[Cite as State v. Smith, 2011-Ohio-5750.]


                                        COURT OF APPEALS
                                     GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   Sheila G. Farmer, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
v.                                             :   Case No. 10CA45
                                               :
                                               :
SHAWN M. SMITH                                 :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Cambridge
                                                    Municipal Case No. 10CRB00736

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             November 3, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

WILLIAM H. FERGUSON                                 MELISSA M. WILSON
City of Cambridge Law Director                      1009 Steubenville Avenue
150 Highland Ave., Suite 2                          Cambridge, Ohio 43725
Cambridge, Ohio 43725
[Cite as State v. Smith, 2011-Ohio-5750.]


Edwards, J.

        {¶ 1} Defendant-appellant, Shawn Smith, appeals from the denial by the

Cambridge Municipal Court of his Motion to Dismiss on speedy trial grounds. Plaintiff-

appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶ 2} On June 25, 2010, a complaint was filed in Cambridge Municipal Court

charging appellant with criminal child enticement in violation of R.C. 2905.05, a

misdemeanor of the first degree. After a warrant was issued, appellant was arrested on

July 2, 2010. At his arraignment on July 6, 2010, appellant entered a plea of not guilty

and a bond of $2,500.00 was set. Appellant failed to post bond and remained in jail. A

trial was scheduled for August 4, 2010.

        {¶ 3} On July 7, 2010, Attorney William Nicholson was appointed as counsel for

appellant. On July 9, 2010, he filed a motion for a pretrial conference and a demand for

discovery.      Appellee on July 15, 2010, filed its response to appellant’s discovery

request.

        {¶ 4} Thereafter, on July 20, 2010, appellant filed a Motion for a Personal

Recognizance Bond. Pursuant to a Journal Entry filed on July 21, 2010, such motion

was denied. A pretrial was held on July 26, 2010.

        {¶ 5} On August 3, 2010, appellant filed a motion for a continuance of the

August 4, 2010 trial date on the basis that both the defense counsel and the Assistant

Law Director needed more discovery. As memorialized in an Entry filed on August 3,

2010, the trial was continued to August 13, 2010.
Guernsey County App. Case No. 10-CA45                                                   3


      {¶ 6} Subsequently, on August 11, 2010, appellant filed a request for a jury trial.

Pursuant to a Journal Entry filed on August 12, 2010, the case was continued for a jury

trial on October 14, 2010.

      {¶ 7} Via a Journal Entry filed on August 13, 2010, the trial court judge, who

was Attorney Nicholson’s brother, recused himself and ordered the Clerk to secure the

appointment of a visiting Judge to hear the case. On August 26, 2010, appellant again

filed a Motion for a Personal Recognizance Bond. The motion was denied as

memorialized in an Entry filed on September 15, 2010.

      {¶ 8} On October 4, 2010, appellant filed a Motion to Dismiss on speedy trial

grounds. Such motion was denied pursuant to an Entry filed on October 12, 2010.

Thereafter, on October 14, 2010, appellant entered a plea of no contest to the charge

and was found guilty. Appellant was sentenced to 180 days in jail with 76 days

suspended and was fined $100.00. Appellant also was placed on unsupervised

probation for 12 months.

      {¶ 9} Appellant now raises the following assignment of error on appeal:

      {¶ 10} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO DISMISS FOR LACK OF SPEEDY TRIAL IN VIOLATION OF OHIO REVISED

CODE SECTION 2945.71.”

                                               I

      {¶ 11} Appellant, in his sole assignment of error, argues that the trial court erred

in overruling appellant’s Motion to Dismiss on speedy trial grounds in violation of R.C.

2945.71. We disagree.
Guernsey County App. Case No. 10-CA45                                                      4


       {¶ 12} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to

these constitutional mandates, R.C. 2945.71 through R.C. 2945.73 prescribe specific

time requirements within which the State must bring an accused to trial. State v. Baker,

78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883.

       {¶ 13} As relevant to the instant action, R.C. 2945.71(B)(2) requires that a

person, such as appellant, against whom a first degree misdemeanor is pending must

be brought to trial within 90 days after the person's arrest or service of summons. Each

day the defendant is held in jail in lieu of bond, except for the first day, counts for three

days for speedy trial purposes. See R.C. 2945.71(E). Once a defendant establishes a

prima facie case of a violation of his right to a speedy trial, the burden then shifts to the

State to demonstrate the statutory limit was not exceeded by establishing the time was

properly extended pursuant to R.C. 2945.72. State v. Butcher (1986), 27 Ohio St.3d 28,

30-31, 500 N.E.2d 1368.

