State v. Ervin , 2021 Ohio 47 ( 2021 )


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  • [Cite as State v. Ervin, 
    2021-Ohio-47
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    MEIGS COUNTY
    STATE OF OHIO,                 :
    :
    Plaintiff-Appellant,      :    Case No. 20CA02
    :
    vs.                       :
    :    DECISION AND
    MARCUS A. ERVIN,               :    JUDGMENT ENTRY
    :
    Defendant-Appellee.       :
    _____________________________________________________________
    APPEARANCES:
    James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for
    Appellant.
    Steven H. Eckstein, Washington Court House, Ohio, for Appellee.
    _____________________________________________________________
    Smith, P.J.
    {¶1} Appellant, State of Ohio, appeals the trial court’s grant of Appellee,
    Marcus A. Ervin’s, motion to dismiss based upon speedy trial grounds. In its sole
    assignment of error, the State contends that the trial court erred in granting Ervin’s
    motion to dismiss. Because we have found the State’s sole assignment of error is
    meritorious, we reverse the judgment of trial court and remand this matter for
    further proceedings consistent with this opinion.
    Meigs App. No. 20CA02                                                                2
    FACTS
    {¶2} On February 15, 2018, Appellee, Marcus Ervin, was indicted on one
    count of failure to comply with an order or signal of a police officer, a third-degree
    felony in violation of R.C. 2921.331(B) & (C)(5)(a)(ii). Ervin failed to appear at
    his scheduled arraignment hearing on March 6, 2018, and an arrest warrant was
    issued. Thereafter the trial court filed an entry on May 10, 2018, continuing the
    case “off the docket until such time as the Sheriff serves the warrant and brings the
    Defendant before the Court.” Ervin was apparently incarcerated at some point
    after this offense. While incarcerated on another conviction, Ervin delivered to the
    prison warden an “Inmate’s Notice of Place of Imprisonment and Request for
    Disposition of Indictments, Information or Complaints” in accordance with R.C.
    2941.401. The notice and request demanded Ervin be brought to trial on the
    failure to comply charge within 180 days. It appears from the record that two
    copies of the notice and request were delivered to the county prosecutor’s office on
    January 11, 2019, rather than one copy going to the prosecutor’s office and one
    copy going to the clerk of courts. It also appears from the record that someone
    from the prosecutor’s office signed for and received both copies, and then misfiled
    them. As such, neither the prosecutor nor the court were aware of the notice and
    request for disposition.
    Meigs App. No. 20CA02                                                                                                 3
    {¶3} The record indicates that Ervin was conveyed from prison to the court
    and he was finally arraigned on the charge at issue on February 11, 2019. Ervin
    pleaded not guilty and the matter was scheduled for an initial pretrial conference
    on February 25, 2019, a final pretrial conference on March 25, 2019, and a jury
    trial on April 9, 2019. Ervin filed a demand for discovery and a request for a bill
    of particulars on February 14, 2019. A motion hearing was apparently also
    scheduled to take place on March 11, 2019, but it appears the hearing did not
    actually take place. An entry filed by the court on March 13, 2019, stated
    “Continue motions hearing the defendant is incarcerated and did not appear due to
    agreement of the court. State to comply with discovery request by filing discovery
    today 3/11/19.” The State filed its response to discovery on March 11, 2019. If a
    bill of particulars was filed along with discovery, it does not appear in the record.
    {¶4} The final pretrial hearing was held on March 25, 2019, and Ervin was
    also arraigned on a new charge with a different case number.1 After Ervin entered
    a not guilty plea on the new charge, his counsel explained to the court that he had
    just received discovery and in light of the new indictment he asked the court to
    vacate the April 9, 2019 trial date and convert it to another final pretrial hearing.
    Counsel stated that vacating the jury trial date would give he and his client “a little
    1
    The hearing transcript indicates the new charge was “a drug case * * * out of the same incident for the * * * failure
    to comply.”
    Meigs App. No. 20CA02                                                                                              4
    more time.” The trial court granted the request for a continuance and verbally
    converted the April 9, 2019 jury trial date to another final pretrial hearing in the
    failure to comply case, and also scheduled an initial pretrial hearing on that date in
    the new case. A new trial date was not selected at that time. The trial court filed
    an entry on March 25, 2019, stating the pretrial hearing scheduled for March 25,
    2019, was being continued to April 15, 2019, that the jury trial date was vacated,
    and that speedy trial was tolled during the period of this continuance, the reason
    being “defendant’s motion to continue jury trial date[.]”2
    {¶5} Apparently, the scheduled April 15, 2019 final pretrial was not held.
    The trial court filed an entry on April 16, 2019, stating the pretrial hearing was
    being continued to June 3, 2019, and scheduling the jury trial on June 25, 2019.
    The entry further scheduled a status conference on May 20, 2019, and noted as
    follows: “State previously provided an offer to the defendant which is being
    considered by the defendant[.] Defendant not present due to not being transported
    to the court.” The trial court filed another entry on May 21, 2019, stating “no
    motions pending for motions date defendant not brought back prison other dates
    remain the same[.]”
