[Cite as State v. Willis, 2016-Ohio-616.]




                              IN THE COURT OF APPEALS OF OHIO
                                  SIXTH APPELLATE DISTRICT
                                        WOOD COUNTY


State of Ohio/City of Bowling Green             Court of Appeals Nos. WD-15-006
                                                                      WD-15-007
        Appellee
                                                Trial Court Nos. 14TRC04630
                                                                 14CRB01493

Christopher S. Willis                           DECISION AND JUDGMENT

        Appellant                               Decided: February 19, 2016

                                            *****

        Matthew L. Reger, Bowling Green Prosecutor, for appellee.

        Michael B. Kelley, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} This is a consolidated appeal from judgments of the Bowling Green

Municipal Court, following that court’s conviction of defendant-appellant, Christopher S.

Willis, of one count of reckless operation, second offense (case No. 14TRC04630), and

one count of obstructing official business (case No. 14CRB01493). Because we find that
appellant was not afforded his constitutional right to a speedy trial, we hold that his

convictions must be vacated.

       {¶ 2} The facts of this case are as follows. On July 26, 2014, at approximately

1:30 a.m., Officer Patrick Moremile of the Wood County Sheriff’s Department pulled

over a car, driven by appellant, after he determined that appellant was driving 33 m.p.h.

in a 25 m.p.h. zone. Moremile also witnessed appellant swerve and cross the center line

of the roadway before pulling him over. Appellant was subsequently charged with

speeding in violation of R.C. 4511.21(D), operating a motor vehicle while under the

influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a lanes of travel offense in

violation of R.C. 4511.25, and driving with an open container of alcohol in violation of

R.C. 4301.62 (case No. 14TRC04630). Appellant was transported to the Bowling Green

Police Department, where he refused to submit to a breath test. Officer Moremile then

obtained a search warrant for appellant’s blood and transported him to the Wood County

Hospital for that test. Again, appellant refused the test. He was then transported to the

Wood County Justice Center and charged with obstructing police business in violation of

R.C. 2921.31 (case No. 14CR01493).

       {¶ 3} As a result of appellant’s refusal to submit to the blood alcohol test, his

driver’s license was suspended pursuant to an administrative license suspension (“ALS”).

       {¶ 4} On December 10, 2014, appellant entered pleas of no contest to one

amended charge of reckless operation, second offense within one year, a fourth degree

misdemeanor, in case No. 14TRC04630, and one count of obstructing official business in




2.
case No. 14CRB01493. On the reckless operation charge, appellant was fined $250, with

$100 suspended, and sentenced to 30 days in jail. Of that term, appellant was given

credit for 10 days and the balance was suspended. On the obstructing charge, appellant

was fined $750, with the entire amount suspended, and was sentenced to 90 days in jail,

the entire term suspended. Finally, the court placed appellant on community control until

December 10, 2019. In a separate judgment entry, the court continued appellant’s ALS

through July 26, 2015, but granted him limited driving privileges under numerous

conditions. Appellant now challenges the trial court’s judgments through the following

assignments of error:

             I. Appellant received ineffective assistance of counsel due to

      counsel’s serious errors which deprived appellant of a fair trial because

      counsel failed to raise the issue of speedy trial after appellant’s speedy trial

      rights had been violated, counsel erroneously dismissed appellant’s motion

      to suppress although it had merit, and because the cumulative effects of

      counsel’s errors resulted in ineffective assistance of counsel as a whole.

             II. Appellant’s no contest pleas were not knowingly and voluntarily

      entered.

             III. An administrative license suspension becomes punitive upon

      sentencing and must be vacated or subjects appellant to double jeopardy.

             IV. Appellant’s right to due process was violated due to prosecutor

      misconduct that affected appellant’s substantial rights.




3.
       {¶ 5} In his first assignment of error, appellant contends that he was not afforded

the effective assistance of counsel in the proceedings below because his trial counsel

failed to request a dismissal of the charges on speedy trial grounds and erroneously

withdrew a meritorious motion to suppress.

       {¶ 6} In Ohio, a properly licensed attorney is presumed competent and the burden

is on the appellant to show counsel’s ineffectiveness. State v. Hamblin, 37 Ohio St.3d

153, 155-156, 524 N.E.2d 476 (1988). Specifically, appellant must demonstrate that

counsel’s performance was deficient and that the deficient performance prejudiced the

defense, such that, without the deficient representation, the outcome of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

       {¶ 7} Appellant first asserts that he was denied his right to a speedy trial and that

his trial counsel was ineffective for failing to raise that issue in the court below.

       {¶ 8} The right to a speedy trial is guaranteed by the United States and Ohio

Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The

greatest level of offense for which the defendant is charged determines the time by which

he must be brought to trial when he is charged with multiple offenses. R.C. 2945.71(D).

