[Cite as State v. Kesler, 2014-Ohio-3376.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-13-35

        v.

ERIC E. KESLER,                                            OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 13-CR-0065

                                       Judgment Affirmed

                              Date of Decision: August 4. 2014




APPEARANCES:

        Scott B. Johnson for Appellant

        Angela M. Boes for Appellee
Case No. 13-13-35


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Eric E. Kesler (“Kesler”) brings this appeal from

the judgment of the Court of Common Pleas of Seneca County denying his motion

to dismiss for speedy trial violations.       For the reasons set forth below, the

judgment is affirmed.

       {¶2} On April 15, 2013, a complaint was filed in the Tiffin Municipal

Court alleging that Kesler had violated the requirement that he register as a sexual

offender, in violation of R.C. 2950.05(A)(F)(1). Doc. 1. The parties both agree

that Kesler was arrested on April 19, 2013. Appellant’s Brief, 1, and Appellee’s

Brief, 4. Kesler initially appeared on this charge on April 21, 2013, but requested

a continuance until April 26, 2013. Doc. 1. On April 26, 2013, Kesler waived the

preliminary hearing and agreed to have the matter bound over to the Court of

Common Pleas of Seneca County. Id.

       {¶3} On May 8, 2008, the Seneca County Grand Jury issued an indictment

alleging that Kesler had failed to provide notice of his change of address for his

residence, in violation of R.C. 2950.05(A),(F)(1) and R.C. 2950.99(A)(1)(b)(iii), a

felony of the third degree. A bond hearing was held on May 10, 2013. Doc. 5 and

7. Bond was set at $30,000 with no 10% allowed. Doc. 7. An arraignment

hearing was held on May 15, 2013, but was continued until May 20, 2013, because

appointed defense counsel was not available. Doc. 10. That same day, the State


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filed an “Answer to Discovery”, though no request for discovery had previously

been made by Kesler. Doc. 9. On May 20, 2013, Kesler was arraigned and he

entered a plea of not guilty. Doc. 12. Bond terms were continued and Kesler was

remanded to the custody of the Sheriff of Seneca County as he was unable to make

bond. Id. On July 2, 2013, the trial court set the trial date for July 25, 2013. Doc.

18.

       {¶4} On July 24, 2013, Kesler filed a motion to dismiss based upon

violation of his speedy trial rights. Doc. 24. The State filed its response that same

day. Doc. 25. The trial court overruled the motion to dismiss, finding that the

time for the speedy trial was tolled by the defense’s failure to respond to the

State’s discovery answer and by the delay in arraignment because appointed

counsel was not available. Doc. 26. The trial was held on July 25, 2013, and

Kesler was found guilty. Doc. 27. A sentencing hearing was held on August 22,

2013. Doc. 30. Kesler filed his notice of appeal on August 28, 2013. Doc. 31.

On appeal, Kesler raises the following assignments of error.

                            First Assignment of Error

       The trial court erred by overruling [Kesler’s] motion to dismiss
       on speedy trial grounds.

                          Second Assignment of Error

       [Kesler’s] trial attorney failed to provide adequate counsel
       thereby denying him his constitutional right to effective counsel.


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      {¶5} In the first assignment of error, Kesler claims that the trial court erred

in denying his motion to dismiss for a speedy trial violation. The requirements for

time within which a trial must be held are controlled by R.C. 2945.71.

      (C) A person against whom a charge of felony is pending:

      ***

      (2) Shall be brought to trial within two hundred seventy days
      after the person’s arrest.

      ***

      (E) For purposes of computing time under divisions (A), (B),
      (C)(2), and (D) of this section, each day during which the
      accused is held in jail in lieu of bail on the pending charge shall
      be counted as three days.

R.C. 2945.71. However the time for trial may be extended in certain limited

situations. R.C. 2945.72.

