Cleveland v. Beach

[Cite as Cleveland v. Beach, 2021-Ohio-577.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 109467
v. :
PATRICK D. BEACH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED
RELEASED AND JOURNALIZED: March 4, 2021
Criminal Appeal from the Cleveland Municipal Court
Case No. 2019-TRC-009214
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, Stephen F.
Gorczyca, Omar Siddiq and Brittany C. Barnes, Assistant City
Prosecutors, for appellee.
Milton A. Kramer Law Clinic and Andrew S. Pollis, for
appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Patrick D. Beach (“Beach”) appeals his
conviction and asks this court to vacate. Finding merit to Beach’s second
assignment of error, we vacate Beach’s conviction and sentence.
Following a jury trial, Beach was found guilty of one count of driving
under the influence of alcohol, a first-degree misdemeanor, in violation of
R.C. 4511.19(A)(1)(a). The trial court found Beach guilty of driving in marked lanes,
a minor misdemeanor, in violation of R.C. 4511.33. The trial court sentenced Beach
to 180 days in jail with 176 days suspended. Beach was sentenced to two years of
community control supervision, ordered to complete 60 hours of community service
and attend three Mothers Against Drunk Driving sessions. Beach’s driver’s license
was suspended until March 17, 2020, and he was fined $400.
I. Facts and Procedural History
According to court records, Beach was arrested on March 17, 2019,
for driving under the influence of alcohol. Beach spent three days in jail and was
arraigned on March 20, 2019, where he pleaded not guilty to the offenses charged.
Beach was released on personal bond and his first pretrial was scheduled for April
11, 2019. At the first pretrial hearing, Beach requested a continuance to obtain
discovery. The trial court rescheduled the hearing for May 6, 2019. At the May
pretrial hearing, Beach requested a continuance in order to view the police body-
camera footage of his arrest. The trial court granted Beach’s request and scheduled
another hearing for June 4, 2019. On June 4, 2019, Beach requested another
continuance asking the court to give him time to decide whether he wanted to go to
trial. The trial court granted his request and scheduled another pretrial hearing for
June 12, 2019.
Beach and his attorney did not attend the June 12, 2019 pretrial
hearing. According to Beach, he thought the trial court scheduled the hearing for
July 12, 2019. As a result of his failure to appear, the trial court issued a warrant for
Beach’s arrest. On June 25, 2019, Beach filed a motion requesting the trial court to
recall the capias1 and reschedule another pretrial. One June 26, 2019, the trial court
granted Beach’s motion to continue and rescheduled the pretrial hearing for July 16,
2019.
At the July 16, 2019 pretrial hearing, Beach requested another
continuance in order to file a motion to suppress the evidence. That motion was
filed July 17, 2019, and the city filed their response on August 2, 2019. The trial
court denied Beach’s motion to suppress on August 8, 2019, and scheduled another
pretrial hearing for August 21, 2019, at Beach’s request. Again, at Beach’s request,
during the August 21, 2019 hearing, Beach requested another continuance. The trial
court scheduled Beach’s trial for October 24, 2019.
On October 22, 2019, the prosecutor asked the trial court for a
continuance of the trial due to the testifying officer’s unavailability as a result of a
week-long training. The trial court granted the request and scheduled the trial to
occur on November 4, 2019. Thereafter, the trial court moved the trial to
November 14, 2019 without explanation. On November 14, 2019, the prosecutor
1 A writ of arrest. In some U.S. jurisdictions a capias is used instead of an arrest
warrant.
was ill and requested a continuance. The trial court granted the continuance and
rescheduled the trial for December 4, 2019.
On December 3, 2019, Beach filed a motion to dismiss the case for
violation of his speedy trial rights. Beach argued that 136 days had passed since he
was arrested, not accounting for the delays he requested. The city filed its answer to
Beach’s motion to dismiss arguing that Beach’s speedy trial days reset when the trial
court issued the capias. The trial court agreed with the city and denied Beach’s
motion. Trial was held on December 4, 2019, and Beach was found guilty of both
charges. Beach filed this appeal assigning two errors for our review:
I. The trial court erred if it denied Beach’s motion to recall his
capias; and
II. The trial court erred when it denied Beach’s motion to dismiss
on speedy-trial grounds.
II. Recalling the Capias
In Beach’s first assignment of error, he argues that the trial court
erred if it denied Beach’s motion to recall his capias. The record reflects that the
trial court issued a capias after Beach failed to appear for his June 12, 2019 pretrial
hearing. Beach thereafter filed a motion to recall the capias, and the trial court
rescheduled the pretrial hearing for July 16, 2019. The record does not reflect that
the trial court expressly recalled the capias when it rescheduled the pretrial hearing.
However, “it is well-settled law that a motion not expressly ruled on
is deemed impliedly overruled.” (Citations omitted.) Montgomery v.
