State v. Mathews

[Cite as State v. Mathews, 2020-Ohio-5249.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-394
(M.C. No. 2017 CRB 7881)
v. :
(REGULAR CALENDAR)
[Kimberly N. Mathews, Administrator :
of the Estate of Terrance T. Glenn, Jr.],
:
Defendant-Appellant.
:
D E C I S I O N
Rendered on November 10, 2020
On brief: Zach Klein, City Attorney, Lara N. Baker, and
Melanie R. Tobias, for appellee.
On brief: The Tyack Law Firm Co., L.P.A., and Holly B. Cline,
for appellant.
APPEAL from the Franklin County Municipal Court
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Terrance T. Glenn, Jr., from a
judgment of conviction and sentence entered by the Franklin County Municipal Court
following his entry of a no contest plea to domestic violence and assault.
{¶ 2} On April 15, 2017, appellant was charged with one count of domestic violence,
in violation of R.C. 2919.25(A), and one count of assault, in violation of Columbus City Code
2303.13(A), both misdemeanors of the first degree. Appellant was arrested on April 16,
2017 and was released on bond April 21, 2017. The case was assigned to Judge David Tyack
and the court scheduled a pre-trial hearing for May 3, 2017.
{¶ 3} On May 2, 2017, attorney Jonathon T. Tyack filed an appearance on behalf of
appellant. On May 3, 2017, the trial court granted a continuance at the request of
No. 18AP-394 2
appellant's counsel. On June 29, 2017, the date of the second pre-trial hearing, the trial
court granted a further continuance, and the case was set for a jury trial on August 7, 2017.
{¶ 4} On August 7, 2017, the trial judge filed a recusal entry stating: "To avoid the
appearance of impropriety, this branch of the Court respectfully seeks to recuse itself from
this case. The Assignment Commissioner shall reassign this case to another Judge by
random lot." (Aug. 7, 2017 Recusal Entry.) On August 8, 2017, the administrative judge
filed an entry stating in part: "In that Judge Tyack has recused himself from the above
assigned case, the Assignment Commissioner is hereby directed to assign the above styled
case to another judge by lot." (Aug. 8, 2017 Entry.)
{¶ 5} On August 9, 2017, the case was assigned to a new trial judge (Judge Salerno).
On August 21, 2017, the assignment office processed the newly assigned case and a jury trial
date was set for September 11, 2017. Notices of the rescheduled trial date were sent on that
date.
{¶ 6} On September 11, 2017, the case was continued at the request of appellant's
counsel. On October 23, 2017, counsel for appellant filed a motion to dismiss on speedy
trial grounds, asserting the state failed to bring him to trial within 90 days after his arrest.
By entry filed November 6, 2017, the case was reassigned for trial for December 1, 2017. On
November 28, 2017, the state filed a response to the motion to dismiss.
{¶ 7} On December 1, 2017, the trial court conducted a hearing on the speedy trial
motion. During the hearing, the parties submitted a joint exhibit, and the prosecutor
represented that "the documents * * * we are about to submit to the Court are relevant to
the determination of speedy trial in this case and they're not in dispute." (Dec. 1, 2017 Tr.
at 3.) Noting agreement between the parties as to "all the tolling events and all the time
that has passed for everything that occurred prior to August 7th and everything that
occurred after September 11th," the prosecutor framed the issue before the court as "how
much, if any, of this time frame from August 7th to August 21st is chargeable to the State
and how much would constitute * * * a continuance * * * other than the defendant's request
pursuant to 2945.72(H)." (Dec. 1, 2017 Tr. at 7.)
{¶ 8} The record then reflects the following exchange between the trial court and
the prosecutor:
THE COURT: Was there some delay in that coming to me from
between the August 9th and August 21st date?
No. 18AP-394 3
[THE PROSECUTOR]: Your Honor, in the record, all that
exists is the fact the case was assigned to this court on August
9th and that the case was subsequently on August 21st assigned
by this Court to a jury trial date of September 11th. Outside of
the record, it would be understood that both the Court and the
bailiff were on vacation during that period of time, but that's
not reflected in the entries.
(Dec. 1, 2017 Tr. at 8.)
