[Cite as State v. Johnson, 2014-Ohio-189.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
TYRONE E. JOHNSON, SR.                       :       Case No. 13-CA-33
                                             :
        Defendant- Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2011-CR-520



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 17, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOCELYN S. KELLY                                     JAMES L. DYE
239 West Main Street                                 P.O. Box 161
Suite 101                                            Pickerington, OH 43147
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-33                                                     2

Farmer, P.J.

       {¶1}    On November 18, 2011, the Fairfield County Grand Jury indicted

appellant, Tyrone E. Johnson, Sr., on one count of engaging in a pattern of corrupt

activity in violation of R.C. 2923.32, one count of complicity to commit robbery in

violation of R.C. 2923.03 and 2911.02, and two counts of complicity to commit theft in

violation of R.C. 2923.03 and 2913.02. At the time of the indictment, appellant was

incarcerated in Franklin County awaiting trial on other charges.

       {¶2}    On June 18, 2012, appellant filed a motion for final disposition and speedy

trial on any untried indictments pursuant to R.C. 2941.401. On June 29, 2012, appellant

filed a request for discovery and a bill of particulars. On the same date, appellant filed

his reciprocal discovery response. The state provided initial discovery on July 19, 2012

and final discovery on July 24, 2012.

       {¶3}    On January 10, 2013, appellant filed a motion to dismiss, claiming

violations of his speedy trial rights. By entry filed February 6, 2013, the trial court

denied the motion, finding discovery issues tolled a number of days and nineteen days

remained in which to try appellant.

       {¶4}    On March 27, 2013, appellant pled no contest. By judgment entry filed

April 2, 2013, the trial court found appellant guilty and sentenced him to an aggregate

term of six years in prison.

       {¶5}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:
Fairfield County, Case No. 13-CA-33                                                       3


                                             I

        {¶6}   "THE TRIAL COURT ERRED AND THEREBY DEPRIVED APPELLANT

OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, FOURTEENTH AND

SIXTH     AMENDMENTS         TO    THE    UNITED      STATES      CONSTITUTION         AND

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY DENYING

APPELLANT'S MOTION TO DISMISS."

                                             I

        {¶7}   Appellant claims the trial court erred in denying his motion to dismiss for

speedy trial violations within the guidelines of R.C. 2941.401. Appellant claims the trial

court erred in tolling twenty-five days for his "non-compliance" with the state's request

for reciprocal discovery. We disagree.

        {¶8}   A speedy trial claim involves a mixed question of law and fact. State v.

Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. "As an appellate court,

we must accept as true any facts found by the trial court and supported by competent,

credible evidence.    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." State v. Colon, 5th Dist. Stark No. 0-CA-232, 2010-Ohio-2326, ¶ 11. We

note a trial court's decision to toll speedy trial time based on discovery issues is subject

to review under an abuse of discretion standard. State v. Palmer, 112 Ohio St.3d 457,

2007-Ohio-374; State v. Parson, 6 Ohio St.3d 442 (1983). In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).
Fairfield County, Case No. 13-CA-33                                                    4


      {¶9}   R.C. 2941.401 governs request by a prisoner for trial on pending charges

and states the following:



             When a person has entered upon a term of imprisonment in a

      correctional institution of this state, and when during the continuance of

      the term of imprisonment there is pending in this state any untried

      indictment, information, or complaint against the prisoner, he shall be

      brought to trial within one hundred eighty days after he causes to be

      delivered to the prosecuting attorney and the appropriate court in which

      the matter is pending, written notice of the place of his imprisonment and a

      request for a final disposition to be made of the matter, except that for

      good cause shown in open court, with the prisoner or his counsel present,

      the court may grant any necessary or reasonable continuance. The

      request of the prisoner shall be accompanied by a certificate of the

      warden or superintendent having custody of the prisoner, stating the term

      of commitment under which the prisoner is being held, the time served

      and remaining to be served on the sentence, the amount of good time

      earned, the time of parole eligibility of the prisoner, and any decisions of

      the adult parole authority relating to the prisoner.

             ***

             If the action is not brought to trial within the time provided, subject

      to continuance allowed pursuant to this section, no court any longer has
Fairfield County, Case No. 13-CA-33                                                     5


      jurisdiction thereof, the indictment, information, or complaint is void, and

      the court shall enter an order dismissing the action with prejudice.



      {¶10} The one hundred eighty day time limit may be tolled under certain

circumstances. R.C. 2945.72 states the following in pertinent part:



             The time within which an accused must be brought to trial, or, in the

      case of felony, to preliminary hearing and trial, may be extended only by

      the following:

             (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[.]



      {¶11} In State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, syllabus, the

Supreme Court of Ohio held an accused's "demand for discovery or a bill of particulars

is a tolling event pursuant to R.C. 2945.72(E)."

