[Cite as State v. Pollock, 2012-Ohio-2819.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA3267
                               :
     vs.                       : Released: June 13, 2012
                               :
RANDY POLLOCK,                 : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Stephen K. Sesser, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Richard W.
Clagg, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Randy Pollock, appeals the judgment of the Ross

County Court of Common Pleas finding him guilty after he pled no contest

to aggravated robbery, a first degree felony in violation of R.C. 2911.01,

with a firearm specification. On appeal, Appellant contends that the trial

court erred in overruling his motion to dismiss on speedy trial grounds. In

light of our conclusion that the State failed to bring Appellant to trial within

the speedy trial limit, we sustain Appellant’s sole assignment of error.
Ross App. No. 11CA3267                                                                                      2


Accordingly, the judgment of the trial court is reversed and the case is

remanded for discharge pursuant to R.C. 2945.73.

                                                 FACTS

         {¶2}Appellant was arrested on August 13, 2010, during the course of

an investigation related to the aggravated robbery of a Circle K store in

Chillicothe, Ohio, that occurred on August 12, 2010. Appellant was taken to

jail and was held on the aggravated robbery charge, as well as four other

unrelated misdemeanor charges, until August 23, 2010, at which time a

preliminary hearing was held and Appellant was bound over to the Common

Pleas Court. Appellant remained incarcerated solely on the pending felony

aggravated robbery charge from August 23, 2010, until he pled no contest to

the charge on June 15, 2011.1

         {¶3}There were several defense motions filed between August 23,

2010, and June 15, 2011. On September 29, 2010, Appellant filed a demand

for discovery, which the State provided the same day.2 On October 27,

2010, Appellant filed a motion for a competency evaluation, which resulted


1
  Although the parties on appeal both argue that Appellant was held solely on the pending aggravated
robbery charge beginning August, 30, 2010, the transcript from the hearing on the motion to dismiss
indicates that both parties and the court all agreed that Appellant was held solely on the aggravated robbery
charge beginning on August 23, 2010. Because the record before us contains nothing regarding the
dismissal of Appellant’s unrelated misdemeanor charges, we will rely on the date referred to in the
transcript.
2
  We could not locate anything in the record to confirm that the State responded to Appellant’s discovery
demand the same day it was filed, with the exception of the mentioning of this fact in the transcript from
the hearing on the motion to dismiss.
Ross App. No. 11CA3267                                                                                  3


in a hearing being held and a decision being announced on December 7,

2010.3 Then, on December 14, 2010, one week prior to the scheduled

December 21, 2010, trial, Appellant’s counsel filed a motion to withdraw.

The trial court granted the motion to withdraw by order dated December 22,

2010, and by the same order the trial court appointed new counsel. By a

separate entry filed on December 22, 2010, the trial court reassigned the trial

date to February 23, 2011. On February 18, 2011, Appellant filed a pro se

request for a bill of particulars, followed by a motion to dismiss based upon

speedy trial grounds, by counsel, on February 19, 2011.

        {¶4}Many additional motions and continuances were filed and

granted from February 19, 2011, until Appellant pled no contest on June 15,

2011. After pleading no contest, Appellant was sentenced, by sentencing

entry dated July 29, 2011, to a four year prison term for aggravated robbery,

as well as three additional years on the firearm specification, for a total of

seven years. It is from this entry that Appellant now brings his timely

appeal, assigning a single assignment of error for our review.




3
  Again, the record does not contain an entry or decision finding Appellant competent to stand trial on
December 7, 2010. However, the trial court stated on the record during the hearing on the motion to
dismiss that a decision was announced finding Appellant competent to stand trial on December 7, 2010,
and that the speedy trial clock began to run again on December 8, 2010. In the absence of any argument to
the contrary, we will rely on this date.
Ross App. No. 11CA3267                                                            4


                           ASSIGNMENT OF ERROR

“I.      THE TRIAL COURT ERRED IN OVERRULING POLLOCK’S
         MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.”

                               LEGAL ANALYSIS

         {¶5}In his sole assignment of error, Appellant contends that the trial

court erred in overruling his motion to dismiss on speedy trial grounds.

