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Date: 07-08-2020

Case Style:

STATE OF OHIO -vs- JAMES BRYON DAVIS

Case Number: 2019 CA 0112

Judge: W. Scott Gwin

Court: COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: OSEPH C. SNYDER
Assistant Prosecuting Attorney

Defendant's Attorney:

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[Cite as State v. Davis, 2020-Ohio-3617.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JAMES BRYON DAVIS : Case No. 2019 CA 0112
:
Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2019CR0446R

JUDGMENT: Affirmed
DATE OF JUDGMENT: July 2, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP WILLIAM T. CRAMER
Prosecuting Attorney 470 Olde Worthington Rd., Suite 200
Richland County, Ohio Westerville, Ohio 43082

By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park St.
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0112 2
Baldwin, J.
{¶1} Appellant, James Byron Davis, appeals his conviction by the Richland
County Court of Common Pleas for one count of Domestic Violence, a violation of R.C.
2919.25 and a fourth degree felony. Davis contends the trial court erred when it denied
his motion to dismiss the charges. He argues that the municipal court erred by failing to
conduct a timely preliminary hearing and that the common pleas court’s continuance of
his trial violated R.C. 2945.71 and his right to a speedy trial. Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} The facts leading to the charges against Davis are not pertinent to the
resolution of the appeal and will not be discussed in this opinion.
{¶3} On May 12, 2019 Davis was charged with a violation of R.C. 2919.25,
domestic violence, a fourth degree felony due to a prior conviction. A preliminary hearing
was scheduled for May 16, 2019. On the date of the preliminary hearing, the appellee
requested a continuance because a key witness, who had been properly subpoenaed,
failed to appear. The trial court continued the hearing, apparently with no objection from
Davis. The entry did not contain the reasons discussed at the hearing, but only indicated
that the hearing would be held on May 30, 2019.
{¶4} On May 28, 2019, Davis filed a petition for habeas corpus with this court
contending that because the preliminary hearing was not held within ten days the
complaint against him should be dismissed pursuant to the mandate of R.C. 2945.73(A).
On May 29, 2019, we issued an order to the trial court finding that the writ ought to issue
and that Davis was being unlawfully restrained of his liberty. We ordered the trial court
Richland County, Case No. 2019 CA 0112 3
to release Davis, or in the alternative, show cause on or before 12:00 p.m. on the 30th
day of May, 2019, why he should not be released.
{¶5} On May 30, 2019, the Mansfield Municipal Court issued an order stating
that “the State Presented(sic) adequate cause for the requested continuance, as a
necessary witness was served her subpoena, but did not make herself present for the
hearing. As the witnesses' testimony was essential to the case, cause was found, and a
reasonable continuance granted.” (Order Showing Cause, May 30, 2019, Mansfield
Municipal Court Case No. 2019-CRA-2173). This court then denied Davis’s petition.
{¶6} Davis timely appealed to the Supreme Court of Ohio in Case No. 2019-
0782. The Supreme Court found that we correctly dismissed the petition “because the
petition does not comply with the mandatory filing requirements of R.C. 2725.04 and
because his claims are not cognizable in habeas corpus.” Davis v. Sheldon, Slip Opinion
No. 2020-Ohio-436, ¶7. The Supreme Court stated:
Even if Davis had satisfied the requirements of R.C. 2725.04, his
claims would not be cognizable in habeas corpus, because he was indicted
on June 24, 2019, on the same charge for which he has been held in jail
since May 12, 2019. See Gibson v. Wilson, 5th Dist. Richland No. 08CA85,
2009-Ohio-829, ¶ 12 (habeas corpus will not lie for failure to hold a
preliminary hearing once grand jury has returned an indictment); Nash v.
McFaul, 8th Dist. Cuyahoga No. 81439, 2002-Ohio-3647, ¶ 2 (indictment
renders any defects in a preliminary hearing moot).
Id at ¶9.
Richland County, Case No. 2019 CA 0112 4
{¶7} While the petition for habeas corpus was pending, the municipal court
conducted the preliminary hearing and bound Davis over to the common pleas court on
May 30, 2019. Davis was indicted by the grand jury on June 24, 2019. Davis entered a
plea of not guilty on July 10, 2019 and a pre-trial was scheduled for July 22, 2019. On
July 22nd the trial court continued the trial to August 26, 2019 explaining the reason for
the continuance:
Due to the Court's crowded docket, it is not possible to set the trial in
