[Cite as State v. Smith, 2011-Ohio-5750.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
v. : Case No. 10CA45
:
:
SHAWN M. SMITH : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Cambridge
Municipal Case No. 10CRB00736
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 3, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM H. FERGUSON MELISSA M. WILSON
City of Cambridge Law Director 1009 Steubenville Avenue
150 Highland Ave., Suite 2 Cambridge, Ohio 43725
Cambridge, Ohio 43725
[Cite as State v. Smith, 2011-Ohio-5750.]
Edwards, J.
{¶ 1} Defendant-appellant, Shawn Smith, appeals from the denial by the
Cambridge Municipal Court of his Motion to Dismiss on speedy trial grounds. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On June 25, 2010, a complaint was filed in Cambridge Municipal Court
charging appellant with criminal child enticement in violation of R.C. 2905.05, a
misdemeanor of the first degree. After a warrant was issued, appellant was arrested on
July 2, 2010. At his arraignment on July 6, 2010, appellant entered a plea of not guilty
and a bond of $2,500.00 was set. Appellant failed to post bond and remained in jail. A
trial was scheduled for August 4, 2010.
{¶ 3} On July 7, 2010, Attorney William Nicholson was appointed as counsel for
appellant. On July 9, 2010, he filed a motion for a pretrial conference and a demand for
discovery. Appellee on July 15, 2010, filed its response to appellant’s discovery
request.
{¶ 4} Thereafter, on July 20, 2010, appellant filed a Motion for a Personal
Recognizance Bond. Pursuant to a Journal Entry filed on July 21, 2010, such motion
was denied. A pretrial was held on July 26, 2010.
{¶ 5} On August 3, 2010, appellant filed a motion for a continuance of the
August 4, 2010 trial date on the basis that both the defense counsel and the Assistant
Law Director needed more discovery. As memorialized in an Entry filed on August 3,
2010, the trial was continued to August 13, 2010.
Guernsey County App. Case No. 10-CA45 3
{¶ 6} Subsequently, on August 11, 2010, appellant filed a request for a jury trial.
Pursuant to a Journal Entry filed on August 12, 2010, the case was continued for a jury
trial on October 14, 2010.
{¶ 7} Via a Journal Entry filed on August 13, 2010, the trial court judge, who
was Attorney Nicholson’s brother, recused himself and ordered the Clerk to secure the
appointment of a visiting Judge to hear the case. On August 26, 2010, appellant again
filed a Motion for a Personal Recognizance Bond. The motion was denied as
memorialized in an Entry filed on September 15, 2010.
{¶ 8} On October 4, 2010, appellant filed a Motion to Dismiss on speedy trial
grounds. Such motion was denied pursuant to an Entry filed on October 12, 2010.
Thereafter, on October 14, 2010, appellant entered a plea of no contest to the charge
and was found guilty. Appellant was sentenced to 180 days in jail with 76 days
suspended and was fined $100.00. Appellant also was placed on unsupervised
probation for 12 months.
{¶ 9} Appellant now raises the following assignment of error on appeal:
{¶ 10} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO DISMISS FOR LACK OF SPEEDY TRIAL IN VIOLATION OF OHIO REVISED
CODE SECTION 2945.71.”
I
{¶ 11} Appellant, in his sole assignment of error, argues that the trial court erred
in overruling appellant’s Motion to Dismiss on speedy trial grounds in violation of R.C.
2945.71. We disagree.
Guernsey County App. Case No. 10-CA45 4
{¶ 12} The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to
these constitutional mandates, R.C. 2945.71 through R.C. 2945.73 prescribe specific
time requirements within which the State must bring an accused to trial. State v. Baker,
78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883.
{¶ 13} As relevant to the instant action, R.C. 2945.71(B)(2) requires that a
person, such as appellant, against whom a first degree misdemeanor is pending must
be brought to trial within 90 days after the person's arrest or service of summons. Each
day the defendant is held in jail in lieu of bond, except for the first day, counts for three
days for speedy trial purposes. See R.C. 2945.71(E). Once a defendant establishes a
prima facie case of a violation of his right to a speedy trial, the burden then shifts to the
State to demonstrate the statutory limit was not exceeded by establishing the time was
properly extended pursuant to R.C. 2945.72. State v. Butcher (1986), 27 Ohio St.3d 28,
30-31, 500 N.E.2d 1368.
