[Cite as State v. Green, 2012-Ohio-5648.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      26323

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DAVID LEE GREEN                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 11 04 1058

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2012



        CARR, Presiding Judge.

        {¶1}     Appellant David Green appeals his conviction in the Summit County Court of

Common Pleas. This Court affirms in part, reverses in part and remands.

                                               I.

        {¶2}     Green was arrested on April 18, 2011. He was later indicted on 17 charges, to

wit: one count of aggravated robbery and one count of kidnapping, both felonies of the first

degree and both counts carrying firearm and repeat violent offender specifications; one count

each of having weapons while under disability, tampering with evidence, and failure to comply

with order or signal of police officer, felonies of the third degree; one count each of carrying

concealed weapons and failure to comply with order or signal of police officer, both felonies of

the fourth degree; one count of violating a protection order, a felony of the fifth degree; one

count each of aggravated menacing, domestic violence, and discharge of a firearm on or near

prohibited premises, misdemeanors of the first degree; one count each of criminal damaging or
                                                  2


endangering, obstructing official business, and resisting arrest, misdemeanors of the second

degree; and one count each of discharge of a firearm on or near prohibited premises, possession

of marijuana, and illegal use or possession of drug paraphernalia, misdemeanors of the fourth

degree. Green pleaded not guilty to all charges at arraignment.

       {¶3}    Green remained in jail as the matter proceeded over the course of eight and a half

months until trial commenced on January 3, 2012. The State dismissed four counts immediately

prior to trial and another two counts after it rested. Furthermore, Green pleaded guilty to four

counts (having weapons while under disability, carrying concealed weapons, violating a

protection order, and domestic violence) at the same time, leaving seven counts for the jury’s

consideration. The jury found Green guilty of aggravated robbery and the attending firearm

specification, kidnapping and the attending firearm specification, tampering with evidence,

failure to comply with order or signal of police officer, aggravated menacing, and resisting

arrest. The jury acquitted Green of discharge of firearm on or near prohibited premises. Upon

Green’s request, the trial court considered the two repeat violent offender specifications and

subsequently found him guilty of both. The trial court sentenced him to an aggregate term of 25

years in prison.

       {¶4}    Green filed a timely appeal in which he raises two assignments of error.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL
       MOTIONS TO DISMISS ON SPEEDY TRIAL GROUNDS.

       {¶5}    Green argues that the trial court erred by denying his motion to dismiss for a

violation of his right to a speedy trial. This Court disagrees.
                                                 3


       {¶6}    “When reviewing an appellant’s claim that he was denied his right to a speedy

trial, this Court applies the de novo standard of review to questions of law and the clearly

erroneous standard of review to questions of fact.” State v. Downing, 9th Dist. No. 22012, 2004-

Ohio-5952, ¶ 36; State v. Hamlet, 9th Dist. No. 04CA008527, 2005-Ohio-3110, ¶ 15.

       {¶7}    The right to a speedy trial by the State is guaranteed to a criminal defendant by

the Sixth and Fourteenth Amendments to the United States Constitution. Klopfer v. North

Carolina, 386 U.S. 213, 222-223 (1967). The same right is conferred to a criminal defendant by

Section 10, Article I, Ohio Constitution. State v. O’Brien, 34 Ohio St.3d 7, 8 (1987). A criminal

defendant may waive his right to a speedy trial if it is knowingly, voluntarily and intelligently

made. State v. Adams, 43 Ohio St.3d 67, 69 (1989). The waiver must also be expressed in

writing or made in open court on the record. State v. King, 70 Ohio St.3d 158 (1994), syllabus.

       {¶8}    R.C. 2945.71 et seq. is an enforcement mechanism to make sure the constitutional

right to a speedy trial is upheld. State v. Pachay, 64 Ohio St.2d 218 (1980), syllabus. R.C.

2945.71 dictates the time limits in which a defendant must be brought to trial.                R.C.

