State v. Buckman ( 2022 )

[Cite as State v. Buckman, 2022-Ohio-3303.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JOHNATHON BUCKMAN, : Case No. 22-CA-00001
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court
of Common Pleas, Case No. CRB22
00007
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 20, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NANCY RIDENOUR SCOTT P. WOOD
Assistant Prosecuting Attorney Conrad/Wood
Perry County Prosecutor's Office 120 East Main Street, Suite 200
111 North High Street Lancaster, Ohio 43130
P.O. Box 569
New Lexington, Ohio 43764-0569
Perry County, Case No. 22-CA-00001 2
Baldwin, J.
{¶1} Defendant-appellant Johnathon Buckman appeals from the denial of his
Motion to Dismiss. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶1} On March 18, 2021, appellant was charged in Perry County Municipal Case
No. CRB 2100115 with assault in violation of R.C. 2903.13, a misdemeanor of the first
degree. Appellant was arraigned on the charges on April 13, 2021 and entered a plea of
not guilty. The victim was Samantha Richards. On April 1, 2021, appellant filed a Demand
for Discovery. On April 30, 2021, appellee filed a reply to the demand.
{¶2} Appellant, on May 21, 2021, filed a time waiver. On November 3, 2021,
appellee filed a Motion to Amend the Complaint to reflect Jake Richards as the victim.
Pursuant to an Entry filed on the same day, the motion was granted. The case was
dismissed via a Dismissal Entry filed on November 5, 2021.
{¶3} Subsequently, on January 4, 2022, appellee refiled the case charging
appellant with assaulting Jake Richards in Case No. CRB 2200007. Appellant filed a
Motion to Dismiss on speedy trial grounds on January 10, 2022 and appellee filed a
response on January 14, 2022. Pursuant to an Entry filed on January 19, 2022, the trial
court denied the motion.
{¶4} Thereafter, on January 21, 2022, appellant entered a plea of no contest to
the charge of assault in Case No. CRB 2200007. As memorialized in a Judgment Entry
filed on January 21, 2022, appellant was sentenced to 180 days in jail with 170 days
suspended and was fined $250.00.
{¶5} Appellant now appeals, raising the following assignment of error on appeal:
Perry County, Case No. 22-CA-00001 3
{¶6} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
DISMISS BASED ON A VIOLATION OF APPELLANT’S RIGHT TO A SPEEDY TRIAL.”
I
{¶7} Appellant, in his sole assignment of error, argues that appellee violated his
statutory right to a speedy trial. We disagree.
{¶8} A speedy-trial claim involves a mixed question of law and fact. State v.
Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. As an appellate court, we
must accept as true any facts found by the trial court and supported by competent,
credible evidence. With regard to the legal issues, however, we apply a de novo standard
of review and thus freely review the trial court's application of the law to the facts. Id.When reviewing the legal issues presented in a speedy-trial claim, we must strictly
construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53,
57, 1996-Ohio-171, 661 N.E.2d 706, 709.
{¶9} A person charged with a first-degree misdemeanor must be brought to trial
within 90 days unless the right to a speedy trial is waived. R.C. 2945.71(B)(2). Pursuant
to R.C. 2945.73, a person who is not brought to trial within the proscribed time periods
found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged” and further criminal
proceedings based on the same conduct are barred.
{¶10} A defendant establishes a prima facie case for discharge once he
demonstrates that he has not been brought for trial within the time limits set forth in R.C.
2945.71. State v. Ashbrook, 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL
2582869, ¶ 49, citing State v. Butcher, 27 Ohio St.3d 28, 30–31, 500 N.E.2d 1368 (1986).
When an appellant has established he was tried outside speedy-trial time limits, the
Perry County, Case No. 22-CA-00001 4
burden shifts to the state to show that the time limit was extended under R.C. 2945.72.