    2
    Although it is unclear, the trial court likely intended to state that the April 9, 2019, pretrial hearing was being
    continued to April 15, 2019, as a pretrial hearing was actually conducted on March 25, 2019, and Ervin was present.
    Meigs App. No. 20CA02                                                                                                 5
    {¶6} A final pretrial hearing was held on June 3, 2019, and Ervin was again
    transported from prison and was present. Defense counsel requested another
    continuance of the June 25, 2019 jury trial, explaining that his client was reviewing
    discovery, that they were in the midst of negotiations with the State, and that there
    had been a transportation issue and his client had not been present at the last
    scheduled hearing. The State did not object and the court agreed to continue the
    jury trial to July 30, 2019, and also scheduled another “final” pretrial hearing on
    July 1, 2019.
    {¶7} The next “final” pretrial hearing was held on July 1, 2019, and Ervin
    was present. Defense counsel requested another continuance of the jury trial,
    citing the fact that July 30, 2019, was the first day of his scheduled vacation. A
    trial date of August 8, 2019, was offered but defense counsel stated that was soon
    after he returned from vacation. August 29, 2019, was thereafter agreed upon by
    the parties and the court subsequently issued an entry noting the new jury trial date
    and tolling speedy trial time due to “Defendant’s request for continuance.” On
    August 28, 2019, the State filed a written motion to continue the jury trial because
    the State’s witness from the laboratory would not be available to testify.3 The
    3
    It is unclear why the State needed someone from a lab to testify in a failure to comply case, unless there was an off
    the record plan discussed to try the new case at the same time as the failure to comply case.
    Meigs App. No. 20CA02                                                                 6
    motion was granted and the trial court issued an entry on September 3, 2019,
    continuing the jury trial from August 29, 2019, to November 7, 2019.
    {¶8} However, on November 7, 2019, the date of the scheduled trial, Ervin
    filed a motion to dismiss for lack of speedy trial. His motion requested dismissal
    with prejudice of the pending charge, pursuant to R.C. 2945.71-73 and R.C.
    2941.401. The motion specifically alleged the prosecution had failed to commence
    trial within the statutory time period of 180 days, as required by R.C. 2941.401.
    The memorandum in support of the motion referenced Ervin’s service of a written
    notice of his place of imprisonment and request for final disposition that was
    served on January 11, 2019. It was not until the motion to dismiss was filed that
    the prosecutor and the court became aware of the notice and request that was
    previously delivered but misfiled. The court continued the jury trial to December
    17, 2019, to permit the State to respond to Ervin’s motion. The State subsequently
    filed a memorandum in opposition to the motion to dismiss on November 18, 2019,
    arguing that only 119 speedy trial days had passed.
    {¶9} Thereafter, on December 16, 2019, the trial court issued an entry
    dismissing the case, with prejudice, for failure to bring Ervin to trial within the
    180-day time limit required by R.C. 2941.401. The entry contained no findings of
    fact in support of the court’s decision. The State filed a motion for findings of fact
    and reasons for the dismissal on December 20, 2019. In response, the trial court
    Meigs App. No. 20CA02                                                                      7
    filed its findings for dismissal on January 14, 2020, which ultimately determined
    that 205 days had passed for purposes of speedy trial. The State then filed its
    timely appeal, setting forth a single assignment of error for our review.
    ASSIGNMENT OF ERROR
    I.    “THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED
    DEFENDANT’S MOTION TO DISMISS FOR LACK OF SPEEDY
    TRIAL.”
    {¶10} In its sole assignment of error, the State contends the trial court erred
    in granting Ervin’s motion to dismiss based upon speedy trial grounds. The State
    argues the trial court erred in its overall calculation of speedy trial days and it also
    argues that the trial court erred in its determination regarding several tolling events.
    The State concedes that the 180-day speedy trial limit contained in R.C. 2941.401
    applies despite Ervin’s failure to actually serve a copy of his notice and request for
    disposition on the trial court, but the State contends that only 119 days of speedy
    trial time had passed at the time Ervin filed his motion to dismiss. Ervin, on the
    other hand, concedes that the trial court’s calculation of 205 speedy trial days was
    incorrect, but he contends that 195 speedy trial days passed, requiring dismissal of
    the charge against him.
    Standard of Review
    {¶11} A review of the record below indicates Ervin filed a motion to dismiss
    based upon statutory speedy trial grounds on November 7, 2019, the day of his
    Meigs App. No. 20CA02                                                                   8
    scheduled trial. The motion was subsequently granted by the trial court on
    December 16, 2019. Appellate review of a trial court's decision on a motion to
    dismiss for a violation of speedy trial requirements presents a mixed question of
    law and fact. State v. James, 4th Dist. Ross No. 13CA3393, 
    2014-Ohio-1702
    ,
    ¶ 23; State v. Brown, 
    131 Ohio App.3d 387
    , 391, 
    722 N.E.2d 594
     (4th Dist. 1998).
