Cleveland v. Gross

[Cite as Cleveland v. Gross, 2022-Ohio-193.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellant, :
No. 110669
v. :

VELINA GROSS, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: January 27, 2022

Criminal Appeal from the Cleveland Municipal Court
Case No. 2021 CRB 004505

Appearances:

Barbara A. Langhenry, Cleveland Director of Law,
Aqueelah Jordan, Cleveland Chief Prosecutor, and
Michael J. Ferrari, Assistant Prosecuting Attorney, for
appellant.

Friedman & Gilbert and Mary Catherine Corrigan, for
appellee.

SEAN C. GALLAGHER, A.J.:

This cause came to be heard upon the accelerated calendar pursuant

to App.R. 11.1 and Loc.App.R. 11.1. Appellant city of Cleveland appeals the trial

court’s judgment granting appellee Velina Gross’s motion to dismiss the case for a
speedy-trial violation. Upon review, we reverse and remand the case to the trial

court.

Background

On January 23, 2021, following an alleged child-abuse incident

involving Gross and her minor child, Gross was arrested and taken to Cuyahoga

County Jail. An information charged Gross with felony endangering children, and

the case was bound over to the common pleas court. On January 26, 2021, Gross

was released from jail upon posting bond.

On February 26, 2021, in Cuyahoga C.P. No. CR-21-656287, the court

granted the state’s motion to terminate charges, purportedly because the evidence

indicated the offense was a misdemeanor, and the charge pending in the Cuyahoga

County Court of Common Pleas was dismissed.

On May 6, 2021, a complaint was filed in Cleveland M.C. No. 2021

CRB 004505 charging Gross with endangering children, a misdemeanor of the first

degree, in violation of Cleveland Codified Ordinances 609.04. Initial attempts to

serve the summons were not successful. On May 20, 2021, Gross first appeared and

entered a plea of not guilty to the charge of endangering children. On June 2, 2021,

a continuance was granted upon Gross’s request to file a motion to dismiss on

speedy-trial grounds, which was thereafter filed. The case was continued to

June 30, 2021, when the trial court heard and granted the motion to dismiss.

The city timely filed this appeal.
 Law and Analysis

The city raises two assignments of error for our review. The city

claims the trial court abused its discretion (1) by granting appellant’s motion to

dismiss based on R.C. 2945.71(B)(2), and (2) by dismissing the case because Gross’s

statutory right to a speedy trial had not been violated pursuant to R.C. 2945.71(B)(2)

or 2945.71(C)(2).

Ohio’s speedy trial statutes were implemented “to incorporate the

constitutional protection of the right to a speedy trial provided for in the Sixth

Amendment to the United States Constitution and in Section 10, Article I, of the

Ohio Constitution.” Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706

(1996), citing State v. Broughton, 62 Ohio St.3d 253, 256, 581 N.E.2d 541 (1991).

“‘The speedy trial guarantee is designed to minimize the possibility of lengthy

incarceration prior to trial, to reduce the lesser, but nevertheless substantial,

impairment of liberty imposed on an accused while released on bail, and to shorten

the disruption of life caused by arrest and the presence of unresolved criminal

charges.’” State v. Triplett, 78 Ohio St.3d 566, 568, 679 N.E.2d 290 (1997), quoting

United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

Ohio courts must strictly construe the speedy-trial statutes. Cook at 57. However,

the prescribed times for trial set forth in R.C. 2945.71 are not absolute in all

circumstances, and under R.C. 2945.72, discretionary authority is granted to extend

the trial date for certain specified reasons. See Cook at 55-56, citing State v.

Wentworth, 54 Ohio St.2d 171, 173, 375 N.E.2d 424 (1978); R.C. 2945.72. “Although
the right of the defendant to a speedy trial is one of constitutional proportions, there

is an important countervailing interest that must be given weight in the balance of

competing interests. It is the right of the people to require criminal defendants to

stand trial for their alleged offenses.” Cook at 59.

R.C. 2945.71(B)(2), with limited exception, requires “a person against

whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a

court of record, shall 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 * * *.” R.C. 2945.71(C)(2) requires “[a] person against whom a

charge of felony is pending * * * [s]hall be brought to trial within two hundred

seventy days after the person’s arrest.” “For purposes of calculating speedy-trial

time pursuant to R.C. 2945.71(C), a charge is not pending until the accused has been

formally charged by a criminal complaint or indictment, is held pending the filing

of charges, or is released on bail or recognizance.” (Emphasis added.) State v.

Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, 859 N.E.2d 532, syllabus.