Further, each day an accused is held in jail in lieu of bail on the pending charges is

counted as three days for purposes of computing the time limit. R.C. 2945.71(E). Once

the accused has demonstrated that the speedy trial time period has expired, he has

established a prima facie case for dismissal. State v. Geraldo, 13 Ohio App.3d 27, 28,




4.
468 N.E.2d 328 (6th Dist.1983). The burden then shifts to the state to demonstrate that

sufficient time was tolled or extended pursuant to R.C. 2945.72. Id. In calculating the

speedy trial time, and considering the possible extensions of that time, the provisions of

R.C. 2945.72 are to be strictly construed against the state. State v. Singer, 50 Ohio St.2d

103, 108-109, 362 N.E.2d 1216 (1977).

       {¶ 9} In this case, the highest level of offense for which appellant was charged

was the OVI charge, a first degree misdemeanor. Pursuant to R.C. 2945.71(B) (2), a

person charged with a first degree misdemeanor must be brought to trial within 90 days

of his arrest. Appellant was arrested on July 26, 2014, and entered his no contest pleas on

December 10, 2014. The day of arrest does not count toward the computation of the time

by which an accused must be brought to trial. State v. Lautenslager, 112 Ohio App.3d

108, 110, 677 N.E.2d 1263 (3d Dist.1996). By our count, 137 days passed between the

time of appellant’s arrest and the date of his pleas. We must therefore look to the

potential tolling events to determine the issue before us.

       {¶ 10} The time by which an accused must be brought to trial, may be tolled under

the circumstances listed in R.C. 2945.72, including:

              (C) Any period of delay necessitated by the accused’s lack of

       counsel, provided that such delay is not occasioned by any lack of diligence

       in providing counsel to an indigent accused upon his request as required by

       law;

              ***




5.
              (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;

              ***

              (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.

       {¶ 11} Accordingly, where an accused requests a continuance of a pretrial, that

request tolls the statutory speedy trial period from the date of the request until the date of

the rescheduled hearing. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-Ohio-2603,

¶ 15. Similarly, an accused’s filing of a motion to suppress tolls the time by which the

accused must be brought to trial. State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478,

853 N.E.2d 283, ¶ 25; State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d

186, ¶ 44.

       {¶ 12} The record reveals the following sequence of events. Appellant was

arrested on July 26, 2014. He then made his first appearance in court on July 28, 2014.

The two days that appellant spent incarcerated prior to his initial appearance count as six

days under the three-for-one provision of R.C. 2945.71(E). At his initial appearance on

July 28, appellant requested a continuance to obtain counsel, thereby tolling the speedy

trial time period. The court’s entry notes that the case is continued at appellant’s request

and the time is taxed to appellant.




6.
       {¶ 13} Appellant next appeared in court with counsel on July 30, 2014, at which

time bond was set. Appellant requested a continuance, however, to allow the prosecutor

to confirm information regarding appellant’s work obligations to his father, and the case

was continued until August 1, 2014. The court’s entry again notes that the case is

continued at appellant’s request and that the time is taxed to appellant. At the pretrial on

August 1, the court modified the bond to an OR with a SCRAM monitor. Appellant,

however, could not access the funds to pay for the SCRAM monitor, as his checkbook

was in his vehicle. The state subsequently changed its position regarding the SCRAM

monitor, and appellant was released from jail on an OR bond on August 5, 2014.

Accordingly, the four days from August 1 to 5 are counted as 12 days for purposes of the

speedy trial calculation. In a judgment entry dated August 5, 2014, the court noted the

state’s dropped position and scheduled the matter for a pretrial on August 20, 2014. The

court, however, did not tax the time to appellant, and the speedy trial clock continued to

run for 15 more days.

       {¶ 14} The parties then appeared in court on August 20, 2014, for a pretrial. At

that time, appellant stated that he did not wish to waive his speedy trial rights. The court

set a plea bargain deadline of September 29, 2014, and scheduled a trial for October 21,

2014. The court noted on its judgment entry that there was no speedy trial waiver from

August 20 to October 21. On September 18, however, appellant filed a motion to

continue the September 29 pretrial to October 1. The court granted the motion. Those

two days, therefore, represent a tolling event that is counted against appellant. Therefore,




7.
from August 20 to October 1, 40 days are counted against the state in the speedy trial

calculation.

       {¶ 15} The parties returned to court on October 1 for the previously scheduled

pretrial. The transcript from this brief meeting reveals that the parties simply confirmed

the previously scheduled trial date of October 21. The judgment entry reflecting that

pretrial notes that on motion of appellant, the case is continued until October 21, 2014,

for a jury trial and that the time is taxed to appellant. There is nothing in the record,

however, to support the court’s statement that appellant moved for a continuance.

