State v. StraussState v. Strauss
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
J. Chris Sestak, Student Legal Services, Inc., Kent State University, 164 East Main Street, #203, Kent, OH 44240 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Nathan M. Strauss, appeals from the judgment entered by the Portage County Municipal Court, Ravenna Division, overruling his motion to dismiss the state of Ohio‘s complaint on speedy trial grounds. For the reasons below, we affirm.
{¶2} On September 12, 2009, appellant was stopped and charged with underage OVI, in violation of
{¶3} On February 16, 2010, appellant withdrew his speedy trial waiver, thereby demanding trial within 45 days pursuant to
{¶4} Appellant assigns one error for this court‘s review:
{¶6} The
{¶7} Appellant was charged with, inter alia, a misdemeanor of the fourth degree, which is governed by
{¶9} The state concedes that appellant was brought to trial outside the speedy trial window. In response to appellant‘s argument, however, the state maintains that
{¶10} In reviewing a speedy trial issue, an appellate court must count the days of delay chargeable to either side, and determine whether the case was tried within the time restraints set forth in
{¶11} The record is clear that more than 45 days passed subsequent to appellant‘s withdrawal of his waiver. We must determine, however, given the facts of
{¶12} The state sought a continuance on January 28, 2010, due to Trooper Lamm‘s medical emergency. The trial court granted the continuance and set the trial date for April 15, 2010. Appellant withdrew his waiver on February 16, 2010, and, as indicated above, more than 45 days passed before he was brought to trial. At the hearing on appellant‘s motion to dismiss, the state argued that
{¶13} The speedy trial clock may be temporarily stopped, i.e., tolled, only for the reasons set forth under
{¶14} In this case, the court granted the continuance due to Trooper Lamm‘s medical emergency and reset the case from February 23, 2010, to April 15, 2010. Courts, including this one, have repeatedly held that continuances sought pursuant to
{¶15} With respect to the length of the continuance, the record is uncontroverted that Trooper Lamm was unavailable between January 28, 2010, and his return to work on March 24, 2010. The continuance reset trial for April 15, 2010. Given the circumstances of this case, i.e., the unavailability of the arresting officer occasioned by a medical emergency, we hold the continuance was reasonable in length.
{¶16} We recognize appellant withdrew his waiver after the continuance was granted. This fact, however, is irrelevant to whether the continuance acted to toll the speedy trial time. In State v. Blackburn, 118 Ohio St.3d 163, 167, 2008-Ohio-1823, the Supreme Court of Ohio discussed the distinction between and interplay of the concepts of a speedy trial waiver and the tolling provisions of
{¶17} “A waiver is an intentional relinquishment of a known right. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. ‘As with other fundamental rights, a defendant can waive the right to a
{¶18} According to Blackburn, a speedy trial waiver will relinquish a defendant‘s right to be tried within the statutory timeframe unless the waiver is withdrawn. A tolling event under
{¶19} Given the foregoing analysis, we therefore hold the speedy trial clock tolled from February 16, 2010, through April 15, 2010. As a result, the five days which passed from the date of appellant‘s arrest to the date of his initial appearance were the only days which counted against the state for speedy trial purposes. Appellant was
{¶20} Appellant next argues that the trial court‘s judgment granting the continuance was legally insufficient because it failed to adequately identify the facts and circumstances justifying the delay.
{¶21} In State v. Geraldo (1983), 13 Ohio App.3d 27, 30-31, this court held:
{¶22} “For purposes of
{¶23} In this case, the state moved the court for the continuance and set forth its reasons for filing the motion. The motion incorporated a judgment entry for the trial court to sign in the event it found the state‘s basis reasonable. On February 1, 2010, the trial court granted the motion and the entry was journalized on the same date.
{¶24} With respect to the Geraldo factors, the trial court‘s entry was clearly journalized in the trial court record. Further, appellant has never disputed and the record indicates the continuance was chargeable to the prosecution. Finally, we need not address the court‘s justification for granting the continuance because the order was entered on the state‘s motion, not sua sponte. For these reasons, appellant‘s argument lacks merit.
