State v. O'Malia , 2012 Ohio 2051 ( 2012 )

[Cite as State v. O'Malia, 2012-Ohio-2051.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11 JE 22
)
JOHN J. O’MALIA, III, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from County Area
District Court #1 of Jefferson County,
Ohio
Case No. 11TRD552
JUDGMENT: Reversed and Vacated
APPEARANCES:
For Plaintiff-Appellee Atty. Michael J. Calabria
Assistant Prosecutor
Jefferson County Court No. 1
1007 Franklin Avenue
Toronto, Ohio 43964
For Defendant-Appellant Atty. Shelli Ellen Freeze
1714 Boardman-Canfield Rd., Suite 11
Poland, Ohio 44514
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: May 1, 2012
[Cite as State v. O'Malia, 2012-Ohio-2051.]
DONOFRIO, J.
{¶1} Defendant-appellant, John O’Malia, appeals from a Jefferson County
Area District Court #1 judgment convicting him of speeding.
{¶2} On March 27, 2011, Patrolman Patrick Dunlap issued appellant a
speeding citation for travelling 52 miles per hour in a 35-miles-per-hour zone, in
violation of R.C. 4511.21.
{¶3} The court set appellant’s pretrial for April 19, 2011. Appellant hand-
delivered a letter to the prosecutor on April 19, 2011, requesting discovery. Both
appellant and the state agree that the prosecutor complied with the discovery request
on May 17, 2011.
{¶4} The trial court set appellant’s trial for May 31, 2011. Appellant
appeared pro se. At the beginning of trial, appellant moved to dismiss the case due
to a speedy trial violation. The trial court overruled the motion citing appellant’s
discovery motion and finding that the prosecutor responded to it in a reasonable
amount of time.
{¶5} The bench trial proceeded and ultimately the court found appellant
guilty of speeding and fined him $100, plus costs.
{¶6} Appellant filed a timely notice of appeal on June 28, 2011.
{¶7} Appellant raises a single assignment of error, which states:
{¶8} “THE TRIAL COURT ABUSED IT’S [sic.] DISCRETION BY FAILING
TO SUSTAIN THE APPELLANT’S MOTION TO DISMISS DUE TO SPEEDY TRIAL
TIME LIMITS. SUCH AN ERROR OF FAILING TO DISMISS DUE TO SPEEDY
TRIAL TIME IS A DIRECT ERROR OF LAW AND A DIRECT VIOLATION OF THE
APPELLANT’S CONSTITUTIONAL RIGHTS.”
{¶9} Appellant argues that he was brought to trial 65 days after he was
issued a traffic citation for speeding. He states that he never signed a waiver of
speedy trial. He further contends that none of the R.C. 2945.72 reasons for tolling
speedy trial time apply in this case. Appellant admits that he gave the prosecutor a
discovery request, but asserts that because he never filed the request, this was not a
tolling event. In the alternative, he argues that even if his unfiled discovery request
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tolled his speedy trial time, the state still failed to bring him to trial within 30 days of
his citation.
{¶10} Pursuant to R.C. 2945.71(A), a person against whom a minor
misdemeanor charge is pending in a court of record “shall be brought to trial within
thirty days after the person's arrest or the service of summons.” Appellant’s speeding
charge was a minor misdemeanor.
{¶11} Section 2945.72 lists a number of tolling events that may extend the
period of time in which the prosecution must bring a defendant to trial. R.C.
2945.72(A)-(I). If the state fails to meet the statutory time limits, then the trial court
must discharge the defendant. R.C. 2945.73. The Ohio Supreme Court has
“imposed upon the prosecution and the trial courts the mandatory duty of complying”
with the speedy-trial statutes. State v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d
1216 (1977). As such, the speedy-trial provisions are strictly construed against the
State. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996); Singer, at
105.
{¶12} Consequently, the role of the reviewing court is to count the days of
delay chargeable to either side and determine whether the case was tried within the
statutory time limits. State v. Hart, 7th Dist. No. 06 CO 62, 2007-Ohio-3404, ¶ 8-9,
citing State v. High, 143 Ohio App.3d 232, 757 N.E.2d 1176 (7th Dist. 2001).
{¶13} Because appellant was charged with the minor misdemeanor of
speeding, the state was required to bring him to trial within 30 days after the service
of summons. The service of summons occurred on March 27, 2011.
{¶14} Appellant was arraigned and entered a not guilty plea on April 13. The
next event was an April 19 pretrial.
{¶15} The state attempts to make an argument that this pretrial date was
selected by appellant and somehow tolls the speedy trial time from April 13 until April
19. However, as the state readily admits, there is no support for this argument in the
record. The state even concedes that the trial court may have set this pretrial sua
sponte.
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{¶16} Once the statutory speedy trial time has expired, the defendant has
established a prima facie case for dismissal. State v. Howard, 7th Dist. No. 08-BE-6,
2009-Ohio-3251, ¶ 18, citing State v. Price, 122 Ohio App.3d 65, 68, 701 N.E.2d 41(10th Dist. 1997), citing State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368(1986). The burden then shifts to the State to demonstrate any tolling of the speedy
trial time. Id.{¶17} Given that there is no evidence on the record to support the state’s
allegation as to who requested the April 19 pretrial and because the burden is on the
state, the time between the April 13 arraignment and the April 19 pretrial is not tolled.
{¶18} At the April 19 pretrial, appellant hand-delivered a discovery request to
the prosecutor. (Tr. 5). By this time, 23 days had elapsed on appellant’s speedy trial
clock.
{¶19} A discovery request tolls the running of the speedy trial clock. State v.
Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, ¶ 23 (interpreting R.C.
2945.72[E]). But the delay chargeable to the defendant is only that which is
necessitated by the State's response to the discovery request. Id. at ¶ 4.
{¶20} The prosecutor responded to appellant’s request on May 17, 29 days
after receiving it. This is a reasonable time within which to respond to discovery.
Thus, appellant’s speedy trial clock was tolled from April 19 until May 17.
{¶21} Because appellant’s speedy trial clock was already at 23 days, when it
began to run again on May 17, the state only had seven days within which to bring
appellant to trial. It failed to do so. Appellant was not brought to trial until May 31.
This was seven days after his speedy trial clock expired. Thus, appellant’s speedy
trial rights were violated in this case.
{¶22} Accordingly, appellant’s sole assignment of error has merit.
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{¶23} For the reasons stated above, the trial court’s judgment is hereby
reversed and appellant’s conviction is vacated.
Vukovich, J., concurs.
Waite, P.J., concurs.