[Cite as State v. Scahel, 2014-Ohio-3042.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100705



                                       STATE OF OHIO

                                                   PLAINTIFF-APPELLEE

                                             vs.

                                        MARK SCAHEL
                                                   DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                           Case Nos. CR-05-463690 and CR-08-517978

        BEFORE: Stewart, J., Rocco, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                  July 10, 2014
ATTORNEY FOR APPELLANT

Michael J. O’Shea
Lipson O’Shea Legal Group
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Justine Dionisopoulos
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

          {¶1} In 2005 and 2008, the state charged defendant-appellant Mark Scahel in

separate cases of criminal nonsupport.        On both occasions, he failed to appear for

arraignment and warrants were issued for his arrest.     Scahel was twice arrested on those

warrants: in 2011 in Washington and in 2012 in Oregon. On both occasions, Scahel

refused to waive extradition and was released on bond.              In 2013, he voluntarily

surrendered himself in Ohio. He filed a motion to dismiss his indictments on speedy

trial grounds.     The court denied the motion to dismiss by applying a constitutional

speedy trial analysis under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972), to find that the state took reasonable steps to extradite Scahel to Ohio by making

an application for a governor’s warrant of rendition, that Scahel’s decision to remain a

fugitive showed that he had no serious interest in the speedy prosecution of the charges

against him, and that there was no evidence that the delay in prosecution resulted in any

prejudice to him.     Scahel then pleaded no contest to the charges.      He appeals, arguing

that the state’s efforts at obtaining a governor’s warrant did not amount to a reasonable

effort at extradition.

          {¶2} There are two separate speedy trial rights.   The first speedy trial right is set

forth in the Sixth Amendment to the United States Constitution. The amendment states:

 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial.”    In Barker, the United States Supreme Court found that the constitutional right to
a speedy trial does not turn on defined time limitations, but on a broad balancing of

relevant factors, including the length of the delay before trial, the reason for the delay, the

vigor with which the defendant has asserted his speedy trial rights, and the degree of

prejudice to the defendant. Id. at 530.

       {¶3} The second speedy trial right is statutory and is set forth in R.C. 2945.71(C).

That section states that a person against whom a felony charge is pending shall be brought

to trial within 270 days.

       {¶4} “Although the statutory and constitutional speedy trial provisions are

coextensive, the constitutional guarantees may be found to be broader than speedy trial

statutes in some circumstances.”     State v. O’Brien, 34 Ohio St.3d 7, 9, 516 N.E.2d 218

(1987). It is more accurate to say that the constitutional right to a speedy trial is both

narrower and broader than the corresponding statutory right.       The statutory speedy trial

right may be viewed as granting greater protection to the accused because, unlike the

constitutional guarantee of a speedy trial, the statute sets a definite time period in which

trial must be held.   In addition, the accused need not establish any prejudice to show a

violation of the speedy trial statute. The constitutional right to a speedy trial is broader

than the statutory right, however, because “it protects against prejudicial delay regardless

of whether a defendant can show a violation of the [federal speedy trial] Act.” United

States v. Gearhart, 576 F.3d 459, 462 (7th Cir.2009), citing United States v. Dessesaure,

556 F.3d 83, 86 (1st Cir.2009) (per curiam). And unlike a statutory speedy trial claim in

Ohio that is waived if not raised at, or prior to, the commencement of trial, see State v.
Mock, 187 Ohio App.3d 599, 2010-Ohio-2747, 933 N.E.2d 270, ¶ 15 (7th Dist.), a

constitutional claim can be reviewed for plain error even where it was not raised below.

Gearhart at 462-463, citing United States v. Oriedo, 498 F.3d 593, 597, fn. 2 (7th

Cir.2007). See also State v. King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d

399, ¶ 10 (8th Dist.).

       {¶5} It is unclear why the court engaged in a constitutional speedy trial analysis —

Scahel’s motion for a speedy trial was premised solely on his statutory speedy trial rights

under the Speedy Trial Act (“R.C. 2945.73 requires this Court to dismiss these two

indictments when the provisions of R.C. 2945.71/2945.72 have been violated”) and the

provisions of the Uniform Criminal Extradition Act. See Motion to Dismiss at 7. In

fact, Scahel’s appellate brief likewise rests solely on statutory grounds.   The state’s brief

in opposition to the motion to dismiss briefly cited Barker and the constitutional standard

for speedy trial claims, but its appellate brief makes no constitutionally-based argument in

support of the court’s ruling on the motion to dismiss.

       {¶6} Courts should avoid reaching constitutional issues if they can decide the case

on nonconstitutional grounds.     In re Miller, 63 Ohio St.3d 99, 110, 585 N.E.2d 396

(1992).   Given that Scahel raised only a statutory speedy trial claim, the court should

have limited its ruling on the motion to dismiss to the nonconstitutional grounds raised in

the motion. The merits of those grounds must be considered by the court in the first

instance. We therefore sustain the first assignment of error and remand with instructions

for the court to address Scahel’s statutory speedy trial claim.
       {¶7} This cause is reversed and remanded to the trial court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of 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 Cuyahoga

County Court of Common Pleas 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.



________________________________________
MELODY J. STEWART, JUDGE

KENNETH A. ROCCO, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