this matter within 270 days. The Court has multiple jury trials on every
available trial date. The trials scheduled on those dates consist of cases in
which the defendants have been incarcerated, arraigned prior to this matter
and those which have been set multiple times.
The earliest possible date available for trial is August 26, 2019 at
9:00 a.m. Time is tolled to that date.
Order of Trial, July 22, 2019.
{¶8} Davis filed a motion to dismiss for a speedy trial violation on August 23,
2019 arguing that the charges must be dismissed because the preliminary hearing was
not timely and because the trial court’s entry continuing the trial did not contain sufficient
justification for the continuance. Davis entered a no contest plea on the same date, the
trial court accepted the plea and scheduled the motion to dismiss and sentencing for
hearing on November 6, 2019.
{¶9} At the hearing on the motion to dismiss, the trial court repeated the rationale
for continuing the trial that was contained in the entry, confirming that older criminal cases
took precedence on the date set aside for criminal trials. The court administrator testified
Richland County, Case No. 2019 CA 0112 5
in support of the trial court’s reasoning and the trial court denied the motion and sentenced
Davis to three years of community control.
{¶10} Davis filed an appeal and submitted two assignments of error:
{¶11} “I. APPELLANT'S STATUTORY SPEEDY TRIAL RIGHTS WERE
VIOLATED BECAUSE THE PRELIMINARY HEARING WAS CONTINUED BEYOND
THE STATUTORY TIME LIMIT BY A SUA SPONTE ENTRY THAT PROVIDED NO
REASONS FOR THE CONTINUANCE.”
{¶12} “II. APPELLANT'S STATUTORY SPEEDY TRIAL RIGHTS WERE
VIOLATED BY A SUA SPONTE CONTINUANCE THAT WAS UNREASONABLE
BECAUSE THE TRIAL COURT FAILED TO PRIORITIZE CRIMINAL CASES IN
SCHEDULING.”
STANDARD OF REVIEW
{¶13} Our review of a trial court's decision regarding a motion to dismiss based
upon a violation of the speedy trial provisions involves a mixed question of law and fact.
State v. Larkin, 5th Dist. Richland No.2004–CA–103, 2005-Ohio-3122, 2005 WL
1463255, ¶11. As an appellate court, we must accept as true any facts found by the trial
court and supported by competent, credible evidence. State v. Taylor, 5th Dist. Richland
No. 16 CA 17, 2016-Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin, supra. With regard
to the legal issues, however, we apply a de novo standard of review and thus freely review
the trial court's application of the law to the facts. Id.
{¶14} When reviewing the legal issues presented in a speedy-trial claim, we must
strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d
Richland County, Case No. 2019 CA 0112 6
53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-
Ohio-2326, 2010 WL 2060900, ¶ 12.
I.
{¶15} In his first assignment of error, Davis argues that the charges against him
must be dismissed as he was not afforded a preliminary hearing within the statutorily
allotted time and the trial court’s extension of time for the hearing was ineffective because
the entry failed to contain the rationale for the continuance of the hearing.
{¶16} After Davis’s petition for habeas corpus was rejected by this court he was
indicted and entered a not guilty plea. The indictment by the grand jury rendered any
defects in the preliminary hearing moot. State v. Washington, 30 Ohio App.3d 98, 99, 506
N.E.2d 1203 (1986) and Styer v. Bricta, 69 Ohio App.3d 738, 591 N.E.2d 1255 (1990).
Davis argues that the lack of a timely preliminary hearing should invalidate subsequent
proceedings arising from the arrest and result in his discharge, but ‘[t]he effect of the
State's failure to accord a preliminary hearing to a defendant within the statutorily
prescribed time is a voluntary dismissal of that felony charge against the defendant.
Accordingly, a defendant who was not accorded a timely preliminary hearing may be
subsequently indicted for the same offense for which he was originally arrested.” State v.
Aberle, 5th Dist. Muskingum No. CA 91-33, 1992 WL 173387, *1 referencing State v.
Pugh, 53 Ohio St.2d 153, 372 N.E. 2d 1351 (1978).
{¶17} Pugh is a per curiam opinion of the Supreme Court of Ohio with a very brief
description of the facts and the decision of the Ninth District Court of Appeals: “On appeal,
the Court of Appeals found that the charge against appellant should have been dismissed
by the Municipal Court, but it declined to hold that the indictment against appellant should
Richland County, Case No. 2019 CA 0112 7
also have been dismissed. The judgment of the trial court was affirmed.” The entire
opinion of the Supreme Court in Pugh contains two sentences: “The judgment of the Court
of Appeals is affirmed. Judgment affirmed,” Pugh, supra at 155, but the text of the
