State v. High

Vukovich, Judge,

dissenting.

What my colleagues in the majority have accomplished is a form of legal alchemy wherein they have transformed the prosecutor’s requests for a saliva

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sample and for a continuance into activities chargeable to the defendant for the purpose of determining whether the defendant’s right to a speedy trial has been violated. They have done so despite the fact that the trial court (1) failed to state its reasons for granting the aforementioned continuance; (2) failed to state to whom the continuance was chargeable; and (3) failed to state why it was necessary to reschedule the trial beyond the date the defendant had to be brought to trial as set forth in Ohio’s speedy trial statute, R.C. 2945.71. While I applaud the ingenuity of my colleagues, I cannot condone such creativity at the expense of fundamental constitutional rights. Accordingly, I respectfully dissent for the reasons hereinafter set forth.

I. FACTS

There appears to be no real dispute concerning the operative facts of this case relative to the issue of appellant’s right to a speedy trial:

1. Defendant-appellant never expressly waived his right to a speedy trial;

2. Appellant was continuously incarcerated awaiting trial from his arrest on July 24, 1997, to the date his trial actually commenced on February 9, 1998;

3. To comply with the speedy trial provisions of R.C. 2945.71, the accused should have been brought to trial by October 22, 1997, unless the time period contemplated in that section was extended pursuant to R.C. 2945.72;

4. There was no appellant-initiated motion, proceeding, or action prior to October 22,1997;

5. On September 12, 1997, the accused executed a form entitled “CONSENT TO SEARCH” for the voluntary “collection and removal of saliva samples”;

6. On September 15, 1997, the aforementioned “CONSENT” was filed with the clerk of courts, along with a motion by the prosecutor to continue the trial scheduled for October 1,1997;

7. On September 19, 1997, the trial court, without explanation, granted the motion of the prosecutor for a continuance, and set the matter for trial on November 3, 1997, eleven days past the date the accused had to have been brought to trial pursuant to the aforementioned speedy trial provisions of the Ohio Revised Code.

II. APPLICABLE STATUTES

R.C. 2945.71 time within which hearing or trial must be held, and states that a person accused of a felony “[s]hall be brought to trial within two hundred seventy days after his arrest,” or within ninety days if the “accused is held in jail in lieu of bail on the pending charge.” See R.C. 2945.71(C)(2) and (E). Here, appellant

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was arrested on July 24,1997. He was charged with a felony and was held in jail in lieu of bail on the charges pending against him. Accordingly, he was required to be tried no later than ninety days after his arrest, which was October 22,1997. By statutory mandate, the fact that he was tried after that date is fatal unless the period of time set forth in R.C. 2945.71 is extended pursuant to R.C. 2945.72.

As the majority correctly observed, only two of the provisions of R.C. 2945.72 are even remotely applicable to the case

sub judice.

They are R.C. 2945.72(E) and (H), which respectively provide that the time within which an accused must be brought to trial may be extended only by:

“(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;

"* * *

“(H) The period of any continuance granted

on the accused’s oum motion,

and the period of any

reasonable

continuance granted other than upon the accused’s own motion.” (Emphasis added.)

For the reasons which follow, it is clear that neither of the foregoing provisions can operate to extend the time within which appellant was required to be brought to trial.

III. R.C. 2945.72(E)

When reading R.C. 2945.72, one cannot help but note that the first five sections all possess a common denominator. That is, in each of those sections, there is a direct nexus between some act or action by the accused and the delay in the trial. Specifically, R.C. 2945.72(E) clearly states that to be counted or charged against the accused, the delay in trial necessitated by a plea bargain or an abatement motion, or any proceeding, or any action,

must

be made or instituted by the accused.

Here, none of the aforementioned events was initiated by the accused. Therefore, R.C. 2945.72(E) is inapplicable to the case at bar unless one equates the consent of the accused to the saliva test requested by the prosecutor as being the same as a motion, proceeding, or action made by the accused. Such an interpretation would be improper for at least two reasons.

First and foremost, such a conclusion flies in the face of the plain meaning of the statute. The accused here did not request that a saliva test be taken. Nor did he request a continuance of his trial. In both instances, it was the action of the prosecutor that precipitated each event. Unless one reads the words “acquiesced to” as being synonymous with “made or instituted by the accused,”

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there is no logical way that giving consent to a saliva test operated

ipso facto

to extend the time appellant had to be brought to trial.

Second, the continuance filed by the prosecutor for the alleged purpose of awaiting the saliva test results cannot change the motion made or instituted by the prosecutor into a motion made or instituted by the accused as contemplated by R.C. 2945.72(E). Obviously, there would be no need for the language set forth in R.C. 2945.72(H) and its reference to continuances “granted other than upon the accused’s own motion” if R.C. 2945.72(E) is also applicable to continuances granted other than at the initiation of the accused.

While my colleagues in the majority state that the “signing of a consent form can only be called an ‘action made * * * by the accused’ contemplated within R.C. 2945.72(E),” they were careful not to specifically say that their affirmance was based upon said section. Apparently they recognize that such a loose interpretation could mean that all pretrial consents could operate to extend the trial date of an accused. If consent to a police lineup or a body fluid sample, or any other procedure requested by the police and/or prosecution would operate to automatically extend one’s right to trial, no one would ever have to be brought to trial in ninety days.

Finally, I am troubled that the majority even intimates that a consent to a saliva sample falls within the purview of R.C. 2945.72(E). The accused did not have much of a choice in the matter. If the prosecutor wants a sample of a bodily fluid, it can be forcibly obtained pursuant to a search warrant. The accused should not have to give up a constitutional right to a speedy trial in order to avoid the issuance of a warrant. At least in this district, defense attorneys who wish to preserve their client’s right to a speedy trial would be well advised, based upon this case, to refuse all cooperation and require the prosecutor to obtain a search warrant. Otherwise, they may inadvertently extend their client’s speedy trial time.

IV. R.C. 2945.72(H)

The majority specifically held that “the trial court’s grant of continuance of eleven days beyond the original try-by date constituted a reasonable extension pursuant to R.C. 2945.72(H).” With all due respect to my colleagues, I And nothing in the record to indicate that the continuance in question was reasonable, and nothing in the law to find that it must be chargeable to the accused.

V. REASONABLENESS

Since the first part of R.C. 2945.72(H) deals with extensions of time as a result of a motion filed by the accused, we are again back to the issue hereinabove

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discussed relative to the legal significance of appellant’s execution of a consent form for the prosecutor to obtain a saliva sample for testing. Unlike the majority, I cannot equate consent of an accused to a request by a prosecutor for a saliva test to be an implied request for a continuance chargeable to the accused. Like the majority, I can find no case law in support of such a proposition.

Moreover, I would hold that whenever you have a question as to whether a right guaranteed by the Constitutions of the United States and the state of Ohio was waived, it is far better that such a waiver be express and unequivocal than it is to find that the right was impliedly waived. Here, if the accused did not want to go to trial without the results of a saliva test, he could have joined in the request of the prosecutor for a continuance. This court should neither assume such a motive nor attribute such motivation to fill the void left by a deficient judgment entry.

More troublesome, at first blush, is the second part of R.C. 2945.72(H), wherein the time for an accused’s trial might be extended by “the period of any reasonable continuance granted other than upon the accused’s own motion.” The key word, of course, is “reasonable.” The key question here, therefore, is whether the trial continuance granted by the common pleas court was “reasonable.”

The obvious starting point for such a determination focuses on the reasons given by the trial court. However, no reasons were given in the case

sub judice.

In fact, the trial court’s entry, in its entirety, merely stated:

“The State of Ohio’s Motion for Continuance of the Jury Trial scheduled for October 1, 1997 is hereby sustained. The Court orders that the matter be reset to the 3rd day of November, 1997, at 1:30 p.m.”

Since the trial court did not state its reasons for granting the state’s motion for a continuance, I submit that it is virtually impossible to determine its reasonableness. That is why the Ohio Supreme Court held:

“When

sua sponte

granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.”

State v. Mincy

(1982), 2 Ohio St.3d 6 , 2 OBR 282, 441 N.E.2d 571 , syllabus.

Although

Mincy

dealt with a

sua sponte

continuance, the court also stated:

“Consequently, we find that appellee, prior to the expiration of the statutory time limit was

entitled to

one of the following: (1) a trial on the charges or, (2)

if his case was being continued by the

court or

prosecutor, the reason he was not being tried.

Since a court may only speak through its journal,

it is necessary that such an entry be spread upon its journal

prior to the expiration of the

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statutory- time limit.” (Emphasis added.)

Id.

at 8 , 2 OBR at 284, 441 N.E.2d at 573 .

If the trial court would have followed the ruling in

Mincy ,

then the majority of this reviewing court would not have had to resort to a strained attempt at finding reasonableness by speculation. See the majority opinion, stating, “There does not appear to be any reason other than the expectation of discovering exculpatory evidence that a defendant would consent to chemical testing.” However, my colleagues limit the holding in

Mincy

and its progeny to those situations where a trial court

sua sponte

issues a continuance. Again, not a single case is cited for this novel approach.

Moreover, I fail to see the significance of such a distinction. Why would a continuance granted by the court on its own motion have a more exacting requirement than a continuance granted upon motion of the prosecutor? In either case, the issue is not who made the motion. Rather, the issue is whether the granted continuance was reasonable. I cannot find any logic in the rule advanced by the majority that requires a trial court to state its reasons for granting a continuance, unless the continuance was at the request of the prosecutor.

By its finding that the continuance in question was reasonable notwithstanding the lack of any stated justification by the trial court, the majority seems to be articulating the position that the requisite “reasonableness” required by R.C. 2945.72(H) is sufficient if it may be found in the record. That position was articulated in the following portion of the dissent to

Mincy :

“[T]he record here affirmatively demonstrates that the defendant’s case was set for trial within the time limitation of the statute and, equally important, this record contains sufficient evidence to demonstrate both the

necessity

and

reasonableness

of the continuance.” (Emphasis original.)

Mincy, supra,

at 10 , 2 OBR at 285, 441 N.E.2d at 574 (Holmes, J., dissenting).

However, that rationale was expressly rejected by the majority of the Supreme Court in

Mincy ,

which observed:

“If we were to follow the state’s reasoning, the only burden upon the prosecution and the courts would be to assure that a trial is scheduled within the appropriate time limit as long as it could subsequently be explained why the defendant was not brought to trial within the statutory time frame. It is obvious such reasoning does not comport with the purposes of the speedy trial statutes.” (Citations omitted.)

Mincy, supra,

at 8 , 2 OBR at 283-284, 441 N.E.2d at 573 .

According to the view of the majority, a court does not ever need to articulate any reason for postponing the trial of an accused as long as the reason for the prosecutor’s motion for a continuance was discernible from the record. I would

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specifically hold that in all cases where the motion for a continuance stems from anyone other than the accused, the court must state its reasons on the record so that a reviewing court can determine whether or not the continuance was reasonable. In other words, I would hold that

Mincy

applies to all such cases, regardless of whether the continuance was

sua sponte

issued by the court or issued at the request of the state.

In fact, other appellate districts agree with my interpretation of

Mincy .

See,

e.g., State v. Stamps

(1998), 127 Ohio App.3d 219, 224 , 712 N.E.2d 762, 764-765 ;

State v. Gregrich

(Mar. 24, 1999), Wayne App. No. 98CA0029, unreported, at 2, 1999 WL 292547 ;

State v. Sanders

(Dec. 10, 1996), Pickaway App. No. 95 CA 6, unreported, at 10, 1996 WL 734666 ;

State v. Simmons

(Mar. 3, 1994), Cuyahoga App. No. 64572, unreported, at 3, 1994 WL 66436 . Moreover, this court has stated that speedy trial time “excludes any

reasonable continuance granted other than upon appellant’s motion if the court journalizes the reasons

therefor.” (Emphasis added.)

State v. Brown

(Dec. 8, 1999), Belmont App. No. 98 BA 13, unreported, at 1, 1999 WL 1138549 . Additionally, the following Supreme Court language in

State v. Saffell

(1988), 35 Ohio St.3d 90 , 518 N.E.2d 934 , implies that the court must journalize the reasons for granting the state’s request for a continuance:

“Here,

the state moved that the trial as originally scheduled be continued

based on the fact that the arresting officer would be on vacation at that time.

In the journal entry granting the continuance, the reasons for the continuance were specified

prior to the expiration of the time limit prescribed in R.C. 2945.71. [Citation to

Mincy].

* * * The record developed below reveals that the

continuance and the reasons underlying it were journalized

prior to the expiration of the ninety-day statutory time period

consistent with the holding in Mincy, supra.”

(Emphasis added.)

Id.

at 91-92 , 518 N.E.2d at 935 .

Although the Supreme Court has not yet been presented with a case that directly addresses the issue in the case at bar, from reading

Saffell ,

it is reasonable to conclude that

Mincy

should be interpreted as requiring journalized reasons in cases of a

sua sponte

continuance

and

in cases of a prosecutor’s request for a continuance.

However, even if the foregoing standards set forth in

Mincy

are disregarded, there is no showing from the record that testing a saliva sample is such a cumbersome procedure that any delay was necessary. Granted, the majority was correct in its notation that the prosecutor delivered evidence to the accused of-the results of the saliva test on October 28, 1997. However, the transcript of proceedings contains a letter from Tri State Laboratories, which is dated September 18, 1997, and addressed to the Mahoning County Prosecutor’s Office to the attention of the assistant prosecutor prosecuting appellant. In that letter, the results of the saliva testing of the accused were disclosed. Therefore, there

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appears to be no necessity for a delay of the trial scheduled on October 1, 1997, and certainly no necessity to continue the trial to November 3, 1997 (eleven days past the statutory time limit to bring appellant to trial). There being no necessity for a continuance, there can be no reasonableness.

Finally, the majority improperly gives credence to the argument of the state that execution of a consent to search impliedly required an extension of time in which an accused must be brought to trial for the reason that such consent is meaningless if one does not allow sufficient time for the test results to be returned. Such a contention is flawed for several reasons:

1. The prosecution could have sought such a consent anytime after appellant was in custody (i.e., July 24, 1997). It, for whatever reason, made the choice to present the consent form in question to the accused less than a month prior to trial. That lack of diligence and timeliness should not, and cannot, operate to diminish the rights afforded the accused.

2. It appears (as hereinabove set forth) that the testing results were completed at least thirteen days prior to the scheduled trial date and at least thirty-five days prior to the statutory period to bring the defendant to trial.

VI. CONCLUSION

Appellant’s first assignment of error is meritorious. Appellant had a constitutionally mandated right to a speedy trial which was violated. It is not merely a “technical trial deadline” as characterized by the majority. It is a right so constitutionally protected that the legislature of this state has mandated a discharge of the accused upon its violation. Accordingly, I would reverse the trial court and order that appellant be discharged as mandated by R.C. 2945.73.