{¶ 14} Since a defendant's right to a speedy trial is guaranteed by statute and by
the Sixth and Fourteenth Amendments to the United States Constitution, extensions of
speedy trial time are to be strictly construed against the State. State v. Singer (1977),
50 Ohio St.2d 103, 362 N.E.2d 1216. Revised Code 2945.73 mandates that if an
accused is not brought to trial within the time requirements of R.C. 2945.71 and
2945.72, the accused shall be discharged. The law in Ohio is that speedy trial time
starts to run the day after arrest. R.C. 2945.71. However, speedy trial time is tolled
during “(E) Any period of delay necessitated by… motion, proceeding, or action made or
instituted by the accused;…“(H) The period of any continuance granted on the
Guernsey County App. Case No. 10-CA45 5
accused's own motion, and the period of any reasonable continuance granted other
than upon the accused's own motion.” R.C. 2945.72.
{¶ 15} In the case sub judice, appellant was arrested on July 2, 2010. As is
stated above, the day of arrest does not count for determining whether a defendant's
right to a speedy trial has been violated. Thus, the statutory time began to run on July 3,
2010, the day after appellant's arrest. The trial was originally scheduled for August 4,
2010.
{¶ 16} Appellant, who never posted bond, remained in jail until during the
pendency of this case. Because appellant remained in jail, he was entitled to the triple
count provision contained in R.C. 2945.71(E). Appellant’s “try by” date was thus August
2, 2010.
{¶ 17} As is stated above, appellant, on July 9, 2010, filed a demand for
discovery. Appellee responded to the same on July 15, 2010. In State v. Brown, 98
Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, the Ohio Supreme Court found that
the time during which a discovery motion filed by a defendant is pending tolls the
speedy trial clock. Thus, the time between July 9, 2010 and July 15, 2010 was tolled.
{¶ 18} Thereafter, on August 3, 2010, appellant filed a motion for a continuance
of the trial date. The speedy trial period is tolled by “[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); State v. Baker
(1993), 92 Ohio App.3d 516, 636 N.E.2d 363. Pursuant to an Entry filed on August 3,
2010, the trial was continued to August 13, 2010. The time period between August 3,
2010, and August 13, 2010, was thus tolled.
Guernsey County App. Case No. 10-CA45 6
{¶ 19} Appellant, on August 11, 2010, filed a request for a jury trial. Appellant
was charged with one count of criminal child enticement, a misdemeanor of the first
degree, in violation of R.C. 2905.05. Because appellant was charged with a first degree
misdemeanor, which included the possibility of imprisonment, he was entitled to a trial
by jury. R.C. 2945.17.
{¶ 20} As memorialized in a Journal Entry filed on August 12, 2010, the trial court
ordered that the case be continued for a jury trial on October 14, 2010.
{¶ 21} Crim.R. 23(A) states, in relevant part, as follows: “In petty offense cases,
where there is a right of jury trial, the defendant shall be tried by the court unless he
demands a jury trial. Such demand must be in writing and filed with the clerk of court not
less than ten days prior to the date set for trial, or on or before the third day following
receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial
as provided in this subdivision is a complete waiver of the right thereto.”
{¶ 22} At the time appellant filed his request for a jury demand on August 11,
2010, the trial was set for August 13, 2010. Appellant’s request was, therefore, not
timely. We find that this time is chargeable to appellant under R.C. 2945.72(E) as a
“delay necessitated by reason of…motion, proceeding, or action made or instigated by
the accused.” See Village of Botkins v. Kinninger (Dec. 12, 1991), Shelby App. No. 17-
91-15, 1991 WL 261833. Pursuant to a Journal Entry filed on August 12, 2010, the case
was continued for a jury trial on October 14, 2010, the day on which appellant entered
his plea. We find that the speedy trial time was tolled up to and including October 14,
2010. In so holding, we further note that the trial court judge, pursuant to a Journal Entry
Guernsey County App. Case No. 10-CA45 7
filed on August 13, 2010, recused himself because he was defense counsel’s brother
and ordered the Clerk to secure the appointment of a visiting judge to hear the case.
{¶ 23} Based on the foregoing, we find that the trial court did not err in denying
appellant’s Motion to Dismiss on speedy trial grounds.
{¶ 24} Appellant’s sole assignment of error is, therefore, overruled
{¶ 25} Accordingly, the judgment of the Cambridge Municipal Court is affirmed.
By: Edwards, J.
Gwin, P.J. and Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
[Cite as State v. Smith, 2011-Ohio-5750.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
SHAWN M. SMITH :
:
Defendant-Appellant : CASE NO. 10CA45
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Cambridge Municipal Court is affirmed. Costs assessed to appellant.
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_________________________________
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JUDGES