Appellant argues that the specific question presented in this case is

“[w]hether or not speedy trial time should be tolled when a trial court sua

sponte issues a continuance that does not identify the party to whom it is

chargeable or the reasons justifying the continuance.” The particular

continuance at issue herein was ordered as a result of the trial court’s

December 22, 2010, entry which rescheduled the trial from December 21,

2010, to February 23, 2011. The State agrees that the issue in this case is

narrow, but argues that speedy trial time was tolled as a result of the

December 22, 2010, entry, in part due to Appellant’s counsel’s withdrawal

from representation one week prior to the scheduled December 21, 2010,

trial.

         {¶6}Our review of a trial court's decision regarding a motion to

dismiss for an alleged speedy trial violation involves mixed questions of law

and fact. See, e.g., State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-

1401, at ¶ 15. We accord due deference to the trial court's findings of fact if
Ross App. No. 11CA3267                                                              5


they are supported by competent, credible evidence. Id. However, we

independently determine whether the trial court properly applied the law to

the facts of the case. Id.

       {¶7} “The Sixth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution guarantee a criminal defendant

the right to a speedy trial. R.C. 2945.71 implements this guarantee with

specific time limits within which a person must be brought to trial.” State v.

Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 10. If

the State fails to bring a defendant to trial within the time required by R.C.

2945.71 and 2945.72, the trial court must discharge the defendant upon

motion made at or prior to the start of trial. R.C. 2945.73(B). The Ohio

Supreme Court has “imposed upon the prosecution and the trial courts the

mandatory duty of complying” with the speedy trial statutes. State v. Singer,

50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977); see, also, State v. Parker

113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032, ¶ 14-15. We must

strictly construe the speedy trial statutes against the state. See Brecksville v.

Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996).

       {¶8}R.C. 2945.71 requires the State to try a person accused of a

felony “within two hundred seventy days after the person's arrest.” R.C.

2945.71(C)(2). Under R.C. 2945.71(E), each day that a defendant is
Ross App. No. 11CA3267                                                         6


incarcerated in lieu of bond on the pending charge counts as three days. An

accused presents a prima facie case for discharge by demonstrating that his

case was pending for a time exceeding the statutory limits provided in R.C.

2945.71. See, e.g., State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d

1368 (1986). The burden then shifts to the state to show that the time limit

was extended under R.C. 2945.72. Id. at 31.

      {¶9}R.C. 2945.72 sets forth the circumstances under which the two

hundred seventy day period may be extended. R.C. 2945 .72 provides:

             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:

             (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
Ross App. No. 11CA3267                                                    7


      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;
Ross App. No. 11CA3267                                                          8


             (I) Any period during which an appeal filed pursuant to

      section 2945.67 of the Revised Code is pending.

      {¶10}As set forth above, Appellant was arrested and subsequently

indicted for felony aggravated robbery. The State had to try Appellant

within 270 days from the date of his arrest August 13, 2010. At the time

Appellant filed his motion to dismiss based upon speedy trial grounds on

February 19, 2011, 552 days had elapsed for purposes of speedy trial time,

taking into consideration the fact that Appellant was incarcerated the whole

time, and applying the triple count provision pursuant to R.C. 2945.71(E).

Thus, Appellant has presented a prima facie case for discharge by

demonstrating that his case was pending for a time exceeding the statutory

limits provided in R.C. 2945.71. See, State v. Butcher, supra, at 30-31. As

such, the burden shifts to the state to show that the time limit was extended

under R.C. 2945.72. Id. at 31. The State argues that the time limit was

extended by application of R.C. 2945.72(C) and (E), which toll time during

periods when the accused lacks counsel, and also for motions filed by the

accused. However, after reviewing the record, and based upon the following

analysis, we conclude that the State did, in fact, fail to bring Appellant to

trial within the statutory speedy trial limitations.
Ross App. No. 11CA3267                                                                                      9


        {¶11}When Appellant filed his motion to dismiss based upon speedy

trial limitations on February 19, 2011, 191 calendar days elapsed. We arrive

at that number starting from August 14, 2010, the day after Appellant’s

arrest.4 Further, we note that Appellant was jailed for nine days before the

triple count provision took effect on August 23, 2010. Thus, applying the

triple count provision, 552 days passed for purposes of speedy trial.

Beginning on August 14, 2010, and counting forward, speedy trial time was

tolled for one calendar day, or three speedy trial days, with the filing of

Appellant’s demand for discovery on September 29, 2010, and the State’s

answer thereto filed on the same day. Younker at ¶ 16 (“We do not include

the date the defendant files a motion or request in our count of days tolled

unless the filing date was also the date the court resolved the motion or the

prosecution responded to the request.”); citing State v. Staffin, 4th Dist. No.

