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Date: 01-18-2021
Case Style:
STATE OF OHIO vs. MARCUS A. ERVIN
Case Number: 20CA02
Judge: George C. Smith
Court: IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
Plaintiff's Attorney: James K. Stanley, Meigs County Prosecuting Attorney
Defendant's Attorney:
OR
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Description:
Circleville, Ohio - Criminal defense attorney represented Marcus A. Ervin with a motion to dismiss based upon speedy trial grounds.
{¶2} On February 15, 2018, Appellee, Marcus Ervin, was indicted on one
count of failure to comply with an order or signal of a police officer, a third-degree
felony in violation of R.C. 2921.331(B) & (C)(5)(a)(ii). Ervin failed to appear at
his scheduled arraignment hearing on March 6, 2018, and an arrest warrant was
issued. Thereafter the trial court filed an entry on May 10, 2018, continuing the
case “off the docket until such time as the Sheriff serves the warrant and brings the
Defendant before the Court.” Ervin was apparently incarcerated at some point
after this offense. While incarcerated on another conviction, Ervin delivered to the
prison warden an “Inmate’s Notice of Place of Imprisonment and Request for
Disposition of Indictments, Information or Complaints” in accordance with R.C.
2941.401. The notice and request demanded Ervin be brought to trial on the
failure to comply charge within 180 days. It appears from the record that two
copies of the notice and request were delivered to the county prosecutor’s office on
January 11, 2019, rather than one copy going to the prosecutor’s office and one
copy going to the clerk of courts. It also appears from the record that someone
from the prosecutor’s office signed for and received both copies, and then misfiled
them. As such, neither the prosecutor nor the court were aware of the notice and
request for disposition.
Meigs App. No. 20CA02 3
{¶3} The record indicates that Ervin was conveyed from prison to the court
and he was finally arraigned on the charge at issue on February 11, 2019. Ervin
pleaded not guilty and the matter was scheduled for an initial pretrial conference
on February 25, 2019, a final pretrial conference on March 25, 2019, and a jury
trial on April 9, 2019. Ervin filed a demand for discovery and a request for a bill
of particulars on February 14, 2019. A motion hearing was apparently also
scheduled to take place on March 11, 2019, but it appears the hearing did not
actually take place. An entry filed by the court on March 13, 2019, stated
“Continue motions hearing the defendant is incarcerated and did not appear due to
agreement of the court. State to comply with discovery request by filing discovery
today 3/11/19.” The State filed its response to discovery on March 11, 2019. If a
bill of particulars was filed along with discovery, it does not appear in the record.
{¶4} The final pretrial hearing was held on March 25, 2019, and Ervin was
also arraigned on a new charge with a different case number.1
After Ervin entered
a not guilty plea on the new charge, his counsel explained to the court that he had
just received discovery and in light of the new indictment he asked the court to
vacate the April 9, 2019 trial date and convert it to another final pretrial hearing.
Counsel stated that vacating the jury trial date would give he and his client “a little
1
The hearing transcript indicates the new charge was “a drug case * * * out of the same incident for the * * * failure
to comply.”
Meigs App. No. 20CA02 4
more time.” The trial court granted the request for a continuance and verbally
converted the April 9, 2019 jury trial date to another final pretrial hearing in the
failure to comply case, and also scheduled an initial pretrial hearing on that date in
the new case. A new trial date was not selected at that time. The trial court filed
an entry on March 25, 2019, stating the pretrial hearing scheduled for March 25,
2019, was being continued to April 15, 2019, that the jury trial date was vacated,
and that speedy trial was tolled during the period of this continuance, the reason
being “defendant’s motion to continue jury trial date[.]”2
{¶5} Apparently, the scheduled April 15, 2019 final pretrial was not held.
The trial court filed an entry on April 16, 2019, stating the pretrial hearing was
being continued to June 3, 2019, and scheduling the jury trial on June 25, 2019.
The entry further scheduled a status conference on May 20, 2019, and noted as
follows: “State previously provided an offer to the defendant which is being
considered by the defendant[.] Defendant not present due to not being transported
to the court.” The trial court filed another entry on May 21, 2019, stating “no
motions pending for motions date defendant not brought back prison other dates
remain the same[.]”