      The time within which an accused must be brought to trial * * *
      may be extended only by the following:

      ***

      (E) Any period of delay necessitated by reason of a * * * motion
      * * * made or instituted by the accused.

       ***

      (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.

R.C. 2945.72.


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          When reviewing a speedy-trial issue, an appellate court must
          calculate the number of days chargeable to either party and
          determine whether the appellant was properly brought to trial
          within the time limits set forth in R.C. 2945.71. * * *
          Additionally, our review involves a mixed question of law and
          fact. We must defer to the trial court’s findings of fact if
          supported by competent, credible evidence, but we
          independently review whether the trial court properly applied
          the law to those facts.

State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19 (12th

Dist.).

          Sua sponte continuances are continuances “granted other than
          on the accused's own motion.” R.C. 2945.72(H). To toll the
          speedy trial time, the record must reflect that the period of the
          continuance was “reasonable.” To satisfy that standard, “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
          limits prescribed in R.C. 2945.71 for bringing a defendant to
          trial.”

State v. Ramey, 2d Dist. Clark No. 2010 CA 19, 2012-Ohio-6187, ¶12 (quoting

State v. Mincy, 2 Ohio St.3d 6, 9, 441 N.E.2d 571 (1982)). The reasonableness of

the delay is determined based upon the specific facts and circumstances of each

case. State v. Daugherty, 110 Ohio App.3d 103, 673 N.E.2d 664 (3d Dist. 1996).

This court has previously held that delaying proceedings until the next available

date was a reasonable delay. See Id. and State v. Glass, 3d Dist. Auglaize No. 2-

04-01, 2004-Ohio-4402.




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       {¶6} In this case, Kesler was unable to pay the $30,000 bond, so he

remained in custody since his arrest on April 19, 2013.           Thus, his time is

calculated as three days for each day he spent in jail awaiting trial. This means

that the State had 90 days to bring Kesler to trial, or until July 19, 2013. The trial

was not scheduled until July 25, 2013, six days outside of the speedy trial

requirements.

       {¶7} Once it has been determined that the trial date is outside of the speedy

trial limits, the next issue to be addressed is whether the time for trial could be

extended for any of the statutory reasons. The trial court in this case provided two

instances in which it extended the time for trial. The first was the five days

between when the arraignment was scheduled and when it actually occurred.

According to the record, the arraignment was delayed due to the unavailability of

appointed counsel on the original date. The court stated that it was concerned

because it was unusual for counsel to not appear. May 15, 2013 Tr. 3. The trial

court stated “I’m gonna continue the arraignment because I suspect he would like

me to reconsider bond as well, at least I suspect so.” Id. The original date of

arraignment was on Wednesday, May 15, 2013. When counsel was unavailable,

the trial court sua sponte continued the arraignment until counsel could be present.

The trial court specified in its journal entry of May 15, 2013, that defense counsel

“was not available and the Court finds that this matter should be continued.” Doc.


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10. The hearing was rescheduled until Monday, May 20, 2013. This was a mere

three business days later.    Kesler had specifically requested counsel and was

indigent.   The delay of three business days, or five days total was not

unreasonable. The delay was a mere three business days to allow counsel to be

present and to possibly raise additional issues. In fact, at the arraignment, trial

counsel did ask the trial court to reconsider bail. The trial court filed a journal

entry setting forth the reason for the delay and the length of the delay prior to the

expiration of the time for the trial. A review of the record indicates that the delay

was reasonable. Thus, pursuant to R.C. 2945.72(H), this delay, although not on

the motion of either party was a reasonable delay that can be used to extend the

trial date. The trial date was therefore correctly extended to July 24, 2013.

       {¶8} The second extension the trial court found was the failure of defense

counsel to respond to its reciprocal duty to provide discovery as required by

Criminal Rule 16.