{¶ 9} By decision and entry filed January 3, 2018, the trial court denied the motion
to dismiss. In its decision, the court initially held: "Counting three days for every day
[appellant] remained in jail * * * and tolling time under R.C. 2945.72 based on [appellant's]
request for discovery and to continue the pre-trial to June 29, the Court finds that 59 speedy
trial days elapsed from April 17 to August 7." The trial court noted that, on August 7, 2017,
"the previously assigned judge filed an entry of recusal," and the administrative judge then
"directed the Assignment Commissioner to reassign the case by lot on August 8, and the
case was assigned to the undersigned Judge on August 9." Further, on August 21, 2017,
"the case was scheduled for jury trial on September 11." (Jan. 3, 2018 Decision at 1.) The
trial court noted the parties' agreement that "time has been tolled since September 11, based
on [appellant's] request for continuance and subsequent filing of the instant motion," but
that the parties "disagree on how to attribute the days that elapsed between August 7 and
August 21, for speedy trial purposes." (Jan. 3, 2018 Decision at 1-2.)
{¶ 10} The trial court held, "as a matter of law, that speedy trial time tolled from the
date of the recusal entry on August 7 until the date the case was rescheduled on August 21."
With respect to the events from August 7 until August 9, 2017, the court found that a trial
judge's recusal "tolls speedy trial time at least until another judge is assigned, as a
'reasonable continuance granted other than upon the accused's own motion.' " The trial
court further held that "tolling time until the newly assigned judge schedules the case for
trial ought to be included within the 'reasonable' time contemplated to address the
unavailability of the court embodied in the recusal entry." Specifically, the court noted, "the
undersigned judge has consulted her calendar records, and they show she was previously
scheduled to be out of the office, and therefore unavailable to consult for scheduling
purposes, during most of the period between August 9 and August 21." The trial court
therefore concluded appellant's right to be brought to trial within 90 days "has not been
violated" as the rescheduled trial date of September 11, 2017 "was approximately the 80th
No. 18AP-394 4
day of speedy trial time, after accounting for the various tolling events." (Jan. 3, 2018
Decision at 2.)
{¶ 11} On May 7, 2018, appellant entered no contest pleas to both charges. The trial
court entered a finding of guilty and sentenced appellant by entry filed that same date.
{¶ 12} On appeal, appellant1 sets forth the following single assignment of error for
this court's review:
The trial court erred by not dismissing Defendant-Appellant's
case on statutory speedy-trial grounds, pursuant to R.C.
2945.71 through R.C. 2945.73.
{¶ 13} Under his single assignment of error, appellant asserts the trial court erred
by not dismissing his case on statutory speedy trial grounds pursuant to R.C. 2945.71.
Appellant notes agreement between the parties that, due to various tolling events, a total of
59 speedy trial days elapsed by the time of the trial court's sua sponte recusal entry filed on
August 7, 2017. Appellant further argues the parties are in agreement that the time between
August 21 and the September 11, 2017 jury trial date (i.e., 21 days) should be counted toward
speedy trial time. Thus, appellant maintains, there is no dispute that at least 80 speedy
trial days had elapsed by September 11, 2017. Appellant argues the sole dispositive issue
on appeal is whether the 12-day time period between August 9, 2017 (the date the case was
reassigned to a new judge) and August 21, 2017 (the date on which the court scheduled the
new trial date) should count for purposes of speedy trial computation.
{¶ 14} Citing the Supreme Court of Ohio's decision in State v. Mincy, 2 Ohio St.3d
6 (1982), appellant argues a continuance that properly extends the speedy trial time
limitation under R.C. 2945.72(H) must contain the following requirements: (1) the
continuance must be recorded by the trial court in its journal entry, (2) the journal entry
must identify the party to whom the continuance is chargeable, and (3) if the trial court is
acting sua sponte, the journal entry must so indicate and must set forth the reasons
justifying the continuance. Appellant maintains there is no journal entry setting forth the
reasons justifying the continuance.
1 On December 2, 2019, counsel for appellant filed a notice of suggestion of death of appellant. This court
stayed the matter to allow time for a personal representative to be substituted as a party. Counsel for appellant
subsequently filed a motion for substitution of party of defendant-appellant, which this court granted. By
journal entry filed January 21, 2020, this court sua sponte reactivated the case.