2
Although it is unclear, the trial court likely intended to state that the April 9, 2019, pretrial hearing was being
continued to April 15, 2019, as a pretrial hearing was actually conducted on March 25, 2019, and Ervin was present.
Meigs App. No. 20CA02 5
{¶6} A final pretrial hearing was held on June 3, 2019, and Ervin was again
transported from prison and was present. Defense counsel requested another
continuance of the June 25, 2019 jury trial, explaining that his client was reviewing
discovery, that they were in the midst of negotiations with the State, and that there
had been a transportation issue and his client had not been present at the last
scheduled hearing. The State did not object and the court agreed to continue the
jury trial to July 30, 2019, and also scheduled another “final” pretrial hearing on
July 1, 2019.
{¶7} The next “final” pretrial hearing was held on July 1, 2019, and Ervin
was present. Defense counsel requested another continuance of the jury trial,
citing the fact that July 30, 2019, was the first day of his scheduled vacation. A
trial date of August 8, 2019, was offered but defense counsel stated that was soon
after he returned from vacation. August 29, 2019, was thereafter agreed upon by
the parties and the court subsequently issued an entry noting the new jury trial date
and tolling speedy trial time due to “Defendant’s request for continuance.” On
August 28, 2019, the State filed a written motion to continue the jury trial because
the State’s witness from the laboratory would not be available to testify.3
The
3
It is unclear why the State needed someone from a lab to testify in a failure to comply case, unless there was an off
the record plan discussed to try the new case at the same time as the failure to comply case.
Meigs App. No. 20CA02 6
motion was granted and the trial court issued an entry on September 3, 2019,
continuing the jury trial from August 29, 2019, to November 7, 2019.
{¶8} However, on November 7, 2019, the date of the scheduled trial, Ervin
filed a motion to dismiss for lack of speedy trial. His motion requested dismissal
with prejudice of the pending charge, pursuant to R.C. 2945.71-73 and R.C.
2941.401. The motion specifically alleged the prosecution had failed to commence
trial within the statutory time period of 180 days, as required by R.C. 2941.401.
The memorandum in support of the motion referenced Ervin’s service of a written
notice of his place of imprisonment and request for final disposition that was
served on January 11, 2019. It was not until the motion to dismiss was filed that
the prosecutor and the court became aware of the notice and request that was
previously delivered but misfiled. The court continued the jury trial to December
17, 2019, to permit the State to respond to Ervin’s motion. The State subsequently
filed a memorandum in opposition to the motion to dismiss on November 18, 2019,
arguing that only 119 speedy trial days had passed.
{¶9} Thereafter, on December 16, 2019, the trial court issued an entry
dismissing the case, with prejudice, for failure to bring Ervin to trial within the
180-day time limit required by R.C. 2941.401. The entry contained no findings of
fact in support of the court’s decision. The State filed a motion for findings of fact
and reasons for the dismissal on December 20, 2019. In response, the trial court
Meigs App. No. 20CA02 7
filed its findings for dismissal on January 14, 2020, which ultimately determined
that 205 days had passed for purposes of speedy trial. The State then filed its
timely appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
I. “THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED
DEFENDANT’S MOTION TO DISMISS FOR LACK OF SPEEDY
TRIAL.”
{¶10} In its sole assignment of error, the State contends the trial court erred
in granting Ervin’s motion to dismiss based upon speedy trial grounds. The State
argues the trial court erred in its overall calculation of speedy trial days and it also
argues that the trial court erred in its determination regarding several tolling events.
The State concedes that the 180-day speedy trial limit contained in R.C. 2941.401
applies despite Ervin’s failure to actually serve a copy of his notice and request for
disposition on the trial court, but the State contends that only 119 days of speedy
trial time had passed at the time Ervin filed his motion to dismiss. Ervin, on the
other hand, concedes that the trial court’s calculation of 205 speedy trial days was
incorrect, but he contends that 195 speedy trial days passed, requiring dismissal of
the charge against him.
