[Cite as State v. Harris, 2012-Ohio-5868.]


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

STATE OF OHIO                                        C.A. No.      26247

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
SCOTT HARRIS, SR.                                    AKRON MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   11 CRB 9426

                                  DECISION AND JOURNAL ENTRY

Dated: December 12, 2012



        CARR, Judge

        {¶1}     Appellant, Scott Harris Sr., appeals his conviction and sentence in the Akron

Municipal Court. This Court reverses and remands.

                                                I.

        {¶2}     On September 17, 2011, Harris was arrested by Akron police and charged with a

violation of a protection order pursuant to R.C. 2919.27. Harris posted bond on September 19,

2011.

        {¶3}     On December 19, 2011, Harris filed a motion to dismiss on the basis that he was

not brought to trial within the time prescribed by R.C. 2945.71. The trial court orally denied the

motion on the record. Harris proceeded to enter a plea of no contest to the charge, and the trial

court found him guilty. In addition to being ordered to pay a $150 fine, the trial court sentenced

Harris to 180 days in jail, suspending 177 days in favor of probation. Harris was also ordered to

wear a GPS device for 45 days.
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          {¶4}   Harris filed a notice of appeal on December 21, 2011. His sentence was stayed

pending appeal. On appeal, Harris raises one assignment of error.

                                                  II.

                                   ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED IN OVERRULING APPELLANT HARRIS’
          MOTION TO DISMISS NINETY-FOUR DAYS AFTER HIS ARREST, A
          VIOLATION OF HIS STATUTORY RIGHTS TO A SPEEDY TRIAL UNDER
          R.C. 2945.71, ET SEQ.

          {¶5}   In his sole assignment of error, Harris argues that the trial court erred in denying

his motion to dismiss on the basis that his right to a speedy trial had been violated. This Court

agrees.

          {¶6}   As a preliminary matter, this Court notes that the City has not filed an appellee’s

brief. Accordingly, this Court may accept Mr. Harris’ statement of facts and issues as correct

and reverse the judgment if Mr. Harris’s brief reasonably appears to sustain such action. App.R.

18(C); see also Akron v. Carter, 9th Dist. No. 22444, 2005-Ohio-4362, ¶ 3; Haley v. Nomad

Preservation, Inc., 9th Dist. No. 26220, 2012-Ohio-4385, ¶ 6.

          {¶7}   “When reviewing a defendant’s claim that he was denied his right to a speedy

trial, an appellate court applies the de novo standard to questions of law and the clearly

erroneous standard to questions of fact.” State v. Berner, 9th Dist. No. 3275-M, 2002-Ohio-

3024, ¶ 6, citing State v. Thomas, 9th Dist. No. 98CA007058, 1999 WL 598843 (Aug. 4, 1999).

          {¶8}   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. Harris was convicted of

violating a protection order pursuant to R.C. 2919.27, a misdemeanor of the first degree. R.C.
                                                 3


2945.71(B)(2) states that “a person against whom a charge of misdemeanor, other than a minor

misdemeanor, is pending in a court of record, shall be brought to trial * * * [w]ithin ninety days

after the person’s arrest or the service of summons, if the offense charged is a misdemeanor of

the first or second degree, or other misdemeanor for which the maximum penalty is

imprisonment for more than sixty days.” Each day spent in jail awaiting trial solely on the

pending charge shall count as three days toward the speedy trial time limit. R.C. 2945.71(E).

While the day of arrest triggers the time for speedy trial, that day is not included in the

calculation. State v. Armstrong, 9th Dist. No. 03CA0064-M, 2004-Ohio-726, ¶ 5. Speedy trial

statutes must be strictly construed against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 55

(1996).