appellate court opinion provides additional insight:
Pugh is correct in asserting the charge should have been dismissed
in the Akron Municipal Court (R.C. 2945.73(A)). However, he is incorrect in
asserting that the indictment should also have been dismissed. The failure
to accord a defendant a prompt preliminary hearing results only in a
dismissal in the nature of a nolle prosequi (R.C. 2945.73(D)). It does not
constitute “a bar to any further criminal proceedings against him based on
the same conduct” such as a failure to grant a defendant a speedy trial after
indictment (R.C. 2945.73(D)). Thus, Pugh was properly indicted and tried.
The error below was not prejudicial and is, accordingly, rejected.
State v. Pugh, 9th Dist. Summit No. 8029, 1976 WL 188767, *1, aff'd, 53 Ohio
St.2d 153, 372 N.E.2d 1351 (1978).
{¶18} The facts of this case are indistinguishable, as Davis was not provided a
timely preliminary hearing, but was subsequently indicted and convicted. The outcome
in this case should likewise be the same.
{¶19} Davis attempts to construe the Pugh opinion as applying only to direct
indictments and not indictments that followed a bind over, relying upon the concurring
opinions. The concurring opinions are not binding and represent the judgment of the
individual justices, and this court is obligated to comply with the holding of the court, not
the concurrences. State of Ohio ex rel. Dave Yost, Ohio Attorney General v. Osborne
Richland County, Case No. 2019 CA 0112 8
Co., Ltd., et al., 11th Dist. Lake No. 2019-L-003, 2020-Ohio-3090; In re Gibson, 157 B.R.
366, 372 (Bankr. S.D. Ohio 1993). We have no authority to reconstruct the holding of the
Supreme Court as requested by Davis.
{¶20} Even if we were to consider Davis’s argument that the Pugh opinion does
not stand for the proposition that a subsequent indictment following a bind over order
renders any error in the conduct of the preliminary hearing moot, Davis’s argument must
fail because it is based upon an inaccurate description of the concurring opinions. Davis
contends that “[o]f the four Justices who voted to affirm, two of them (Justices Celebrezze
and Locher) did so based solely on their conclusion that the defendant had waived the
issue by pleading guilty to the indictment.” (Appellant’s Brief, p. 6). The defendant in
Pugh did not plead guilty to the indictment, but instead entered a plea of not guilty and
was convicted by a jury. State v. Pugh, 9th Dist. Summit No. 8029, 1976 WL 188767, *1,
aff'd, 53 Ohio St.2d 153, 372 N.E.2d 1351 (1978); State v. Pugh, 53 Ohio St.2d 153, 154,
372 N.E.2d 1351, 1352 (1978). And, Justice Celebrezze’s concurrence concluded that
Pugh had waived error by entering a plea:
I believe that appellant's inconsistent conduct, viz., entering a plea to
the indictment, constituted a waiver of compliance with the applicable time
limitation. Cf. Crider v. Maxwell (1968), 174 Ohio St. 190, wherein it is stated
at page 192, 187 N.E.2d 875, at page 876:
The petitioner urges that he was deprived of his
constitutional rights by not having a preliminary hearing. It is
his contention that failure to afford a preliminary hearing
deprives an accused of being able to confront the state's
Richland County, Case No. 2019 CA 0112 9
witnesses and lay evidence before the court as to the degree
of accused's guilt and deprives him of other constitutional
rights. Such is not the purpose of the preliminary hearing. *157
It is only to determine whether sufficient evidence exists to
warrant binding an accused over to the grand jury to
determine whether formal charges shall be placed against
him. No rights or defenses are lost from a failure to have a
preliminary hearing. In this respect, petitioner has been
deprived of no constitutional right. Once an indictment has
been returned, a plea to such indictment waives any right the
accused has to a preliminary hearing. Annotation, 116 A.L.R.
550; 4 Wharton's Criminal Law and Procedure, 290, Section
1619. (Emphasis added.)
Pugh, supra at 156–157.
{¶21} The concurrences in Pugh are not helpful to Davis’s cause because they
stand for the proposition that Davis waived his objections by entering a plea to the
indictment.
{¶22} Applying the Pugh decision to the facts of this case, we hold that Davis was
properly indicted and tried, that the lack of a timely preliminary hearing was not prejudicial,
and that he waived any potential error by entering a plea to the indictment.
{¶23} Appellant’s first assignment of error is overruled.
Richland County, Case No. 2019 CA 0112 10
II.
{¶24} In his second assignment of error, Davis contends that his statutory speedy
trial rights were violated by a sua sponte continuance that was unreasonable because the
trial court failed to prioritize criminal cases in scheduling. Davis conceded during oral