No. 18AP-394 5
{¶ 15} This court's review of a trial court's "decision regarding a motion to dismiss
based upon a violation of the speedy trial provisions involves a mixed question of law and
fact." State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 12, citing State v. Fultz,
4th Dist. No. 06CA2923, 2007-Ohio-3619, ¶ 8, citing State v. Brown, 131 Ohio App.3d 387,
391 (4th Dist.1998). An appellate court, therefore, "must give due deference to a trial
court's findings of fact if supported by competent, credible evidence, but independently
review whether the trial court properly applied the law to the facts of the case." Id.{¶ 16} A criminal defendant is "guaranteed the right to a speedy trial under state
and federal law." State v. Martin, 156 Ohio St.3d 503, 2019-Ohio-2010, ¶ 15, citing Ohio
Constitution, Article I, Section 10; Sixth Amendment to the United States Constitution. In
Ohio, both state and federal constitutional speedy trial guarantees "are codified in R.C.
2945.71 et seq." Id., citing State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, ¶ 11. Under
R.C. 2945.71(B)(2), "a person against whom a first-degree-misdemeanor charge is pending
must be brought to trial within 90 days of [his or] her arrest." Id. Further, "[u]nder R.C.
2945.71(E), each day that the defendant is incarcerated in lieu of bond on the pending
charge counts as three days." State v. Kadunc, 10th Dist. No. 15AP-920, 2016-Ohio-4637,
¶ 9.
{¶ 17} While the time limits under R.C. 2945.71 "must be strictly enforced, R.C.
2945.72 provides a number of events and circumstances that will toll the running of a
defendant's speedy-trial time." Martin at ¶ 15, citing State v. Ramey, 132 Ohio St.3d 309,
2012-Ohio-2904, ¶ 24. Under R.C. 2945.72(H), " '[t]he time within which an accused must
be brought to trial * * * may be extended' by * * * 'the period of any reasonable continuance
granted on the accused's own motion.' " Id. In accordance with Ohio law, " '[s]ua sponte
continuances are continuances "granted other than on the accused's own motion" ' and toll
the speedy-trial time as long as the record reflects 'that the period of the continuance was
"reasonable." ' " State v. Gartrell, 3d Dist. No. 9-14-02, 2014-Ohio-5203, ¶ 109, quoting
State v. Kesler, 3d Dist. No. 13-13-35, 2014-Ohio-3376, ¶ 5.
{¶ 18} In interpreting R.C. 2945.72(H), the Supreme Court has held: "Ideally,
'[w]hen sua sponte granting a continuance under R.C. 2945.72(H), the trial court must
enter the order of continuance and the reasons therefor by journal entry prior to the
expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.' "
Ramey at ¶ 32, quoting Mincy at syllabus. The Supreme Court has further held, however,
No. 18AP-394 6
that "an appellate court may affirm a conviction challenged on speedy-trial grounds even if
the trial court did not expressly enumerate any reasons justifying the delay when the
reasonableness of the continuance is otherwise affirmatively demonstrated by the record."
Id. at ¶ 33.
{¶ 19} In accordance with Ramey, several Ohio appellate courts have considered, in
instances where a trial court has failed to comply with Mincy, whether the reasonableness
of the continuance was affirmatively demonstrated by the record. See, e.g., State v.
Vanscoy, 9th Dist. No. 26964, 2014-Ohio-3482, ¶ 14-15 (although trial court's order setting
pre-trial date and trial date "did not specify any reasons for continuing the trial past the
speedy trial deadline," in light of the content of the conversations occurring at pre-trial
hearing, "the period of continuance was reasonable as affirmatively demonstrated by the
record"); State v. Roth, 9th Dist. No. 17CA011083, 2018-Ohio-2564, ¶ 14 (although
magistrate's notice of continuance "does not expressly state the reason why the magistrate
was continuing the trial after the speedy trial deadline," a review of the state's motion
indicates the victim was unavailable for trial due to vacation, and therefore "the
reasonableness of the continuance was affirmatively demonstrated by the record"); State v.
Smith, 4th Dist. No. 16CA10, 2017-Ohio-7864, ¶ 30-31 (rescheduled trial date constituted
reasonable continuance under R.C. 2945.72(H); "[a]lthough trial court did not comply with
Mincy," the reasonableness of continuance " 'is otherwise affirmatively demonstrated by
the record' ").
