State v. Brown

OPINIONS OF THE SUPREME COURT OF OHIO

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The State of Ohio, Appellant, v. Brown, Appellee.

[Cite as State v. Brown (1992), Ohio St.3d .]

Criminal law -- When defendant makes no request to trial court

to state findings of fact in support of an order

overruling motion to dismiss on speedy trial grounds and

trial court does not state its findings of fact, an

appellate court errs in reversing conviction based on

denial of a speedy trial.

When a defendant makes no request to the trial court to state

findings of fact in support of an order overruling a

motion to dismiss on speedy trial grounds, and the trial

court does not state its findings of fact, an appellate

court errs in reversing a conviction on the ground that

the defendant was denied a speedy trial if there is

sufficient evidence demonstrating that the trial court's

decision was legally justified and supported by the record.

(No. 91-724 -- Submitted April 29, 1992 -- Decided

September 2, 1992.)

Appeal from the Court of Appeals for Trumbull County, No.

90-T-4362.

On October 17, 1989, appellant, Paul Leroy Brown, was

charged with receiving stolen property, a violation of R.C.

2913.51. He was arrested and entered his initial appearance in

the Warren Municipal Court on the next day, October 18. Because

he was unable to post the required bond, Brown was incarcerated.

The case was bound over to the grand jury following a

preliminary hearing on October 24, 1989. On November 6, 1989,

a grand jury indictment was issued upon the charge of receiving

stolen property, and Brown entered a plea of not guilty at his

arraignment.

Brown filed a motion to dismiss the indictment on January

17, 1990, urging application of the "triple-count" provision of

R.C. 2945.71(E), based upon his ninety-one-day incarceration.

The trial court heard oral arguments on this and other motions

at a hearing on January 18. The state asserted that a parole

holder had been placed on Brown on October 17, 1989 based on

his 1975 murder conviction. On January 22, 1990, the state

filed a response to the motion to dismiss, asserting the

inapplicability of R.C. 2945.71(E), because of the parole

holder. Brown did not file a reply memorandum in support of

his motion challenging either the existence or validity of the

alleged parole holder. The court overruled Brown's motion, but

no judgment entry was entered on the record reflecting the

court's ruling. Additionally, Brown's trial counsel, who did

not represent Brown on appeal, did not request the court to

make essential findings of fact pursuant to Crim.R. 12(E). The

case then proceeded to trial beginning on January 29, 1990, one

hundred three days after Brown's arrest. The jury returned a

verdict of guilty.

Brown appealed. The court of appeals, in an entry dated

December 6, 1990, stated that "the record and portions of the

transcript before us do not contain the trial court's essential

findings as to appellant's motion to dismiss, as required by

Crim.R. 13(E) [sic, 12(E)]. We, therefore, are unable to

ascertain the propriety of the trial court's apparent denial of

appellant's motion to dismiss without the portion of the

transcript in which those findings are contained or a judgment

entry stating the court's 'essential findings on the record.'"

The court of appeals, therefore, remanded the case to the

trial court, for a period not to exceed ten days, to supplement

the record with appropriate findings of fact, if any, entered

in connection with its ruling on the motion to dismiss.

Because Brown had not requested findings of fact from the trial

court, no such findings were in the record. On January 3,

1991, the transcript of the hearing on the motion to dismiss

was filed.

On January 28, 1991, the court of appeals issued its

decision and judgment, finding that Brown had been denied his

right to a speedy trial because there was nothing in the record

verifying the existence of the parole holder "except references

to it by the prosecutor and defense counsel" and "[t]he judge

never acknowledged that such a holder was produced for his

inspection." The court of appeals, therefore, reversed Brown's

conviction.

Thereafter, the state filed a motion for reconsideration

pursuant to App.R. 26 and a motion to supplement the record

pursuant to App.R. 9(E). With its motions, the state submitted

the affidavit of the trial judge, which asserted that the

original parole holder was presented to him by the state and

that he overruled Brown's motion based on the fact that the

Ohio Adult Parole Authority had placed an arrest hold on Brown

on the same day he was arrested. On March 18, 1991, the court

of appeals denied both motions, concluding that the state had

failed to demonstrate any obvious error or oversight by the

court as required by App.R. 26, and that the trial judge's

affidavit failed to demonstrate that the parole holder had been

admitted into evidence justifying supplementation of the record.

The cause is now before this court upon the allowance of a

motion for leave to appeal.

Dennis Watkins, Prosecuting Attorney, Peter J. Kontos and

Patrick F. McCarthy, for appellant.

Robert L. Johnson, for appellee.

