Sylvania v. Murray

[Cite as Sylvania v. Murray, 2015-Ohio-5023.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
City of Sylvania/State of Ohio Court of Appeals No. L-15-1036
Appellee Trial Court No. CRB1401155
v.
William F. Murray, III DECISION AND JUDGMENT
Appellant Decided: December 4, 2015
*****
Robert A. Pyzik, City of Sylvania Chief Prosecutor, and Melissa R.
Bergman, Assistant Prosecutor, for appellee.
Neil S. McElroy, for appellant.
*****
YARBROUGH, P.J.
I. Introduction
{¶ 1} Appellant, William Murray, III, appeals the judgment of the Sylvania
Municipal Court, finding him guilty of disorderly conduct and ordering him to pay a fine
of $100 plus costs. We affirm.
A. Facts and Procedural Background
{¶ 2} On June 25, 2014, appellee, the city of Sylvania, mailed a summons and
complaint to appellant. According to the complaint, appellant was charged with one
count of soliciting prostitution in violation of R.C. 2907.24, a misdemeanor of the third
degree. The charge stemmed from an incident that occurred six days earlier. The record
demonstrates that appellant did not receive the summons and complaint until July 2,
2014.
{¶ 3} Upon receiving the summons and complaint, appellant retained counsel. On
July 11, 2014, appellant’s counsel filed an entry of appearance and declined to waive
appellant’s right to a speedy trial. Four days later, appellant filed an additional entry of
appearance and a request for discovery.
{¶ 4} Thereafter, on July 29, 2014, the city filed a motion to continue the trial date
due to the unavailability of the arresting police officer. The motion to continue was filed
with the trial court via facsimile, and was sent to appellant on the same date. Along with
the motion, the city attached its discovery, which consisted of the police investigation
report prepared by the Lucas County Sheriff’s Office. A supplemental crime report was
later faxed to appellant on August 13, 2014.
{¶ 5} While the city’s motion to continue was pending before the trial court,
appellant, on August 22, 2014, filed a motion to dismiss based upon alleged speedy trial
violations. Four days later, the parties appeared before the trial court for a hearing on
2.
appellant’s motion to dismiss. At the conclusion of the hearing, the trial court took the
matter under advisement. Eventually, the trial court issued its decision, concluding that
appellant’s speedy trial rights were not violated because the 45-day statutory time limit
that was applicable in this case had not expired after accounting for the time that was
tolled during the pendency of appellant’s request for discovery. In its entry, the court
found that the record was lacking any indication as to whether the city complied with
appellant’s discovery request. Nonetheless, the trial court held that the time limit was
tolled for a “reasonable time,” which the court identified as a period of seven days.
{¶ 6} Subsequently, appellant entered a plea of no contest to the reduced charge of
disorderly conduct in violation of R.C. 2917.11(A)(1), a minor misdemeanor, and was
ordered to pay a fine of $100, along with court costs. It is from this order that appellant
now appeals.
B. Assignments of Error
{¶ 7} On appeal, appellant asserts the following errors for our review:
Assignment of Error No. 1: The trial court erred when it denied Mr.
Murray’s Motion to Dismiss on Speedy Trial Grounds.
Assignment of Error No. 2: The appellant did not receive the
effective assistance of counsel as guaranteed by the Constitutions of the
United States and the State of Ohio when counsel filed the motion to
dismiss on August 22, 2014, and the trial was not scheduled until [August]
26, 2014.
3.
II. Analysis
A. Speedy Trial Considerations
{¶ 8} In his first assignment of error, appellant argues that the trial court erred in
denying his motion to dismiss on speedy trial grounds. In particular, appellant contends
that the court improperly set the tolling period at seven days without any evidence as to
how long it actually took the city to provide the requested discovery.