       (A) This rule is to provide all parties in a criminal case with the
       information necessary for a full and fair adjudication of the
       facts, to protect the integrity of the justice system and the rights
       of defendants, and to protect the well-being of witnesses, victims,
       and society at large. All duties and remedies are reciprocal.
       Once discovery is initiated by demand of the defendant, all parties
       have a continuing duty to supplement their disclosures.

Crim.R. 16(A) (emphasis added).         The State argues that since it provided

discovery to Kesler on May 15, 2013, Kesler had a reciprocal duty to respond to it


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within 30 days, as set forth by State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-

374, 860 N.E.2d 1011. However, this case is distinguishable from Palmer. In

Palmer, the defendant filed a motion for discovery on April 28, 2004. The State

then responded to the motion for discovery and requested reciprocal discovery.

The reciprocal requirements of Criminal Rule 16 for discovery are triggered by the

request for discovery by the defendant.

      {¶9} Further support for the above position is found in the Supreme Court’s

opinion of State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, 989 N.E.2d 1006.

In Athon, the defense did not request discovery from the State, but did make a

public records request.     The Supreme Court determined that although the

defendant may make a public records request, the same information could have

been obtained through a discovery request to the State. “When an accused directly

or indirectly makes a public records request for information that could be obtained

from the prosecutor through discovery, the request is the equivalent of a demand

for discovery and triggers a duty to provide reciprocal discovery as contemplated

by Crim.R. 16.” Id. at ¶ 19. Although this case did not specifically address the

issue before us, it does indicate that the reciprocal duty imposed by Criminal Rule

16 must be triggered by an action of the defendant.

      {¶10} In our case, no action was taken by the defendant that would trigger

the reciprocal duty to provide discovery pursuant to Criminal Rule 16. The State


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voluntarily presented discovery before Kesler was even arraigned. The reciprocal

duty of discovery is not triggered by the State’s filing of discovery, regardless of

the State labelling it as an answer to discovery request, but by the request for

discovery or an equivalent action of the defendant. That did not occur in this case.

Thus, the defendant had no duty to provide discovery pursuant to the rule. This

also means that the trial court erred in extending the time for trial based upon

Kesler’s failure to provide timely discovery.

       {¶11} Having determined that the trial court erred in extending the time for

trial based on the failure to provide reciprocal discovery within 30 days, we now

look to the record to see if there are any other statutorily provided reasons for an

extension. According to the record, Kesler was originally scheduled for an initial

hearing on April 22, 2013, but requested a continuance until April 26, 2013. Doc.

1. This continuance request was made by Kesler himself and he specifically

requested a delay until April 26, 2013. Pursuant to R.C. 2945.72(E), any delay

caused by the filing of a motion by the accused extends the time for the trial.

Thus, Kesler’s motion for a continuance extended the time for trial by four days.

The deadline for bringing Kesler to trial was therefore extended until July 28,

2013. Since Kesler was tried on July 25, 2013, the trial court did not err in

denying his motion to dismiss for violation of his statutory right to a speedy trial.

The first assignment of error is overruled.


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       {¶12} In the second assignment of error, Kesler claims that his trial counsel

was ineffective. “Reversal of convictions on ineffective assistance requires the

defendant to show ‘first that counsel’s performance was deficient and, second that

the deficient performance prejudiced the defense so as to deprive the defendant of

a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002–Ohio–3751, ¶ 105, 772

N.E.2d 81. The defendant must show that there was a reasonable probability that

but for counsel’s error, the result of the trial would have been different. Id. at ¶

108.

       {¶13} Here, Kesler claims that his counsel was ineffective for not

responding to the State’s request for discovery within thirty days. This court has

previously addressed this issue and found that the reciprocal duty to respond to the

State’s discovery was not triggered pursuant to Criminal Rule 16 because Kesler

never requested discovery.    Since Kesler’s counsel had no reciprocal duty to

respond, he was not ineffective for failing to respond within thirty days. For this

reason, the second assignment of error is overruled.

       {¶14} Having found no prejudice in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Seneca County is affirmed.

                                                               Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr


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