Moyer, C.J. The sole issue before us is whether an

appellate court errs in reversing a trial court's order

overruling a motion to dismiss on speedy trial grounds where

the defendant fails to request that the trial court make

findings of fact supporting its decision and the court does not

state its findings of fact, but there is evidence on the record

supporting the trial court's decision. For the following

reasons, we conclude that an appellate court errs in such a

situation where there is sufficient evidence demonstrating that

the trial court's decision was legally justified and supported

by the record.

"The Sixth and Fourteenth Amendments to the United States

Constitution guarantee a criminal defendant the right to a

speedy trial by the state. Klopfer v. North Carolina (1967),

386 U.S. 213 [87 S.Ct. 988, 18 L.Ed.2d 1, 41 O.O.2d 168]. This

same right is assured an accused party by Section 10, Article I

of the Ohio Constitution."1 State v. Ladd (1978), 56 Ohio

St.2d 197, 200, 10 O.O.3d 363, 364, 383 N.E.2d 579, 581. See,

also, State v. Singer (1977), 50 Ohio St.2d 103, 106, 4 O.O.3d

237, 238, 362 N.E.2d 1216, 1218, at fn. 2.

The statutory provisions guaranteeing an accused's right

to be tried without inordinate delay are found in R.C. 2945.71

to 2945.73. R.C. 2945.71 states in part:

"(C) A person against whom a charge of felony is pending:

"* * *

"(2) Shall be brought to trial within two hundred seventy

days after his arrest.

"* * *

"(E) For purposes of computing time under divisions (A),

(B), (C)(2), and (D) of this section, each day during which the

accused is held in jail in lieu of bail on the pending charge

shall be counted as three days. * * *" (Emphasis added.)

The existence of a valid parole holder prevents

application of the triple-count provisions of R.C. 2945.71(E).

"R.C. 2945.71(D) [now found in R.C. 2945.71(E)] is applicable

only to those defendants held in jail in lieu of bail solely on

the pending charge." State v. MacDonald (1976), 48 Ohio St.2d

66, 2 O.O.3d 219, 357 N.E.2d 40, paragraph one of the

syllabus. "The triple-count provision of the speedy trial

statute applies to an accused being held in jail solely on the

pending criminal charges. A parole violation is a separate

offense.

"* * *

"Thus, the triple-count provision of R.C. 2945.71(E) is

inapplicable to a defendant held in jail under a parole holder,

even when there are additional criminal charges pending.

* * *" State v. Dunkins (1983), 10 Ohio App.3d 72, 74-75, 10

OBR 82, 85, 460 N.E.2d 688, 692. See, also, State v. Martin

(1978), 56 Ohio St.2d 207, 211, 10 O.O.3d 369, 371, 383 N.E.2d

585, 587.

The transcripts of the hearing on the motion to dismiss

and pretrial conference provide us with a sufficient basis to

conclude that there was a valid parole holder on Brown. At the

hearing on the motion to dismiss, the following exchange

between counsel and the court concerning the motion to dismiss

occurred:

"THE COURT: And third, we have a motion to dismiss the

motion of speedy trial, Mr. Consoldane [Brown's trial

counsel]. Mr. Consoldane, you filed a motion to dismiss?

"MR. CONSOLDANE: Yes, your Honor, I filed that motion

yesterday and I'm prepared to proceed with that motion at this

time. Your Honor, on October 17, 1989, Mr. Brown was taken

into custody on this charge, which is a fourth degree felony.

Since October 17th, he has been held continuously either in

City Jail or the County Jail on these charges; primarily, on

these charges, and that being as of January 17th, being 91

days, not counting the 17th of January. It was 91 days as of

January 16th. In the Section 2945.71, it states that all

felony cases must be heard within 270 days and if the person is

held, confined in lieu of bail, that one day shall count as

three or that he shall be tried within 90 days. This was

brought to the attention of the State prior to filing the

motion, that he wants to exercise this right and they felt they

were not concerned with it. The bond in this case has never

been posted. I know that the State is going to argue that

there has been a parole hold placed on Mr. Brown, but

primarily, the parole hold was placed on him after he was

arrested and was placed on him because he was arrested. The

onsite hearing was taken on at the County Jail and they said

the parolehold [sic] was to be maintained until such time as he

posted bond or the case was terminated. He has not been able

to post bond. That's the reason if he could post bond, that

would trigger a second parole hearing. According to the State

Parole [A]uthority, the only reason he is being held in jail is

because of the bond that was set in this particular case, and I

might add, your Honor, it's an extremely high bond for a fourth

degree felony.