{¶ 20} We initially note that appellant, while citing the fact he argued before the trial
court that the two days between Judge Tyack's recusal (on August 7, 2017) and the
reassignment of the case to Judge Salerno (on August 9, 2017) should count towards the
speedy trial calculation, nevertheless maintains for purposes of appeal that "whether
speedy trial time was tolled for these two days is not dispositive of the issues raised by this
appeal." (Appellant's Brief at 7.) Ohio courts, however, have found such continuances to
accommodate a trial court's recusal and the appointment of a new judge as reasonable
under R.C. 2945.72(H). See, e.g., State v. Robinson, 5th Dist. No. 2008 CA 00283, 2009-
Ohio-2981, ¶ 29 (three-day period between recusal and assignment of new judge "was tolled
pursuant to R.C. 2945.72(H) as a reasonable continuance granted other than upon the
accused's own motion"); Lyndhurst v. Di Fiore, 8th Dist. No. 88654, 2007-Ohio-3538, ¶ 10
(finding time tolled, pursuant to R.C. 2945.72(H), for 11-day period between the date trial
No. 18AP-394 7
judge moved to recuse herself and date new judge was assigned). Accordingly, we find the
trial court's August 7, 2017 entry properly tolled the speedy trial time "as a reasonable
continuance granted other than upon the accused's own motion." Robinson at ¶ 29.
{¶ 21} We therefore turn to appellant's contention that the trial court erred in tolling
the speedy trial time for the 12 days between August 9 and 21, 2017. As indicated, appellant
contends that, in contravention of Mincy, there is no journal entry reflecting the
unavailability of the trial court during that time period.
{¶ 22} As noted, the August 7, 2017 entry sets forth the reason for the continuance
of the August trial date, i.e., the trial judge sought recusal "[t]o avoid the appearance of
impropriety." On August 8, 2017, the administrative judge put on an entry indicating Judge
Tyack’s recusal and directing the assignment commissioner to reassign the case to another
judge by random lot. The case was reassigned the following day (August 9, 2017), and a
court notice was issued on August 21, 2017, setting a trial date for September 11, 2017. As
further noted, the Supreme Court "has 'recognized that an appellate court may affirm a
conviction challenged on speedy-trial grounds even if the trial court did not expressly
enumerate any reasons justifying the delay when the reasonableness of the continuance is
otherwise affirmatively demonstrated by the record.' " State v. Carr, 4th Dist. No.
12CA3358, 2013-Ohio-5312, ¶ 31, quoting Ramey at ¶ 33. Under such circumstances, "[f]or
the continuance to toll speedy trial time, '[t]he record must reflect that the continuance was
"reasonable in both purpose and length." ' " Id., quoting Martin at 293.
{¶ 23} In the present case, during the hearing on the motion to dismiss on speedy
trial grounds, the prosecutor addressed the issue of the delay from August 9 to 21,
representing that "both the Court and the bailiff were on vacation during that period of
time, but that's not reflected in the entries." (Dec. 1, 2017 Tr. at 8.) Counsel for appellant
did not specifically challenge that assertion during the hearing,2 and indicated to the court
"we're not here to argue that 10 days or 14 days is necessarily reasonable or unreasonable."
(Dec. 1, 2017 Tr. at 16.) Rather, counsel framed the issue as "not the reasonableness but
whether it was a proper continuance under Ohio case law and the relevant statutory
provisions." (Dec. 1, 2017 Tr. at 16.)
2 As set forth under the facts, the trial court's subsequent decision and entry denying the motion to dismiss
states in part: "[T]he undersigned judge has consulted her calendar records, and they show she was previously
scheduled to be out of the office, and therefore unavailable to consult for scheduling purposes, during most of
the period between August 9 and August 21." (Dec. 1, 2017 Tr. at 2.)