2945.71(C)(2) provides that “[a] person against whom a charge of felony is pending *** [s]hall

be brought to trial within two hundred seventy days after the person’s arrest.” R.C. 2945.71(E)

addresses the computation of time and provides 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.” Time is calculated to

run the day after the date of arrest. State v. Friedhof, 9th Dist. No. 2505-M, 1996 WL 385612

(July 10, 1996), citing State v. Steiner, 71 Ohio App.3d 249, 250-251 (9th Dist.1991). See also

Crim.R. 45(A).

       {¶9}    Pursuant to R.C. 2945.73, if a defendant is not brought to trial within the

prescribed time period, the trial court must discharge the defendant upon motion for dismissal
                                                    4


prior to or at the commencement of trial. R.C. 2945.73(B). However, the time within which a

defendant must be brought to trial can be tolled.

       {¶10} R.C. 2945.72(H) provides that the statutorily prescribed time for a speedy trial

may be lengthened by any period of continuance granted on the accused’s own motion, or by any

reasonable period granted other than on the accused’s motion. See also Hamlet at ¶ 18. In

addition, this Court has held that the time in which a trial court is required to bring a criminal

defendant to trial is effectively extended, or tolled, when the defendant files a motion to dismiss

until the time when the trial court denies the motion.          State v. Hughes, 9th Dist. No.

02CA008206, 2003-Ohio-5045, ¶ 15, citing State v. Bickerstaff, 10 Ohio St.3d 62, 67 (1984).

Additionally, R.C. 2945.72(E) provides that the statutorily prescribed time for a speedy trial may

be lengthened by “[a]ny period of delay necessitated by reason of a * * * motion, proceeding, or

action made or instituted by the accused.” The Ohio Supreme Court has held that “a demand for

discovery [by the defendant] or a bill of particulars is a tolling event pursuant to R.C.

2945.72(E).” State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, ¶ 26.

       {¶11} In this case, Green was arrested on April 18, 2011, and time began to run for

speedy trial purposes as of April 19, 2011. Time ran at a rate of three days for each day in jail

until May 18, 2011, when Green filed various motions including a motion for a bill of particulars

and a motion to extend time to file pretrial motions. Accordingly, the 29 days that elapsed

counted as 87 days for speedy trial purposes. While time was tolled based on the pendency of

the above motions, Green moved to dismiss the charges based on his attorney’s alleged

ineffective representation and because he had not been accorded a preliminary hearing. Before

these issues had been fully resolved, the trial court issued a case management order which

included Green’s referral to Pyscho Diagnostic Clinic for a psychological evaluation. Trial was,
                                                 5


therefore, continued until October 11, 2011, to accommodate time for the evaluation. Although

Green asserts that no time may be charged to him based on the psychological evaluation, both his

attorney and he admitted during the final pretrial that the evaluation was ordered upon Green’s

motion. Accordingly, the order for the psychological evaluation continued to toll time for

speedy trial purposes.

       {¶12} Although Green asserted that the report from his psychological evaluation was

time-stamped on September 1, 2011, there is no record of the report in the file or indication of its

filing on the docket. On September 14, 2011, the State moved to continue the trial and noted that

defense counsel agreed to the continuance as it would give both parties time to review the

psychological evaluation.    This is the first indication in the record that the psychological

evaluation had been completed. Accordingly, time began to run for speedy trial purposes on

September 14, 2011. On September 22, 2011, the trial court granted the continuance on the

State’s request. Accordingly, the record does not justify charging time against Green for this

request for a continuance. On October 24, 2011, however, defense counsel moved to continue

the final pretrial and trial based on a death in her family. Defense counsel asserted that this time

was to be charged against Green. Accordingly, time again tolled for speedy trial purposes on

that date of defense counsel’s motion for a continuance. From September 14, 2011, to October

24, 2011, the 39 days that elapsed constituted 117 days due to Green’s incarceration. In total,

204 days had run for speedy trial purposes.

       {¶13} When the parties appeared for the newly scheduled final pretrial on November 14,

2011, the parties chose January 3, 2012, the first date available on the trial court’s calendar, as

the new date for trial. Defense counsel agreed on the record to schedule trial beyond the 270-day

limit. On November 21, 2011, the trial court issued an order scheduling trial to begin on January
                                                  6


3, 2012, and noted that defense counsel had waived any irregularities as to Green’s right to

speedy trial until that date. Nevertheless, Green filed a motion to dismiss based on a violation of

his right to speedy trial on December 16, 2011.