R.C. 2945.72 permits the time for bringing an accused to trial to be

extended for certain specified reasons, including among others: “(F) Any period of

delay necessitated by a removal or change of venue pursuant to law”; “(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”;

and “(I) Any period during which an appeal filed pursuant to section 2945.67 of the

Revised Code is pending.”
 Generally, review of a speedy-trial claim involves a mixed question of

law and fact. State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163,

¶ 15. However, because the facts in this case are undisputed and the trial court made

no findings, our review of the trial court’s decision to grant the motion to dismiss for

a constitutional speedy-trial violation is de novo. See State v. Barnes, 8th Dist.

Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 19.

“When reviewing a speedy-trial question, an appellate court must

count the number of delays chargeable to each side and then determine whether the

number of days not tolled exceeded the time limits under R.C. 2945.71.” State v.

Wells, 8th Dist. Cuyahoga No. 109787, 2021-Ohio-2585, ¶ 47, citing State v. Ferrell,

8th Dist. Cuyahoga No. 93003, 2010-Ohio-2882, ¶ 20. “Speedy-trial provisions are

mandatory, and courts must strictly enforce them.” State v. Adams, 144 Ohio St.3d

429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 81, citing State v. Parker, 113 Ohio St.3d 207,

2007-Ohio-1534, 863 N.E.2d 1032, ¶ 15, and State v. Hughes, 86 Ohio St.3d 424,

427, 1999-Ohio-118, 715 N.E.2d 540. “If the defendant is not brought to trial in the

allotted time, the trial court must discharge the defendant upon a timely motion.”

Id., citing R.C. 2945.73(B).

In this matter, after the original felony child-endangerment charge

was dismissed, Gross was charged with a misdemeanor based upon the same facts.

The city argues that the speedy-trial time does not include the period when no

charges were pending against Gross and that the trial court erred when it granted

the motion to dismiss based on R.C. 2945.71(B)(2) and did not correctly apply the
law to the facts of the case. The city also claims Gross’s right to a speedy trial has

not been violated under the limitation period of either R.C. 2945.71(B)(2) or (C)(2)

because only 54 days are counted toward speedy-trial time.1 Gross contends that

the speedy-trial time was triggered upon her arrest on January 23, 2021, and that

she was not arraigned in the municipal court until May 20, 2021, which she claims

is over the 90-day speedy-trial limitation under R.C. 2945.71(B)(2) for a first-degree

misdemeanor charge.

As an intermediate appellate court, we are bound by and must follow

and apply the decisions of the Ohio Supreme Court. Brandt v. Pompa, 2021-Ohio-

845, 169 N.E.3d 285, ¶ 31 (8th Dist.), citing Gehad & Mandi, Inc. v. Ohio State

Liquor Control Comm., 10th Dist. Franklin No. 05AP1181, 2006-Ohio-3081, ¶ 7.

In State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887

N.E.2d 319, the Supreme Court of Ohio determined that when charges arise from

the same underlying facts and circumstances as the charges in a previous case that

was dismissed, the statutory time for a speedy trial dates back to when the defendant

was originally charged. Blackburn at ¶ 11, citing State v. Adams, 43 Ohio St.3d 67,

68, 538 N.E.2d 1025 (1989), and State v. Bonarrigo, 62 Ohio St.2d 7, 11, 402 N.E.2d

1The city also argues 2020 Am.Sub.H.B. No. 197 extended the speedy-trial requirements
of R.C. 2945.71. Am.Sub.H.B. No. 197, which the Governor of Ohio signed into law on
March 27, 2020, and was retroactive to March 9, 2020, tolled the time limitations until the
sooner of the expiration of Executive Order 2020-01D or July 30, 2020. This order has no
application in this matter. Gross’s arrest did not occur until January 23, 2021.
530 (1980).2 Consequently, in Blackburn, the Supreme Court held that “in

calculating the time within which a criminal defendant must be brought to trial

under R.C. 2945.71, periods of delay resulting from motions filed by the defendant

in a previous case also apply in a subsequent case in which there are different

charges based on the same underlying facts and circumstances of the previous case.”

Blackburn at ¶ 23.

In Broughton, 62 Ohio St.3d 253, 581 N.E.2d 541, the Supreme Court

of Ohio held that

for purposes of computing how much time has run against the state
under the speedy-trial statute, the time period between the dismissal
without prejudice of an original indictment and the filing of a
subsequent indictment, premised upon the same facts as alleged in the
original indictment, shall not be counted unless the defendant is held
in jail or released on bail pursuant to Crim.R. 12(I).

