[Cite as State v. Michailides, 2018-Ohio-2399.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105966



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                          JOHN MICHAILIDES

                                                        DEFENDANT-APPELLEE




                                            JUDGMENT:
                                       AFFIRMED AS MODIFIED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-615203-A

        BEFORE: Keough, J., McCormack, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: June 21, 2018
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Gregory J. Ochocki
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Mark Stanton
Cuyahoga County Public Defender
By: Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision dismissing the

indictment against defendant-appellee, John Michailides, for a violation of speedy trial. For the

reasons that follow, we affirm, but modify the court’s judgment entry to reflect that the case is

dismissed with prejudice.

       {¶2} In August 2016, Michailides was named in a one-count indictment charging him

with aggravated arson, in violation of R.C. 2929.02(A)(1), as a result of setting fire to a

McDonald’s restaurant in Cleveland. He pleaded not guilty, and the case was set for trial.

       {¶3} On the March 8, 2017 trial date, the state requested a brief continuance to re-indict

Michailides to include additional charges pertaining to individual victims inside the restaurant

when the fire was started.      Michailides objected, and the trial court denied the request.

Thereafter, the state moved to amend the indictment to change the “victim” of the offense from

the McDonald’s restaurant, to the specific individuals inside the restaurant.           Michailides

objected to amending the indictment because it would change the identity of the crime charged.

The trial court agreed with the defense and denied the state’s motion to amend the indictment.

       {¶4} Following these roadblocks, the state moved to dismiss the indictment without

prejudice against Michailides. Defense counsel objected stating that any dismissal should be

with prejudice because it was the second time the state was not prepared to go forward with trial.

 The trial court granted the state’s motion and ordered Michailides released from custody.

       {¶5} The following day, on March 9, 2017, the state reindicted Michailides under

Cuyahoga C.P. No. CR-17-615203, charging him with two counts of aggravated arson, one count

of arson, three counts of vandalism, and one count of inducing panic. The state requested and
obtained a warrant for his arrest, and a summons was also sent to Michailides to appear for

arraignment.

       {¶6} On March 23, 2017, Michailides appeared for arraignment and was detained. On

May 1, 2017, the day of trial, defense counsel filed a motion to dismiss based on speedy trial

grounds. Michailides waived his right to a speedy trial between May 1, 2017, and June 1, 2017,

for the limited purposes of arguing his motion to dismiss. Trial was continued, and the motion

to dismiss was set for a hearing. Following a hearing, the trial court granted Michailides’s

motion to dismiss, finding that 272 days were counted against the state, exceeding the statutory

requirement in R.C. 2945.71 of 270 days. The court noted that the dismissal was without

prejudice.

       {¶7} The state now appeals, raising as its sole assignment of error that the trial court erred

in granting Michailides’s motion to dismiss.

                                     I. Standard of Review

       {¶8} Whether a trial court’s ruling on a speedy trial question was correct presents a mixed

question of law and fact. State v. Borrero, 8th Dist. Cuyahoga No. 82595, 2004-Ohio-4488, ¶

10, citing State v. Barnette, 12th Dist. Fayette No. CA2002-06-011, 2003-Ohio-2014. Appellate

courts apply a de novo standard of review to the legal issues but afford great deference to any

findings of fact made by the trial court, if supported by competent and credible evidence. State

v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 17. This court must construe the

statutes strictly against the state when reviewing the legal issues in a speedy trial claim.

Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). Moreover, in analyzing the

procedural time-line record of the case, this court is required to strictly construe any ambiguity in
the record in favor of the accused. State v. Johnson, 8th Dist. Cuyahoga Nos. 78097, 78098, and

78099, 2001 Ohio App. LEXIS 999, 6 (Mar. 8, 2001).

                                    II. Defendant’s Burden

       {¶9} R.C. 2945.71 requires the state to bring a felony defendant to trial within 270 days

of arrest. Each day a defendant is held in jail in lieu of bail solely on the pending charge is

counted as three days. R.C. 2945.71(E). If a defendant is not brought to trial within the speedy

trial limits, the court, upon motion, must discharge the defendant.         R.C. 2945.73(B).     A

defendant establishes a prima facie case for discharge based on a speedy trial violation when he

or she demonstrates that more than 270 days elapsed before trial. See State v. Butcher, 27 Ohio

St.3d 28, 500 N.E.2d 1368 (1986). The burden then shifts to the state to show that R.C. 2945.72

extended the time limit. Cook at 55-56.

