Case Information
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[Cite as
State v. Squillace
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, :
Plaintiff-Appellee, :
(M.C. No. 2015 TRC 123717) v. :
(ACCELERATED CALENDAR) Michael L. Squillace, II, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 15, 2016 On brief: Richard C. Pfeiffer, Jr. , City Attorney, Lara N.
Baker , Melanie R. Tobias , and Orly Ahroni, for appellee.
Argued: Orly Ahroni
On brief: Michael J. King , for appellant. Argued: Michael J. King
APPEAL from the Franklin County Municipal Court LUPER SCHUSTER, J.
Defendant-appellant, Michael L. Squillace, II, appeals from a judgment
entry of the Franklin County Municipal Court finding him guilty, pursuant to no contest plea, of operating a vehicle under the influence ("OVI"), OVI per se, a marked lanes violation, and speeding. For the following reasons, we affirm.
I. Facts and Procedural History On April 4, 2015, Squillace received a citation and summons for one count
of operating a vehicle under the influence ("OVI"), in violation of R.C. 4511.19(A)(1)(a); one count of OVI per se, in violation of R.C. 4511.19(A)(1)(d); a marked lanes violation, in violation of R.C. 4511.33; and a moving violation for driving over the speed limit, in *2 viоlation of R.C. 4511.21. The citation ordered Squillace to appear in court on April 10, 2015.
{¶ 3} At his initial court appearance, Squillace filed and served on plaintiff- appellee, State of Ohio, a demand for discovery pursuant to Crim.R. 16, specifically requesting the police cruiser video of Squillaсe's interaction with the arresting officer. Squillace requested a jury trial and did not waive his speedy trial rights. Squillace appeared at a pre-trial conference on May 4, 2015. In an entry
dated May 4, 2015, the trial court continued the matter until June 8, 2015. The entry stated the continuance was at the request of Squillaсe's attorney. At the continued pretrial conference on June 8, 2015, the trial court reassigned the matter for a motion hearing on July 27, 2015. The parties appeared at the July 27, 2015 motion hearing, but the trial court continued the matter until August 31, 2015. On August 27, 2015, Squillace filed a motion to dismiss the case due to an
alleged violatiоn of his statutory and constitutional speedy trial rights. In his motion, Squillace argued the state failed to comply with his request for the police cruiser video at the May 4, June 8, and July 27, 2015 hearings. Squillace stated his counsel went to the prosecutor's office on July 27, 2015 to ask for a copy of the video. Squillace asserts his counsel left a blank DVD and counsel's address at the prosecutor's office and that a duty prosecutor informed Squillace's counsel that the prosecutor's office would send a copy of the video to defense counsel by mail. According to his motion, Squillace stated the state still had not рroduced the requested video as of August 25, 2015. Squillace argued the only delay attributable to him was the time between the discovery request on April 10, 2015 and the initial pretrial conference on May 4, 2015. Further, Squillace argued the subsequent delays went beyond the state's reasonable time for production of discovery and, thus, argued those delays are attributable to the state and are not tolled for purposes of speedy trial calculations. At the August 31, 2015 hearing, the state provided Squillace with a copy of
the police cruiser video. The trial court then continued the matter until October 13, 2015 for a hearing оn Squillace's motion to dismiss. On September 3, 2015, the state filed a memorandum contra to Squillace's motion to dismiss arguing the delay between May 4 and June 8, 2015 is not chargeable to the state because the trial court's entry reflects the *3 trial court granted the continuance at Squillace's request. Without that delay, the state argued Squillace's 90-day speedy trial time frame had not yet run.
{¶ 7} The trial court heard arguments on Squillace's motion to dismiss on October 13 and 14, 2015. At the conclusion of the hearing, the trial court orally denied Squillace's motion, agreeing with the state that the delay from May 4, 2015 to June 8, 2015 was at Squillace's request and thus not chargeable to the state. The trial court specifically noted the state's records are clear that the video was available at any point after April 20, 2015 but that Squillace operated under the mistaken assumption that the state needed to copy the DVD for him and deliver it to him.
{¶ 8} The next dаy, on October 15, 2015, Squillace entered a plea of no contest to, and was found guilty of, all four charges. Squillace timely appeals.
II. Assignment of Error
{¶ 9} Squillace assigns the following error for our review: The trial court erred in failing to grant Defendant's motion to dismiss, where Defendant's statutory speedy trial rights were violated and the State failed to prove that the speedy trial statutes sufficiently extended the time within which it could bring Defendant to trial.
III. Analysis In his sole assignment of error, Squillace argues the trial court erred in
denying his motion to dismiss based on alleged violations of his right to a speedy trial. Squillace asserts the state violated both his stаtutory and constitutional rights to a speedy trial. We address each of these arguments in turn. Generally, an appellate court's review of a trial court's decision regarding a
motion to dismiss based upon a violation of the speedy trial provisions involves a mixed
question of law and fact.
State v. Watson
, 10th Dist. No. 13AP-148,
and public trial, by an impartial jury of the state and district wherein the crime shall have
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been committed." Sixth Amendment to the U.S. Constitution. The Ohio Constitution
separately guarantees the right to a speedy trial in Article I, Section 10. The Sixth
Amendment applies to the states through the Due Process Clause of the Fourteenth
Amеndment to the United States Constitution.
