State v. Torres

[Cite as State v. Torres, 2014-Ohio-3683.]
STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NOS. 12 JE 30
) 12 JE 31
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
HELEN TORRES )
LAWRENCE L. YATOR, JR., )
)
DEFENDANTS-APPELLANTS )

CHARACTER OF PROCEEDINGS: Criminal Appeals from the Jefferson
County Court No. 2 of Jefferson County,
Ohio
Case Nos. 12 CRB 32; 12 CRB 29

JUDGMENT: Vacated.
Reversed and Dismissed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Jane M. Hanlin
Prosecuting Attorney
Atty. Cerryn Marshall
Assistant Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952

For Defendant-Appellant: Atty. R. Paul Cushion, II
75 Public Square, Suite 1111
Cleveland, Ohio 44113

JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: August 21, 2014
[Cite as State v. Torres, 2014-Ohio-3683.]
WAITE, J.

{¶1} In this consolidated appeal, Appellants Helen L. Torres and Lawrence

L. Yator, Jr. contest the decisions of Jefferson County Court No. 2 finding each of

them guilty of disorderly conduct. Appellants both allege that their 2012 bench trial

commenced in violation of their statutory speedy trial rights. Appellants’ first

assignment of error has merit and their second assignment is made moot by the

resolution of the first. The judgment of the trial court is reversed and vacated.

Factual and Procedural History

{¶2} An altercation occurred on September 10, 2011 involving Appellants.

Appellants were both charged with causing “inconvenience, annoyance, or alarm to

another by making unreasonable noise or an offensively coarse utterance, gesture,

or display, or communicating unwarranted and grossly abusive language to any

person, in violation of Section 2917.11(A)(2) of the Ohio Revised Code.” (Emphasis

sic.) (2/7/12 Complaint.) Appellants both appeared in court on March 12, 2012 and

entered not guilty pleas.

{¶3} On March 16, 2012, the state filed a motion for continuance in both

cases on the grounds that Christine Stewart, the Chief of Bergholz Police Department

who swore to the complaints in this matter, was recovering from back and leg surgery

and was scheduled for her next doctor’s appointment on March 27, 2012. The

motion notes that “the attorney for defendant, R. Paul Cushion, II has indicated that

he has no objection to a continuance of the trial in this case.” (3/16/12 Motion.) The

motion does not specify the duration of the continuance requested or provide any

basis for the motion other than the witness’s appointment with a physician. This is
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the only motion seeking to continue the trial that appears on the dockets and case

files for each matter. The trial court never journalized a ruling on the motion for either

Appellant. Both dockets reflect that there was no action taken in either case after the

filing of the March motion for continuance until July 17, 2012, when hearing notices

were issued for an August 9, 2012 bench trial.

{¶4} Counsel for Appellants made a verbal motion for dismissal on speedy

trial grounds prior to the commencement of trial on August 9, 2012. The state

opposed the motion, stating that the prosecution was initiated within the statutory

period and that Appellants had waived speedy trial time and agreed to a continuance.

The trial court verbally overruled the defense motion and the joint bench trial of

Appellants occurred on that date.

{¶5} The trial court found Appellants guilty and fined each of them $100.00.

Appellants filed a timely appeal of the entry of sentence.

ASSIGNMENT OF ERROR NO. 1

When the State of Ohio files charges for Disorderly Conduct, a minor

misdemeanor, when the alleged act occurred on September 10, 2011,

and the Appellants are brought to trial on August 9, 2012, through no

fault of their own, and after the State of Ohio sought a continuance the

Appellants must be discharged as these charges are barred by the

requisite statute of limitations, as the State of Ohio had only six (6)

months in which to bring the Appellants to trial, and the prosecution was

not commenced within six (6) months.
 -3-

{¶6} Appellants contend that the state failed to comply with R.C.

2901.13(A)(1)(c), which mandates that the prosecution of a minor misdemeanor

offense be commenced within six months of the offense. Appellants are correct that

R.C. 2901.13 requires that “[e]xcept as provided in division (A)(2) or (3) of this

section or as otherwise provided in this section, a prosecution shall be barred unless

it is commenced within the following periods after an offense is committed: * * * (c)

For a minor misdemeanor, six months.” However, Appellants have omitted section

(E) of the statute, which explains:

A prosecution is commenced on the date an indictment is returned or

an information filed, or on the date a lawful arrest without a warrant is

made, or on the date a warrant, summons, citation, or other process is

issued, whichever occurs first. A prosecution is not commenced by the

return of an indictment or the filing of an information unless reasonable

diligence is exercised to issue and execute process on the same. A

prosecution is not commenced upon issuance of a warrant, summons,

citation, or other process, unless reasonable diligence is exercised to

execute the same.

R.C. 2901.13(E).

{¶7} Although Appellants seem to suggest that there were additional or

different prior charges which may have been filed and dismissed, a single charge is

reflected in each of the criminal complaints that initiated the prosecutions now on
 -4-

appeal. To the extent it may exist, any information pertaining to prior or additional

charges does not appear in this record and cannot be used in this appeal.