Broughton at 259-260. However, the Supreme Court recognized “any time period

that has elapsed under the original indictment should be tacked on to the time

period commencing with the second indictment.” Id. at 261, citing Bonarrigo at 11.

The Supreme Court reaffirmed the holding in Broughton in Azbell, 112 Ohio St.3d

2 The Supreme Court determined in the 1989 Adams case that “‘when new and
additional charges arise from the same set of facts as those found in the original charge,
and the state knew of such facts at the time of the initial indictment, the time within which
trial is to begin on the additional charge is subject to the same statutory limitations period
as that applied to the original charge.’” Id. at 68-69, quoting State v. Clay, 9 Ohio App.3d
216, 218, 459 N.E.2d 609 (11th Dist.1983), and citing Bonarrigo at 11; see also Parker,
113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032, at ¶ 18. However, “[a] later
indictment is not subject to the speedy-trial timetable of an earlier indictment or arrest
‘when additional criminal charges arise from facts different from the original charges, or
the state did not know of these facts at the time of the initial indictment’ or earlier arrest.”
Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 84, quoting State v.
Baker, 78 Ohio St.3d 108, 110, 676 N.E.2d 883 (1997).
300, 2006-Ohio-6552, 859 N.E.2d 532, at ¶ 17, and State v. Myers, 97 Ohio St.3d

335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 36.

The Tenth District, relying on Broughton, “has repeatedly declined to

count days between a dismissal of charges and a subsequent indictment [or

complaint] premised on the same facts unless the defendant is held in jail or released

on bail pursuant to Crim.R. 12(I).” (Citations omitted.) State v. Loel, 10th Dist.

Franklin No. 13AP-874, 2014-Ohio-3045, ¶ 10. “This conclusion is based on the

principle that days should not be counted when there are no criminal charges

pending.” Id. at ¶ 10, citing State v. Diallo, 10th Dist. Franklin No. 12AP-388, 2013-

Ohio-1248, ¶ 14. In Loel, the court held that “[p]ursuant to Broughton, the days

between the dismissal of the complaint in the municipal court and the filing of the

indictment [in the common pleas court] based on the same facts are not counted in

this speedy trial analysis.” Id. at ¶ 13; see also State v. Ferguson, 10th Dist. Franklin

No. 16AP-307, 2016-Ohio-8537, ¶ 14 (“Because we do not count the days between

the municipal court dismissal and subsequent indictment in this case, appellant’s

argument fails.”). Likewise, in State v. Crosby, 10th Dist. Franklin No. 12AP-348,

2012-Ohio-6202, the Tenth District found there was no speedy-trial violation where

the running of the defendant’s speedy-trial period, which commenced upon his

initial arrest and felony charges, was tolled when the original charges were

dismissed for future indictment on the same charges based on the same events. Id.

at ¶ 14.
 In Cleveland v. Evans, 8th Dist. Cuyahoga No. 100721, 2014-Ohio-

4567, this court determined the time was tolled between a defendant’s misdemeanor

conviction for driving under a suspended license and his subsequent receipt of a

citation that arose from the same occurrence for a misdemeanor charge for

operating a vehicle while intoxicated, stating as follows:

Appellant wishes to count this time against the Village. When no
charges are pending and a person is not under arrest or subject to
conditions of bond, the reasons for which the speedy trial statute was
instituted, “to minimize the restrictions on freedom and the general
disruption of life caused by pending and unresolved criminal
charges[,]” are not implicated. [State v. Phillips, 19 Ohio App.3d 85,
86, 482 N.E.2d 1337 (10th Dist.1984).] Therefore, the speedy trial time
is tolled for this period of time.

Evans at ¶ 24.3

Adhering to the Supreme Court authority above, we find the statutory

time for speedy trial dates back to when Gross was arrested and held pending the

original felony charge, and any elapsed time for the original felony charge is tacked

on to the time period commencing with the subsequent service of the summons, or

first appearance, for the misdemeanor charge premised on the same facts; however,

the time between the dismissal of the original felony charge and Gross’s first

appearance on the subsequent misdemeanor charge is not counted in the speedy-

trial analysis. In computing the speedy-trial time that has elapsed in this case, our

review reflects Gross was arrested on January 23, 2021, and was released on bond

3 As this court recognized in Evans, this approach “strictly construes the statute,
but also balances the competing interests of the Village as set forth in Phillips, while
conforming to our prior precedent in [State v. Robertson, 8th Dist. Cuyahoga No. 93396,
2010-Ohio-2892].” Evans at ¶ 22.
on January 26, 2021, which counts as 9 days.4 The time from January 27, 2021, until

the felony charge was dismissed on February 26, 2021, counts as 31 days. No time

is counted for the period between February 26, 2021, and May 20, 2021, when no

charges were pending. Although the misdemeanor complaint was filed on May 6,

2021, initial attempts to serve the summons failed. Gross first appeared in the

misdemeanor case on May 20, 2021, and the time until the case was continued on

June 2, 2021, counts as 14 days. The time was tolled during the period of

continuance until the court heard Gross’s motion to dismiss on June 30, 2021. R.C.

