[Cite as State v. Davis, 2020-Ohio-3617.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JAMES BRYON DAVIS                            :       Case No. 2019 CA 0112
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2019CR0446R



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    July 2, 2020




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GARY BISHOP                                          WILLIAM T. CRAMER
Prosecuting Attorney                                 470 Olde Worthington Rd., Suite 200
Richland County, Ohio                                Westerville, Ohio 43082


By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park St.
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0112                                                 2




Baldwin, J.

       {¶1}   Appellant, James Byron Davis, appeals his conviction by the Richland

County Court of Common Pleas for one count of Domestic Violence, a violation of R.C.

2919.25 and a fourth degree felony. Davis contends the trial court erred when it denied

his motion to dismiss the charges. He argues that the municipal court erred by failing to

conduct a timely preliminary hearing and that the common pleas court’s continuance of

his trial violated R.C. 2945.71 and his right to a speedy trial. Appellee is the State of Ohio.

                        STATEMENT OF FACTS AND THE CASE

       {¶2}   The facts leading to the charges against Davis are not pertinent to the

resolution of the appeal and will not be discussed in this opinion.

       {¶3}   On May 12, 2019 Davis was charged with a violation of R.C. 2919.25,

domestic violence, a fourth degree felony due to a prior conviction. A preliminary hearing

was scheduled for May 16, 2019. On the date of the preliminary hearing, the appellee

requested a continuance because a key witness, who had been properly subpoenaed,

failed to appear. The trial court continued the hearing, apparently with no objection from

Davis. The entry did not contain the reasons discussed at the hearing, but only indicated

that the hearing would be held on May 30, 2019.

       {¶4}   On May 28, 2019, Davis filed a petition for habeas corpus with this court

contending that because the preliminary hearing was not held within ten days the

complaint against him should be dismissed pursuant to the mandate of R.C. 2945.73(A).

On May 29, 2019, we issued an order to the trial court finding that the writ ought to issue

and that Davis was being unlawfully restrained of his liberty. We ordered the trial court
Richland County, Case No. 2019 CA 0112                                          3


to release Davis, or in the alternative, show cause on or before 12:00 p.m. on the 30th

day of May, 2019, why he should not be released.

       {¶5}   On May 30, 2019, the Mansfield Municipal Court issued an order stating

that “the State Presented(sic) adequate cause for the requested continuance, as a

necessary witness was served her subpoena, but did not make herself present for the

hearing. As the witnesses' testimony was essential to the case, cause was found, and a

reasonable continuance granted.” (Order Showing Cause, May 30, 2019, Mansfield

Municipal Court Case No. 2019-CRA-2173). This court then denied Davis’s petition.

       {¶6}   Davis timely appealed to the Supreme Court of Ohio in Case No. 2019-

0782. The Supreme Court found that we correctly dismissed the petition “because the

petition does not comply with the mandatory filing requirements of R.C. 2725.04 and

because his claims are not cognizable in habeas corpus.” Davis v. Sheldon, Slip Opinion

No. 2020-Ohio-436, ¶7. The Supreme Court stated:

              Even if Davis had satisfied the requirements of R.C. 2725.04, his

       claims would not be cognizable in habeas corpus, because he was indicted

       on June 24, 2019, on the same charge for which he has been held in jail

       since May 12, 2019. See Gibson v. Wilson, 5th Dist. Richland No. 08CA85,

       2009-Ohio-829, ¶ 12 (habeas corpus will not lie for failure to hold a

       preliminary hearing once grand jury has returned an indictment); Nash v.

       McFaul, 8th Dist. Cuyahoga No. 81439, 2002-Ohio-3647, ¶ 2 (indictment

       renders any defects in a preliminary hearing moot).

Id at ¶9.
Richland County, Case No. 2019 CA 0112                                                4


       {¶7}   While the petition for habeas corpus was pending, the municipal court

conducted the preliminary hearing and bound Davis over to the common pleas court on

May 30, 2019. Davis was indicted by the grand jury on June 24, 2019. Davis entered a

plea of not guilty on July 10, 2019 and a pre-trial was scheduled for July 22, 2019. On

July 22nd the trial court continued the trial to August 26, 2019 explaining the reason for

the continuance:

              Due to the Court's crowded docket, it is not possible to set the trial in

       this matter within 270 days. The Court has multiple jury trials on every

       available trial date. The trials scheduled on those dates consist of cases in

       which the defendants have been incarcerated, arraigned prior to this matter

       and those which have been set multiple times.