    Thus, appellate courts will defer to a trial court's findings of fact as long as
    competent, credible evidence supports them. Brown at 391. Appellate courts then
    independently determine whether the trial court properly applied the law to the
    facts. 
    Id.
     “Furthermore, when reviewing the legal issues presented in a speedy
    trial claim, we must strictly construe the relevant statutes against the state.” 
    Id.,
    citing Brecksville v. Cook, 
    75 Ohio St.3d 53
    , 57, 
    661 N.E.2d 706
     (1996).
    {¶12} Here, the trial court initially issued a judgment entry simply granting
    the motion to dismiss, without including any findings of facts. However, in
    response to the State’s subsequent, written request for findings of fact, the trial
    court issued a three-page document titled “Findings for Dismissal.” The trial
    court’s findings included an analysis of elapsed speedy trial days, taking into
    consideration several tolling events which extended speedy trial time. The trial
    court ultimately concluded 205 speedy trial days had elapsed, which exceeded the
    180-day limit contained in R.C. 2941.401. The State now argues on appeal that the
    Meigs App. No. 20CA02                                                                 9
    trial court erred in its analysis of the speedy trial time which elapsed and thus erred
    in granting Ervin’s motion.
    Legal Analysis
    {¶13} The Sixth Amendment to the United States Constitution guarantees an
    accused the right to a speedy trial in all criminal prosecutions. That guarantee is
    applicable to the states through the Fourteenth Amendment Due Process Clause.
    Klopfer v. North Carolina, 
    386 U.S. 213
    , 222-223, 
    87 S.Ct. 988
    , 
    18 L.Ed.2d 1
    (1967). Similar protection is afforded under Section 10, Article I of the Ohio
    Constitution. See State v. Meeker, 
    26 Ohio St.2d 9
    , 
    268 N.E.2d 589
     (1971),
    paragraph one of the syllabus (“The provisions of Section 10, Article I of the Ohio
    Constitution and of the Sixth Amendment to the United States Constitution, as
    made applicable to the states by the Fourteenth Amendment, guarantee to a
    defendant in a criminal case the right to a speedy trial.”). Furthermore, Ohio law
    also includes a statutory speedy-trial right. See R.C. 2945.71 et seq. However, the
    statutory and constitutional rights are separate and distinct from one another. State
    v. Hilyard, 4th Dist. Vinton No. 05CA598, 
    2005-Ohio-4957
    , ¶ 7.
    {¶14} R.C. 2945.71(C)(2) provides that a criminal defendant charged with a
    felony shall be brought to trial within 270 days of his arrest. However, when a
    defendant is incarcerated on other charges, as Appellant was in this case, R.C.
    2941.401 prevails over the general speedy trial statutes of R.C. 2945.71 et seq.,
    Meigs App. No. 20CA02                                                                    10
    governing the time within which the defendant must be brought to trial. State v.
    Cox, 4th Dist. Jackson No. 01CA10, 
    2002-Ohio-2382
    , ¶ 17, citing State v. Davis,
    4th Dist. Ross No. 96CA2181, 
    1997 WL 305217
     (June 4, 1997), citing State v.
    Hill, 4th Dist. Meigs No. 96CA4, 
    1996 WL 754250
     (Dec. 30, 1996); see also State
    v. Pesci, 11th Dist. Lake No. 2001-L-026, 
    2002-Ohio-7131
    , ¶ 41. As set forth
    above, Ervin moved for dismissal of this case based upon statutory speedy trial
    grounds, not constitutional grounds. As such, this case involves the interpretation
    of a statute, which we review de novo, without deference to the trial court's
    determination. In re Adoption of T.G.B., 4th Dist. Adams Nos. 11CA919,
    11CA920, 
    2011-Ohio-6772
    , ¶ 4.
    {¶15} “ ‘The primary goal of statutory construction is to ascertain and give
    effect to the legislature's intent in enacting the statute. * * * The court must first
    look to the plain language of the statute itself to determine the legislative intent.’ ”
    
    Id.,
     quoting State v. Lowe, 
    112 Ohio St.3d 507
    , 
    2007-Ohio-606
    , 
    861 N.E.2d 512
    ,
    ¶ 9. If the meaning of a statute is unambiguous and definite, we must apply it as
    written and without further interpretation. Mathews v. Waverly, 4th Dist. Pike No.
    08CA787, 
    2010-Ohio-347
    , ¶ 23. Only if a statute is unclear and ambiguous may
    we interpret it to determine the legislature's intent. State v. Chappell, 
    127 Ohio St.3d 376
    , 
    2010-Ohio-5991
    , 
    939 N.E.2d 1234
    , ¶ 16. Further, because the Supreme
    Court of Ohio has held that R.C. 2941.401 is not ambiguous, we need not interpret
    Meigs App. No. 20CA02                                                               11
    it; we must simply apply it. State v. Hairston, 
    101 Ohio St.3d 308
    , 2004-Ohio-
    969, 
    804 N.E.2d 471
    , ¶ 13, 20; State v. Miller, 4th Dist. Athens No. 11CA26,
    
    2012-Ohio-1823
    , ¶ 7. “Furthermore, when reviewing the legal issues presented in
    a speedy trial claim, we must strictly construe the relevant statutes against the
    state.” State v. Fisher, 4th Dist. Ross No. 11CA3292, 
    2012-Ohio-6144
    , ¶ 8; see
    also State v. Brown, 
    131 Ohio App.3d 387
    , 391, 
    722 N.E.2d 594
     (4th Dist. 1998).
