This court has previously held that the R.C. 2945.71 speedy trial clock begins to run when an accused is incarcerated pursuant to a "detainer" issued on a criminal warrant. State v. Lloyd (March 31, 1999), Montgomery App. No. 15927, unreported. Therefore, this appeal turns on another issue: whether the "reasonable diligence" obligation imposed on the State by the final clause of R.C. 2945.72(A) applies to all the circumstances in that section or only to the matter of interstate extradition proceedings to which the preceding clause refers. I believe that it applies only to extradition proceedings.
R.C. 2945.72(A) tolls the speedy trial time which R.C.2945.71 imposes for an offense during the period of time involved, which is: *Page 151
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.
R.C. 2945.72(A) is composed of two independent parts that are separated by the word "or," which is used as a coordinating conjunction. The first part concerns defendants who are "unavailable" for the reasons stated: because undetermined criminal proceedings against them are pending or because they are confined in another state. The second part concerns persons against whom Ohio has commenced extradition proceedings to return them to Ohio. Because the two parts are independent, grammatically as well as functionally, the reasonable diligence clause following the second part applies only to the particular circumstance involved, extradition proceedings.
Though extradition proceedings are commenced by the state, any delay occasioned by the defendant's efforts to contest extradition is chargeable to him for speedy trial purposes. Statev. Hirsch (1998), 129 Ohio App.3d 294. In order to avoid undue delay, R.C. 2945.72(A) requires the state to prosecute its extradition claim with reasonable diligence.
These considerations support the view that the reasonable diligence clause applies only to extradition proceedings, not to the other circumstances in R.C. 2945.72(A) that define unavailability for hearing or trial. The view is also supported by the very notion of unavailability. If an accused is "unavailable," how can the state be required to exercisereasonable diligence to make him available? It really can't, and its attempts to do so become mere vain acts. Indeed, the several desultory inquiries that Montgomery County made of Hamilton County in this instance demonstrate that both jurisdictions knew that Defendant-Appellant would not be available for prosecution in Montgomery County until the Hamilton County charges were determined.
If the reasonable diligence clause is applied to unavailability as the statute defines it, consider the difficulties that might result. A defendant who engages in a crime spree in multiple counties is finally arrested, charged, and confined in county A. The courts in counties B, C, D, and E, where he also committed crimes, issue detainers that are filed in the court in county A. If each of those other courts is expected to bring the defendant to trial in the same general time frame, much of that time will be spent taking the defendant from one county to another. Trial preparation and trial schedules would be repeatedly disrupted. That won't actually happen, of course, but why should the State then be required to show that it used "reasonable diligence" to make it happen? There's no reason why it should, and no reason to believe that the General Assembly intended that it *Page 152 should. Allowing the orderly disposition of charges, seriatim is the sensible alternative. R.C. 2945.72(A) does exactly that when its reasonable diligence requirement is confined to extradition proceedings.
I concede that two other appellate districts have applied the reasonable diligence clause to all the circumstances in R.C.2945.72(A). However, neither State v. McCowin (April 14, 1997), Columbiana App. No. 94-C-87, which did so expressly, norState v. Coatoam (1975), 45 Ohio App.2d 183, which did so implicitly, analyzed the issue. A third case, State v. Bosco (September 11, 1996), Washington App. No. 95CA10, contains an extensive analysis by Judge Harsha. Significantly, Bosco involved extradition proceedings.
Finally, there is the matter of the semicolon, or rather the absence of one, which Judge Young finds significant in respect to whether the clauses in R.C. 2945.72(A) are independent. "The main use for a semicolon is to separate two independent clauses not joined with a coordinating conjunction." Gorrell, A Writer'sHandbook, 1994 Ed., p. 198. As pointed out above, the word "or" is employed between the unavailability and extradition clauses of R.C. 2945.72(A) as a coordinating conjunction. That not only dispenses with the need for a semicolon; it also evidences the General Assembly's intention to make those clauses independent, and to apply the "reasonable diligence" requirement only to the extradition clause to which it is specifically attached.
On the basis of the foregoing analysis, I would hold that the trial court erred when it held that the reasonable diligence requirement of R.C. 2945.72(A) applies to an accused who is unavailable because undetermined criminal charges are pending against him in another county. Unrelated charges were pending against Defendant-Appellant Bailey in Hamilton County until June 11, 1999, when he was convicted and sentenced on those charges. The speedy trial "clock" then commenced to run on Bailey's Montgomery County charges. Per R.C. 2945.71, the State was required to bring him to trial within 270 days thereafter. The motion for discharge that Bailey filed on October 12, 1999, a mere 123 days after the clock had commenced to run was, therefore, premature. The trial court abused its discretion when it ordered Bailey's discharge. I would reverse and remand. *Page 153