              The earliest possible date available for trial is August 26, 2019 at

       9:00 a.m. Time is tolled to that date.

Order of Trial, July 22, 2019.

       {¶8}   Davis filed a motion to dismiss for a speedy trial violation on August 23,

2019 arguing that the charges must be dismissed because the preliminary hearing was

not timely and because the trial court’s entry continuing the trial did not contain sufficient

justification for the continuance. Davis entered a no contest plea on the same date, the

trial court accepted the plea and scheduled the motion to dismiss and sentencing for

hearing on November 6, 2019.

       {¶9}   At the hearing on the motion to dismiss, the trial court repeated the rationale

for continuing the trial that was contained in the entry, confirming that older criminal cases

took precedence on the date set aside for criminal trials. The court administrator testified
Richland County, Case No. 2019 CA 0112                                               5


in support of the trial court’s reasoning and the trial court denied the motion and sentenced

Davis to three years of community control.

       {¶10} Davis filed an appeal and submitted two assignments of error:

       {¶11} “I. APPELLANT'S STATUTORY SPEEDY TRIAL RIGHTS WERE

VIOLATED BECAUSE THE PRELIMINARY HEARING WAS CONTINUED BEYOND

THE STATUTORY TIME LIMIT BY A SUA SPONTE ENTRY THAT PROVIDED NO

REASONS FOR THE CONTINUANCE.”

       {¶12} “II. APPELLANT'S STATUTORY SPEEDY TRIAL RIGHTS WERE

VIOLATED BY A SUA SPONTE CONTINUANCE THAT WAS UNREASONABLE

BECAUSE THE TRIAL COURT FAILED TO PRIORITIZE CRIMINAL CASES IN

SCHEDULING.”

                                  STANDARD OF REVIEW

       {¶13} Our review of a trial court's decision regarding a motion to dismiss based

upon a violation of the speedy trial provisions involves a mixed question of law and fact.

State v. Larkin, 5th Dist. Richland No.2004–CA–103, 2005-Ohio-3122, 2005 WL

1463255, ¶11. As an appellate court, we must accept as true any facts found by the trial

court and supported by competent, credible evidence. State v. Taylor, 5th Dist. Richland

No. 16 CA 17, 2016-Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin, supra. With regard

to the legal issues, however, we apply a de novo standard of review and thus freely review

the trial court's application of the law to the facts. Id.

       {¶14} When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d
Richland County, Case No. 2019 CA 0112                                               6


53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-

Ohio-2326, 2010 WL 2060900, ¶ 12.

                                             I.

       {¶15} In his first assignment of error, Davis argues that the charges against him

must be dismissed as he was not afforded a preliminary hearing within the statutorily

allotted time and the trial court’s extension of time for the hearing was ineffective because

the entry failed to contain the rationale for the continuance of the hearing.

       {¶16} After Davis’s petition for habeas corpus was rejected by this court he was

indicted and entered a not guilty plea. The indictment by the grand jury rendered any

defects in the preliminary hearing moot. State v. Washington, 30 Ohio App.3d 98, 99, 506

N.E.2d 1203 (1986) and Styer v. Bricta, 69 Ohio App.3d 738, 591 N.E.2d 1255 (1990).

Davis argues that the lack of a timely preliminary hearing should invalidate subsequent

proceedings arising from the arrest and result in his discharge, but ‘[t]he effect of the

State's failure to accord a preliminary hearing to a defendant within the statutorily

prescribed time is a voluntary dismissal of that felony charge against the defendant.

Accordingly, a defendant who was not accorded a timely preliminary hearing may be

subsequently indicted for the same offense for which he was originally arrested.” State v.

Aberle, 5th Dist. Muskingum No. CA 91-33, 1992 WL 173387, *1 referencing State v.

Pugh, 53 Ohio St.2d 153, 372 N.E. 2d 1351 (1978).

       {¶17} Pugh is a per curiam opinion of the Supreme Court of Ohio with a very brief

description of the facts and the decision of the Ninth District Court of Appeals: “On appeal,

the Court of Appeals found that the charge against appellant should have been dismissed

by the Municipal Court, but it declined to hold that the indictment against appellant should
Richland County, Case No. 2019 CA 0112                                               7


also have been dismissed. The judgment of the trial court was affirmed.” The entire

opinion of the Supreme Court in Pugh contains two sentences: “The judgment of the Court

of Appeals is affirmed. Judgment affirmed,” Pugh, supra at 155, but the text of the

appellate court opinion provides additional insight:

              Pugh is correct in asserting the charge should have been dismissed

       in the Akron Municipal Court (R.C. 2945.73(A)). However, he is incorrect in

       asserting that the indictment should also have been dismissed. The failure

       to accord a defendant a prompt preliminary hearing results only in a

       dismissal in the nature of a nolle prosequi (R.C. 2945.73(D)). It does not

       constitute “a bar to any further criminal proceedings against him based on

       the same conduct” such as a failure to grant a defendant a speedy trial after

       indictment (R.C. 2945.73(D)). Thus, Pugh was properly indicted and tried.