    {¶16} R.C. 2941.401 governs the time within which the state must bring an
    incarcerated defendant to trial and provides as follows:
    “When a person has entered upon a term of imprisonment in a
    correctional institution of this state, and when during the
    continuance of the term of imprisonment there is pending in this
    state any untried indictment, information, or complaint against
    the prisoner, he shall be brought to trial within one hundred
    eighty days after he causes to be delivered to the prosecuting
    attorney and the appropriate court in which the matter is pending,
    written notice of the place of his imprisonment and a request for
    a final disposition to be made of the matter, except that for good
    cause shown in open court, with the prisoner or his counsel
    present, the court may grant any necessary or reasonable
    continuance. The request of the prisoner shall be accompanied
    by a certificate of the warden or superintendent having custody
    of the prisoner, stating the term of commitment under which the
    prisoner is being held, the time served and remaining to be served
    on the sentence, the amount of good time earned, the time of
    parole eligibility of the prisoner, and any decisions of the adult
    parole authority relating to the prisoner.
    The written notice and request for final disposition shall be given
    or sent by the prisoner to the warden or superintendent having
    custody of him, who shall promptly forward it with the certificate
    to the appropriate prosecuting attorney and court by registered or
    certified mail, return receipt requested.
    Meigs App. No. 20CA02                                                               12
    The warden or superintendent having custody of the prisoner
    shall promptly inform him in writing of the source and contents
    of any untried indictment, information, or complaint against him,
    concerning which the warden or superintendent has knowledge,
    and of his right to make a request for final disposition thereof.
    Escape from custody by the prisoner, subsequent to his execution
    of the request for final disposition, voids the request. If the action
    is not brought to trial within the time provided, subject to
    continuance allowed pursuant to this section, no court any longer
    has jurisdiction thereof, the indictment, information, or
    complaint is void, and the court shall enter an order dismissing
    the action with prejudice. * * *.”
    {¶17} In State v. Hairston, supra, at ¶ 20, the Supreme Court of Ohio held
    that “R.C. 2941.401 places the initial duty on the defendant to cause written notice
    to be delivered to the prosecuting attorney and the appropriate court advising of the
    place of his imprisonment and requesting final disposition [.]” The Court further
    held that “the statute imposes no duty on the state until such time as the
    incarcerated defendant provides the statutory notice.” Id.
    {¶18} To summarize, we explained in State v. James, supra, at
    ¶ 25 as follows:
    “In its plainest language, R.C. 2941.401 grants an incarcerated
    defendant a chance to have all pending charges resolved in a
    timely manner, thereby preventing the state from delaying
    prosecution until after the defendant has been released from his
    prison term.” State v. Hairston, 
    101 Ohio St.3d 308
    , 2004-Ohio-
    969, 
    804 N.E.2d 471
    , ¶ 25. The statute thus “requires a warden
    or prison superintendent to notify a prisoner ‘in writing of the
    source and contents of any untried indictment’ and of his right
    ‘to make a request for final disposition thereof.’ ” State v. Dillon,
    Meigs App. No. 20CA02                                                              13
    
    114 Ohio St.3d 154
    , 
    2007-Ohio-3617
    , 
    870 N.E.2d 1149
    ,
    syllabus.
    {¶19} Here, it appears that despite complying with the requirements of R.C.
    2941.401 on his end, the court’s copy of the notice and request for disposition was
    delivered to the prosecutor’s office instead of the clerk’s office, where it was
    misfiled along with the prosecutor’s copy. The State concedes R.C. 2941.401
    applies in spite of the service error and does not raise any argument on appeal
    regarding the failure of service upon the court. Further, it appears as though
    service errors such as this are generally not imputed to a defendant where the
    record indicates the defendant otherwise complied with the statutory requirements.
    See State v. Gill, 8th Dist. Cuyahoga No. 82742, 
    2004-Ohio-1245
    , ¶ 17; State v.
    Adams, 
    2015-Ohio-4720
    , 
    49 N.E.3d 814
    , ¶ 13, fn 1.