Moreover, the October 21 date for the jury trial had already been scheduled in the court’s

August 20 judgment entry, when the court expressly stated that there would be no speedy

trial waiver from August 20 to the October 21 trial date. Accordingly, on October 1, the

speedy trial time continued to run against the state.

       {¶ 16} On October 15, 2014, appellant filed a motion for leave to file a motion to

suppress out of rule. On October 17, the court granted the motion, scheduled a motion

hearing for November 13, 2014, vacated the jury trial and rescheduled it for

November 18, 2014. In addition, the court noted in its judgment entry that the case was

being continued at appellant’s request and the time was taxed to appellant. The filing of

a motion to suppress is clearly a tolling event pursuant to R.C. 2945.72.

       {¶ 17} On October 23, 2014, the state filed a motion to continue the motion to

suppress hearing scheduled for November 13, due to the officer being unavailable. In an

order dated October 27, 2014, the court granted the motion as follows: “Upon motion to




8.
continue, said motion is well taken and the same is granted.” As the continuance was

granted “other than on the accused’s own motion,” it fell under the provisions of R.C.

2945.72(H). Where a continuance is not based on the defendant’s request, it will extend

the speedy trial time only if the continuance is reasonable and necessary under the

circumstances of the case. State v. Saffell, 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988).

Furthermore, because the court speaks only through its journal, the court must, at a

minimum in such cases, enter the order of continuance prior to the expiration of the time

limit prescribed in R.C. 2945.71 and indicate, although not necessarily formally name,

the party to whom the continuance is chargeable, whether the court is acting sua sponte or

on motion, and the reasons for justifying the continuance. State v. King, 70 Ohio St.3d

158, 162-163, 637 N.E.2d 903 (1994), State v. Mincy, 2 Ohio St.3d 6, 441 N.E.2d 571

(1982), syllabus. Moreover, the reasonableness standard of R.C. 2945.72(H) is to be

strictly construed against the state. State v. Stamps, 127 Ohio App.3d 219, 224, 712

N.E.2d 762 (1st Dist.1998); Singer, supra at 109.

       {¶ 18} In its motion to continue, the state simply stated that the officer was

unavailable. The state did not explain why the officer was unavailable or by when the

officer would become available. Then, in granting the motion, the trial court did not

identify who requested the continuance, to whom the continuance was chargeable or

specify the reason for granting the continuance. In Saffell, supra, at 91-92, the court

determined that a continuance granted to the state was not unreasonable where the

arresting officer was to be on vacation during the dates that the case was scheduled for




9.
trial, and “the reasons for the continuance were specified [in the journal entry] prior to the

expiration of the time limit prescribed in R.C. 2945.71.” Although the unavailability of a

key witness generally constitutes reasonable and necessary grounds for a continuance,

State v. Mitchell, 7th Dist. Mahoning No. 06-MA-169, 2008-Ohio-645, ¶ 34, the trial

court’s order in this case did not meet the standard established by Saffell and its progeny.

See State v. Zavac, 6th Dist. Lucas No. L-07-1227, 2008-Ohio-2208, State v. Mallin, 6th

Dist. Ottawa No. OT-06-040, 2007-Ohio-4476, State v. Knight, 2d Dist. Greene No.

03-CA-014, 2005-Ohio-3179, State v. Wirtanen, 110 Ohio App.3d 604, 674 N.E.2d 1245

(6th Dist.1996). Saffell, at 91, demands that the record affirmatively demonstrate the

necessity for a continuance, the reasonableness thereof, and that the reason for the

continuance be specified in the journal entry.

       {¶ 19} Accordingly, because the record does not support a finding that the

continuance of the motion to suppress hearing was reasonable and necessary, the time

from November 13 to December 4, when appellant filed his motion to vacate the jury trial

and schedule a change of plea hearing, or 21 days, must be charged to the state. The

remaining 10 days were tolled by virtue of R.C. 2945.72(E). By our count, 109 days

were charged to the state in computing the speedy trial time period in the present case.

As such, appellant’s right to a speedy trial was violated, his trial counsel was ineffective

for failing to file a motion to dismiss, and appellant’s convictions must be vacated. The

first assignment of error is well-taken in part.




10.
       {¶ 20} Given our ruling under the first assignment of error, the second argument

on the first assignment of error and the remaining assignments of error are moot.

       {¶ 21} On consideration whereof, the judgments of the Bowling Green Municipal

Court are reversed. Appellant’s convictions and sentences are ordered vacated. Pursuant

to App.R. 24, appellee is ordered to pay the costs of this appeal.


                                                                      Judgments reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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