No. 18AP-394 8
{¶ 24} Here, the record indicates the delay from August 7 to 9, 2017 was due to the
original trial judge's recusal and the reassignment of the case to a new judge. The record
further indicates the delay from the reassignment date (August 9, 2017) until the date a new
trial was scheduled (August 21, 2017) was due to the fact the newly assigned judge, as well
as the judge's bailiff, were on vacation at the time of the reassignment (i.e., on the date of
the reassignment, the newly assigned judge was unavailable to schedule a new trial date
due to a vacation event). We note, in general, that such events have been deemed adequate
to extend the time under R.C. 2945.72(H). See, e.g., State v. Dase, 1st Dist. No. C-810844
(Aug. 4, 1982), citing State v. Lee, 48 Ohio St.2d 208 (1976) ("trial court's sua sponte
continuance made * * * before the expiration of the statutory period, extended the time
under R.C. 2945.72(H), the reason as disclosed by the record ('judge on vacation') being
adequate"); State v. Tarpley, 9th Dist. No. 1587 (Apr. 11, 1979) ("A continuance to permit a
judge to take an earned vacation * * * comports with the rationale of State v. Lee * * * and
is a continuance pursuant to R.C. 2945.72(H) which permits the time requirements of R.C.
2945.71 to be extended.").
{¶ 25} In his reply brief, appellant argues that the period of time between the trial
court's sua sponte recusal (on August 7, 2017) and the reassignment of the case to another
judge (on August 9, 2017) constitutes a "closed" tolling event, and that any delay following
the reassignment of the new judge is essentially a new tolling event (i.e., a separate
continuance) for which the new judge was required to indicate, in a journal entry, the
reasons for granting a sua sponte continuance pursuant to R.C. 2945.72(H). (Appellant's
Reply Brief at 4.) As noted, however, the record indicates the newly assigned judge was
unavailable at the time of the reassignment, and we do not view, under the particular
circumstances presented, the delay between the reassignment and the setting of the new
trial date as unrelated to the initial tolling event (i.e., the sua sponte recusal).
{¶ 26} Here, Judge Tyack's entry of August 7, 2017 and the administrative judge's
entry of August 8, 2017 set forth the reason for the continuance of the August trial date.
The record further reflects the newly assigned trial judge was unavailable at the time of the
reassignment based on the prosecutor's unchallenged remarks at the hearing regarding the
previously scheduled vacations. Thus, we conclude the 12-day period at issue was
reasonable as to both purpose and length. Accordingly, the trial court did not err in finding
the time for speedy trial was tolled between August 9, 2017 and August 21, 2017.
No. 18AP-394 9
{¶ 27} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Municipal Court is hereby affirmed.
Judgment affirmed.
SADLER, P.J., concurs
BRUNNER, J., dissents.
BRUNNER, J., dissenting.
I. INTRODUCTION
{¶ 28} I respectfully dissent from the decision of the majority. The majority affirms
a decision of the trial court denying a motion filed by defendant-appellant, Terrance Glenn,
Jr., to dismiss the case on speedy trial grounds. The majority first concludes that extensions
of the speedy trial deadline are to be strictly construed. Here, no reason was given for the
sua sponte court continuance in this case, which resulted in a trial date being set after the
expiration of the speedy trial deadline. But the majority concludes that the continuance
was "reasonable" and that the trial court did not err in denying Glenn relief.
{¶ 29} I respectfully disagree. I would find that the speedy trial time set by statute
had elapsed when Glenn filed his motion to dismiss, that it is not reasonable for a court to
sua sponte continue a case beyond the speedy trial deadline without giving a reason or even
indicating that the case had been continued, and that the trial court erred as a matter of law
in denying Glenn's motion to dismiss.
II. DISCUSSION
{¶ 30} R.C. 2945.71 provides that "a person against whom a charge of misdemeanor
* * * is pending in a court of record, shall be brought to trial * * * [w]ithin 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." (Emphasis added.) R.C. 2945.71(B)(2). And "each day during
which the accused is held in jail in lieu of bail on the pending charge shall be counted as
three days." R.C. 2945.71(E). "Upon motion made at or prior to the commencement of
trial, a person charged with an offense shall be discharged if he is not brought to trial within
the time required by [the speedy trial statutes]." (Emphasis added.) R.C. 2945.73(B). In
other words, "[t]he prosecution and the trial courts have a mandatory duty to try an accused
within the time frame provided by the statute * * * [and] [s]trict compliance with the statute
is required." State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 14, citing State v.