"* * *

"MR. KONTOS [for the state]: This Defendant was arrested

on October 17, 1989, the same date the Adult Parole

[A]uthority, State of Ohio, issued a parole hold for this

Defendant, issuing the same date, which I'm going to submit a

copy to the Court. Your Honor, Section 2945.71 indicates the

fourth degree felony, Defendant must be tried within 270 days

unless he's incarcerated solely on the charge, at which time

there is what they call a three to one provision, which means

in essence, if you're being held solely on one particular

charge, you have 90 days. * * * [I]t's the State's contention,

since there is a parole hold on this Defendant, that he's

entitled to be tried within 270 days, therefore, not three to

one. Therefore, we're several months within the statutory time

* * *."

Brown's trial counsel did not dispute the existence of the

parole holder. In fact, he acknowledged that a parole holder

had been placed on Brown. Instead, he argued that the parole

holder was immaterial because the Adult Parole Authority had

acknowledged that the only reason Brown was being held in jail

was the high bond set by the court on the felony charge.

Further, at the conference in the court's chambers prior to the

start of trial, Brown's trial counsel also acknowledged that

the court had overruled the motion to dismiss. The court's

ruling apparently was based on its belief that there was a

valid parole holder on Brown. No objection was made to the

court's ruling and Brown's counsel did not assert that there

was no parole holder. Only on appeal did Brown through his

appellate counsel aver that the record does not demonstrate the

existence of a valid parole holder on him. Any question

regarding the existence of the parole holder should have been

raised in the trial court. "[W]e must presume the set of facts

that validates, rather than invalidates, the judgment

[below]." State v. Brandon (1989), 45 Ohio St.3d 85, 87, 543

N.E.2d 501, 504, citing Fisher & Lanning v. Quillen (1907), 76

Ohio St. 189, 81 N.E. 182.

Brown argues that in the absence of an express finding of

fact that a parole holder had been issued, no basis exists for

the trial court's denial of his motion to dismiss. Crim.R.

12(E) provides, in pertinent part, that "[w]here factual issues

are involved in determining a motion, the court shall state its

essential findings on the record." "A trial court must, upon

the defendant's request, state essential findings of fact in

support of its denial of a motion to discharge for failure to

comply with the speedy trial provisions of R.C. 2945.71."

Bryan v. Knapp (1986), 21 Ohio St.3d 64, 65, 21 OBR 363, 364,

488 N.E.2d 142, 143. But for a court to have a duty to issue

findings of fact, there must be a request from the defendant.

No request for such findings was made by Brown's trial

counsel. In State v. Benner (1988), 40 Ohio St.3d 301,

317-318, 533 N.E.2d 701, 718, this court stated the following:

"[I]n order to invoke the rule [Crim. R. 12(E)], the

defendant must request that the court state its essential

findings of fact in support of its denial of a motion. See

Bryan v. Knapp (1986), 21 Ohio St.3d 64, 21 OBR 363, 488 N.E.2d

142."

Therefore, a trial court's failure to place of record the

findings of fact essential to its disposition of a motion will

not provide a basis for reversal on appeal in the absence of a

timely request for such findings. Benner, supra; Knapp, supra.

In this case, it would have been helpful if the trial

court had filed findings of fact and a judgment entry

memorializing its ruling and the grounds therefor, or if a copy

of the parole holder had been placed in the record. However,

there was other sufficient evidence of the parole holder for

the trial court to deny Brown's motion to dismiss. The

transcripts of the hearing on the motion to dismiss and the

in-chambers conference on the day of trial provide sufficient

evidence of a parole holder. Therefore, Brown was not entitled

to the triple-count provision of R.C. 2945.71 as he was not

being held solely on the pending charge and his trial was well

within the period required by R.C. 2945.71(C).2

Accordingly, we hold that when a defendant makes no

request to the trial court to state findings of fact in support

of an order overruling a motion to dismiss on speedy trial

grounds, and the trial court does not state its findings of

fact, an appellate court errs in reversing a conviction on the

ground that the defendant was denied a speedy trial if there is

sufficient evidence demonstrating that the trial court's

decision was legally justified and supported by the record.

Therefore, the judgment of the court of appeals is

reversed and the cause is remanded to the trial court for

reinstatement of sentence.

Judgment reversed

and cause remanded.

Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick,

JJ., concur.

FOOTNOTE:

1 Section 10, Article I of the Ohio Constitution provides,

in part:

"In any trial, in any court, the party accused shall be

allowed to appear and defend in person and with counsel; to

demand the nature and cause of the accusation against him, and

to have a copy thereof; to meet the witnesses face to face, and

to have compulsory process to procure the attendance of

witnesses in his behalf, and a speedy public trial by an

impartial jury of the county in which the offense is alleged to

have been committed." (Emphasis added.)

2 We have not relied on or considered the affidavit of the

trial judge filed in the court of appeals with the state's

motion for reconsideration and motion to supplement the record

as it was not part of the record on appeal.