2945.72(H). The time is tolled during the pendency of this appeal. R.C. 2945.72(I).

Thus, the total time that has elapsed for the misdemeanor charge is 54 days.

We recognize Gross’s motion to dismiss was based on the application

of the 90-day speedy-trial limitation period under R.C. 2945.71(B)(2), as opposed to

the 120-day limitation period under R.C. 2945.71(C). We find no speedy-time trial

violation occurred under either time limitation.

Nonetheless, we recognize the outstanding question of which

statutory speedy-trial limitation applies to calculate the speedy-trial limit when an

original felony charge is later reduced to a misdemeanor charge based on the same

conduct. “[T]his precise situation was not addressed by the legislature in the speedy

4 “The day of arrest does not count when computing speedy-trial time.” Adams,
144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 82, fn. 7, citing State v. Nesser,
2d Dist. Clark No. 2013 CA 21, 2014-Ohio-1978, ¶ 32, and State v. Semenchuck, 8th Dist.
Cuyahoga No. 90854, 2009-Ohio-465, ¶ 21. Pursuant to R.C. 2945.71(E), “each day
during which the accused is held in jail in lieu of bail on the pending charge shall be
counted as three days.”
trial statute.” Phillips, 19 Ohio App.3d at 86, 482 N.E.2d 1337. Further, the

Supreme Court of Ohio has not addressed this exact issue. See Blackburn, 118 Ohio

St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319; Adams, 43 Ohio St.3d 67, 538 N.E.2d

1025; Baker, 78 Ohio St.3d at 110, 676 N.E.2d 883; Parker, 113 Ohio St.3d 207,

2007-Ohio-1534, 863 N.E.2d 1032. Some courts considering this scenario have

balanced the competing interests of the accused and the state and computed the

speedy-trial deadline by comparing the deadlines for the original more serious

charge and the reduced charge and using the earlier of the two deadlines. See, e.g.,

State v. Sitko, 11th Dist. Trumbull No. 2020-T-0016, 2021-Ohio-788, ¶ 46, citing

State v. Clark, 11th Dist. Lake No. 2007-L-139, 2008-Ohio-2760, ¶ 30; State v.

Smith, 4th Dist. Athens No. 99CA31, 2000 Ohio App. LEXIS 89, 4-5 (Jan. 12, 2000),

citing State v. Cattee, 14 Ohio App.3d 239, 242, 470 N.E.2d 421 (4th Dist.1983);

Phillips at 86-87. As expressed in Cattee, “A much fairer rule * * * is that where a

felony complaint is filed, the accused is bound to the grand jury and an indictment

charging a misdemeanor is returned, the statutory time limitations respecting the

misdemeanor shall apply subject to the requirement that the time for trial shall not

exceed the statutory period for trial of the felony.” (Emphasis deleted.) Id. at 242.5

5 By analogy, another question that has arisen is “when the accused is initially
charged with felony and misdemeanor level offenses and the felony charge is later
dismissed, which speedy trial time period should be applied?” State v. March, 12th Dist.
Butler No. CA2015-08-070, 2016-Ohio-3288, ¶ 13. In March, the court applied the
earlier deadline approach to the procedural posture of the case. Id. at ¶ 19-20; see also
State v. Deacey, 2d Dist. Montgomery No. 27408, 2017-Ohio-8102, ¶ 96-100.
These cases highlight the need for the legislature to consider revising the speedy-

trial statutes.

In conclusion, regardless of which speedy-trial time limitation under

R.C. 2945.71(B)(2) or (C)(2) is applied, because only 54 days elapsed, the speedy-

trial time limits were not exceeded. Therefore, Gross was not entitled to a dismissal

of the misdemeanor charge on speedy-trial grounds, and the trial court erred in

granting her motion to dismiss. The city’s assignments of error are sustained

pursuant to the legal analysis provided herein.

Judgment reversed, and case remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

municipal court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR