State v. Davis

Commenting first upon Assignment of Error 3, I agree with the majority that the trial court erred in deciding "that there is no discretion on the court's part in these matters." My conception of the intendment of the following language in R. C.2945.72(H) is to vest trial courts with discretion, consistent with reasonableness, as the statute demands:

"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 * * *

"(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance grantedother than upon the accused's own motion." (Emphasis added.)

What is reasonable must bear a direct relationship to the facts in each case. In view of the obvious intent of the legislature to have criminal charges disposed of with dispatch, thus serving the interests of the state and the rights of the defendant, the time extension which a trial court can grant under R. C. 2945.72 (H) generally would consist of a few days continuance, possibly several weeks,⁹ but probably never months. The language and spirit of R. C. 2945.71, 72 and 73 speak eloquently of the legislature's intent, so far as (H) is concerned, simply to provide for a reasonable continuance as an escape or relief valve from contingencies such as excessive case loads, no courtroom being available or the temporary incapacity of the court. However, that portion of (H) which grants judicial discretion as to continuances is not an invitation to indiscriminate postponements.

Whenever a court upon its own motion orders a reasonable continuance, under (H), the basis for such action must affirmatively appear in the record. The reason or reasons cited in the record must always satisfy the concept of "reasonableness." Consequently, I agree with the decision to remand this case to the court of common pleas. It should proceed with a hearing incident to a discretionary determination whether or not the complete factual situation confronting it in this case justifies a reasonable extention of the trial date beyond 90 days.

The other assignment of error to which I desire to direct evaluation is No. 2. It reads:

"The Court of Common Pleas of Hamilton County, Ohio, committed error when privately retained legal counsel agreed to a trial date beyond the 90 day period from the date of arrest and thereafter held that this agreement as to the trial date was not binding upon the defendant and did not waive his statutory right to be tried within a period of 90 days from the date of his arrest." (Emphasis added.)

My brothers come to the conclusion that this assignment is well taken and that counsel's agreement to a trial date beyond the 90 day period is effective without any showing of the participation by the defendant himself in such continuance. I disagree. My conclusion would be that counsel's agreement in this case was not binding on defendant and the assignment should be held meritless.

The record establishes no affirmative selection of the delayed trial date either by defendant or his counsel. There is an ambiguity about who chose the May 30, 1974 date. There is no indication that the defendant was present when it was selected. In fact the clear implication from the record is that the prosecuting attorney and defense counsel were there, butdefendant was not. Defense counsel maintained consistently that he merely "accepted" May 30, suggesting at most acquiesence. Neither defendant nor his counsel made a "motion" for a continuance.

Whether mere acquiesence in a trial setting can fairly be equated with a motion, as required by the first part of R. C.2945.72 (H), seems highly questionable. Assuming for the sake of argument only that defense counsel's acceptance of a trial date did amount to a motion brings us then to a determination of whether counsel under the instant facts, as a proxy, had authority to agree to a trial date beyond the 90 days mandated in R. C. 2945.71.

The defendant has a constitutional right to a speedy trial, guaranteed both by the federal and state constitutions. Klopfer v. North Carolina (1967), 386 U.S. 213. In Ohio, the new criminal code, effective January 1, 1974, establishes a definite authoritative time schedule according to which those accused of crime must be tried. In Ohio now, generally speaking, a speedy trial does not depend on circumstances and is no longer a relative concept unless the statutory exceptions in R. C.2945.72 apply.

Is the right to a speedy trial within the criminal code's present requirements therefore a substantial one? In Klopfer,supra, the United States Supreme Court describes the sacredness of the right in these words:

"The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the mostbasic rights preserved by our Constitution. 386 U.S. at 226." (Emphasis added.)

My colleagues have concluded that the agreement to fix the trial date beyond the 90 day period is not of such constitutional magnitude that defendant's own counsel is ineffective to waive the statutory time limitation. I am obliged to reach a contrary conclusion.

The manifest intendment of R. C. 2945.71 in quantifying into a specific number of days what constitutes a speedy trial in this state compels the conclusive determination that this defendant has a right personally to be present and the opportunity to approve or reject a trial date which exceeds 90 days after arrest. In the factual framework before us, defendant's personal consent was essential, and there is no showing even of his presence.¹⁰ Defendant has a significant stake in a delayed trial setting; that is, his entitlement to be discharged if not tried within time. See R. C. 2945.73. The accused's consent to or acquiesence in any trial delay beyond 90 days (or in other fact situations beyond the limitations prescribed in R. C. 2945.71) cannot be presumed; it must affirmatively appear from the record which here it does not. (It is observed parenthetically that most lawyers not only would prefer, but insist upon the personal consent of an accused who is their client in such matters.)

When a trial setting is within the periods established in R. C. 2945.71 — not the instant situation — counsel will be presumed, in the absence of a showing to the contrary, to have full authority without the presence of the defendant. Possible discharge for delay is not usually involved in instances of timely settings.

There is no perfect fact parallel between the case at bar andBrown v. State (1962), 372 P.2d 785, but it contains similar facts, one of which is the absence of the defendant from certain proceedings incident to his criminal trial. What was said inBrown is worthy of note:

"The defendant had not waived his right to be present; in fact he did not know that the hearing was being held. It is true that his attorney was present. But the proceeding that occurred appears to us to have been of such a nature that defendant himself should have been present in person * * *.

"We believe that under the circumstances * * * the appellant's presence was required * * * and that his right to be present was as vital to his defense as his specific constitutional right to be confronted with the witnesses against him." Id. at 789.

In People v. Anderson (1965), 213 N.E.2d 445, the Court of Appeals of New York held that the unexplained absence of the defendant from the pre-trial hearing on his motion to suppress required reversal of his conviction. Admittedly, the matter before us is not a review of a motion to suppress. However, there is adequate identity between the issues to justify noting the following from the New York decision:

"What is of primary importance after all is the strong social policy in favor of requiring the presence of the defendant.

"In my view the decision below [which affirmed the conviction] * * * is a violation of fundamental fairness."Id. at 448.

R. C. 2953.21 et seq. provide for a post-conviction determination of constitutional rights including, of course, one's right to a speedy trial. I am convinced that one of the incidental and collateral advantages to denying proxy extensions beyond times required for trial in R. C. 2945.71 will be the avoidance, at least to some extent, of resort by defendants to petitions for post-conviction review of criminal judgments with attendant multiplication of time consuming judicial determinations and especially hearings.

⁹ Webster defines "several" as "more than two but fewer than many."

¹⁰ There is no attempt here absolutely to determine what amounts to "personal consent" in each case. However, the minimum requirement is the presence of the defendant when a delayed trial date is fixed.