Standard of Review
{¶11} A review of the record below indicates Ervin filed a motion to dismiss
based upon statutory speedy trial grounds on November 7, 2019, the day of his
Meigs App. No. 20CA02 8
scheduled trial. The motion was subsequently granted by the trial court on
December 16, 2019. Appellate review of a trial court's decision on a motion to
dismiss for a violation of speedy trial requirements presents a mixed question of
law and fact. State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702,
¶ 23; State v. Brown, 131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist. 1998).
Thus, appellate courts will defer to a trial court's findings of fact as long as
competent, credible evidence supports them. Brown at 391. Appellate courts then
independently determine whether the trial court properly applied the law to the
facts. Id. “Furthermore, when reviewing the legal issues presented in a speedy
trial claim, we must strictly construe the relevant statutes against the state.” Id.,
citing Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996).
{¶12} Here, the trial court initially issued a judgment entry simply granting
the motion to dismiss, without including any findings of facts. However, in
response to the State’s subsequent, written request for findings of fact, the trial
court issued a three-page document titled “Findings for Dismissal.” The trial
court’s findings included an analysis of elapsed speedy trial days, taking into
consideration several tolling events which extended speedy trial time. The trial
court ultimately concluded 205 speedy trial days had elapsed, which exceeded the
180-day limit contained in R.C. 2941.401. The State now argues on appeal that the
Meigs App. No. 20CA02 9
trial court erred in its analysis of the speedy trial time which elapsed and thus erred
in granting Ervin’s motion.
Legal Analysis
{¶13} The Sixth Amendment to the United States Constitution guarantees an
accused the right to a speedy trial in all criminal prosecutions. That guarantee is
applicable to the states through the Fourteenth Amendment Due Process Clause.
Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 18 L.Ed.2d 1
(1967). Similar protection is afforded under Section 10, Article I of the Ohio
Constitution. See State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589 (1971),
paragraph one of the syllabus (“The provisions of Section 10, Article I of the Ohio
Constitution and of the Sixth Amendment to the United States Constitution, as
made applicable to the states by the Fourteenth Amendment, guarantee to a
defendant in a criminal case the right to a speedy trial.”). Furthermore, Ohio law
also includes a statutory speedy-trial right. See R.C. 2945.71 et seq. However, the
statutory and constitutional rights are separate and distinct from one another. State
v. Hilyard, 4th Dist. Vinton No. 05CA598, 2005-Ohio-4957, ¶ 7.
{¶14} R.C. 2945.71(C)(2) provides that a criminal defendant charged with a
felony shall be brought to trial within 270 days of his arrest. However, when a
defendant is incarcerated on other charges, as Appellant was in this case, R.C.
2941.401 prevails over the general speedy trial statutes of R.C. 2945.71 et seq.,
Meigs App. No. 20CA02 10
governing the time within which the defendant must be brought to trial. State v.
Cox, 4th Dist. Jackson No. 01CA10, 2002-Ohio-2382, ¶ 17, citing State v. Davis,
4th Dist. Ross No. 96CA2181, 1997 WL 305217 (June 4, 1997), citing State v.
Hill, 4th Dist. Meigs No. 96CA4, 1996 WL 754250 (Dec. 30, 1996); see also State
v. Pesci, 11th Dist. Lake No. 2001-L-026, 2002-Ohio-7131, ¶ 41. As set forth
above, Ervin moved for dismissal of this case based upon statutory speedy trial
grounds, not constitutional grounds. As such, this case involves the interpretation
of a statute, which we review de novo, without deference to the trial court's
determination. In re Adoption of T.G.B., 4th Dist. Adams Nos. 11CA919,
11CA920, 2011-Ohio-6772, ¶ 4.
{¶15} “ ‘The primary goal of statutory construction is to ascertain and give
effect to the legislature's intent in enacting the statute. * * * The court must first
look to the plain language of the statute itself to determine the legislative intent.’ ”
Id., quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512,
¶ 9. If the meaning of a statute is unambiguous and definite, we must apply it as
written and without further interpretation. Mathews v. Waverly, 4th Dist. Pike No.