Barker v. Wingo
, 407 U.S. 514, 515
(1972). "Ohio's speedy trial statutes were implemented 'to comply with constitutional
standards by designating specific timetables for which an accused must be brought to
trial.' "
Columbus v. LaMarca
, 10th Dist. No. 15AP-440,
A. Statutory Speedy Trial
Squillace first argues the state violated his statutory right to a spеedy trial.
Squillace faced four charges, the most serious of them OVI which, under R.C.
4511.19(G)(1)(a), is a first-degree misdemeanor. Pursuant to R.C. 2945.71(B) and (B)(2),
"a person against whom a charge of misdemeanor * * * is pending" must be brought to
trial "[w]ithin ninety days after the person's arrest or the service of summons, if the
offense charged is a misdemeanor of the first or second degree."
See also
R.C. 2945.71(D)
(stating "[a] person against whom one or more charges of different degrees * * * are
pending shall be brought to trial on all of the charges within the time period required for
the highest degree of offense charged"). The time within which the state must bring an
accused to trial can be extended for the reasons enumerated in R.C. 2945.72, including
"[t]he 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." R.C.
2945.72(H). For purposes of computing time under the statute, the date of arrest is not
included.
State v. Scott
, 10th Dist. No. 09AP-611,
Squillace received a citation and summons on April 4, 2015 and entered his no contest
plea on October 15, 2015. Thus, simply counting the days, 194 days elapsed between
Squillace's arrest and no contest plea. On demonstrаting more than 90 days elapsed
before entering his plea, Squillace establishes a prima facie case for dismissal based on a
speedy trial violation.
LaMarca
at ¶ 18, citing
Vasquez
at ¶ 21. Once a defendant
establishes a prima facie case for dismissal, the burden shifts to the state to prove the time
was sufficiently tolled tо extend the speedy trial period.
Id
., citing
Vasquez
at ¶ 21. In
considering a trial court's denial of a motion to dismiss based on a speedy trial violation,
an appellate court independently calculates whether the time to bring a defendant to trial
expired.
Id
., citing
State v. Pritchard
, 10th Dist. No. 12AP-695,
times: (1) from May 4 to June 8, 2015, for a total of 35 days; (2) from June 8 to July 27,
2015, for a total of 49 days; and (3) from July 27 to August 27, 2105, for a total of 31 days.
The state does not dispute it requested the continuance on June 8, 2015 and the
continuance on July 27, 2015. On August 27, 2015, Squillace filed his motion to dismiss.
A defendant's motion to dismiss tolls the speedy trial time pursuant to R.C. 2945.72(E).
State v. Sanchez
,
{¶ 20} Additionally, this court has previously rejected an argument that speedy trial time should not toll due to an alleged failure of the prosecution to comply with discovery where the defendant could have independently obtained the rеquested information. See Streb at ¶ 34-35 (noting the defendant "had the opportunity to inspect the items at the Dublin Police Department, but did not avail himself of the opportunity"). Thus, we reject Squillace's argument that the state's alleged failure to produce discovery at an earlier date precluded his speedy trial time from tolling. As indicated above, 6 days are chargeable to the state from the date of
Squillace's arrest to the date of his first pretrial conference. The period from April 10 to June 8, 2015 is chargeable to Squillace for his discovery demand and requested continuance. An additional 80 days is chаrgeable to the state from June 8 to August 27, 2015. Thus, at the time Squillace filed his motion to dismiss based on a speedy trial violation, only 86 speedy trial days had elapsed. Because the speedy trial time frame had not yet reached 90 days, the trial court did not err in denying Squillace's motion to dismiss based on a statutory speedy trial violation.
B. Constitutional Speedy Trial
Squillace also claims he was deprived of his constitutional right to a speedy
trial. In analyzing a claim that the state violated a defendant's constitutional speedy trial
rights, courts utilize a two-pronged inquiry. "First, the defendant must make a threshold
showing of a 'presumptively prejudicial' delay to trigger application of the
Barker
analysis."
Sellers
at ¶ 14, citing
Doggett v. United States
,
entered his no contest plea. Squillace agrees that the 24-day period from April 10 to
May 4, 2015 are chargeable to him, and he further agrees that the 49-day period from
August 27 to October 14, 2015 are chargeable to him. Additionally, as we noted above, the
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35-day period from May 4 to June 8, 2015 is also chargeable to Squillace as the trial
court's entry reflects defense counsel requested the continuance. Thus, at least 108 days
were tolled for discovery and Squillace's own motions, leaving a maximum of 86 days of
delay. This court and other Ohio appellate districts have found delays longer than 86 days
not to be presumptively prejudicial.
Vasquez
at ¶ 44 (delay of 98 days not presumptively
prejudicial);
State v. Madden
, 10th Dist. No. 04AP-1228,
trial rights, we overrule Squillace's sole assignment of error.
IV. Disposition Based on the foregoing reasons, the trial court did not err in denying
Squillace's motion to dismiss based on an alleged speedy trial violation. Having overruled Squillace's sole assignment of error, we affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
KLATT and SADLER, JJ., concur.