    {¶20} Further, R.C. 2945.72 provides that the time within which an accused
    charged with a felony must be brought to trial may be extended by the following:
    (A) Any period during which the accused is unavailable for
    hearing or trial, by reason of other criminal proceedings
    against him, within or outside the state, by reason of his
    confinement in another state, or by reason of the pendency
    of extradition proceedings, provided that the prosecution
    exercises reasonable diligence to secure his availability;
    (B) Any period during which the accused is mentally
    incompetent to stand trial or during which his mental
    competence to stand trial is being determined, or any period
    during which the accused is physically incapable of standing
    trial;
    Meigs App. No. 20CA02                                                     14
    (C) Any period of delay necessitated by the accused's lack of
    counsel, provided that such delay is not occasioned by any
    lack of diligence in providing counsel to an indigent accused
    upon his request as required by law;
    (D) Any period of delay occasioned by the neglect or improper
    act of the accused;
    (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;
    (F) Any period of delay necessitated by a removal or change of
    venue pursuant to law;
    (G) Any period during which trial is stayed pursuant to an
    express statutory requirement, or pursuant to an order of
    another court competent to issue such order;
    (H) The period of any continuance granted on the accused's
    own motion, and the period of any reasonable continuance
    granted other than upon the accused's own motion;
    (I) Any period during which an appeal filed pursuant to
    section 2945.67 of the Revised Code is pending.
    (Emphasis added).
    Importantly, this Court explained in State v. James, supra, as follows:
    “The tolling provisions of R.C. 2945.72 apply to the 180-day
    speedy trial time limit of R.C. 2941.401.” State v. Taylor, 7th
    Dist. Columbiana No. 08CO36, 
    2011-Ohio-1001
    , ¶ 15, citing
    State v. Skorvanek, 9th Dist. Lorain No. 08CA009400, 2010-
    Ohio-1079; State v. Shepherd, 11th Dist. Ashtabula No. 2003-A-
    0028, 
    2006-Ohio-4315
    ; State v. Ray, 2nd Dist. Greene No. 2004-
    CA-64, 
    2005-Ohio-2771
    ; State v. Nero, 4th Dist. Athens No.
    1392 (Apr. 4, 1990). In Nero, we discussed whether the tolling
    provisions contained in R.C. 2945.72 apply to R.C. 2941.401 and
    explained:
    Meigs App. No. 20CA02                                                                   15
    “R.C. 2945.71 does not specifically state that the tolling
    provisions therein are applicable to R.C. 2941.401. However,
    R.C. 2941.401 states, in pertinent part, ‘except that for good
    cause shown in open court, with the prisoner or his counsel
    present, the court may grant any necessary or reasonable
    continuance.’ The General Assembly, in enacting R.C. 2945.72,
    has legislated what are reasonable continuances. We therefore
    conclude that the factors set forth in R.C. 2945.72 are applicable
    to R.C. 2941.401.”
    State v. James at ¶ 20, citing State v. Nero at ¶ 1; accord State v. Curry, 4th Dist.
    Scioto No. 95CA2339, 
    1997 WL 600056
     (Sept. 30, 1997).
    {¶21} As set forth above, R.C. 2945.92(E) provides that the time within
    which an accused must be brought to trial is extended by “[a]ny period of delay
    necessitated by reason of a plea in bar or abatement, motion, proceeding, or action
    made or instituted by the accused[.]” Further, R.C. 2945.72(H) provides that the
    time within which an accused must be brought to trial is extended by “[t]he period
    of any continuance granted on the accused's own motion, and the period of any
    reasonable continuance granted other than upon the accused's own motion[.]”
    Additionally, as we have explained, R.C. 2945.72 applies to cases that must be
    tried in accordance with the R.C. 2941.401 180-day speedy trial limit.
    {¶22} In the case at bar, we begin counting the 180-day time period on
    January 11, 2019, which both parties agree started the speedy trial clock running.
    One hundred eighty days from that date would have been July 10, 2019; however,
    Ervin was not brought to the court for a jury trial until November 7, 2019, which
    Meigs App. No. 20CA02                                                                                                   16
    was 120 days beyond the speedy trial limit. As such, Ervin established a prima
    facie case for dismissal due to a R.C. 2941.401 speedy trial violation. “Once a
    defendant establishes a prima facie case for dismissal, the burden shifts to the state
    to prove that the time was sufficiently tolled to extend the period.” State v. Smith,
    4th Dist. Lawrence No. 16CA10, 
    2017-Ohio-7864
    , ¶ 21, citing State v. Squillace,
    10th Dist. Franklin No. 15AP-958, 
    2016-Ohio-1038
    , ¶ 14 and State v. Anderson,
    4th Dist. Scioto No. 15CA3696, 
    2016-Ohio-7252
    , ¶ 19.
    {¶23} As noted by the State, the trial court granted several continuances,
    most of which were requested by Ervin. The trial court determined 205 days had
    elapsed for purposes of speedy trial. Both parties agree, however, that the trial
    court miscalculated the days in its findings for dismissal. Instead, the parties agree
    that the days counted by the trial court, minus certain tolling events, actually added
    up to 195 days, not 205 days.4 That is where the agreement between the parties
    ends. The State contends on appeal that only 119 speedy trials passed, while Ervin
    contends 195 speedy trial days passed.