{¶8} Both of the complaints were filed on February 7, 2012 and address

conduct that allegedly occurred on September 10, 2011. The criminal complaints

charge both Appellants with disorderly conduct in violation of R.C. 2917.11(A)(2), a

minor misdemeanor. Certified mail receipts attached to each summons and

complaint indicate that they were issued on February 10, 2012, three days after

copies of each were filed with the court. The returns of service included on the mail

receipts show that service was attained on February 13, 2012. Thus, for purposes of

R.C. 2901.13(A) and (E), the prosecutions of Appellants were commenced on

February 10, 2012 when the summonses were issued. These were based on

incidents that occurred on September 10, 2011, five months before. Hence, pursuant

to R.C. 2901.13, the prosecution was “commenced” within the required six month

period.

{¶9} Although Appellants’ first assignment of error mainly addresses the time

limitation for commencement of a criminal prosecution, Appellants conclude their

argument by reasserting their speedy trial rights and state that their August 9, 2012

trial was held eleven months too late. According to Appellants, trial should have

commenced on or about March 9, 2012 in connection with charges brought for an

offense that occurred on September 10, 2011 in order to satisfy the six month statute

of limitations on their offenses. Appellants did not waive their speedy trial rights and

it is clear from the record that they never sought a continuance of trial.
 -5-

{¶10} Appellants are mistaken that the six month limitation on the

commencement of prosecution requires a March 9, 2012 trial date, as the only six

month limitation applicable to their minor misdemeanor offenses is contained in R.C.

2901.13, regarding commence of prosecution. As earlier stated, this was satisfied by

the service of a criminal summons within the statutory period. Although Appellants

cite to the wrong statute as the basis of their speedy trial argument, they are correct

in concluding that they should have been brought to trial in March of 2012. Despite

their confusion, Appellants preserved this error for review in the trial court by seeking

dismissal of the charges prior to trial, explicitly stating that dismissal was sought on

speedy trial grounds. This record reflects that Appellants’ August 2012 trial was held

in violation of their speedy trial rights.

{¶11} The right to a speedy trial is a fundamental right of a criminal defendant

guaranteed by the United States and Ohio Constitutions. (Sixth Amendment to the

U.S. Constitution; Ohio Constitution, Article I, Section 10.) States have the authority

to prescribe reasonable periods in which a trial must be held, consistent with

constitutional requirements. Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972). “In response to this authority, Ohio enacted R.C. 2945.71,

which designates specific time requirements for the state to bring an accused to trial.”

State v. Hughes, 86 Ohio St.3d 424, 425, 715 N.E.2d 540 (1999). The statutory

speedy trial provisions, R.C. 2945.71 et seq., were enacted to enforce the

constitutional right to a public speedy trial of an accused charged with the

commission of a felony or a misdemeanor and are to be strictly enforced. State v.

Pachay, 64 Ohio St. 2d 218, 416 N.E.2d 589 (1980). The prosecution and the trial
 -6-

court both have a mandatory duty to try an accused within the time frame provided by

the statute. State v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977); see

also State v. Cutcher, 56 Ohio St.2d 383, 384, 384 N.E.2d 275 (1978).

{¶12} Because the general assembly recognized that some degree of

flexibility is necessary, it allowed for extensions of the time limits for bringing an

accused to trial in certain circumstances. State v. Lee, 48 Ohio St.2d 208, 209, 357

N.E.2d 1095 (1976). Accordingly, R.C. 2945.72 contains an exhaustive list of events

and circumstances that extend the time within which a defendant must be brought to

trial. “In addition to meticulously delineating the tolling events, the General Assembly

jealously guarded its judgment as to the reasonableness of delay by providing that

time in which to bring an accused to trial ‘may be extended only by’ the events

enumerated in R.C. 2945.72(A) through (I).” State v. Ramey, 132 Ohio St. 3d 309,

313, 2012-Ohio-2904, 971 N.E.2d 937, 942, ¶24. These extensions are to be strictly

construed, and not liberalized in favor of the state. Id.

{¶13} R.C. 2945.71(A) is the section that actually governs the time frame in

which a defendant must be brought to trial for a minor misdemeanor. The statute

requires: “[s]ubject to division (D) of this section, a person against whom a charge is

pending in a court not of record, or against whom a charge of minor misdemeanor is

pending in a court of record, shall be brought to trial within thirty days after the

person’s arrest or the service of summons.” R.C. 2945.71(A). Section (D) of R.C.

2945.71 governs the time frame applicable to individuals against whom multiple

charges are pending, and does not apply to Appellants. This record reflects service
 -7-

of the summons on February 13, 2012 in both matters. Pursuant to R.C. 2945.71(A),

then, trial was required to commence by March 14, 2012.

