instant case, the state propounded discovery on appellant on May 3, 2004. Appellant responded July 2, 2004. The trial court properly found the speedy trial time was tolled during this period and thus, appellant was not entitled to discharge under R.C.