Id. at ¶51. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then
discharge pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy-trial
issue, an appellate court must calculate the number of days chargeable to either party
and determine whether the appellant was properly brought to trial within the time limits
set forth in R.C. 2945.71.” State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834
N.E.2d 887, ¶ 19 (12th Dist.).
{¶11} Certain events toll the accumulation of speedy-trial time. R.C. 2945.72
provides for a tolling of the time limitations under certain circumstances,
{¶12} 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:….
{¶13} (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;
{¶14} In State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, the
Ohio Supreme Court found that the time during which a discovery motion filed by a
defendant is pending tolls the speedy trial clock.
{¶15} In the case sub judice, appellant was served with the complaint in Case No.
CRB 2100115 on March 23, 2021. Speedy trial time began to run on March 24, 2021 and
continued until appellant filed a Demand for Discovery on April 1, 2021, which is nine
days. Time was then tolled from April 2, 2021 until April 30, 2021 when appellee filed a
request for and reply to discovery. Speedy trial time continued from May 1, 2021 until
appellant signed a waiver of his speedy trial on May 21, 2021, which is twenty-two (22)
days.
Perry County, Case No. 22-CA-00001 5
{¶16} As is stated above, appellee, on November 3, 2021, filed a Motion to Amend
the complaint pursuant to Crim.R. 7(D) to change the name of the victim which was
granted by the court. The amendment did not change the name or identity of the crime
charged, only the name of the victim. Case No. CRB 2100115 was then dismissed on
November 5, 2021 and the same charge was refiled on January 4, 2022 in Case No.
CRB 2200007.
{¶17} We find, therefore, that the speedy trial clock did not begin anew with the
refiled charge. State v. King, 5th Dist. Perry No. 17-CA-00009, 2018-Ohio-3232, 2018 WL
3831512. The speedy trial clock is tolled, but not reset, during the period between the
nolle prosequi of a charge and the subsequent refiling of the same charge. In State v.
Bonariggo, 62 Ohio St.2d 7, 9-10, 402 N.E.2d 530 (1980) the Supreme Court of Ohio
explained:
In State v. Spratz (1979), 58 Ohio St.2d 61, 62, at fn. 2, 388 N.E.2d
751, we expressly noted that the entry of a nolle prosequi on a felony charge
tolled the running of statutory speedy trial time until such time as the
accused was re-indicted. Similarly, in Westlake v. Cougill (1978), 56 Ohio
St.2d 230, 383 N.E.2d 599, we excluded from the computation of speedy
trial time a period between a nolle prosequi of misdemeanor charges and
the service of summons of a second filing of misdemeanor charges arising
out of the same conduct. In both cases, credit was given the accused for
the period of time the charges based on the same conduct were pending
prior to entry of the nolle prosequi.
Perry County, Case No. 22-CA-00001 6
{¶18} See also State v. Stephens, 52 Ohio App.2d 361, 371, 370 N.E.2d 759,
(8th Dist.1977) (“the proper method of computing time under R.C. 2945.71 is to include
time pending trial under original indictment where a nolle prosequi has been entered on
the original indictment * * .”)
{¶19} Appellant was arraigned on the refiled charge on January 6, 2022. Speedy
trial time resumed and continued until January 10, 2022 when appellant filed his Motion
to Dismiss. Pursuant to R.C. 2945.72(E), the time again tolled from such date until the
trial court, on January 19, 2022, issued its decision denying the motion. Speedy trial time
began to run again and ceased on appellant’s plea on January 21, 2022.
{¶20} We find that the speedy trial time charged to appellee in Case No. CRB
2200007 and Case No. CRB 2100115 totals 38 days, which is less than the 90 days
mandated by statute. We find, therefore, that appellant’s right to a speedy trial was not
violated.
{¶21} Appellant’s sole assignment of error is, therefore, overruled.
Perry County, Case No. 22-CA-00001 7
{¶22} Accordingly, the judgment of the Perry County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Gwin, P.J. and
Delaney, J. concur.