State v. Brown

[Cite as State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040.]

THE STATE OF OHIO, APPELLEE, v. BROWN, APPELLANT.

[Cite as State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040.]

Criminal law — Speedy-trial statute — Demand for discovery or bill of

particulars is tolling event pursuant to R.C. 2945.72(E).

(Nos. 2001-1686 and 2001-1688 — Submitted September 17, 2002 — Decided

December 23, 2002.)

APPEAL from and CERTIFIED by the Court of Appeals for Fayette County, No.

CA2000-10-027.

__________________

SYLLABUS OF THE COURT

A demand for discovery or a bill of particulars is a tolling event pursuant to R.C.

2945.72(E).

__________________

PFEIFER, J.

{¶1} Appellant, Anthony David Brown, contends that his counsel was

ineffective because counsel did not assert that Brown’s right to a speedy trial had

been violated. For the reasons that follow, we conclude that Brown’s counsel was

not ineffective and affirm the judgment of the court of appeals.

{¶2} On June 16, 2000, a grand jury in Fayette County returned an

indictment charging Brown with the rape and abduction of Patti Burden. At the

request of the prosecution, the court of common pleas ordered Brown held

without bail pending trial and scheduled a jury trial for September 5, 2000. On

July 18, 2000, Brown filed a request for a bill of particulars and a demand for

discovery. The state responded to this request on July 25, 2000.

SUPREME COURT OF OHIO

{¶3} Brown’s trial began on September 13, 2000, 92 days after Brown’s

arrest on June 13. The jury returned verdicts of guilty on both counts. The court

of common pleas conducted a sentencing hearing on October 12, 2000, and

entered judgment imposing consecutive prison terms of five years and two years

respectively on Brown’s convictions of rape and abduction.

{¶4} On appeal, Brown alleged that his trial counsel was ineffective for

failing to file a motion to dismiss the charges for violation of Ohio’s Speedy Trial

Statute, R.C. 2945.71 and 2945.72. The court of appeals determined that the

delay necessitated by the state’s response to Brown’s request for a bill of

particulars was chargeable to Brown. Therefore, according to the court of

appeals, the total days charged to the state at the time of trial was 85, within the

statutory period.

{¶5} On September 17, 2001, the Court of Appeals for Fayette County

filed an entry certifying a conflict between its judgment and judgments of the First

and Fifth District Courts of Appeals on the following question:

{¶6} “[W]hether the defendant’s filing of a request for discovery or for a

bill of particulars, and the state’s response thereto, extends that time within which

the defendant must be brought to trial under the Ohio speedy trial statute, R.C.

2945.71 et seq.”

{¶7} The cause is now before this court pursuant to the allowance of a

discretionary appeal and this court’s determination that a conflict exists.

{¶8} R.C. 2945.71(C)(2) states:

{¶9} “(C) A person against whom a charge of felony is pending:

{¶10} “* * *

{¶11} “(2) Shall be brought to trial within two hundred seventy days

after the person’s arrest.”

{¶12} R.C. 2945.71(E) states:

2

January Term, 2002

{¶13} “(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.”

{¶14} Brown was held in lieu of bail. Accordingly, to avoid violating

Brown’s rights under R.C. 2945.71, the state had to begin its case within 90 days

of Brown’s arrest. However, the time constraints of R.C. 2945.71 may be

extended in certain circumstances. R.C. 2945.72 states:

{¶15} “The time within which an accused must be brought to trial, or, in

the case of felony, to preliminary hearing and trial, may be extended only by the

following:

{¶16} “* * *

{¶17} “(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.”

{¶18} The court of appeals stated that it is well established that requests

for discovery and motions for bills of particulars are tolling events pursuant to

R.C. 2945.72(E), citing its decision State v. Benge (Apr. 24, 2000), 12th Dist. No.

CA99-05-095, 2000 WL 485524. We agree.

{¶19} In Benge, the court cited several of its own decisions and reviewed

decisions from other courts of appeals around the state, and concluded that only

the Fifth District Court of Appeals was in conflict with the Twelfth District rule.

Id. at fn. 3. The court noted that the Twelfth District rule was followed by the

Third, Eighth, and Tenth District Courts of Appeals. The Second District Court

of Appeals, State v. Scott (Dec. 14, 2001), Miami App. No. 2001 CA 8, 2001 WL

1598016, and the Fourth District Court of Appeals, State v. Heyward (May 18,

1998), Pickaway App. No. 96CA42, 1998 WL 290238, have also adopted the rule.

The First District Court of Appeals has ruled that motions for bills of particular do

not always toll time. State v. Spicer (May 8, 1998), Hamilton App. Nos. C-

3

SUPREME COURT OF OHIO

970480 and C-970454, 1998 WL 226411. The Benge court concluded that the

Twelfth District line of cases was more persuasive and declined to revisit the

issue.

{¶20} The appeal before us is directed at whether Brown’s counsel

provided ineffective assistance. “To win a reversal on the basis of ineffective

assistance of counsel, the defendant must show, first, that counsel’s performance

was deficient and, second, that the deficient performance prejudiced the defense

so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Accord State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the

syllabus.” State v. Jones (2001), 91 Ohio St.3d 335, 354, 744 N.E.2d 1163.

Given the well-established rule that requests for discovery and motions for bills of

particulars are tolling events pursuant to R.C. 2945.72(E), there is not a

“reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373, paragraph three of the syllabus. Accordingly, we conclude that

counsel was not deficient in failing to raise the speedy-trial issue and, therefore,

that Brown was not denied effective assistance of counsel.