       The error below was not prejudicial and is, accordingly, rejected.

State v. Pugh, 9th Dist. Summit No. 8029, 1976 WL 188767, *1, aff'd, 53 Ohio

St.2d 153, 372 N.E.2d 1351 (1978).

       {¶18} The facts of this case are indistinguishable, as Davis was not provided a

timely preliminary hearing, but was subsequently indicted and convicted. The outcome

in this case should likewise be the same.

       {¶19} Davis attempts to construe the Pugh opinion as applying only to direct

indictments and not indictments that followed a bind over, relying upon the concurring

opinions. The concurring opinions are not binding and represent the judgment of the

individual justices, and this court is obligated to comply with the holding of the court, not

the concurrences. State of Ohio ex rel. Dave Yost, Ohio Attorney General v. Osborne
Richland County, Case No. 2019 CA 0112                                                8


Co., Ltd., et al., 11th Dist. Lake No. 2019-L-003, 2020-Ohio-3090; In re Gibson, 157 B.R.

366, 372 (Bankr. S.D. Ohio 1993). We have no authority to reconstruct the holding of the

Supreme Court as requested by Davis.

       {¶20} Even if we were to consider Davis’s argument that the Pugh opinion does

not stand for the proposition that a subsequent indictment following a bind over order

renders any error in the conduct of the preliminary hearing moot, Davis’s argument must

fail because it is based upon an inaccurate description of the concurring opinions. Davis

contends that “[o]f the four Justices who voted to affirm, two of them (Justices Celebrezze

and Locher) did so based solely on their conclusion that the defendant had waived the

issue by pleading guilty to the indictment.” (Appellant’s Brief, p. 6). The defendant in

Pugh did not plead guilty to the indictment, but instead entered a plea of not guilty and

was convicted by a jury. State v. Pugh, 9th Dist. Summit No. 8029, 1976 WL 188767, *1,

aff'd, 53 Ohio St.2d 153, 372 N.E.2d 1351 (1978); State v. Pugh, 53 Ohio St.2d 153, 154,

372 N.E.2d 1351, 1352 (1978). And, Justice Celebrezze’s concurrence concluded that

Pugh had waived error by entering a plea:

              I believe that appellant's inconsistent conduct, viz., entering a plea to

       the indictment, constituted a waiver of compliance with the applicable time

       limitation. Cf. Crider v. Maxwell (1968), 174 Ohio St. 190, wherein it is stated

       at page 192, 187 N.E.2d 875, at page 876:

                     The petitioner urges that he was deprived of his

              constitutional rights by not having a preliminary hearing. It is

              his contention that failure to afford a preliminary hearing

              deprives an accused of being able to confront the state's
Richland County, Case No. 2019 CA 0112                                                 9


              witnesses and lay evidence before the court as to the degree

              of accused's guilt and deprives him of other constitutional

              rights. Such is not the purpose of the preliminary hearing. *157

              It is only to determine whether sufficient evidence exists to

              warrant binding an accused over to the grand jury to

              determine whether formal charges shall be placed against

              him. No rights or defenses are lost from a failure to have a

              preliminary hearing. In this respect, petitioner has been

              deprived of no constitutional right. Once an indictment has

              been returned, a plea to such indictment waives any right the

              accused has to a preliminary hearing. Annotation, 116 A.L.R.

              550; 4 Wharton's Criminal Law and Procedure, 290, Section

              1619. (Emphasis added.)

Pugh, supra at 156–157.

       {¶21} The concurrences in Pugh are not helpful to Davis’s cause because they

stand for the proposition that Davis waived his objections by entering a plea to the

indictment.

       {¶22} Applying the Pugh decision to the facts of this case, we hold that Davis was

properly indicted and tried, that the lack of a timely preliminary hearing was not prejudicial,

and that he waived any potential error by entering a plea to the indictment.

       {¶23} Appellant’s first assignment of error is overruled.
Richland County, Case No. 2019 CA 0112                                               10


                                                II.