       {¶14} Time reasonably would have begun to run on November 14, 2011, when the

parties appeared to reschedule trial after Green’s attorney moved on October 24, 2011, to

continue trial. However, defense counsel’s agreement at the final pretrial to reschedule trial

beyond the time allowed for speedy trial served to extend the time limits for trial. “[T]he trial

court has the discretion to extend the time limits of R.C. 2945.71 where counsel for the accused

voluntarily agrees to a trial date beyond the statutory time limits. Moreover, the trial court’s

exercise of that discretion constitutes a continuance granted other than upon the accused’s own

motion under the second clause of R.C. 2945.72(H), and, as long as that continuance is

reasonable, it extends the time limits of R.C. 2945.71 and does not deny an accused the right to a

speedy trial.” (Internal citations and quotations omitted.) State v. McRae, 55 Ohio St.2d 149,

152-153 (1978). Green’s trial commenced on January 3, 2012, as agreed to by defense counsel.

That date was reasonable given the fact that it was the first available date on the trial court’s

docket. Therefore, time continued to toll from the date of the final pretrial on November 14,

2011, until January 3, 2012.

       {¶15} Based on the above calculations, only 68 days, which counted as 204 days based

on Green’s incarceration, elapsed for purposes of speedy trial prior to trial. Accordingly, the trial

court did not err by denying his motion to dismiss for a violation of his right to speedy trial.

Green’s first assignment of error is overruled.
                                                 7


                                 ASSIGNMENT OF ERROR II

       APPELLANT’S GUILTY PLEAS TO FOUR COUNTS OF THE INDICTMENT
       MADE DURING TRIAL WERE NOT KNOWINGLY, VOLUNTARILY, AND
       INTELLIGENTLY MADE WHEN THE TRIAL COURT ERRONEOUSLY
       INFORMED HIM THAT ENTERING A GUILTY PLEA TO THESE
       CHARGES WOULD NOT WAIVE HIS RIGHT TO RAISE A SPEEDY TRIAL
       ISSUE ON APPEAL, AND FAILED TO INFORM GREEN OF HIS
       CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY SELF-
       INCRIMINATION.

       {¶16} Green argues that his guilty plea to the charges of having weapons while under

disability, carrying concealed weapons, violating a protection order, and domestic violence must

be vacated because his plea was not knowingly, voluntarily, and intelligently entered based on

the trial court’s assertion that he would preserve his right to appeal on the basis of speedy trial

violations notwithstanding his guilty plea. The State concedes error. This Court agrees.

       {¶17} Crim.R. 11(C)(2) prohibits a trial court from accepting a plea of guilty where the

criminal defendant has not entered such plea voluntarily and with an understanding of the effect

of plea. It is well established that “‘where an accused has entered a plea of guilty he waives his

right to raise the denial of his right to a speedy trial on appeal.’” State v. Kelly, 57 Ohio St.3d

127, 130 (1991), quoting Montpelier v. Greeno, 25 Ohio St.3d 170 (1986). The trial court

emphatically and repeatedly assured Green that he would preserve his right to raise the denial of

his speedy trial rights on appeal notwithstanding his entering of a guilty plea to the four charges.

Under those circumstances, Green did not enter his guilty plea with an understanding of the

effect of his plea. Accordingly, Green’s guilty plea to the charges of having weapons while

under disability, carrying concealed weapons, violating a protection order, and domestic violence

must be vacated. Green’s second assignment of error is sustained.
                                                 8


                                                III.

       {¶18} Green’s first assignment of error is overruled. His second assignment of error is

sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part,

reversed in part, and the cause remanded for further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       DONNA J. CARR
                                                       FOR THE COURT



BELFANCE, J.
CONCURS IN JUDGMENT ONLY.
                                             9



DICKINSON, J.
CONCURRING.

   {¶19}    I concur in the majority’s judgment and all of its opinion except paragraph six.


APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