{¶21} We turn to the certified question. R.C. 2945.72(E) provides for the

tolling of the speedy-trial time limit for “[a]ny period of delay necessitated by

reason of a * * * motion, proceeding, or action made or instituted by the accused.”

{¶22} This is an issue of first impression in this court. As noted above,

we are aware that a majority of lower courts that have ruled on this issue have

determined that discovery requests are tolling events pursuant to R.C. 2945.72(E).

We agree.

{¶23} Discovery requests by a defendant divert the attention of

prosecutors from preparing their case for trial, thus necessitating delay. If no

4

January Term, 2002

tolling is permitted, a defendant could attempt to cause a speedy-trial violation by

filing discovery requests just before trial. Courts could grant case-by-case

exceptions but would then be in the unenviable position of deciding how close to

trial is too close to request additional discovery. Further, prosecutors could be

forced to make hurried responses to discovery requests to avoid violating the

speedy-trial statute. We conclude that allowing a defendant’s discovery requests

to toll the running of the speedy-trial period is the most sensible interpretation of

R.C. 2945.72(E).

{¶24} “The rationale supporting [the speedy-trial statute] was to prevent

inexcusable delays caused by indolence within the judicial system.” State v. Ladd

(1978), 56 Ohio St.2d 197, 200, 10 O.O.3d 363, 383 N.E.2d 579. Nothing in the

case before us suggests that indolence contributed to the delay in Brown’s trial.

{¶25} Finally, we note that this case revolves around the statutory right to

a speedy trial, not the constitutional right to a speedy trial. See Section 10, Article

I of the Ohio Constitution and the Sixth Amendment to the United States

Constitution.

{¶26} For all the above reasons, we conclude that a demand for discovery

or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E).

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and Lundberg Stratton,

JJ., CONCUR.

COOK, J., dissents.

__________________

COOK, J., dissenting.

{¶27} Because Brown did not properly preserve for review the certified

issue of whether a defendant’s filing of a request for discovery or for a bill of

5

SUPREME COURT OF OHIO

particulars tolls the running of the speedy-trial statutes, this court should dismiss

this cause as having been improvidently allowed.

{¶28} Brown raised the alleged violation of Ohio’s speedy-trial statutes

only as part of a claim of ineffective assistance of counsel. He argues that his

counsel was ineffective for failing to file a motion to dismiss based on speedy-trial

grounds. To demonstrate ineffective assistance, Brown must show, first, that

counsel’s performance was deficient and, second, that the deficient performance

prejudiced the defense so “as to deprive defendant of a fair trial.” Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the

syllabus.

{¶29} Counsel was not deficient in failing to claim a violation of the

Speedy Trial Act here, given that the binding precedent of the appellate district

supported the state’s position. Cf. State v. Hooks (2001), 92 Ohio St.3d 83, 84,

748 N.E.2d 528; State v. Keene (1998), 81 Ohio St.3d 646, 668, 693 N.E.2d 246.

The Twelfth District Court of Appeals had held that a defendant’s request for a

bill of particulars or discovery—both of which Brown’s counsel filed—tolls the

running of the speedy-trial period. See State v. Benge (Apr. 24, 2000), 12th Dist.

No. CA99-05-095, 2000 WL 485524. And as of the date of Brown’s trial, this

court had not addressed the effect of a defendant’s discovery requests on the

running of the speedy-trial period. Thus, the trial court would have been bound to

follow the Twelfth District law in denying any motion to dismiss predicated on

those grounds. Because counsel had no duty under Strickland to file a motion that

would have been unsuccessful, Brown cannot satisfy the first prong of Strickland

by showing that his lawyer’s performance was deficient. This ineffective-

assistance analysis is substantively distinguishable from the judgments of the First

and Fifth District Courts of Appeals that addressed the merits of the speedy-trial

6

January Term, 2002

issue and that served as the purported conflict cases. See State v. Spicer (May 8,

1998), 1st Dist. Nos. C-970480 and C-970454, 1998 WL 226411; State v. Cox

(Apr. 1, 1987), 5th Dist. No. CA-367, 1987 WL 9956.

{¶30} By failing to raise a speedy-trial claim except as part of a claim of

ineffective assistance of counsel, Brown has waived, or forfeited, all but plain

error. Cf. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894;

Partsch v. Haskins (1963), 175 Ohio St. 139, 23 O.O.2d 419, 191 N.E.2d 922.

The majority’s analysis ignores this point and addresses the merits of the speedy-

trial issue. If the speedy-trial issue warrants review by this court, the review must

occur only in the context of whether the failure to discharge Brown on speedy-trial

grounds amounted to plain error. This court could not find plain error here given

that, at the time of trial, this court had not decided the speedy-trial question and

the Ohio appellate districts are split on the issue. See State v. Barnes (2002), 94

Ohio St.3d 21, 28, 759 N.E.2d 1240 (holding that no plain error exists where there

is a lack of a definitive pronouncement from this court and disagreement among

lower courts on an issue, because the alleged error cannot be said to be “plain”).

{¶31} Accordingly, because this court improvidently accepted this cause

as presenting a conflict among the district courts of appeals, I would dismiss it. I

therefore respectfully dissent.

__________________

Dennis C. Belli, for appellant.

Steven H. Eckstein, Fayette County Prosecuting Attorney, for appellee.

Betty D. Montgomery, Attorney General, David M. Gormley, State

Solicitor, and Robert L. Strayer, Assistant Solicitor, urging affirmance for amicus

curiae Attorney General of Ohio.

William F. Schenck and Robert K. Hendrix, urging affirmance for amicus

curiae Ohio Prosecuting Attorneys’ Association.

7

SUPREME COURT OF OHIO

__________________

8