07CA2967, 2008-Ohio-338, fn. 1.

        {¶12}Subsequently, Appellant filed a motion for a competency

evaluation on October 27, 2010, which was not resolved until a hearing was

held on December 7, 2010, at which time a decision was apparently

announced orally. As such, applying the triple count provision, 123 days

were tolled for purposes of speedy trial time. Further, on December 14,
4
 The date of arrest does not count against the State in computing speedy trial time. State v Younker, 4th
Dist. No. 07CA18, 2008-Ohio-6889, ¶ 15, citing State v. Madden, 10th Dist. No. 04AP-1228, 2005-Ohio-
4281, ¶ 28; Crim.R. 45(A).
Ross App. No. 11CA3267                                                                                 10


2010, just one week before the scheduled December 21, 2010, trial,

Appellant’s counsel filed a motion to withdraw. The trial court issued an

order on December 22, 2010, granting Appellant’s counsel’s motion to

withdraw and simultaneously appointing new counsel. Thus, from

December 14, 2010 to December 22, 2010, 24 more days were tolled for

speedy trial purposes. At this time, taking into consideration the time tolled

due to motions filed by Appellant and applying the triple count provision,

225 days had elapsed for purposes of speedy trial. As such, the State had

until January 6, 2011, to bring Appellant to trial.5

        {¶13}However, by a separate entry dated December 22, 2010, the trial

court sua sponte reassigned the trial date to February 23, 2011, without

citing its reasons for doing so or stating which party would be charged with

the time. While Appellant argues that the speedy trial clock began to run

again on December 23, 2011, the State contends that the trial court’s

continuance of the trial was attributed to Appellant’s counsel’s withdrawal,

and that the time from December 23, 2010, to the new trial date of February

23, 2011, should be tolled. Further, a review of the record reveals that the

trial court’s December 22, 2010, entry was simply time stamped by the

judge on that date, but was not journalized until January 11, 2011, which

5
 Subtracting 225 days from 270 days results in 45 calendar days, or 15 speedy trial days taking into
account the triple count provision.
Ross App. No. 11CA3267                                                         11


was five days after speedy trial time had run. See State v. Mincy, 2 Ohio

St.3d 6, 441 N.E.2d 571 (1982), syllabus (“When 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.”)

       {¶14}Appellant relies upon the prior reasoning of this Court in State

v. Wagner, 88 Ohio App.3d 398, 623 N.E.2d 1338 (4th Dist. 1993) in support

of his argument that the speedy trial clock began to run after the filing of the

trial court’s December 22, 2010 entry. In Wagner, the Ohio Public Defender

moved for leave to withdraw as counsel for the defendant one week before

the scheduled trial. The trial court granted the motion and appointed new

counsel the day after the motion was filed, and then the trial court sua sponte

continued the trial for nearly four months. Id. at 401. There was no reason

for the continuance specified in the court’s journal entry. Id.

       {¶15}The facts in Wagner are strikingly similar to the facts we are

presented with herein. Here, Appellant’s counsel also moved to withdraw

one week before the scheduled trial. The trial court granted the motion and

appointed new counsel eight days later on December 22, 2010. We are

mindful of the fact that this occurred one day after the trial was scheduled to
Ross App. No. 11CA3267                                                       12


take place; however, at the point when new counsel was appointed for

Appellant, fifteen calendar days remained in which the trial should have

been scheduled. Further, much like the facts in Wagner and of key

importance, neither the State nor Appellant’s newly appointed trial counsel

requested a continuance. Id. at 403. Additionally, and as in Wagner, the

trial court’s entry reassigning the trial date did not include reasons for

continuing the trial date, nor did it identify the party to whom the

continuance was chargeable.

      In Wagner, based upon similar facts, we reasoned as follows:

      “The Ohio Supreme Court has held that, when sua sponte

      granting a continuance, ‘the trial court must enter the order of

      continuance and the reasons therefor by journal entry prior to

      the expiration of the time limit * * * for bringing a defendant to

      trial.’ (Emphasis added.) State v. Mincy (1982), 2 Ohio St.3d 6,

      2 OBR 282, 441 N.E.2d 571, syllabus. The courts of appeals in

      the state have given further expression to this principle by

      requiring that the journalized continuance identify the party to

      whom it is chargeable as well as indicate the reasons justifying

      the continuance. See, generally, State v. Collura (1991), 72

      Ohio App.3d 364, 368, 594 N.E.2d 975, 977; State v. Benson
Ross App. No. 11CA3267                                                         13