    {¶24} We begin with a review of the speedy trial time as determined by the
    trial court. In its findings for dismissal, the trial court summarized the speedy trial
    time that had elapsed as follows:
    4
    The error in the trial court’s calculation relates to the court’s calculation of speedy trial days between April 16,
    2019 and July 1, 2019, which the trial court calculated as 86 days rather than 76 days because the trial court
    mistakenly used the end date of July 11th instead of July 1st.
    Meigs App. No. 20CA02                                                                   17
    1/11/19 to 2/14/19 = 34 days
    3/11/19 to 3/25/19 = 14 days
    4/16/19 to 7/11/19 = 86 days
    8/28/19 to 11/7/19 = 71 days
    Total speedy trail [sic] days = 205
    More specifically, the trial court determined the speedy trial clock began to run on
    January 11, 2019, and continued to run until February 14, 2019, when Ervin filed a
    demand for discovery and a request for a bill of particulars. At this point, the trial
    court determined 34 speedy trial days had elapsed. We agree with this
    determination. The court further found the speedy trial clock started to run again
    on March 11, 2019, when the State complied with discovery.
    {¶25} As noted above, although the record indicates the State complied with
    discovery on March 11, 2019, there is nothing in the record that demonstrates the
    State ever filed the requested bill of particulars. Likewise, there is nothing in the
    record that demonstrates Ervin ever complied with the State’s reciprocal discovery
    request. In addressing a speedy trial argument, the Supreme Court of Ohio, in
    State v. Palmer, held that “[t]he failure of a criminal defendant to respond within a
    reasonable time to a prosecution request for reciprocal discovery constitutes
    neglect that tolls the running of the speedy-trial time pursuant to R.C. 2945.72(D).”
    State v. Palmer, 
    112 Ohio St.3d 457
    , 
    2007-Ohio-374
    , 
    860 N.E.2d 1011
    , paragraph
    Meigs App. No. 20CA02                                                                  18
    one of the syllabus. Although the State did not pursue the court to compel Ervin to
    respond to discovery, the Palmer Court also held that “[t]he tolling of statutory
    speedy-trial time based on a defendant’s neglect in failing to respond within a
    reasonable time to a prosecution request for discovery is not dependent upon the
    filing of a motion to compel discovery by the prosecution.” 
    Id.
     at paragraph two of
    the syllabus, citing Lakewood v. Papadelis, 
    32 Ohio St.3d 1
    , 
    511 N.E.2d 1138
    (1987). However, the Palmer Court also held that “[a] trial court shall determine
    the date by which a defendant should reasonably have responded to a reciprocal
    discovery request based on the totality of facts and circumstances of the case,
    including the time established for response by local rule, if applicable.” Palmer at
    paragraph three of the syllabus. Here, Ervin did not challenge the State’s failure to
    provide a bill of particulars and the State did not pursue Ervin’s failure to comply
    with discovery. Moreover, the trial court did not address it, nor did it establish any
    compliance deadlines. Considering that both parties failed to comply in this regard
    and that this noncompliance did not appear to factor into the court’s speedy trial
    calculation, we choose not to delve into an analysis of any additional days that may
    have either passed or tolled as a result of these mutual failures in complying with
    discovery.
    {¶26} Moving ahead, and still focusing on the date of March 11, 2019, the
    court also noted that Ervin was not transported to the scheduled hearing on March
    Meigs App. No. 20CA02                                                                         19
    11, 2019. The court determined that the speedy trial clock began to run again on
    March 11, 2019, and ran until March 25, 2019, when Ervin requested a
    continuance of the jury trial scheduled for April 9, 2019. At this point, the trial
    court determined a total of 48 speedy trial days had elapsed. We also agree with
    this determination.
    {¶27} The trial court noted in its findings that Ervin’s March 25, 2019
    request for a continuance of the April 9, 2019 jury trial only tolled the time until
    his next hearing, which was April 16, 2019, because Ervin was not transported to
    the hearing as ordered. The trial court found the speedy trial clock began to run
    again on this date because Ervin failed to appear through no fault of his own.
    Thus, the court determined that the speedy trial clock began to run again on April
    16, 2019, and continued to run until July 1, 2019, when he was brought before the
    court and requested a continuance of his July 30, 2019 jury trial, which was
    rescheduled to August 29, 2019. The court found 86 days5 of speedy trial time
    elapsed between April 16, 2019, and July 1, 2019, for a total of 134 speedy trial
    days at that point. We disagree with these determinations.
    {¶28} Next, the court found speedy trial time was tolled beginning July 1,
    2019, until the rescheduled date of the jury trial on August 29, 2019. We agree
    with this determination. Finally, the court found that the speedy trial clock began
    5
    As noted above, the trial court miscalculated the days, which actually totaled 76 days.
    Meigs App. No. 20CA02                                                                 20
    to run again on August 29, 2019, when the State requested a continuance of the
    jury trial, and began to run until November 7, 2019, when Ervin filed a motion to
    dismiss based upon speedy trial grounds. The court found another 71 speedy trial
    days elapsed between August 29, 2019, and November 7, 2019, for a total of 205
    speedy trial days, which actually should have been 195 speedy trial days, as
    explained above.
