[Cite as State v. Battiste, 2014-Ohio-4683.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 100894



                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     JAYSON BATTISTE
                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART, REVERSED IN PART
                             AND REMANDED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-573632-A

        BEFORE: E.A. Gallagher, P.J., Blackmon, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Road, Suite 335
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Kyker
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, P.J.:
       {¶1} Jayson R. Battiste appeals his conviction and sentence imposed in the

Cuyahoga County Common Pleas Court. Battiste argues that he was denied his right to

a speedy trial, that his counsel rendered ineffective assistance, that the trial court erred in

sentencing him as a Tier III sex offender and in failing to issue credit for time served in

the Cuyahoga County jail. Finding merit to Battiste’s appeal, we reverse the decision of

the trial court in part, and remand for proceedings consistent with this opinion.

       {¶2} In April 2013, the Cuyahoga County Grand Jury returned a four-count

indictment charging Battiste with rape, trafficking in persons, kidnapping and unlawful

sexual conduct with a minor.      After a series of pretrial hearings, Battiste pleaded guilty

to unlawful sexual conduct with a minor.          The state dismissed the remaining three

counts of the indictment.     The trial court sentenced Battiste to 18 months incarceration

and classified him as a Tier III sex offender.    At the conclusion of the hearing, defense

counsel asked if Battiste would be given credit for time served, to which the court

responded, “certainly.”     Battiste was incarcerated from the date of his arrest on April 19,

2013 through the date of sentencing on October 16, 2013, a total of 181 days.

       {¶3} In his first assigned error, Battiste argues the trial court deprived him of his

right to a speedy trial.

       {¶4} The Sixth and Fourteenth Amendments to the United States Constitution, as

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

right to a speedy trial by the state. State v. O’Brien, 34 Ohio St.3d 7, 516 N.E.2d 218

(1987). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United
States Supreme Court declared that, with regard to fixing a time frame for speedy trials,

“[t]he States * * * are free to prescribe a reasonable period consistent with constitutional

standards * * *.” To that end, the Ohio General Assembly enacted R.C. 2945.71.

        {¶5} Pursuant to R.C. 2945.71, a person against whom a felony charge is pending

shall be brought to trial within 270 days after their arrest. For purposes of computing

this time, each day during which the accused is held in jail in lieu of bail shall be counted

as three days. Id. Once the defendant has established that the statutory time limit has

expired, they have made their prima facie case for dismissal. State v. Howard, 79 Ohio

App.3d 705, 607 N.E.2d 1121 (8th Dist.1992). The burden then shifts to the state to

demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. State v. Geraldo,

13 Ohio App.3d 27, 468 N.E.2d 328 (6th Dist.1983).

        {¶6} In the present case, Battiste has established a prima facie case for dismissal

on speedy trial grounds.     He was arrested on April 19, 2013 and remained in the

Cuyahoga County jail for the entire 152 days before he entered his plea on September 18,

2013.

        {¶7} The state must now demonstrate acceptable extensions in accordance with

R.C. 2945.72 in order for speedy trial time to be properly tolled.   A review of the record

indicates that sufficient time was tolled in accordance with R.C. 2945.72(H), which reads

as follows:

        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 * * * [t]he 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 * * *.

          {¶8} Battiste was arrested on April 19, 2013. On April 24, 2013, Battiste filed a

written request for discovery, tolling time. On May 6, 2013, a pretrial was held and then

continued to May 14, 2013 at the request of Battiste.     The docket reflects that a pretrial

was held and continued to a later date at the request of Battiste seven more times before

he ultimately entered a guilty plea on September 18, 2013.     For each instance, the court

noted the continuance was requested by the defendant and for all but three, provided a

reason in support.

          {¶9}    For purposes of speedy trial computation, the only days that are counted

are April 20 - April 24, June 26 - July 15 and September 11 - September 18, because

these are the time periods where no continuance was requested and no proper tolling

event was noted.      Since Battiste was incarcerated throughout the entirety of the case,

each of these days counts as three, bringing the total number of days to 99, which falls

short of the 270-day limit.

          {¶10} Battiste argues that three specific continuance requests should not be

attributed to him because the trial court failed to specify the reason for the continuance

requests in the corresponding journal entries. This argument lacks merit because this

court in State v. Craig, 8th Dist. Cuyahoga No. 88039, 2007-Ohio-1834, held that a trial

court is not required to specify the reason for a continuance request in order for time to be

tolled.    “When the defendant’s request for a continuance is in the record, the absence of

an explanation for the continuance in a journal entry should not allow a defendant to use
the speedy-trial statute as a sword rather than a shield that it was designed to be.” Id. at

¶ 29.

          {¶11} After reviewing the entire record and calculating the time that elapsed

between appellant’s arrest and his trial, we find that he was brought to trial within the

speedy trial statutory time frame.      In view of this, Battiste’s second assigned error must

also fail because he could not show that the outcome of his case would have been

different.     Additionally, Battiste’s speedy trial time had not yet run at the time he entered

his guilty plea and, therefore, his trial counsel did not render ineffective assistance.

          {¶12} Based on the foregoing, Battiste’s first and second assigned errors are

overruled.

          {¶13} The state concedes the errors alleged in Battiste’s third and fourth assigned

errors.     Specifically, the state agrees that Battiste should be classified as a Tier II sex

offender under R.C. 2950.01(F) and that he should be credited with time he spent in jail

awaiting the conclusion of his case.        Accordingly, we reverse the decision of the trial

court and remand for reclassification as a Tier II sex offender and for the issuance of

credit for the 181 days he spent in the county jail.

          {¶14} The judgment of the trial court is affirmed in part, reversed in part and

remanded for proceedings consistent with this opinion.

          It is ordered that appellee and appellant share the 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR
