[Cite as State v. Butler, 2014-Ohio-4679.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 14 CA 21
JIMMY D. BUTLER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 13 CR 611


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 22, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellee

JOHN C. NIEFT                                  JEFFREY P. UHRICH
ASSISTANT PROSECUTOR                           LAW OFFICE OF JEFFREY P. UHRICH
38 South Park Street                           Post Office Box 1977
Mansfield, Ohio 44902                          Westerville, Ohio 43086
Richland County, Case No. 14 CA 21                                                       2

Wise, J.

       {¶1}   Appellant Jimmy D. Butler appeals his conviction and sentence entered in

the Richland County Court of Common Pleas on one count of Assault on a Correction

Officer, following a plea of no contest.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On September 9, 2013, Appellant Jimmy D. Butler was indicted by the

Richland County Grand Jury on one count of Assault on a Correction Officer, in violation

of R.C. 2903.13(A), a felony of the fifth degree. Appellant was arrested and incarcerated

on the same date.

       {¶4}   On September 17, 2013, Appellant entered a plea of Not Guilty.

       {¶5}   On October 31, 2013, Appellant informed the court that he would be

willing to change his plea. A change of plea hearing was set for November 27, 2013.

       {¶6}   On November 27, 2013, at the change of plea hearing, Appellant refused

to change his plea. At that time, Appellant's trial counsel informed the court that he was

not prepared for the trial set for December 2, 2013, and requested a continuance. The

trial court granted the continuance based upon Appellant's request, resetting the trial for

January 27, 2014.

       {¶7}   On December 18, 2013, Appellant filed a motion to dismiss arguing that

his statutory right to a speedy trial had been violated under R.C. 2945.71. The State

responded that Appellant tolled the time by his request pursuant to R.C. 2945.72(E).

The trial court overruled the motion, stating that Appellant requested the continuance of

his trial and the first available date the court had was January 27, 2014.
Richland County, Case No. 14 CA 21                                                         3


       {¶8}   On January 27, 2014, the trial commenced in this matter. During the trial,

Appellant again requested to change his plea.

       {¶9}   On January 28, 2014, Appellant changed his plea to one of No Contest.

Based on his plea of no contest, the trial court found Appellant guilty and placed him on

community control with twelve months of suspended incarceration.

       {¶10} Appellant now appeals to this Court, assigning the following error for

review:

                                   ASSIGNMENT OF ERROR

       {¶11} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT/

APPELLANT'S MOTION TO DISMISS AND FAILED TO DETERMINE THAT

DEFENDANT/APPELLANT'S CONSTITUTIONAL RIGHT TO SPEEDY TRIAL WAS

VIOLATED.”

                                             I.

       {¶12} In his sole Assignment of Error, Appellant argues that the trial court erred

in denying his motion to dismiss. We disagree.

       {¶13} Appellant’s motion was based on a violation of his right to a speedy trial.

       {¶14} The right to a speedy trial is a fundamental right of a criminal defendant

that is guaranteed by the United States and Ohio Constitutions. Sixth Amendment to the

U.S. Constitution; Ohio Constitution, Article I, Section 10; State v. Ramey, 132 Ohio

St.3d 309, 2012–Ohio–2904, ¶ 14. In Ohio, an accused has a statutory right to a speedy

trial. State v. Jackson, 9th Dist. Lorain No. 11CA010012, 2012–Ohio–3524, ¶ 8. Speedy

trial statutes “constitute a rational effort to enforce the constitutional right to a public

speedy trial of an accused charged with the commission of a felony or a misdemeanor.”
Richland County, Case No. 14 CA 21                                                        4

State v. Pachay, 64 Ohio St.2d 218 (1980), syllabus. Accordingly, “[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.” Ramey at ¶ 14. A

person charged with a felony must be brought to trial within 270 days of his or her arrest

and each day the accused is held in jail in lieu of bail will be counted as three days. R.C.

2945.71(C)(2); R.C. 2945.71(E). The accused's speedy trial clock begins to run on the

day after arrest or service of summons. State v. Szorady, 9th Dist. Lorain No.

02CA008159, 2003–Ohio–2716, ¶ 12. “However, R.C. 2945.72 lists various events that

will toll the running of the speedy-trial clock.” State v. Stevens, 9th Dist. Lorain No. 11

CA009995, 2012–Ohio–4095, ¶ 5. “In addition to meticulously delineating the tolling

events, the General Assembly jealously guarded its judgment as to the reasonableness

of delay by providing that time in which to bring an accused to trial ‘may be extended

only by’ the events enumerated in R.C. 2945.72(A) through (I).” Ramey at ¶ 24, quoting

R.C. 2945.72. Thus, the “ ‘extensions are to be strictly construed, and not liberalized in

favor of the state.’ ” Ramey at ¶ 24, quoting State v. Singer, 50 Ohio St.2d 103, 109

(1977).

       {¶15} Under R.C. 2945.72, however, speedy-trial time may be tolled by several

events, including the following:

       {¶16} (D) Any period of delay occasioned by the neglect or improper act of the

accused;

       {¶17} (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;

       {¶18} * * *
Richland County, Case No. 14 CA 21                                                       5


       {¶19} (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[.]

       {¶20} Here, Appellant was arrested on September 13, 2013, and thus the

speedy-trial clock began running September 14, 2013. During the entire pendency of

the case, Appellant remained in jail and was thus entitled to the benefit of the triple-

count provision in R.C. §2945.71(E), requiring that the case be tried within 90 days.

       {¶21} The trial court initially set Appellant’s trial date for December 2, 2013, 80

days from September 14, 2013, when the time began to run against the State.

       {¶22} Between Sept. 14, 2013, and December 18, 2013, the day Appellant filed

his motion to dismiss, 97 days elapsed. Thus, absent waiver or tolling events, Appellant

was entitled to be discharged upon filing his motion to dismiss. See R.C.§ 2945.73(B).

       {¶23} Next, we turn to examining whether there were any tolling events or

waivers that would impact the running of the speedy trial time. Time ran from the day

after Appellant’s arrest on September 13, 2013, until the date of the change of plea

hearing on November 27, 2013: 74 days. On that date, Appellant refused to change

his plea and Appellant’s counsel requested a continuance of the trial date scheduled for

December 2, 2013. The trial court granted the continuance and re-set the trial date for

January 27, 2014, its next available date. The speedy trial count tolled from November

27, 2013, chargeable to Appellant, as it was his counsel which requested the

continuance. The time was still tolled when Appellant filed his motion to dismiss on

December 18, 2014.
Richland County, Case No. 14 CA 21                                               6


      {¶24} Based on the foregoing, we find that the trial court properly denied

Appellant’s motion to dismiss.

      {¶25} Appellant’s sole Assignment of Error is overruled.

      {¶26} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



JWW/d 1009
Richland County, Case No. 14 CA 21   7