    {¶29} We disagree with the trial court’s determinations regarding the time
    period between March 25, 2019, and July 1, 2019. We conclude the trial court
    correctly found that speedy trial time was tolled beginning on March 25, 2019, due
    to Ervin’s request for a continuance of the April 9, 2019 jury trial. However, we
    conclude the trial court mistakenly determined the speedy trial clock started
    running again when Ervin failed to be transported from prison to attend the April
    16, 2019 hearing. The trial court correctly determined in its March 25, 2019 entry
    that speedy trial was tolled beginning on that date due to Ervin’s motion to
    continue the April 9, 2019 jury trial. Speedy trial time should have been tolled at
    that point until June 25, 2019, which was the rescheduled date of the jury trial. See
    State v. James, supra, at ¶ 5, 30. Further, in State v. Smith, this Court opined as
    follows:
    Where a trial court must reschedule a trial because of a motion
    of the accused, regardless of whether it is styled as a motion for
    a continuance, the entire time between the motion and the
    rescheduled trial date is a delay attributable to a motion filed by
    Meigs App. No. 20CA02                                                                   21
    the accused under R.C. 2945.72(E). State v. Phillips, 4th Dist.
    Highland No. 09CA13, 
    2009-Ohio-7069
    , ¶ 25. Smith's reliance
    on State v. Bailey, 4th Dist. Ross No. 14CA3461, 2015-Ohio-
    5483, ¶ 32, to claim that the speedy-trial period started again after
    the trial court appointed new counsel for him on December 7, is
    misplaced because the appointment of new counsel in that case
    did not necessitate the rescheduling of the trial date.
    State v. Smith, supra, at ¶ 29.
    {¶30} Thus, Smith unequivocally stated that the entire time between the
    motion of an accused which necessitates the rescheduling of a trial date and the
    new trial date is tolled for purposes of speedy trial.
    {¶31} This Court reexamined the issue of tolling of speedy trial in response
    to a defendant’s request to continue a jury trial in State v. Brooks, 
    2018-Ohio-2210
    ,
    
    114 N.E.3d 220
    . In Brooks, this Court determined the entire period between an
    original trial date and the rescheduled trial date was not always tolled, despite the
    reasoning set forth in Smith. Brooks at ¶ 36. In Brooks, we reviewed the holding
    in Smith and noted that the entire period of time was tolled in Smith, in part,
    because it was determined that the continuance of the trial date was reasonable in
    both purpose and length, and also because Smith stated he did not care how long
    the continuance was as long as his new counsel had time to prepare for trial. 
    Id.
     In
    Brooks, this Court ultimately determined that the length of the continuance at issue
    was not reasonable because it was not completely clear that the rescheduled trial
    Meigs App. No. 20CA02                                                                  22
    date was the first date the court had available, and where the court had sua sponte
    rescheduled the trial date and Brooks had not acquiesced in the continuance.
    {¶32} We find the facts before us align more with Smith than with Brooks.
    Here, Ervin clearly requested a continuance of the April 9, 2019 trial date in order
    to have more time to prepare for trial. When the trial court issued the entry setting
    a new trial date on June 25, 2019, Ervin did not object. Instead, he went on to ask
    for a continuance of the June 25, 2019 trial date on June 3rd and a continuance of
    the July 30th trial date on July 1st. Moreover, we conclude that the trial court’s
    rescheduling of the April 9, 2019 trial date to June 25, 2019, was per se reasonable,
    despite the fact that during that time period Ervin failed to be transported to an
    intervening hearing on April 15th. “ ‘[T]he Supreme Court of Ohio has suggested
    that, in addition to the facts and circumstances of the case, courts should consider
    the time limits imposed by court rules in determining how long to toll the speedy
    trial period.’ ” State v. Carr, 4th Dist. Ross No. 12CA3358, 
    2013-Ohio-5312
    ,
    ¶ 26, quoting State v. Staffin, 4th Dist. Ross No. 07CA2967, 
    2008-Ohio-338
    , at
    ¶ 18, in turn citing State v. Palmer, supra, at ¶ 24. Furthermore, “ ‘[t]his Court and
    others have suggested that the 120-day period prescribed in Sup.R. 40 for ruling on
    a motion “serves as an indication of what a reasonable amount of time would be in
    a typical case.” ’ ” Carr at ¶ 26, quoting Staffin at ¶ 18, in turn quoting State v.
    Keaton, 4th Dist. Pickaway No. 95CA15, 
    1996 WL 271704
    , *2 (May 16, 1996).
    Meigs App. No. 20CA02                                                                 23
    {¶33} Thus, going back to the trial court’s tolling determinations in the case
    presently before us, we conclude the fact that Ervin was not transported to the
    April 16, 2019 hearing was of no consequence, as it occurred during the course of
    an overarching tolling event, and this intervening event should not have started the
    speedy trial clock. Instead, the speedy trial clock was tolled beginning on March
    25, 2019, when Ervin requested a continuance of the April 9, 2019 jury trial date
    and it continued to be tolled until June 25, 2019, which was the rescheduled date of
    the jury trial. Prior to the scheduled June 25, 2019 jury trial, another final pretrial
    hearing was held on June 3, 2019. At that time, Ervin requested that the June 25,
    2019 jury trial be continued as well, citing the need for further time to review
    discovery and continue plea negotiations. In support of his request for the
    continuance, defense counsel noted that Ervin was not transported and thus did not
    attend a status conference that was held on May 20, 2019.