      (1985), 29 Ohio App.3d 321, 323, 29 OBR 448, 450, 505

      N.E.2d 987, 990; State v. Geraldo (1983), 13 Ohio App.3d 27,

      31, 13 OBR 29, 33, 468 N.E.2d 328, 332; State v. Broerman

      (Feb. 18, 1983), Lucas App. No. L-82-284, unreported, 1983

      WL 13845. A continuance which does not satisfy these

      requirements must be counted against the state. Geraldo, supra,

      13 Ohio App.3d at 31, 13 OBR at 33, 468 N.E.2d at 332.”

      Wagner at 402.

See also State v. Corfias, 4th Dist. No. 93CA03, 1994 WL 501766

(Aug. 30, 1994), (“Generally, a continuance that properly extends the

speedy trial time must be recorded by the trial court in its journal

entry, which must identify the party to whom the continuance is

chargeable and, if the court is acting sua sponte, the journal entry must

so indicate and set forth the reasons justifying the continuance.”)

Thus, in Wagner, we ultimately held that because the lower court’s entry

failed to indicate any reason justifying the sua sponte continuance and also

failed to identify the party to whom it was chargeable, the additional time

must be counted against the State. Wagner at 402.

      {¶16}This court acknowledged the holding of Wagner in State v.

Ross, 4th Dist. No. 04CA2780, 2005-Ohio-1888. However, noting factual
Ross App. No. 11CA3267                                                            14


differences, namely in that the trial court’s entry in Ross specifically stated

that the reason for the continuance was due to counsel’s unavailability, we

declined to apply Wagner. Ross at ¶ 14. Further, we are mindful of our

more recent decision in State v. Staffin, 4th Dist. No. 07CA2967, supra,

which, at ¶ 11 seems to call into question the requirement that the trial court

identify the party against whom the continuance is chargeable. However,

because Staffin involved the State’s request for a continuance rather than a

sua sponte continuance by the court, we find it to be factually

distinguishable. Id. at ¶ 12. In fact, we find this distinction to be key in that

in ¶ 11, Staffin cites State v. Conkright, 6th Dist. No. L-06-1107, 2007-Ohio-

5315, ¶ 29 for the proposition that “[A]lthough the court must put the

reasons for continuance into a journal entry when it grants a sua sponte

continuance, when a state’s request for a continuance is granted, the reasons

need merely be in the record.”

      {¶17}Based upon the foregoing, and following the reasoning

espoused in both Wagner and Mincy, supra, we do not believe that the trial

court’s December 22, 2010, entry reassigning the trial date to February 23,

2011, (which entry was not even journalized until January 11, 2011) tolled

speedy trial time. Rather, we conclude that the speedy trial clock began to

run again on December 23, 2010, after new counsel was appointed, and
Ross App. No. 11CA3267                                                                                      15


continued to run until the filing of Appellant’s motion to dismiss on

February 19, 2011.6             At that time, 399 days had elapsed for purposes of

speedy trial. As such, the trial court erred in denying Appellant’s motion to

dismiss and/or for discharge.

         {¶18}We share in the Supreme Court of Ohio’s reluctancy in reaching

this result, as expressed in State v. Mincy as follows:

         “We are reluctantly aware that our decision requires that

         appellee, convicted by a jury of a serious offense, be discharged

         and that another prosecution on this charge is barred. R.C.

         2945.73(D). However, we are equally mindful that we have

         consistently held that the speedy trial statutes are mandatory

         and must be strictly enforced. State v. Pachay (1980), 64 Ohio

         St.2d 218, 221, 416 N.E.2d 589 [18 O.O.3d 427].” Mincy at fn.

         3.

Obviously, the present case involves a no contest plea rather than a finding

of guilt by a jury; however, the end result is the same.

         {¶19}Nonetheless, Appellant’s sole assignment of error is sustained,

the judgment of the trial court is reversed and the case is remanded for

discharge pursuant to R.C. 2945.73.

6
 February 19, 2011 was actually tolled due to Appellant’s pro se filing of a request for a bill of particulars
on February 18, 2011.
Ross App. No. 11CA3267                        16


                         JUDGMENT REVERSED.
Ross App. No. 11CA3267                                                        17


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED and that the
Appellant recover of Appellee 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 Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
Abele, P.J.: Concurs in Judgment Only.

                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