Montgomery, 4th Dist. Scioto Nos. 03CA2923 and 03CA2925, 2004-Ohio-6926,
¶ 18. We find that the facts surrounding the motion in Montgomery differ from
the instant case. Montgomery dealt with a single Crim.R. 29 motion and Beach
deals with a two-prong motion — motion to recall the capias and reschedule the
pretrial hearing. We determine that when the trial court rescheduled Beach’s
hearing, and did not have him arrested at the next hearing or subsequent hearings,
Beach’s capias was therefore recalled. See, e.g., Cleveland v. Evans, 8th Dist.
Cuyahoga No. 100721, 2014-Ohio-4567, ¶ 25 (the trial court recalled the capias by
rescheduling the appellant’s pretrial hearing).
Therefore, Beach’s first assignment of error is overruled.
III. Speedy Trial Rights
A. Standard of Review
As such,
[w]hen reviewing a speedy trial issue, the appellate court counts the
days and determines whether the number of days not tolled exceeds
the time limits for bringing the defendant to trial as set forth in R.C.
2945.71. State v. Gibson, 8th Dist. Cuyahoga No. 100727, 2014-Ohio-
3421, ¶ 15; State v. Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-
Ohio-5415, ¶ 14-16, citing State v. Barnett, 12th Dist. Fayette No.
CA2002-06-011, 2003-Ohio-2014, ¶ 7. If the state has violated a
defendant’s right to a speedy trial, then upon motion made at or prior
to trial, the defendant “shall be discharged,” and further criminal
proceedings based on the same conduct are barred. R.C. 2945.73(B);
State v. Torres, 7th Dist. Jefferson Nos. 12 JE 30 and 12 JE 31, 2014-
Ohio-3683, ¶ 18.
State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699,
¶ 20.
B. Law and Analysis
In Beach’s second assignment of error, he contends that the trial court
erred when it denied his motion to dismiss the case for a speedy trial violation
because the case was not resolved within the time prescribed by R.C. 2945.71.
A defendant is guaranteed the constitutional right to a speedy trial
pursuant to the Sixth and Fourteenth Amendments of the United
States Constitution and Section 10, Article I of the Ohio Constitution.
State v. Williams, 8th Dist. Cuyahoga No. 100898, 2014-Ohio-4475,
¶ 51, citing State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781
N.E.2d 72, ¶ 32. Pursuant to its authority to prescribe reasonable
periods in which a trial must be held that are consistent with these
constitutional requirements, Ohio enacted R.C. 2945.71 which sets
forth the specific time requirements within which the state must bring
a defendant to trial. State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-
2904, 971 N.E.2d 937, ¶ 14.
Id. at ¶ 18.
R.C. 2945.71 states,
Subject to division (D) of this section, a person against whom a charge
of misdemeanor, other than a minor misdemeanor, is pending in a
court of record, shall be brought to trial as follows: Within ninety days
after the person’s arrest or the service of summons, if the offense
charged is a misdemeanor of the first or second degree, or other
misdemeanor for which the maximum penalty is imprisonment for
more than sixty days.
Our review of the record reveals that Beach was arrested on March 17,
2019, and spent three days in jail before being arraigned on March 20, 2019. Beach’s
speedy trial rights calculation therefore began on March 18, 2019. “Generally, when
computing how much time has run against the state under R.C. 2945.71, we begin
with the day after the accused was arrested.” State v. Shepherd, 8th Dist. Cuyahoga
No. 97962, 2012-Ohio-5415, ¶ 17, citing State v. Broughton, 62 Ohio St.3d 253, 260,
581 N.E.2d 541 (1991). “However, pursuant to R.C. 2945.71(E), each day spent in
jail ‘on a pending charge’ acts as three days toward speedy trial time.” State v.
Gibson, 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421, ¶ 15. Beach received a
personal bond and was released on March 20, 2019, for a total of three days to be
counted as nine days toward speedy trial.
Beach appeared with counsel and requested an initial pretrial hearing
that was scheduled for April 11, 2019. Pursuant to R.C. 2945.72(E), this continuance
extended or tolled Beach’s speedy trial time. Beach requested a continuance for
discovery, and the trial court set the date for May 6, 2019. “It is well-established that
an accused’s request for discovery is a tolling event pursuant to R.C. 2945.72(E).
State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, ¶ 18; State v.
Benge, 12th Dist. Butler No. CA99-05-095, 2000 Ohio App. LEXIS 1782.” State v.
Barnett, 12th Dist. Fayette No. CA2002-06-011, 2003-Ohio-2014, ¶ 11.
On May 6, 2019, Beach requested a continuance to review police
body-camera footage with his counsel and the trial court continued the matter until
June 4, 2019. Thus, the days tolled under Beach’s requests pursuant to
R.C. 2945.72(E). Beach failed to appear at the June 12, 2019 hearing, and the trial
court issued a capias. Pursuant to R.C. 2945.72(D), Beach’s speedy trial days
continued to toll. Beach filed a motion to recall the capias on June 25, 2019, and the
next day, the trial court rescheduled Beach’s hearing for July 16, 2019.
