State v. Doane

Although I generally concur with the majority's treatment of the appellant's assignments of error, I am compelled to express a divergence from part of its analysis of the sixth assignment of error, which difference does not affect the mandate or outcome in this particular case.

My concern deals with the majority's rationale of the speedy trial issue in appellant's first argument in the sixth assignment of error in which she advances the contention that she was not tried on misdemeanor charges of dereliction of duty, being Counts 8 through 11, in compliance with Ohio's speedy trial statute, R.C. 2945.71. The majority relies on the authority of State v. Dembecki (Apr. 15, 1983), Portage App. No. 1273, unreported, 1983 WL 6239.

In Dembecki, supra, the defendant was charged in the same indictment with two misdemeanors of the first and second degree, assault and resisting arrest, which, under R.C. 2945.71(B)(2), independently were required to be brought to trial within ninety days after arrest. The defendant then was also charged under the same indictment arising from the same incident with escape, a felony of the fourth degree. The trial was conducted beyond ninety days, but within two hundred seventy days.

Expressing the rationale that the speedy trial statute is mandatory and that strict compliance was the standard, this court then concluded that the state was bound to strictly comply with the statute and bring the defendant to trial on the misdemeanor charges within ninety days, or, in effect, dismiss the misdemeanor charges in a timely fashion. I am mindful that other Ohio appellate courts have cited Dembecki with approval in unreported decisions. See State v. Branham (Oct. 8, 1987), Paulding App. No. 11-85-9, unreported, 1987 WL 18223, andState v. Leadingham (June 1, 1989), Scioto App. No. 1749, unreported, 1989 WL 62873.

At the time that this writer authored the Dembecki decision, the prevailing attitude was that the speedy trial statutory concepts were to be applied rather rigidly and inflexibly. During the intervening years, this view has softened to some degree in a number of Ohio Supreme Court and appellate opinions, although strict construction remains the hallmark.

At a later time, this writer was persuaded to a countervailing position on this issue by what he perceives to be a logical and tenable set of considerations which he has opined. A few of those factors are that in a situation in which a given defendant is charged with a combination of misdemeanor and felony charges arising out of the same factual circumstances, the state often will have a greater burden in preparing the felony matter for trial and, generally, there is no express or inherent prejudice resulting to the defendant in preparing for such a hybrid set of charges for trial purposes. Further, a reading of the pertinent statutory sections in parimateria is not violative of constitutional or legislative construction standards. Consequently, this writer and this court applied the opposing sentiment, citing with favor State v.Downey (Feb. 9, 1983), Summit App. No. 10889, unreported, 1983 WL 3972, in State v. Fetzer (July 20, 1990), Portage App. No. 2085, unreported, 1990 WL 103954. We stated there, at 4:

"Ohio's speedy trial statutes prescribe specific time limits for bringing a criminal defendant to trial. These time limits vary according to the nature of the crime with which the defendant has been charged. In this case, appellant was indicted on two felonies and two misdemeanors of the first degree. When the pending charges include crimes of varying degrees, the longest of the applicable time limits apply to all of the charges. See State v. Downey (Feb. 9, 1983), Summit App. No. 10889, unreported."

As a result of the foregoing narrative, this writer is mindful of the tenor of the Supreme Court Rules for the Reporting of Opinions. Rule 2(G), in essence, tells us that unofficially published or unpublished opinions are not considered controlling authority in the judicial district in which they were decided, except when relevant under the law of the case, res judicata or collateral estoppel, or in a criminal proceeding involving the same defendant.

Although this case, in my judgment, does not present the proper predicate or syllogism to address this contradiction, I am mindful that this divergency in our appellate district on that subject should be resolved in the future in a case that crisply presents this issue. The orderly conduct of judicial affairs requires the elimination of this conflict for the benefit of litigants, the bench and bar of our district. It is for this reason that I have submitted this concurring opinion.