       {¶10} The Supreme Court of Ohio has determined that where new and additional charges

arise from the same set of facts as those found in the original charge, and the state knew of those

facts at the time of the initial indictment, the time frame within which any new charge is to be

tried is subject to the same statutory limitations period as that applied to the original charge.

State v. Adams, 43 Ohio St.3d 67, 538 N.E.2d 1025 (1989); see also State v. Parker, 113 Ohio

St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032. In this circumstance, any time period that has

elapsed under the original indictment is tacked on to the time period that commences with the

second indictment. State v. Bonarrigo, 62 Ohio St.2d 7, 11, 402 N.E.2d 530 (1980).

       {¶11} In this case, the state has not made any argument that the new and additional

charges brought under the subsequent indictment do not arise out of the same set of facts as those

found in the original indictment, or that the state did not know of those facts at the time of the
initial indictment. Therefore, the time under the original indictment is included in calculating

whether the state violated Michailides’s right to a speedy trial.

         {¶12} Applying the triple-count provisions at all relevant times, over 700 days elapsed

between the date of Michailides’s arrest on August 8, 2016, in Cuyahoga C.P. No.

CR-16-608742 and the motion to dismiss hearing on May 1, 2017, under Cuyahoga C.P. No

CR-17-615203. He, therefore, established a prima facie case of a speedy trial violation. The

burden thus shifts to the state.

                                                III. State’s Burden

         {¶13} Under R.C. 2945.72, the time within which an accused must be brought to trial is

extended for various reasons, including motions filed and continuances requested by the accused,

the time required to secure counsel for the accused, and reasonable continuances granted other

than upon the accused’s motion. See, e.g., State v. Byrd, 8th Dist. Cuyahoga No. 91433,

2009-Ohio-3283; State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283.

A. August 2016

         {¶14} The state argued in the trial court and now on appeal that Michailides’s speedy trial

time began running August 9, 2016, the day following his arrest. See State v. Wells, 8th Dist.

Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 4 (arrest date not counted). It continued to run for 12

days, until August 20, 2016, when he filed his demand for discovery. Time was tolled until

August 25, 2016, when the state provided its discovery responses. Time then ran for six days

until August 31, 2016, when a pretrial was held and the case was continued for another pretrial at

the defendant’s request.1 We agree with the state’s calculation. Accordingly, 54 speedy-trial

days (18 days subject to the triple-count provision) ran in August 2016.


         1
           The state argued in the trial court that Michailides never responded to the state’s request for discovery and,
thus, the time should toll from August 20, 2016, until January 31, 2017. However, as the state concedes on appeal,
B. September 2016 — January 2017

        {¶15} The state maintains on appeal that Michailides’s speedy trial time was tolled from

September 1, 2016, through January 31, 2017. The record shows that starting on September 1,

2016, Michailides was granted continuances of pretrials at his request. On December 19, 2016,

the trial court scheduled trial for February 7, 2017, but also continued the matter for another

pretrial “at the defendant’s request” until January 5, 2017. On January 5, the trial court again

noted that trial remained set for February 7, but also continued the matter for a final pretrial at the

defendant’s request until January 24, 2017. On January 24, the trial court again noted that the

trial remained set for February 7, 2017, but also continued the matter for another final pretrial on

January 30, 2017. On January 30, the court noted that the trial remained for February 7, 2017.

On February 7, the state requested a continuance of trial.

        {¶16} This case history and date sequence is significant because an argument could be

made that when the trial court schedules an advance trial date and the defendant does not take

any action to delay or continue that trial date — even though pretrials occur up and until that trial

date — the time is not tolled. While this situation occurred here, the time was nevertheless

tolled during this period because reciprocal discovery was not provided.

        {¶17} The state served its demand for discovery on Michailides on August 25, 2016, but

he did not respond to this request until January 31, 2017. The failure of a criminal defendant to

respond within a reasonable time to the state’s request for reciprocal discovery constitutes

neglect that tolls the running of speedy-trial time pursuant to R.C. 2945.72(D). State v. Palmer,

112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, paragraph one of the syllabus. Under

most circumstances, 30 days is generally considered to be a reasonable time to respond. State v.


Michailides did respond to discovery.
Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 26; see also Palmer at

paragraph three of the syllabus (determination of reasonable response time is based on the totality

of the circumstances).

       {¶18} Accordingly, Michailides’s requests for continuances and his failure to respond to

the state’s discovery demand until January 31, 2017, provided an uninterrupted tolling of the

speedy trial clock from September 1, 2017, through January 31, 2017. We agree with the state’s

calculation that only 54 days had run thus far.