08CA787, 2010-Ohio-347, ¶ 23. Only if a statute is unclear and ambiguous may
we interpret it to determine the legislature's intent. State v. Chappell, 127 Ohio
St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. Further, because the Supreme
Court of Ohio has held that R.C. 2941.401 is not ambiguous, we need not interpret
Meigs App. No. 20CA02 11
it; we must simply apply it. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio969, 804 N.E.2d 471, ¶ 13, 20; State v. Miller, 4th Dist. Athens No. 11CA26,
2012-Ohio-1823, ¶ 7. “Furthermore, when reviewing the legal issues presented in
a speedy trial claim, we must strictly construe the relevant statutes against the
state.” State v. Fisher, 4th Dist. Ross No. 11CA3292, 2012-Ohio-6144, ¶ 8; see
also State v. Brown, 131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist. 1998).
{¶16} R.C. 2941.401 governs the time within which the state must bring an
incarcerated defendant to trial and provides as follows:
“When a person has entered upon a term of imprisonment in a
correctional institution of this state, and when during the
continuance of the term of imprisonment there is pending in this
state any untried indictment, information, or complaint against
the prisoner, he shall be brought to trial within one hundred
eighty days after he causes to be delivered to the prosecuting
attorney and the appropriate court in which the matter is pending,
written notice of the place of his imprisonment and a request for
a final disposition to be made of the matter, except that for good
cause shown in open court, with the prisoner or his counsel
present, the court may grant any necessary or reasonable
continuance. The request of the prisoner shall be accompanied
by a certificate of the warden or superintendent having custody
of the prisoner, stating the term of commitment under which the
prisoner is being held, the time served and remaining to be served
on the sentence, the amount of good time earned, the time of
parole eligibility of the prisoner, and any decisions of the adult
parole authority relating to the prisoner.
The written notice and request for final disposition shall be given
or sent by the prisoner to the warden or superintendent having
custody of him, who shall promptly forward it with the certificate
to the appropriate prosecuting attorney and court by registered or
certified mail, return receipt requested.
Meigs App. No. 20CA02 12
The warden or superintendent having custody of the prisoner
shall promptly inform him in writing of the source and contents
of any untried indictment, information, or complaint against him,
concerning which the warden or superintendent has knowledge,
and of his right to make a request for final disposition thereof.
Escape from custody by the prisoner, subsequent to his execution
of the request for final disposition, voids the request. If the action
is not brought to trial within the time provided, subject to
continuance allowed pursuant to this section, no court any longer
has jurisdiction thereof, the indictment, information, or
complaint is void, and the court shall enter an order dismissing
the action with prejudice. * * *.”
{¶17} In State v. Hairston, supra, at ¶ 20, the Supreme Court of Ohio held
that “R.C. 2941.401 places the initial duty on the defendant to cause written notice
to be delivered to the prosecuting attorney and the appropriate court advising of the
place of his imprisonment and requesting final disposition [.]” The Court further
held that “the statute imposes no duty on the state until such time as the
incarcerated defendant provides the statutory notice.” Id.
{¶18} To summarize, we explained in State v. James, supra, at
¶ 25 as follows:
“In its plainest language, R.C. 2941.401 grants an incarcerated
defendant a chance to have all pending charges resolved in a
timely manner, thereby preventing the state from delaying
prosecution until after the defendant has been released from his
prison term.” State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio969, 804 N.E.2d 471, ¶ 25. The statute thus “requires a warden
or prison superintendent to notify a prisoner ‘in writing of the
source and contents of any untried indictment’ and of his right
‘to make a request for final disposition thereof.’ ” State v. Dillon,
Meigs App. No. 20CA02 13
114 Ohio St.3d 154, 2007-Ohio-3617, 870 N.E.2d 1149,
syllabus.
{¶19} Here, it appears that despite complying with the requirements of R.C.
2941.401 on his end, the court’s copy of the notice and request for disposition was
delivered to the prosecutor’s office instead of the clerk’s office, where it was
misfiled along with the prosecutor’s copy. The State concedes R.C. 2941.401
applies in spite of the service error and does not raise any argument on appeal
regarding the failure of service upon the court. Further, it appears as though
service errors such as this are generally not imputed to a defendant where the
record indicates the defendant otherwise complied with the statutory requirements.
See State v. Gill, 8th Dist. Cuyahoga No. 82742, 2004-Ohio-1245, ¶ 17; State v.