          {¶9}   R.C. 2945.72(H) states, “The time within which an accused must be brought to

trial * * * may be extended only 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[.]” “This provision has been interpreted to permit courts to sua sponte

continue an accused’s trial beyond the time limit prescribed by R.C. 2945.71, but only when

reasonable and only when the continuances are made by journal entry prior to the expiration of

the time limit.” State v. King, 70 Ohio St.3d 158, 162 (1994), citing State v. Lee, 48 Ohio St.2d

208 (1976), and Aurora v. Patrick, 61 Ohio St.2d 107 (1980). While a continuance attributable

to the defendant does not necessarily have to be journalized, it must be apparent on the face of

the record that the defendant did, in fact, request a continuance in order for time to be tolled for

speedy trial purposes. This Court has stated that “ideally a court should journalize its rationale

for a continuance. In the absence of such an entry the court runs the risk that a continuance,

which would otherwise be attributed to the accused, will not be so construed on appeal. But this
                                                4


does not mean that an unjournalized continuance may never be charged to a defendant. When

the record indicates that the continuance was attributable to the defendant, then such delay will

be assessed to him even in the absence of a court’s journal entry.” State v. Bumbalough, 81 Ohio

App.3d 408, 410 (9th Dist.1992).

       {¶10} At the outset of the December 20, 2011 hearing, defense counsel noted that there

was a motion pending before the court to dismiss the case on speedy trial grounds. In support of

the motion, defense counsel argued, “It is my understanding that the case is actually out of time

due to the three days that my client spent in jail as well as the lack of any journalization of

reasons for continuances.” The City initially responded, “I do agree with counsel with regards to

the time[.]” The City went on to argue that the parties had appeared for a pre-trial conference on

October 19, 2011, and that Harris became “very displeased when the prosecuting witness showed

up with her new boyfriend.” The City then stated that, because of the defendant’s “behavior and

uncooperative nature with his counsel,” the attorney from the public defender’s office who

represented Harris at the hearing asked for a new date and the City did not object. The City

argued that it should not be punished for not bringing Harris to trial within ninety days when it

was the defendant who asked for a continuance of the pretrial hearing.          Defense counsel

disagreed with the City’s statement and asserted that Harris “denies that he became irate[.]”

Defense counsel further indicated that she could not confirm or deny the City’s version of events

because she was not present for the October 19, 2011 pretrial conference. After confirming that

defense counsel was not in a position to effectively dispute the City’s argument because she was

not present for the hearing, the trial court denied the motion to dismiss on the basis that the

matter had been previously continued at the request of Harris.
                                                5


       {¶11} There is nothing on the docket sheet that would suggest the trial court was unable

to proceed with its pretrial conference scheduled for October 19, 2011. While the docket sheet

reveals that pretrial conferences were scheduled for both October 19, 2011, as well as November

9, 2011, the record does not contain a journal entry indicating that the former pretrial conference

was continued at the request of Harris, nor does the record contain a transcript from the October

19, 2011 pretrial conference.

       {¶12} Harris was arrested on September 17, 2011. Harris posted bond on September 19,

2011. Other than the statements made by the City after the speedy trial deadline had elapsed,

there is nothing in the record to indicate that the pretrial conference had been previously

continued at the request of Harris. Because it is not apparent from the record that there were

tolling events in this case, the City was required to bring Harris to trial within ninety days

pursuant to R.C. 2945.71(B). The trial court denied Harris’ motion and accepted his no contest

plea on December 20, 2011, ninety-four days after his arrest. Thus, because Harris was not

brought to trial within the speedy trial window set forth in R.C. 2945.71(B), the trial court erred

in denying his motion to dismiss.

       {¶13} The first assignment of error is sustained.

                                               III.

       {¶14} The sole assignment of error that Harris raises on appeal is sustained. The

judgment of the Akron Municipal Court is reversed and remanded for the trial court to issue an

order discharging Harris.

                                                                              Judgment reversed,
                                                                             and cause remanded.
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       There were reasonable grounds for this appeal.

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

Court, 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 to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for
Appellant.

GERTRUDE WILMS, Chief City Prosecutor, for Appellee.