C. February 2017 — March 8, 2017

       {¶19} The state conceded in the trial court and on appeal that all of February 2017 counts

against Michailides’s speedy-trial time. We agree with the state’s calculation because following

Michailides’s response to the state’s request for discovery, the trial that was initially scheduled

for February 7, 2017, was continued at the state’s request until March 8, 2017. On March 8, the

state dismissed the case without prejudice against Michailides and he was released.

       {¶20} Accordingly, after applying the triple count provision, 108 additional days accrued

during the month of February until the case was dismissed on March 8, 2017, for a total of 162

days against Michailides’s speedy trial time.

D. March 9, 2017 — March 23, 2017

       {¶21} This period of time is the crux of the appeal. The trial court’s written decision

noted that the parties agreed to some of the non-tolling timeframes. Based on those agreements,

the trial court calculated that 86 days, or 258 days after applying the triple-count provision,

counted against Michailides’s speedy trial time. The trial court found that the only period of

time at issue between the parties was from March 9, 2017, when Michailides was reindicted
under Cuyahoga C.P. No. CR-17-615203, to March 23, 2017, when he was arraigned on those

new charges.

       {¶22} The state argued that the time frame was tolled because Michailides had not been

arrested, jailed, or held on bond, which would allow the speedy trial clock to start. The state

also maintained that because a capias was issued immediately following the reindictment, the

time was tolled. The defense, on the other hand, claimed that a capias should not have been

issued and the state’s use of a capias to toll the time was improper and unfair considering that a

summons was also issued for Michailides to appear at arraignment, and the indictment was

obtained the day after he was released.

       {¶23} The trial court was troubled by the fact that a capias would be issued immediately

following reindictment without allowing Michailides to appear voluntarily at the arraignment by

virtue of the summons that was also issued following the reindictment. The court found that no

exigent circumstances existed to justify the issuance of the capias. Accordingly, the trial court

found that the speedy trial clock began on the date of the reindictment — March 9, 2017.

Adding those additional 14 days to its calculation, the trial court found that 272 days had passed,

and thus, the state violated Michailides’s right to a speedy trial.

       {¶24} However, the time period between the dismissal without prejudice of an original

indictment and the filing of a subsequent indictment, premised upon the same facts as alleged in

the original indictment, shall not be counted unless the defendant is held in jail or released on

bail. State v. Broughton, 62 Ohio St.3d 253, 581, N.E.2d 541 (1991), paragraph one of the

syllabus. The speedy trial time clock restarts when the defendant is arrested under a subsequent

indictment that is premised on the same underlying facts alleged in a previous indictment. Id. at

paragraph two of the syllabus. However, any time period that has elapsed under the original
indictment should be tacked on to the time period commencing with the second indictment. Id.

at 261; Bonarrigo, 62 Ohio St.2d at 11, 402 N.E.2d 530; see also State v. Fitzgerald, 8th Dist.

Cuyahoga No. 65435, 1994 Ohio App. LEXIS 813 (Mar. 3, 1994) (clock starts on day defendant

was arraigned and notified of pending charges).

       {¶25} Accordingly, in this case, the time period between the dismissal of the indictment

on March 8, 2017, and Michailides’s appearance and subsequent detention at arraignment on the

reindictment on March 23, 2017, is tolled. The trial court’s determination that it was not tolled

and counted against Michailides’s speedy trial time was in error.

       {¶26} Accordingly, we agree with the state’s calculation.         The speedy trial clock

restarted when Michailides was taken into custody following arraignment on March 23, 2017.

Accordingly, 162 days counted against Michailides’s speedy trial time thus far.

E. March 23, 2017 — May 1, 2017

       {¶27} The time between March 23, 2017, through May 1, 2017, was not tolled.

Michailides was arrested on March 23 after appearing for arraignment; thus the speedy trial clock

restarted on March 24, 2017. The first pretrial was set for April 6, 2017, but was continued at

the state’s request until April 10. On April 10, trial was scheduled for May 1, 2017. On May 1,

Michailides moved to dismiss the case for a speedy trial violation. Accordingly, an additional

114 days is counted against Michailides’s speedy trial time.

       {¶28} The state argues for the first time on appeal that two events occurred during this

time period that tolled the speedy trial time — (1) Michailides’s pro se “motion (to dismiss) for

speedy trial” filed on March 28, 2017; and (2) Michailides’s request for trial on April 10, 2017.