Adams, 2015-Ohio-4720, 49 N.E.3d 814, ¶ 13, fn 1.
{¶20} Further, R.C. 2945.72 provides that the time within which an accused
charged with a felony must be brought to trial may be extended 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;
Meigs App. No. 20CA02 14
(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;
(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.
(Emphasis added).
Importantly, this Court explained in State v. James, supra, as follows:
“The tolling provisions of R.C. 2945.72 apply to the 180-day
speedy trial time limit of R.C. 2941.401.” State v. Taylor, 7th
Dist. Columbiana No. 08CO36, 2011-Ohio-1001, ¶ 15, citing
State v. Skorvanek, 9th Dist. Lorain No. 08CA009400, 2010-
Ohio-1079; State v. Shepherd, 11th Dist. Ashtabula No. 2003-A0028, 2006-Ohio-4315; State v. Ray, 2nd Dist. Greene No. 2004-
CA-64, 2005-Ohio-2771; State v. Nero, 4th Dist. Athens No.
1392 (Apr. 4, 1990). In Nero, we discussed whether the tolling
provisions contained in R.C. 2945.72 apply to R.C. 2941.401 and
explained:
Meigs App. No. 20CA02 15
“R.C. 2945.71 does not specifically state that the tolling
provisions therein are applicable to R.C. 2941.401. However,
R.C. 2941.401 states, in pertinent part, ‘except that for good
cause shown in open court, with the prisoner or his counsel
present, the court may grant any necessary or reasonable
continuance.’ The General Assembly, in enacting R.C. 2945.72,
has legislated what are reasonable continuances. We therefore
conclude that the factors set forth in R.C. 2945.72 are applicable
to R.C. 2941.401.”
State v. James at ¶ 20, citing State v. Nero at ¶ 1; accord State v. Curry, 4th Dist.
Scioto No. 95CA2339, 1997 WL 600056 (Sept. 30, 1997).
{¶21} As set forth above, R.C. 2945.92(E) provides that the time within
which an accused must be brought to trial is extended by “[a]ny period of delay
necessitated by reason of a plea in bar or abatement, motion, proceeding, or action
made or instituted by the accused[.]” Further, R.C. 2945.72(H) provides that the
time within which an accused must be brought to trial is extended 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[.]”
Additionally, as we have explained, R.C. 2945.72 applies to cases that must be
tried in accordance with the R.C. 2941.401 180-day speedy trial limit.
{¶22} In the case at bar, we begin counting the 180-day time period on
January 11, 2019, which both parties agree started the speedy trial clock running.
One hundred eighty days from that date would have been July 10, 2019; however,
Ervin was not brought to the court for a jury trial until November 7, 2019, which
Meigs App. No. 20CA02 16
was 120 days beyond the speedy trial limit. As such, Ervin established a prima
facie case for dismissal due to a R.C. 2941.401 speedy trial violation. “Once a
defendant establishes a prima facie case for dismissal, the burden shifts to the state
to prove that the time was sufficiently tolled to extend the period.” State v. Smith,
4th Dist. Lawrence No. 16CA10, 2017-Ohio-7864, ¶ 21, citing State v. Squillace,
10th Dist. Franklin No. 15AP-958, 2016-Ohio-1038, ¶ 14 and State v. Anderson,
4th Dist. Scioto No. 15CA3696, 2016-Ohio-7252, ¶ 19.
{¶23} As noted by the State, the trial court granted several continuances,
most of which were requested by Ervin. The trial court determined 205 days had
elapsed for purposes of speedy trial. Both parties agree, however, that the trial
court miscalculated the days in its findings for dismissal. Instead, the parties agree
that the days counted by the trial court, minus certain tolling events, actually added
up to 195 days, not 205 days.4
That is where the agreement between the parties
ends. The State contends on appeal that only 119 speedy trials passed, while Ervin
contends 195 speedy trial days passed.
{¶24} We begin with a review of the speedy trial time as determined by the
trial court. In its findings for dismissal, the trial court summarized the speedy trial
time that had elapsed as follows:
4
The error in the trial court’s calculation relates to the court’s calculation of speedy trial days between April 16,
2019 and July 1, 2019, which the trial court calculated as 86 days rather than 76 days because the trial court
mistakenly used the end date of July 11th instead of July 1st.