    {¶34} The State stated it had no objection to the continuance in light of the
    fact that Ervin had not been at the prior hearing. Thus, the trial court continued the
    jury trial to July 30, 2019. If any time period should have counted against the State
    for purposes of speedy trial it should have been the period of this continuance,
    which was granted, in part, due to the State’s failure to transport Ervin to court for
    a scheduled hearing. Thus, the speedy trial clock would have started to run again
    on June 25th. However, it stopped running on July 1, 2019, when Ervin requested
    Meigs App. No. 20CA02                                                                                                 24
    a continuance of the July 30, 2019 jury trial due to the fact that defense counsel
    was scheduled to be on vacation. As such, time began to be tolled again July 1,
    2019, due to Ervin’s request for a continuance and continued to be tolled until
    August 29, 2019, which was the date upon which the trial was rescheduled.
    Finally, the speedy trial clock began to run again on August 29, 2019, due to the
    State’s request for a continuance and began to run until Ervin filed his motion to
    dismiss on November 7, 2019.
    ¶35} In summary, considering the above dates and tolling events, we believe
    the following is a correct reflection of the speedy trial dates and tolling periods:
    •1/12/19 (clock starts) – 2/14/19 (discovery requested) = 34 days
    •2/14/19 time tolled until 3/11/19 (discovery provided)
    •3/11/19 (clock starts) until 3/25/19 (jury trial continuance requested)
    = 14 days
    •3/25/19 time tolled until 6/25/19 (rescheduled jury trial date)
    •6/25/19 (clock starts) – 7/1/19 (jury trial continuance requested) = 6
    days6
    •7/1/19 time tolled until 8/29/19 (rescheduled jury trial date)
    6
    We conclude the speedy trial clock started running again on 6/25/19 and ran until 7/1/19 in light of Ervin’s prior
    motion to continue the 6/25/19 jury trial based, in part, upon the State’s failure to transport him to a prior hearing.
    Thereafter, the clock would have continued to run until the 7/30/19, which was the rescheduled jury trial date;
    however, on July 1, 2019, Ervin requested a continuance of the 7/30/19 jury trial date because defense counsel was
    scheduled to be gone on vacation at that time. Thus, the 7/1/19 request for continuance tolled the speedy trial clock
    until the 8/29/19 rescheduled jury trial. Further, it appears the State omitted these 6 days in its 119-day speedy trial
    calculation.
    Meigs App. No. 20CA02                                                                                               25
    •8/29/19 (clock starts due to State’s request for a continuance of the
    jury trial) until 11/7/19 (motion to dismiss filed) = 59 days7
    •Total speedy trial days elapsed: 113 days
    Thus, only 113 speedy trial days had elapsed at the time Ervin filed his motion to
    dismiss, which was well below the 180-day limit contained in R.C. 2941.401.
    {¶36} Therefore, we conclude the State’s sole assignment of error has merit
    and that the trial court erred in granting Ervin’s motion to dismiss based upon
    speedy trial grounds. Thus, the assignment of error is sustained. Accordingly, the
    judgment of the trial court is reversed, and this matter is remanded for further
    proceedings consistent with this opinion.
    JUDGMENT REVERSED.
    7
    As already explained, time was tolled until 8/29/19 due to Ervin’s request for a continuance of the jury trial. The
    State filed a request for a continuance of that jury trial date on 8/28/19. Although the clock normally would have
    started running the day after the State’s request, because time was already tolled until 8/29/19, we conclude the
    speedy trial clock started running again on 8/29/19.
    Meigs App. No. 20CA02                                                                 26
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE REVERSED and costs be assessed to
    Appellee.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing the
    Meigs County Common Pleas Court to carry this judgment into execution.
    IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
    BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
    THIS COURT, it is temporarily continued for a period not to exceed sixty days
    upon the bail previously posted. The purpose of a continued stay is to allow
    Appellant to file with the Supreme Court of Ohio an application for a stay during
    the pendency of proceedings in that court. If a stay is continued by this entry, it
    will terminate at the earlier of the expiration of the sixty-day period, or the failure
    of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
    forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
    the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
    the appeal prior to expiration of sixty days, the stay will terminate as of the date of
    such dismissal.
    A certified copy of this entry shall constitute the mandate pursuant to Rule
    27 of the Rules of Appellate Procedure.
    Abele, J. and Hess, J. concur in Judgment and Opinion.
    For the Court,
    _____________________________
    Jason P. Smith
    Presiding Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final
    judgment entry and the time period for further appeal commences from the
    date of filing with the clerk.