R.C. 2945.72(D). Beach was not arrested on the capias nor was his bail revoked. It
is this capias event that is at issue regarding whether Beach’s speedy trial time tolled
or restarted anew.
The city argues that once a capias has been issued, the days toward
Beach’s speedy trial rights reset. See, e.g., State v. Cochern, 8th Dist. Cuyahoga
No. 104960, 2018-Ohio-265, ¶ 50 (statutory speedy trial clock begins anew upon
issuance of a capias). We find that the city’s reliance on Cochern is incorrect. In
Cochern, the trial court issued several capias because the defendant failed to appear
for several scheduled trial dates and not solely pretrial hearings. Additionally, this
court reviewed Cochern under a constitutional speedy trial analysis, which it found
was “less formulaic” then Ohio’s statutory speedy trial protections, stating that there
was no “clock” to restart. Id. at ¶ 50.
Likewise, the city’s reliance on State v. Hogan, 8th Dist. Cuyahoga
No. 71337, 1997 Ohio App. LEXIS 4548 (Oct. 9, 1997), is incorrect. In Hogan, the
defendant was arrested for a theft offense after indictment on February 21, 1996.
Hogan was released on bail five days later but failed to appear at a subsequent
pretrial hearing. A warrant was issued for Hogan’s arrest. Hogan was rearrested on
the outstanding warrant on April 6, 1996. The city relies on the court’s finding that
“[t]he issuance of a capias does more than toll the speedy trial time, it starts the time
period anew.” Id. at ¶ 5. However, the city stops premature of the court’s
determination. The court continued by stating “[t]he time is recalculated from the
time of the rearrest.” State v. Bauer, 61 Ohio St.2d 83, 399 N.E.2d 555 (1980).
Hogan at ¶ 5. In the instant case, Beach was not rearrested. Beach’s counsel filed a
motion to recall his capias and a new pretrial was rescheduled.
In response to the city’s assertion, Beach cites State v. Jenkins, 8th
Dist. Cuyahoga No. 95006, 2011-Ohio-837, ¶ 16, where this court stated, “[i]f a
capias must be issued for the accused, speedy trial time is tolled for this time period.”
Id., citing State v. Ennist, 8th Dist. Cuyahoga No. 90076, 2008-Ohio-5100.
Beach also cites State v. Shabazz, 8th Dist. Cuyahoga No. 95021,
2011-Ohio-2260, where the court states,
If the defendant is not arrested for the offense, speedy trial time
begins on the day he is served with the indictment. State v. Pirkel,
[8th Dist.] Cuyahoga No. 93305, 2010-Ohio-1858. If a capias must be
issued for the accused, speedy trial time is tolled for this time period.
State v. Ennist, [8th Dist.] Cuyahoga No. 90076, 2008-Ohio-5100.
Id. at ¶ 25.
We find that Beach did not delay a trial and was not rearrested
triggering a restart of his speedy trial time. Therefore, we further find that the
issuing of the capias does not reset the days counted toward Beach’s speedy trial
rights but tolled his time.
In light of this decision, we have provided a chart to determine the
number of days concerning Beach’s speedy trial clock.
Date Event Statute/Case Total Days
3/17/19 Beach arrested.
3/20/19 Beach arraigned and released R.C. 2945.71(E) 9
from jail.
4/11/19 Pretrial hearing; Beach requests R.C. 2945.72(E) 31
continuance for discovery.
Date Event Statute/Case Total Days
5/6/19 Pretrial hearing; Beach requests R.C. 2945.72(E) 31
continuance to view evidence.
6/4/19 Pretrial hearing; Beach requests R.C. 2945.72(E) 31
a continuance to decide whether
to go to trial.
6/12/19 Beach failed to appear to R.C. 2945.72(D) 31
hearing. Capias issued.
6/25/19 Beach filed a motion to recall the R.C. 2945.72(D) 31
capias.
6/26/19 Trial court recalled capias and R.C. 2945.72(E) 31
rescheduled hearing at Beach’s
request.
7/16/19 Beach requests continuance. R.C. 2945.72(E) 31
8/7/19 Motion to suppress hearing and R.C. 2945.72(H) 31
case continued at Beach’s
request.
8/21/19 Beach requests jury trial. R.C. 2945.72(E) 31
10/24/19 City requests continuance due to R.C. 2945.72(H) 95
officer unavailability; Trial
scheduled for 11/4/19.
11/4/19 Trial court continued case 105
without explanation.
11/14/19 City requests continuance due to State v. Watson, 105
illness. 10th Dist.
Franklin No.
13AP-148, 2013-
Ohio-5603,
¶ 20.
12/4/19 Trial Date. 105
We determine from the record that the total days from the time Beach
was arrested until trial on December 4, 2019, is 105 days. By statute, Beach was
required to be brought to trial within 90 days of his arrest. R.C. 2945.71(D).
Therefore, Beach’s second assignment of error is sustained.
Defendant’s conviction and sentence is vacated.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
LISA B. FORBES, J., CONCUR