Meigs App. No. 20CA02 17
1/11/19 to 2/14/19 = 34 days
3/11/19 to 3/25/19 = 14 days
4/16/19 to 7/11/19 = 86 days
8/28/19 to 11/7/19 = 71 days
Total speedy trail [sic] days = 205
More specifically, the trial court determined the speedy trial clock began to run on
January 11, 2019, and continued to run until February 14, 2019, when Ervin filed a
demand for discovery and a request for a bill of particulars. At this point, the trial
court determined 34 speedy trial days had elapsed. We agree with this
determination. The court further found the speedy trial clock started to run again
on March 11, 2019, when the State complied with discovery.
{¶25} As noted above, although the record indicates the State complied with
discovery on March 11, 2019, there is nothing in the record that demonstrates the
State ever filed the requested bill of particulars. Likewise, there is nothing in the
record that demonstrates Ervin ever complied with the State’s reciprocal discovery
request. In addressing a speedy trial argument, the Supreme Court of Ohio, in
State v. Palmer, held that “[t]he failure of a criminal defendant to respond within a
reasonable time to a prosecution request for reciprocal discovery constitutes
neglect that tolls the running of the speedy-trial time pursuant to R.C. 2945.72(D).”
State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, paragraph
Meigs App. No. 20CA02 18
one of the syllabus. Although the State did not pursue the court to compel Ervin to
respond to discovery, the Palmer Court also held that “[t]he tolling of statutory
speedy-trial time based on a defendant’s neglect in failing to respond within a
reasonable time to a prosecution request for discovery is not dependent upon the
filing of a motion to compel discovery by the prosecution.” Id. at paragraph two of
the syllabus, citing Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138
(1987). However, the Palmer Court also held that “[a] trial court shall determine
the date by which a defendant should reasonably have responded to a reciprocal
discovery request based on the totality of facts and circumstances of the case,
including the time established for response by local rule, if applicable.” Palmer at
paragraph three of the syllabus. Here, Ervin did not challenge the State’s failure to
provide a bill of particulars and the State did not pursue Ervin’s failure to comply
with discovery. Moreover, the trial court did not address it, nor did it establish any
compliance deadlines. Considering that both parties failed to comply in this regard
and that this noncompliance did not appear to factor into the court’s speedy trial
calculation, we choose not to delve into an analysis of any additional days that may
have either passed or tolled as a result of these mutual failures in complying with
discovery.
{¶26} Moving ahead, and still focusing on the date of March 11, 2019, the
court also noted that Ervin was not transported to the scheduled hearing on March
Meigs App. No. 20CA02 19
11, 2019. The court determined that the speedy trial clock began to run again on
March 11, 2019, and ran until March 25, 2019, when Ervin requested a
continuance of the jury trial scheduled for April 9, 2019. At this point, the trial
court determined a total of 48 speedy trial days had elapsed. We also agree with
this determination.
{¶27} The trial court noted in its findings that Ervin’s March 25, 2019
request for a continuance of the April 9, 2019 jury trial only tolled the time until
his next hearing, which was April 16, 2019, because Ervin was not transported to
the hearing as ordered. The trial court found the speedy trial clock began to run
again on this date because Ervin failed to appear through no fault of his own.
Thus, the court determined that the speedy trial clock began to run again on April
16, 2019, and continued to run until July 1, 2019, when he was brought before the
court and requested a continuance of his July 30, 2019 jury trial, which was
rescheduled to August 29, 2019. The court found 86 days5
of speedy trial time
elapsed between April 16, 2019, and July 1, 2019, for a total of 134 speedy trial
days at that point. We disagree with these determinations.
{¶28} Next, the court found speedy trial time was tolled beginning July 1,
2019, until the rescheduled date of the jury trial on August 29, 2019. We agree
with this determination. Finally, the court found that the speedy trial clock began
5
As noted above, the trial court miscalculated the days, which actually totaled 76 days.