       {¶24} In his second assignment of error, Davis contends that his statutory speedy

trial rights were violated by a sua sponte continuance that was unreasonable because the

trial court failed to prioritize criminal cases in scheduling. Davis conceded during oral

argument, and we agree, that the record in this case provides little support to his

assignment of error and we find that the facts show that the trial court took the appropriate

steps to continue the matter to a later date.

       {¶25} The trial court sua sponte issued an entry continuing the trial on July 22,

2019 and there is no contention that the entry was untimely. Davis does contend that the

trial court’s entry provided insufficient information regarding the rationale for the

continuance, comparing the entry to that in State v. Terra, 74 Ohio App.3d 189, 193, 598

N.E.2d 753, 755 (10th Dist.1991), where the Tenth District Court of Appeals found sua

sponte entries continuing the criminal trial that provided as rational only that “Judge in

Trial” and “Court in trial, no other courtrooms available” failed to satisfy the requirements

of R.C. 2945.71 et seq.

       {¶26} R.C. 2945.71(C)(2) requires that a person against whom a felony charge is

pending be brought to trial within two hundred and seventy days after his arrest. For

purposes of computing time, R.C. 2945.71(E) states that “ * * * each day during which the

accused is held in jail in lieu of bail on the pending charge shall be counted as three days,

* * * ” which means that an accused held in jail must therefore be tried within ninety days

of his arrest date. State v. Terra, 74 Ohio App.3d 189, 193, 598 N.E.2d 753, 756 (10th

Dist.1991). The time for trial may be extended by “[t]he period of any continuance granted

on the accused's own motion, and the period of any reasonable continuance granted
Richland County, Case No. 2019 CA 0112                                                  11


other than upon the accused's own motion.” R.C. 2945.72(H). The Supreme Court

provided additional guidance for the analysis of sua sponte continuances in State v. Lee

48 Ohio St.2d 208, 209, 357 N.E.2d 1095 (1976):

              The record of the trial court must in some manner affirmatively

       demonstrate that a sua sponte continuance by the court was reasonable in

       light of its necessity or purpose. Mere entries by the trial court will ordinarily

       not suffice, except when the reasonableness of the continuance cannot be

       seriously questioned. Although this burden is contrary to the presumption

       of regularity generally accorded to trial proceedings, it appears necessary

       to carry out the purpose of the speedy-trial statutes.

       {¶27} The court in Terra found that merely stating that “Judge in Trial” or “Court in

trial, no other courtrooms available” fell short of fulfilling the requirements established by

the Supreme Court of Ohio in Lee. Mentioning only that the judge was in trial does not

indicate whether the judge was involved in a criminal or civil matter or whether the court

was providing criminal cases the required precedence over civil matters. Further, the

Terra court found the length of the continuance, thirty two calendar days, not facially

reasonable under the circumstances.

       {¶28} In the case before us, we find the entry sufficiently detailed and the length

of the extension to be facially reasonable after reviewing the facts in the record. The

speedy trial deadline was arguably August 12th and the trial was continued to August 26

but only after the trial court found that there were multiple criminal jury trials scheduled

on the available dates comprised of cases in which defendants had been incarcerated,

arraigned prior to Davis or set for trial on several occasions. These findings satisfy the
Richland County, Case No. 2019 CA 0112                                              12


concerns of the Tenth District Court of Appeals and the Supreme Court of Ohio by

showing that the trial court is preserving criminal cases’ precedence and that it was the

backlog of criminal trials that created the need for the continuance. We find that the

continuance tolled the speedy trial time because it reflects that the continuance was

reasonable in both purpose and length. State v. Martin, 56 Ohio St.2d 289, 293, 384

N.E.2d 239 (1978), quoting State v. Lee, 48 Ohio St.2d 208, 210, 357 N.E.2d 1095 (1976).

       {¶29} Davis also suggests that the trial court’s statement during the hearing that

criminal trials were relegated to one day per week violated his right to a speedy trial, but

cites no precedent to support his argument. Further, the record supported the trial court’s

finding that the docket was crowded with criminal cases that would take priority over

Davis’s case and there is nothing within the record to suggest that eliminating the civil

docket and adding a trial day to the criminal docket would have altered the necessity of

the continuance.

       {¶30} The appellant’s second assignment of error is overruled.
Richland County, Case No. 2019 CA 0112                                       13


      {¶31} The decision of the Richland County Court of Common Pleas is affirmed.



By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