Because these arguments were not made to the trial court for its consideration, they effectively

are waived and will not be considered on appeal. Moreover, because the state agreed in the trial
court that these timeframes counted against Michailides’s speedy trial time, any error by the trial

court could be viewed as invited error. However, even considering the arguments, we disagree

with the state.

1. Pro Se Motion

        {¶29} Contrary to the state’s assertion, Michailides’s pro se motion filed on March 28,

2017, was not a motion to dismiss for speedy trial, but rather a motion for speedy trial, which

essentially requested that the trial court set a trial date. Michailides did not request that the case

against him be dismissed for a speedy trial violation. Rather, he contended that he was “ready

for trial” and requested the trial court to “insure that this matter is set for trial at its earliest

convenience so that his rights are not violated again.” Michailides essentially put everyone on

notice that the speedy trial clock was ticking. Despite his request, no trial date was set until after

counsel was assigned and another request was made.

        {¶30} In addressing a constitutional speedy trial argument, the Ohio Supreme Court

stated, “to constitute a denial of a speedy trial [on constitutional grounds], [the defendant] must

have made a request for trial.       He cannot create this defense by inaction on his part.”

Cunningham v. Haskins, 3 Ohio St.2d 86, 209 N.E.2d 211 (1965), citing State v. Cunningham,

171 Ohio St. 54, 167 N.E.2d 897 (1960), and Everhart v. Maxwell, Warden, 175 Ohio St. 514,

196 N.E.2d 589 (1964). In this case, Michailides acted by requesting a trial, which should not

be counted against him now for an alleged statutory violation. Michailides’s request was a

preservation of his right to claim a constitutional violation of speedy trial because failure to do so

would arguably create grounds for the state to object to any subsequent constitutional speedy trial

challenge. Accordingly this time does not toll his speedy trial time.

2. Trial Set “at Defendant’s Request”
        {¶31} The state also contends that the time period from when the demand for trial is made

until trial occurs tolls the speedy trial time. Specifically, in this case, the state maintains that

because the trial date was set “at the defendant’s request,” the fact that the time exceeded the

speedy trial clock should be counted against Michailides or should be deemed a waiver to speedy

trial. We disagree.

        {¶32} The Ohio Supreme Court has stated that there is no statutory provision requiring a

defendant to make any formal written demand for trial upon his indictment. State v. Cross, 26

Ohio St.2d 270, 275, 271 N.E.2d 264 (1971). Moreover, any request for an initial trial date will

always be “at the defendant’s request” because the defendant has a constitutional right to a trial,

not the state.

        {¶33} The record provided to this court does not indicate under what circumstances the

May 1, 2017 trial date was set — the journal entry only provides that the trial date was set “at the

defendant’s request.” Does this mean that the defendant merely requested a trial date? Or did

the defendant request that specific date? Nothing in the record indicates that the state objected

to that specific trial date or requested a different date, and the state does not argue on appeal that

the actual trial date was set over the state’s objection. Strictly construing the ambiguity against

the state, we find that the date was an arbitrary date set by the trial court.

        {¶34} Moreover, a defendant has no duty to object to the setting of a trial date beyond the

speedy trial deadline. State v. Penwell, 4th Dist. Scioto No. 831, 1994 Ohio App. LEXIS 834,

11 (Feb. 14, 1994). It is the state’s duty to ensure that a defendant is brought to trial within the

timeframe under R.C. 2945.71. See State v. Singer, 50 Ohio St.2d 103, 105-106, 362 N.E.2d

1216 (1977) (the mandatory duty of complying with R.C. 2945.71 through 2945.73 is upon the

prosecution and the trial court).
       {¶35} Accordingly, absent any evidence in the record that would indicate that Michailides

purposefully chose this specific trial date to circumvent speedy trial, the time between when

Michailides requested the trial and the date when the motion to dismiss was filed is not tolled.

                                          IV. Conclusion

       {¶36} Therefore, after applying the triple-count provision, 114 days is added to the 162

days that passed under the original indictment. Our calculation reveals that the total amount of

days is 278, which is beyond the 270 days required under R.C. 2945.71; the state violated

Michailides’s right to a speedy trial.

       {¶37} Accordingly, the trial court did not err in granting Michailides’s motion to dismiss.

 The assignment of error is overruled. However, we modify the trial court’s decision to reflect

that a dismissal for a speedy trial violation is a dismissal with prejudice.

       It is ordered that appellee recover from appellant 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 common pleas

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.




KATHLEEN ANN KEOUGH, JUDGE

TIM McCORMACK, P.J., and
LARRY A. JONES, SR., J., CONCUR