Meigs App. No. 20CA02 20
to run again on August 29, 2019, when the State requested a continuance of the
jury trial, and began to run until November 7, 2019, when Ervin filed a motion to
dismiss based upon speedy trial grounds. The court found another 71 speedy trial
days elapsed between August 29, 2019, and November 7, 2019, for a total of 205
speedy trial days, which actually should have been 195 speedy trial days, as
explained above.
{¶29} We disagree with the trial court’s determinations regarding the time
period between March 25, 2019, and July 1, 2019. We conclude the trial court
correctly found that speedy trial time was tolled beginning on March 25, 2019, due
to Ervin’s request for a continuance of the April 9, 2019 jury trial. However, we
conclude the trial court mistakenly determined the speedy trial clock started
running again when Ervin failed to be transported from prison to attend the April
16, 2019 hearing. The trial court correctly determined in its March 25, 2019 entry
that speedy trial was tolled beginning on that date due to Ervin’s motion to
continue the April 9, 2019 jury trial. Speedy trial time should have been tolled at
that point until June 25, 2019, which was the rescheduled date of the jury trial. See
State v. James, supra, at ¶ 5, 30. Further, in State v. Smith, this Court opined as
follows:
Where a trial court must reschedule a trial because of a motion
of the accused, regardless of whether it is styled as a motion for
a continuance, the entire time between the motion and the
rescheduled trial date is a delay attributable to a motion filed by
Meigs App. No. 20CA02 21
the accused under R.C. 2945.72(E). State v. Phillips, 4th Dist.
Highland No. 09CA13, 2009-Ohio-7069, ¶ 25. Smith's reliance
on State v. Bailey, 4th Dist. Ross No. 14CA3461, 2015-Ohio5483, ¶ 32, to claim that the speedy-trial period started again after
the trial court appointed new counsel for him on December 7, is
misplaced because the appointment of new counsel in that case
did not necessitate the rescheduling of the trial date.
State v. Smith, supra, at ¶ 29.
{¶30} Thus, Smith unequivocally stated that the entire time between the
motion of an accused which necessitates the rescheduling of a trial date and the
new trial date is tolled for purposes of speedy trial.
{¶31} This Court reexamined the issue of tolling of speedy trial in response
to a defendant’s request to continue a jury trial in State v. Brooks, 2018-Ohio-2210,
114 N.E.3d 220. In Brooks, this Court determined the entire period between an
original trial date and the rescheduled trial date was not always tolled, despite the
reasoning set forth in Smith. Brooks at ¶ 36. In Brooks, we reviewed the holding
in Smith and noted that the entire period of time was tolled in Smith, in part,
because it was determined that the continuance of the trial date was reasonable in
both purpose and length, and also because Smith stated he did not care how long
the continuance was as long as his new counsel had time to prepare for trial. Id. In
Brooks, this Court ultimately determined that the length of the continuance at issue
was not reasonable because it was not completely clear that the rescheduled trial
Meigs App. No. 20CA02 22
date was the first date the court had available, and where the court had sua sponte
rescheduled the trial date and Brooks had not acquiesced in the continuance.
{¶32} We find the facts before us align more with Smith than with Brooks.
Here, Ervin clearly requested a continuance of the April 9, 2019 trial date in order
to have more time to prepare for trial. When the trial court issued the entry setting
a new trial date on June 25, 2019, Ervin did not object. Instead, he went on to ask
for a continuance of the June 25, 2019 trial date on June 3rd and a continuance of
the July 30th trial date on July 1st. Moreover, we conclude that the trial court’s
rescheduling of the April 9, 2019 trial date to June 25, 2019, was per se reasonable,
despite the fact that during that time period Ervin failed to be transported to an
intervening hearing on April 15th. “ ‘[T]he Supreme Court of Ohio has suggested
that, in addition to the facts and circumstances of the case, courts should consider
the time limits imposed by court rules in determining how long to toll the speedy
trial period.’ ” State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312,
¶ 26, quoting State v. Staffin, 4th Dist. Ross No. 07CA2967, 2008-Ohio-338, at
¶ 18, in turn citing State v. Palmer, supra, at ¶ 24. Furthermore, “ ‘[t]his Court and
others have suggested that the 120-day period prescribed in Sup.R. 40 for ruling on
a motion “serves as an indication of what a reasonable amount of time would be in
a typical case.” ’ ” Carr at ¶ 26, quoting Staffin at ¶ 18, in turn quoting State v.