{¶25} Appellant‘s sole assignment of error is overruled.
DIANE V. GRENDELL, J., concurs,
MARY JANE TRAPP, J., concurs with Concurring Opinion.
{¶27} While I find no fault with the well-reasoned majority opinion, I write separately as I arrive at the result in this case following a different path. I am also troubled by the bare-boned record in this case as it relates to the trial court‘s journal entry overruling the motion to dismiss specifically in that it does not provide any factual findings or discussion for a reviewing court.
{¶28} I begin the analysis of this case with the concept articulated in State v. O‘Brien (1987), 34 Ohio St.3d 7: “the statutory speedy trial provisions of
{¶29} It necessarily follows that “[a] person‘s speedy-trial time may be waived or the period may be tolled under certain circumstances[,]” State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, at ¶11, and that “*** these are two separate distinct concepts that affect speedy-trial calculations in different ways.” Id. at ¶16. As noted by
{¶30} Next, we learn from O‘Brien that “[f]ollowing an express, written waiver of unlimited duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time.” Id., paragraph two of the syllabus.
{¶31} Lower courts applying O‘Brien have determined that once a defendant revokes an unlimited waiver, as in this case, the strict requirements of
{¶32} With these concepts in mind then, the trial court must engage in a dual analysis and answer two distinct questions when faced with a speedy trial challenge. The first question is whether the accused‘s statutory speedy trial right has been violated, and if it was not (because, as, for instance, in this case, the time was tolled from February 16, 2010 through April 15, 2010, when the court granted the state‘s motion for continuance because of the Trooper‘s medical emergency, which it later determined to be “good cause shown“), the trial court must still determine whether the accused‘s constitutional speedy trial right has been violated in that the accused has not been brought to trial within a reasonable time.
{¶33} This determination is made through the application of the balancing test set forth in Barker v. Wingo (1972), 407 U.S. 514; accord, O‘Brien, supra, at 10.
{¶35} The court “must weigh those factors together with any other relevant circumstances.” State v. Troutman, 9th Dist. No. 09CA009590, 2010-Ohio-39, at ¶26, citing State v. Gaines, 9th Dist. No. 00CA008298, 2004-Ohio-3407, at ¶16. But, “[t]he 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.‘” O‘Brien, supra, quoting, Barker, supra, at 530.
{¶36} So turning to the length of the delay for Mr. Strauss, I cannot find that being brought to trial sixty-three days after arrest on an M-4 is “presumptively prejudicial” and thus no further inquiry or discussion of the remaining factors is required in this case.
{¶37} But I remain troubled by the sparse record regarding the court‘s decision on the motion to dismiss. The journal entry on the motion to dismiss merely provides: “Oral motion to dismiss denied.” The transcript of the motion hearing held on the day the matter was set for trial provides the following basis for the court‘s ruling: “The Court is under the impression, in review of the law, that for good cause shown and circumstances such as these, these cases can be tried outside of the time periods. The Court is going to overrule your oral motion to dismiss.”
{¶39} I also question why when a case is continued upon the state‘s motion and the court sets a new date outside the statutory time limit we do not apply the same requirement that the trial court must enter both the order of continuance and the reasons therefor by journal entry prior to the expiration of the time. We require this when the court sua sponte continues the trial beyond the limit and without it the time is not properly tolled. State v. Kist, 173 Ohio App.3d 158, 2007-Ohio-4773, ¶37, citing State v. Mincy (1982), 2 Ohio St.3d 6. When it comes to protecting the right to a speedy trial, I see no substantive distinction between a state‘s request for continuance which, when granted, takes the case beyond the time limit and one granted on the court‘s own motion. If this were a requirement, then the record would be clear about the underlying facts and circumstances, it would not be an after-the-fact explanation for the extension, and there would be sufficient detail for a reviewing court.
{¶40} As the orders here granting the state‘s continuance and setting a trial date outside of the time window without any analysis were journalized before the time ran, I