{¶ 9} The right to a speedy trial is guaranteed by the United States and Ohio
Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Under
R.C. 2945.71(B)(1), an accused facing a criminal charge for a misdemeanor of the third
degree must be brought to trial within 45 days after the accused’s arrest or the service of
summons. This time limit is tolled during “[a]ny period of delay necessitated by reason
of a * * * motion, proceeding, or action made or instituted by the accused.” R.C.
2945.72(E). Relevant here, the Ohio Supreme Court has stated that an accused’s demand
for discovery tolls the time limit under R.C. 2945.72(E). State v. Brown, 98 Ohio St.3d
121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus.
{¶ 10} In this case, the parties agree that appellant received the summons and
complaint on July 2, 2014. Barring any tolling of the 45-day time limit, appellant could
be brought to trial no later than August 16, 2014. However, appellant filed a request for
discovery on July 15, 2014. The state was allowed a reasonable time to respond to that
request, during which the speedy trial period is tolled. State v. Bates, 6th Dist. Williams
No. WM-12-002, 2013-Ohio-1270, ¶ 21.
4.
{¶ 11} Here, appellant asserts that “[t]here was no indication at the hearing or in
the trial court’s docket when discovery was provided to the defendant.” At the outset, we
disagree with appellant’s assertion. Notably, the record contains two facsimile cover
sheets indicating the city’s provision of discovery materials, dated July 29, 2014, and
August 13, 2014. Moreover, the record contains a notation on the cover page of
appellant’s entry of appearance and request for discovery stating “Discovery Sent 7-29-
14.” Thus, we find that the 45-day time limit was tolled for a period of 14 days
beginning with appellant’s request for discovery filed on July 15, 2014, and ending no
earlier than the city’s initial provision of discovery materials on July 29, 2014.
{¶ 12} Factoring in the additional 14-day period, the speedy trial time limit under
R.C. 2945.71(B)(1) would not have expired until August 30, 2014. As noted above,
appellant filed his motion to dismiss on August 22, 2014, four days before his trial was
scheduled to take place. Since the speedy trial time limit had not yet expired, the trial
court properly denied appellant’s motion to dismiss.
{¶ 13} Even assuming, arguendo, that appellant is correct in his assertion that the
record lacks any indication as to when the city provided the requested discovery, our
conclusion remains the same. Indeed, even when the record does not indicate the date on
which the requested discovery was produced, the speedy trial time limit is still tolled for a
“reasonable amount of time.” State v. Gonzalez, 10th Dist. Franklin No. 08AP-716,
2009-Ohio-3236, ¶ 23. We have previously held that 30 days is a “reasonable time” to
5.
respond to an accused’s discovery request. Bates at ¶ 21. In this case, the trial court
afforded the city only seven days of tolling. Upon consideration, we do not find that the
trial court erred in tolling the speedy trial time limit by seven days, even assuming the
record is not clear as to when the city complied with appellant’s discovery request.
{¶ 14} Accordingly, appellant’s first assignment of error is not well-taken.
B. Ineffective Assistance of Counsel
{¶ 15} In his second assignment of error, appellant argues that his trial counsel
was ineffective for failing to wait until August 26, 2014, the date of his trial, to file the
motion to dismiss.
{¶ 16} In order to demonstrate ineffective assistance of counsel, appellant must
satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel’s performance
fell below an objective standard of reasonableness, and a reasonable probability exists
that, but for counsel’s error, the result of the proceedings would have been different. Id.
at 687-688, 694. In light of our prior conclusion that the speedy trial time limit in this
case did not expire until August 30, 2014, we find that appellant cannot establish that the
result of these proceedings would have been different had trial counsel waited until
August 26, 2014, to file the motion to dismiss.
{¶ 17} Accordingly, appellant’s second assignment of error is not well-taken.
6.
III. Conclusion
{¶ 18} Having found appellant’s assignments of error not well-taken, we affirm
the judgment of the Sylvania Municipal Court. Costs are hereby assessed to appellant in
accordance with App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough , P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
7.