Keaton, 4th Dist. Pickaway No. 95CA15, 1996 WL 271704, *2 (May 16, 1996).
Meigs App. No. 20CA02 23
{¶33} Thus, going back to the trial court’s tolling determinations in the case
presently before us, we conclude the fact that Ervin was not transported to the
April 16, 2019 hearing was of no consequence, as it occurred during the course of
an overarching tolling event, and this intervening event should not have started the
speedy trial clock. Instead, the speedy trial clock was tolled beginning on March
25, 2019, when Ervin requested a continuance of the April 9, 2019 jury trial date
and it continued to be tolled until June 25, 2019, which was the rescheduled date of
the jury trial. Prior to the scheduled June 25, 2019 jury trial, another final pretrial
hearing was held on June 3, 2019. At that time, Ervin requested that the June 25,
2019 jury trial be continued as well, citing the need for further time to review
discovery and continue plea negotiations. In support of his request for the
continuance, defense counsel noted that Ervin was not transported and thus did not
attend a status conference that was held on May 20, 2019.
{¶34} The State stated it had no objection to the continuance in light of the
fact that Ervin had not been at the prior hearing. Thus, the trial court continued the
jury trial to July 30, 2019. If any time period should have counted against the State
for purposes of speedy trial it should have been the period of this continuance,
which was granted, in part, due to the State’s failure to transport Ervin to court for
a scheduled hearing. Thus, the speedy trial clock would have started to run again
on June 25th. However, it stopped running on July 1, 2019, when Ervin requested
Meigs App. No. 20CA02 24
a continuance of the July 30, 2019 jury trial due to the fact that defense counsel
was scheduled to be on vacation. As such, time began to be tolled again July 1,
2019, due to Ervin’s request for a continuance and continued to be tolled until
August 29, 2019, which was the date upon which the trial was rescheduled.
Finally, the speedy trial clock began to run again on August 29, 2019, due to the
State’s request for a continuance and began to run until Ervin filed his motion to
dismiss on November 7, 2019.
¶35} In summary, considering the above dates and tolling events, we believe
the following is a correct reflection of the speedy trial dates and tolling periods:
•1/12/19 (clock starts) – 2/14/19 (discovery requested) = 34 days
•2/14/19 time tolled until 3/11/19 (discovery provided)
•3/11/19 (clock starts) until 3/25/19 (jury trial continuance requested)
= 14 days
•3/25/19 time tolled until 6/25/19 (rescheduled jury trial date)
•6/25/19 (clock starts) – 7/1/19 (jury trial continuance requested) = 6
days6
•7/1/19 time tolled until 8/29/19 (rescheduled jury trial date)
6
We conclude the speedy trial clock started running again on 6/25/19 and ran until 7/1/19 in light of Ervin’s prior
motion to continue the 6/25/19 jury trial based, in part, upon the State’s failure to transport him to a prior hearing.
Thereafter, the clock would have continued to run until the 7/30/19, which was the rescheduled jury trial date;
however, on July 1, 2019, Ervin requested a continuance of the 7/30/19 jury trial date because defense counsel was
scheduled to be gone on vacation at that time. Thus, the 7/1/19 request for continuance tolled the speedy trial clock
until the 8/29/19 rescheduled jury trial. Further, it appears the State omitted these 6 days in its 119-day speedy trial
calculation.
Meigs App. No. 20CA02 25
•8/29/19 (clock starts due to State’s request for a continuance of the
jury trial) until 11/7/19 (motion to dismiss filed) = 59 days7
•Total speedy trial days elapsed: 113 days
Thus, only 113 speedy trial days had elapsed at the time Ervin filed his motion to
dismiss, which was well below the 180-day limit contained in R.C. 2941.401.
Outcome: Therefore, we conclude the State’s sole assignment of error has merit
and that the trial court erred in granting Ervin’s motion to dismiss based upon
speedy trial grounds. Thus, the assignment of error is sustained. Accordingly, the
judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion
Plaintiff's Experts:
Defendant's Experts:
Comments: