# State v. Brown

> Ohio Supreme Court · December 23, 2002 · 98 Ohio St. 3d 121

URL: https://www.frixlaw.com/law-library/cases/6785394

## Case

- **Full name:** The State of Ohio v. Brown
- **Court:** Ohio Supreme Court
- **Decided:** December 23, 2002
- **Citations:** 98 Ohio St. 3d 121; 781 N.E.2d 159
- **Precedential status:** Published
- **Opinion:** Dissent by Cook
- **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney
- **Cited by:** 201 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6785394

## How later opinions describe it (automated extraction)

- holding that a defendant’s discovery requests tolls the running of the speedy-trial period under R.C. 2945.72(E)
- holding that defendant's discovery request toll speedy trial time
- holding “a demand for discovery or a bill of particular is a tolling event pursuant to [O.]R.C. § 2945.72(E)

## Opinion text

Cook, J.,
dissenting.
*125 {¶ 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 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 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 *126 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”).
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.
{¶ 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6785394. Public record. Not legal advice.