argument, and we agree, that the record in this case provides little support to his
assignment of error and we find that the facts show that the trial court took the appropriate
steps to continue the matter to a later date.
{¶25} The trial court sua sponte issued an entry continuing the trial on July 22,
2019 and there is no contention that the entry was untimely. Davis does contend that the
trial court’s entry provided insufficient information regarding the rationale for the
continuance, comparing the entry to that in State v. Terra, 74 Ohio App.3d 189, 193, 598
N.E.2d 753, 755 (10th Dist.1991), where the Tenth District Court of Appeals found sua
sponte entries continuing the criminal trial that provided as rational only that “Judge in
Trial” and “Court in trial, no other courtrooms available” failed to satisfy the requirements
of R.C. 2945.71 et seq.
{¶26} R.C. 2945.71(C)(2) requires that a person against whom a felony charge is
pending be brought to trial within two hundred and seventy days after his arrest. For
purposes of computing time, R.C. 2945.71(E) states that “ * * * each day during which the
accused is held in jail in lieu of bail on the pending charge shall be counted as three days,
* * * ” which means that an accused held in jail must therefore be tried within ninety days
of his arrest date. State v. Terra, 74 Ohio App.3d 189, 193, 598 N.E.2d 753, 756 (10th
Dist.1991). The time for trial may be extended by “[t]he period of any continuance granted
on the accused's own motion, and the period of any reasonable continuance granted
Richland County, Case No. 2019 CA 0112 11
other than upon the accused's own motion.” R.C. 2945.72(H). The Supreme Court
provided additional guidance for the analysis of sua sponte continuances in State v. Lee
48 Ohio St.2d 208, 209, 357 N.E.2d 1095 (1976):
The record of the trial court must in some manner affirmatively
demonstrate that a sua sponte continuance by the court was reasonable in
light of its necessity or purpose. Mere entries by the trial court will ordinarily
not suffice, except when the reasonableness of the continuance cannot be
seriously questioned. Although this burden is contrary to the presumption
of regularity generally accorded to trial proceedings, it appears necessary
to carry out the purpose of the speedy-trial statutes.
{¶27} The court in Terra found that merely stating that “Judge in Trial” or “Court in
trial, no other courtrooms available” fell short of fulfilling the requirements established by
the Supreme Court of Ohio in Lee. Mentioning only that the judge was in trial does not
indicate whether the judge was involved in a criminal or civil matter or whether the court
was providing criminal cases the required precedence over civil matters. Further, the
Terra court found the length of the continuance, thirty two calendar days, not facially
reasonable under the circumstances.
{¶28} In the case before us, we find the entry sufficiently detailed and the length
of the extension to be facially reasonable after reviewing the facts in the record. The
speedy trial deadline was arguably August 12th and the trial was continued to August 26
but only after the trial court found that there were multiple criminal jury trials scheduled
on the available dates comprised of cases in which defendants had been incarcerated,
arraigned prior to Davis or set for trial on several occasions. These findings satisfy the
Richland County, Case No. 2019 CA 0112 12
concerns of the Tenth District Court of Appeals and the Supreme Court of Ohio by
showing that the trial court is preserving criminal cases’ precedence and that it was the
backlog of criminal trials that created the need for the continuance. We find that the
continuance tolled the speedy trial time because it reflects that the continuance was
reasonable in both purpose and length. State v. Martin, 56 Ohio St.2d 289, 293, 384
N.E.2d 239 (1978), quoting State v. Lee, 48 Ohio St.2d 208, 210, 357 N.E.2d 1095 (1976).
{¶29} Davis also suggests that the trial court’s statement during the hearing that
criminal trials were relegated to one day per week violated his right to a speedy trial, but
cites no precedent to support his argument. Further, the record supported the trial court’s
finding that the docket was crowded with criminal cases that would take priority over
Davis’s case and there is nothing within the record to suggest that eliminating the civil
docket and adding a trial day to the criminal docket would have altered the necessity of
the continuance.
{¶30} The appellant’s second assignment of error is overruled.

Outcome: The decision of the Richland County Court of Common Pleas is affirmed.

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