{¶14} Although R.C. 2945.71 requires that trial commence thirty days after the

service of a summons for a minor misdemeanor, the trial timeline may be extended

by tolling events, as indicated by R.C. 2945.72, which provides:

The time within which an accused must be brought to trial * * * may be

extended only by the following:

(A) Any period during which the accused is unavailable for hearing or

trial, by reason of other criminal proceedings against him, within or

outside the state, by reason of his confinement in another state, or by

reason of the pendency of extradition proceedings, provided that the

prosecution exercises reasonable diligence to secure his availability;

(B) Any period during which the accused is mentally incompetent to

stand trial or during which his mental competence to stand trial is being

determined, or any period during which the accused is physically

incapable of standing trial;

(C) Any period of delay necessitated by the accused’s lack of counsel,

provided that such delay is not occasioned by any lack of diligence in

providing counsel to an indigent accused upon his request as required

by law;
 -8-

(D) Any period of delay occasioned by the neglect or improper act of

the accused;

(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;

(F) Any period of delay necessitated by a removal or change of venue

pursuant to law;

(G) Any period during which trial is stayed pursuant to an express

statutory requirement, or pursuant to an order of another court

competent to issue such order;

(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;

(I) Any period during which an appeal filed pursuant to section 2945.67

of the Revised Code is pending.

The statute is clear that “[u]pon motion made at or prior to the commencement of

trial, a person charged with an offense shall be discharged if he is not brought to trial

within the time required by sections 2945.71 and 2945.72 of the Revised Code.”

R.C. 2945.73(B).

{¶15} When a trial court exercises its discretion to continue the period for trial

beyond the statutory limit, the second clause of subsection (H) applies. Therefore,
 -9-

the period of continuance must be reasonable. Ramey, supra, at ¶24. “When

defense counsel merely acquiesces in a trial date but does not affirmatively lodge a

motion for a continuance, the continuance is entered ‘other than upon the accused's

own motion’ and, under the second clause of R.C. 2945.72(H), must be reasonable.”

Id. at ¶30. The Supreme Court has also “recognized that an appellate court may

affirm a conviction challenged on speedy-trial grounds even if the trial court did not

expressly enumerate any reasons justifying the delay when the reasonableness of

the continuance is otherwise affirmatively demonstrated by the record.” Id. at ¶33.

An appellate court’s “determination of reasonableness must be made on the existing

record.” Id. at ¶34 referencing State v. McRae, 55 Ohio St.2d 149, 153, 378 N.E.2d

476, 479 (1978) (the existing record must affirmatively demonstrate the

reasonableness of the delay); State v. Mincy, 2 Ohio St.3d 6, 8, 441 N.E.2d 571

(1982) (condemning after-the-fact justifications of continuances).

{¶16} The record in this matter for both Appellants reflects that they were

served on February 13, 2012 with a minor misdemeanor indictment and that trial

commenced, following a speedy trial objection, approximately six months later.

There was never any ruling made on the single motion for continuance filed in March,

2012 by the state. While the length of time between indictment and trial can vary

widely despite the timeframes contained in the statute, a period of more than five

times the stated statutory timeframe, in the absence of a single tolling event, is

clearly suspect.

{¶17} Although Appellants’ pre-trial motion for dismissal on speedy trial

grounds was inartful, and trial counsel was mistaken in his reference to the six month
 -10-

requirement for the commencement of prosecution rather than the thirty day trial

deadline, the provisions of R.C. 2945.71 and 2945.73 “relating to the guarantee of an

accused’s right to a speedy public trial, are mandatory and must be strictly complied

with by the state.” Davis, supra, at 448. Appellants did state they were seeking

dismissal on speedy trial grounds. The state responded by making reference to

multiple (allegedly) agreed continuances in this matter. However, no continuances

appear of record. The only motion for continuance that appears in the record was

made by the state in the absence of any objection by either Appellant. Under

Ramey, supra, this would, if properly granted, still be subject to review as to its

reasonableness, since it was initiated on the state’s motion, and not by Appellants.

But this motion was never properly ruled on by the trial court. Thus, this record does

not reflect any tolling event or discovery request that would explain even a portion of

the delay prior to trial.

{¶18} Pursuant to R.C. 2945.73(B), when a defendant is not brought to trial

within the relevant time constraint, he or she “shall be discharged,” and further

criminal proceedings based on the same conduct are barred. In the absence of a

single tolling event in the record before us, this five month delay is facially

unreasonable and rises to the level of plain error even if Appellant had not raised the

issue prior to trial. Appellants’ first assignment of error is sustained.

ASSIGNMENT OF ERROR NO.2

The trial court erred when it determined that the statements made by

the Appellants to the police were not protected speech, under the First

Amendment, as verbal criticism that fails to satisfy even the basic
 -11-

standards of courtesy and decorum, when made to police, even though

provocative and even when it challenges police action, is protected

speech under the First Amendment, and may never form the basis for

any criminal conduct.

{¶19} Because Appellants’ first assignment of error has merit, we need not

address any error that may have arisen during trial. Dismissal of this matter renders

Appellants’ second assignment moot.

Conclusion

{¶20} Appellants’ first assignment of error has merit. Appellants were brought

to trial in violation of the speedy trial requirements of R.C. 2945.71 et seq.

Appellants’ second assignment of error is moot because of the resolution of the first

assignment of error. Appellants’ convictions are reversed, the judgments of the trial

court vacated, and the matters are dismissed with prejudice. Any further prosecution

for the same conduct is barred.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.