No. 18AP-394 10
Cutcher, 56 Ohio St.2d 383, 384 (1978); State v. Singer, 50 Ohio St.2d 103, 105 (1977);
State v. Davis, 46 Ohio St.2d 444, 448 (1976).
{¶ 31} R.C. 2945.72 provides that a number of events extend (or toll) the time within
which an accused must be brought to trial:
(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;
(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.
"These extensions are to be strictly construed, and not liberalized in favor of the state."
Singer at 109. Moreover, the list is exhaustive and cannot be added to in any degree.
Ramey at ¶ 24.
No. 18AP-394 11
{¶ 32} The trial court concluded that 59 days ran from the 90-day speedy trial clock
prior to the recusal of the first trial judge on August 7, 2017; neither party to the appeal
disputes that conclusion and, based on the record, it appears to be correct.3 (Jan. 3, 2018
Decision & Entry at 1.) In addition, neither party disputes that the speedy trial clock ran
for another 21 days, from August 22, 2017 (the day after the case was set for trial by the new
judge post-recusal) until Glenn sought a continuance of trial on September 11, 2018 to argue
that the speedy trial clock had run and the case should be dismissed. (Aug. 21, 2017 Notice
of Court; Sept. 11, 2017 Continuance Entry.) Thus, it is undisputed that at least 80 days of
the 90-day limit had passed when Glenn argued that the speedy trial time had run. The
issue is whether the 14 days between the first trial judge's recusal on August 7, 2017 and the
new trial judge setting the case for another trial on August 21, 2017 were tolled due to the
operation of R.C. 2945.72. If they were not, the speedy trial time was violated by 4 days. If,
as the majority concludes, the 14 days were tolled, then the speedy trial time limit was not
violated.
{¶ 33} Neither party sought the recusal. The "RECUSAL ENTRY" filed by the first
trial judge in the case states that the recusal was "[t]o avoid the appearance of impropriety,"
apparently relating to the fact that the first judge in the case (Judge Tyack) and the defense
attorney (Jonathan Tyack), having the same last names, may have been related. (Aug. 7,
2017 Recusal Entry.) Thus, there is nothing in the record that R.C. 2945.72 would have
supported a tolling based on circumstances created by the defendant. Therefore, the only
portion of R.C. 2945.72 on which the trial court relied and which the plaintiff-appellee,
State of Ohio, argues could have applied is the part of division (H) that tolls the period for
"any reasonable continuance granted other than upon the accused's own motion."
{¶ 34} When invoking that portion of division (H) of R.C. 2945.72, the court must
state that it is doing so and explain its reasons. State v. Mincy, 2 Ohio St.3d 6 (1982),
syllabus. Here, at no point did the recusing judge (Judge Tyack) or the judge who was
appointed to succeed him (Judge Salerno) specify that speedy trial time was being tolled or
extended or explain the reasons that justified an extension. The majority "find[s] the trial
court's August 7, 2017 entry properly tolled the speedy trial time 'as a reasonable
3Not counting the day of arrest, days on which Glenn was held on other charges, or days during which his
motions and continuances were pending (and triple counting days actually in jail), the calculation is: (April 17,
18, 19 (x3) = 9 days) + (April 22-May 1 = 10 days) + (June 29-August 7 = 40 days) = 59 days.
No. 18AP-394 12
continuance granted other than upon the accused's own motion.' " Majority supra at ¶ 20,
quoting State v. Robinson, 5th Dist. No. 2008 CA 00283, 2009-Ohio-2981, ¶ 29. In
supporting justification of the delay in this case, the majority treats Judge Tyack's recusal
entry as if it were a Mincy continuance that provided explanation of the reason for the delay.
Majority supra at ¶ 20-22, 26. In fact, the entry does not mention a continuance or the
timing of the case at all. It is titled "RECUSAL ENTRY" and reads in full:
To avoid the appearance of impropriety, this branch of the
Court respectfully seeks to recuse itself from this case. The
Assignment Commissioner shall reassign this case to another
Judge by random lot.