       {¶ 14} Since a defendant's right to a speedy trial is guaranteed by statute and by

the Sixth and Fourteenth Amendments to the United States Constitution, extensions of

speedy trial time are to be strictly construed against the State. State v. Singer (1977),

50 Ohio St.2d 103, 362 N.E.2d 1216. Revised Code 2945.73 mandates that if an

accused is not brought to trial within the time requirements of R.C. 2945.71 and

2945.72, the accused shall be discharged. The law in Ohio is that speedy trial time

starts to run the day after arrest. R.C. 2945.71. However, speedy trial time is tolled

during “(E) Any period of delay necessitated by… motion, proceeding, or action made or

instituted by the accused;…“(H) The period of any continuance granted on the
Guernsey County App. Case No. 10-CA45                                                    5


accused's own motion, and the period of any reasonable continuance granted other

than upon the accused's own motion.” R.C. 2945.72.

        {¶ 15} In the case sub judice, appellant was arrested on July 2, 2010. As is

stated above, the day of arrest does not count for determining whether a defendant's

right to a speedy trial has been violated. Thus, the statutory time began to run on July 3,

2010, the day after appellant's arrest. The trial was originally scheduled for August 4,

2010.

        {¶ 16} Appellant, who never posted bond, remained in jail until during the

pendency of this case. Because appellant remained in jail, he was entitled to the triple

count provision contained in R.C. 2945.71(E). Appellant’s “try by” date was thus August

2, 2010.

        {¶ 17} As is stated above, appellant, on July 9, 2010, filed a demand for

discovery. Appellee responded to the same on July 15, 2010. In State v. Brown, 98

Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, the Ohio Supreme Court found that

the time during which a discovery motion filed by a defendant is pending tolls the

speedy trial clock. Thus, the time between July 9, 2010 and July 15, 2010 was tolled.

        {¶ 18} Thereafter, on August 3, 2010, appellant filed a motion for a continuance

of the trial date. The speedy trial period is tolled by “[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[.]” R.C. 2945.72(H); State v. Baker

(1993), 92 Ohio App.3d 516, 636 N.E.2d 363. Pursuant to an Entry filed on August 3,

2010, the trial was continued to August 13, 2010. The time period between August 3,

2010, and August 13, 2010, was thus tolled.
Guernsey County App. Case No. 10-CA45                                                        6


       {¶ 19} Appellant, on August 11, 2010, filed a request for a jury trial. Appellant

was charged with one count of criminal child enticement, a misdemeanor of the first

degree, in violation of R.C. 2905.05. Because appellant was charged with a first degree

misdemeanor, which included the possibility of imprisonment, he was entitled to a trial

by jury. R.C. 2945.17.

       {¶ 20} As memorialized in a Journal Entry filed on August 12, 2010, the trial court

ordered that the case be continued for a jury trial on October 14, 2010.

       {¶ 21} Crim.R. 23(A) states, in relevant part, as follows: “In petty offense cases,

where there is a right of jury trial, the defendant shall be tried by the court unless he

demands a jury trial. Such demand must be in writing and filed with the clerk of court not

less than ten days prior to the date set for trial, or on or before the third day following

receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial

as provided in this subdivision is a complete waiver of the right thereto.”

       {¶ 22} At the time appellant filed his request for a jury demand on August 11,

2010, the trial was set for August 13, 2010. Appellant’s request was, therefore, not

timely. We find that this time is chargeable to appellant under R.C. 2945.72(E) as a

“delay necessitated by reason of…motion, proceeding, or action made or instigated by

the accused.” See Village of Botkins v. Kinninger (Dec. 12, 1991), Shelby App. No. 17-

91-15, 1991 WL 261833. Pursuant to a Journal Entry filed on August 12, 2010, the case

was continued for a jury trial on October 14, 2010, the day on which appellant entered

his plea. We find that the speedy trial time was tolled up to and including October 14,

2010. In so holding, we further note that the trial court judge, pursuant to a Journal Entry
Guernsey County App. Case No. 10-CA45                                                   7


filed on August 13, 2010, recused himself because he was defense counsel’s brother

and ordered the Clerk to secure the appointment of a visiting judge to hear the case.

      {¶ 23} Based on the foregoing, we find that the trial court did not err in denying

appellant’s Motion to Dismiss on speedy trial grounds.

      {¶ 24} Appellant’s sole assignment of error is, therefore, overruled

      {¶ 25} Accordingly, the judgment of the Cambridge Municipal Court is affirmed.




By: Edwards, J.

Gwin, P.J. and Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                               JUDGES
[Cite as State v. Smith, 2011-Ohio-5750.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
SHAWN M. SMITH                                    :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10CA45




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Cambridge Municipal Court is affirmed. Costs assessed to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
