City of Bryan v. Knapp ( 1986 )

Celebrezze, C.J.,

dissenting. I agree with the majority’s observation that Crim. R. 12(E) requires that “[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record.” (Emphasis added.) However, I respectfully dissent from the majority’s conclusion that the findings and record of the trial court in this case preclude effective review of the ruling on appellant’s motion for discharge.

If the trial delay is so long that it is “* * * facially unreasonable and seriously open to question * * * the attendant facts and circumstances must be included in the record in sufficient detail so that the necessity and reasonableness of the continuance is demonstrable. * * * For this court to require less is to foreclose effective appellate review * * State v. Westworth (1978), 54 Ohio St. 2d 171, 175 [8 O.O.3d 162],

In my opinion, the instant record amply establishes the sequence of events concerning the continuances granted by the trial court. It clearly reveals that a number of the delays were caused by appellant’s own requests and his failure to appear in court. See State v. Bauer (1980), 61 Ohio St. 2d 83 [15 O.O.3d 122]; State v. McBreen (1978), 54 Ohio St. 2d 315, 318 [8 O.O.3d 302].² Additionally, the two continuances requested by the prosecutor were both approved by defense counsel. State v. McRae (1978), 55 Ohio St. 2d 149 [9 O.O.3d 118]; State v. Davis (1975), 44 Ohio App. 2d 95, 101 [73 O.O.2d 89].³

Although the judge’s essential finding that “all” delays were appellant’s is not totally correct, that ruling together with the record does provide the basis of the trial court’s ruling and also contains sufficient facts concerning the chronology of events in this case so that a reviewing court can determine the “necessity and reasonableness” of the continuances.

I would follow the standard set forth in Wentworth, supra, and affirm the judgment of the appellate court. Further, although the stated basis of the trial judge’s ruling is not entirely accurate, his decision to overrule appellant’s motion for discharge is nevertheless correct because the continuances of the trial date were reasonable and proper in this case. See footnotes 2 and 3, supra.

Sweeney and Locher, JJ., concur in the foregoing dissenting opinion.

2 In State v. Bauer, supra, we held “* * * that a defendant who fails to appear * * * and whose trial must therefore be rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71 through 2945.73 for that period of time which elapses from his initial arrest to the date he is subsequently rearrested.” Id. at 85. See, also, R.C. 2945.72(D).

Similarly, in State v. McBreen, supra, we held in the syllabus that “[a] defendant’s right to be brought to trial within the time limits expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial preparation and the defendant is bound by the waiver even though the waiver is executed without his consent.” See, also, id. at 318 and R.C. 2945.72(H).

3 In State v. Davis, supra, the Court of Appeals for Hamilton County correctly held “* * * that a motion to fix or to continue a trial date beyond the ninety day period may become the accused’s own motion within the meaning of R.C. 2945.72(H), by adoption or agreement as well as by initiation.” Id. at 101, cited with approval and followed in State v. McRae, supra, at 152-153, and footnote 4 at 153.