(Aug. 7, 2017 Recusal Entry.) The following day, August 8, the administrative judge for the
municipal court ordered the assignment commissioner to assign the case to another judge
by lot and again made no mention of either a continuance or of case timing. (Aug. 8, 2017
Entry.) The next day, August 9, a docket notation shows that the case was assigned to a
new judge. (Certified Docket at 2, included in the Dec. 1, 2017 Hearing Exs.) Contrary to
the majority's implication, in none of these docket notations or entries was the issue of a
continuance or time mentioned. See majority supra at ¶ 20-22, 26.
{¶ 35} I acknowledge that the Fifth and Eighth District Courts of Appeals have held
that the time between a sua sponte recusal and the appointment of a successor judge may,
de facto, constitute a "reasonable continuance." Robinson at ¶ 2, 29 (time between recusal
and appointment of successor judge considered tolled under R.C. 2945.72(H)); Lyndhurst
v. Di Fiore, 8th Dist. No. 88654, 2007-Ohio-3538, ¶ 10 (same). But neither appellate court
analyzed the high court's Mincy requirements or considered in any detail whether treating
a recusal as equivalent to a "continuance" is a strict construction of R.C. 2945.72(H) as
required by the Supreme Court of Ohio. See, e.g., Ramey at ¶ 24; Singer at 109. And
neither appellate case involved a further lapse of time following the appointment of a
replacement judge. Thus, even if one were to assume tolling happened automatically
during the 2-day period between when Judge Tyack recused on August 7 and when Judge
Salerno was appointed on August 9, there remains a question about whether the remaining
12 days before a new trial date was set should be considered tolled.
{¶ 36} The majority resolves this question by relying on the quotation, " 'an appellate
court may affirm a conviction challenged on speedy-trial grounds even if the trial court did
not expressly enumerate any reasons justifying the delay when the reasonableness of the
No. 18AP-394 13
continuance is otherwise affirmatively demonstrated by the record.' " Majority supra at
¶ 18-27, quoting Ramey at ¶ 33. The majority sees this as such a case. However, in the
cases cited by the majority where the record was held to have "affirmatively demonstrated"
the "reasonableness of the continuance," the defendant or the defendant's counsel asked
for, agreed to, or acquiesced in the continuance. In State v. Smith, the court explained:
The reasonableness of the continuance from the December 7,
2015 (date that Smith's new counsel was appointed), until
February 4, 2016 (when the trial commenced) is affirmatively
demonstrated by the record. At the proceeding on the motion
to withdraw, Smith noted that an attorney could not prepare
his case in a week and that he was dissatisfied with his first
attorney because counsel had not filed motions he had
requested. When the trial court advised him that it would take
time for his new lawyer to be prepared to represent him at trial,
Smith specifically stated that he did "not care how long it
takes." Smith appeared to acquiesce in the trial court's
statement that it would take six or seven weeks to reschedule
his trial. In fact, in substitute counsel's motion for
extraordinary fees, which the trial court granted, he
represented that these additional fees were warranted "[d]ue to
the amount of time necessary to prepare for a trial with such
serious charges along with the fact that extra time was
necessary to investigate this matter [and] extra time was
necessary to prepare this case for trial." (OP49) Under these
circumstances the record affirmatively demonstrates that the
continuance of the trial from the date of the appointment of
new counsel until the rescheduled trial was reasonable in both
purpose and length. See Ramey at ¶ 33; State v. Carr, 4th Dist.
Ross No. 12CA3358, 2013-Ohio-5312, ¶ 31.
State v. Smith, 4th Dist. No. 16CA10, 2017-Ohio-7864, ¶ 31; see also id. at ¶ 26 (transcript
quotations showing explicit agreement by the defendant to the delay). In State v. Vanscoy,
the court remarked:
In the instant matter the trial court entered an order filed on
October 22, 2012, indicating that the final pretrial was
scheduled for December 17, 2012, and trial was set for January
10, 2013. However, the trial court did not specify any reasons
for continuing the trial past the speedy trial deadline in that
entry. We note that, while the pretrial date, when taking into
account the prior tolling events, would have been within the
speedy-trial time, the trial date of January 10, 2013, would have
been outside that time, even when taking into account other
tolling events. Trial counsel acquiesced to the trial date and
No. 18AP-394 14
therefore the trial court had discretion to extend the trial date
beyond the statutory time limit[.]
State v. Vanscoy, 9th Dist. No. 26964, 2014-Ohio-3482, ¶ 14; see also id. at ¶ 11 (transcript
quotations showing explicit agreement by the defense attorney to the delay). Likewise, in
State v. Roth, "Roth specifically acquiesced to the new trial date. Accordingly, we find that
the reasonableness of the continuance was affirmatively demonstrated by the record."
State v. Roth, 9th Dist. No. 17CA011083, 2018-Ohio-2564, ¶ 14. In Glenn's case, there is
no such acquiescence or agreement by the defense. These cases are inapplicable.
{¶ 37} Moreover, the record makes clear that neither the transferor nor transferee
judges prospectively explained or excused the delay by a proper entry according to the
requirements of Mincy. Even the State admitted, during arguments on the motion to
dismiss that "in the record, all that exists is the fact the case * * * was assigned to this court
on August 9th and that the case was subsequently on August 21st assigned by this Court to
a jury trial date of September 11th." (Dec. 1, 2017 Mot. Hearing Tr. at 8, filed June 27, 2018.)
Despite this fact, the majority treats it as essentially a matter of record that "the newly
assigned trial judge was unavailable at the time of the reassignment," due to "previously
scheduled vacations." Majority supra at ¶ 26. But, in fact, what happened was that in
December, long after the speedy trial deadline had elapsed and the motion to dismiss was
being argued, the prosecutor mentioned that he thought the judge and bailiff were on
vacation at the time of the delay:
[PROSECUTION:] Your Honor, in the record, all that exists is
the fact the case was assigned to this court on August 9th and
that the case was subsequently on August 21st assigned by this
Court to a jury trial date of September 11th. Outside of the
record, it would be understood that both the Court and the
bailiff were on vacation during that period of time, but that's
not reflected in the entries.
(Dec. 1, 2017 Mot. Hearing Tr. at 8.) Statements of counsel are not evidence and nothing
in Mincy permits such post-hoc unsubstantiated assertions to serve as a substitute for a
properly justified continuance entry. Mincy, 2 Ohio St.3d 6, syllabus, in passim; RNG
Props., Ltd. v. Summit Cty. Bd. of Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, ¶ 28,
fn. 1. In fact, the Supreme Court has expressly recognized Mincy for "condemning after-
the-fact justifications of continuances." Ramey, 2012-Ohio-2904, at ¶ 34. To my view, this
No. 18AP-394 15
case is exactly the sort of post-hoc rationalization that cannot reasonably rehabilitate what
happened to Glenn.
{¶ 38} In short, what happened here is one judge recused on August 7; a new judge
was appointed 2 days later on August 9; and then, for a further 12 days, the case simply sat.
No continuance was ever sought or granted. No reasons were given for the delay (at least
not until long after the fact). No entry was filed. And neither the defendant nor his counsel
acquiesced in or agreed to the delay. The record shows this is precisely the circumstance
speedy trial deadlines were created to discourage. Discharging the defendant is a costly
remedy,4 but the statutes are to be strictly construed and such a remedy is explicitly
required by statute. R.C. 2945.73(B); Ramey at ¶ 14, 24; Cutcher at 384; Singer at 105,
109; Davis at 448.
{¶ 39} Glenn's assignment of error should be sustained.
III. CONCLUSION
{¶ 40} The trial court erred in concluding that a sua sponte recusal could, without
explanation or invocation of R.C. 2945.72(H), toll the speedy trial time for both the interval
before a new judge was assigned and an unexplained 12-day period of delay after the new
judge was assigned. As a consequence of that legal error, the trial court also erred in
concluding that the 90-day speedy trial deadline had not passed. Glenn is entitled to the
statutory remedy of discharge. This dissent lays out the plain and mathematical path to a
heavy conclusion that the system failed to give Glenn a speedy trial, and he is entitled to
dismissal of the claims against him. No amount of post-hoc rationalization can remedy
that. The result of today's decision is to twist the ropes just a little tighter in flattening the
arc of justice. Mincy requires strict construction of the speedy trial laws, and that has not
happened here.
{¶ 41} I respectfully dissent.
______________________
4 Though, not so costly in this specific case as it appears Glenn has died during the pendency of this appeal.
(Dec. 2, 2019 Suggestion of Death; Jan 21, 2020 Entry Granting Substitution of the Estate as a Party.)