      {¶12} The dates are not in dispute. Appellant filed his motion for final disposition

on June 18, 2012. As set forth in appellant's brief at 4, one hundred eighty days from

the filing, excluding the date of filing, would have been December 17, 2012. The time

between appellant's discovery request (June 29, 2012) and the state's initial compliance

(July 19, 2012) was properly tolled, extending the time for trial by twenty days to

January 6, 2013. Appellant's Brief at 4-5. Appellant filed his motion to dismiss for

speedy trial violations on January 10, 2013.       In its entry denying the motion filed
Fairfield County, Case No. 13-CA-33                                                      6


February 6, 2013, the trial court tolled the time from appellant's request for discovery on

June 29, 2012 to the state's final compliance on July 24, 2012, thereby adding five days,

and added twenty-five days for appellant's non-compliance with reciprocal discovery

(we note those additional five days overlap into the additional twenty-five days):



              The Court finds that the following tolling events exist pursuant to

       O.R.C. 2945.72, which extend the period of time within which the

       Defendant must be brought to trial:

              1) June 18, 2012, date of filing of request for final disposition.

              2) From June 29, 2012, the date of filing of Defendant's Motion for

       Discovery and Defendant's Request for Evidence, to July 24, 2012, the

       date of the State's final response to Defendant's discovery requests, in

       particular, Defendant's "Request for Evidence."

              3) From January 10, 2013 until the date the Court rules on the

       pending Motion to Dismiss, to wit, the date of filing of this Entry, February

       6, 2013.

              4) Within the State's response to the Defendant's request for

       discovery on July 19, 2012, the State made a demand for reciprocal

       discovery from the Defendant. In particular, the State responded to the

       Defendant's request for discovery (filed June 29, 2012) on July 19, 2012,

       and to the Defendant's "Request for Evidence" (filed June 29, 2012) on

       July 24, 2012. Therefore, time is tolled for discovery purposes until July

       24, 2012, which the Court finds to be a reasonable delay.
Fairfield County, Case No. 13-CA-33                                                   7


             The Court notes that on June 29, 2012, the Defendant preemptively

      filed, that is, before receiving the State's discovery, "Defendant's

      Reciprocal Discovery" (Exhibit A).        The Court, however, does not

      recognize this discovery response as having been prepared with due

      diligence as required by Rule 16 (A), Ohio Rules of Criminal Procedure.

      Therefore, the Court finds that the Defendant did not provide reciprocal

      discovery to the State, and as a consequence, speedy trial time is tolled

      as set forth more fully herein.



      {¶13} The trial court went on to state the following on the issue of reciprocal

discovery:



             The Court finds the Defendant's purported reciprocal discovery,

      provided the same day and time the Defendant filed for discovery from the

      State and without having received the State's discovery does not meet the

      standard of due diligence.        The Court finds that the State could not

      reasonably rely on the Defendant's June 29, 2012 reciprocal discovery

      response when the Defendant did not have any information whatsoever as

      to the extensive list of witnesses the State intended to call, extensive

      police reports and an expert's report (see State's response to discovery,

      Exhibit B). Further, it stands to reason that if the State was satisfied with

      the Defendant's June 29, 2012 reciprocal discovery response, it would not

      have made a request as it did, on July 19, 2012 for reciprocal discovery.
Fairfield County, Case No. 13-CA-33                                                  8


      The record indicates the Defendant has not filed a response to the State's

      request for discovery other than the initial reciprocal discovery request on

      June 29, 2012.

            ***

            The Court recognizes that twenty-five (25) days passed from the

      time the Defendant filed his request for discovery on June 29, 2012, to the

      date the State last responded to it, on July 24, 2012. Twenty-five (25)

      days is, in the Court's judgment a reasonable period of time within which

      to respond to a discovery request. The Court will apply the same measure

      to the Defendant's response to the State's request for reciprocal

      discovery.   The Court finds that a reasonable period within which the

      Defendant should have responded to the State's reciprocal discovery

      demand (filed June 29, 2012) is twenty-five (25) days.

            The Court finds therefore that the calculation of time for compliance

      with the time limits of O.R.C. 2941.401 is also tolled for twenty-five (25)

      days from July 19, 2012 through August 13, 2012.

            In conclusion, the Court finds that trial with regard to this matter

      must commence within 19 days of February 6, 2013, as 161 of the

      allowable 180 days provided for by Ohio Revised Code Section 2941.410

      (sic) have expired.
Fairfield County, Case No. 13-CA-33                                                    9


       {¶14} The gravamen of this case is whether it was correct to toll twenty-five days

for non-compliance with reciprocal discovery.        We answer this question in the

affirmative.

       {¶15} Crim.R. 16 governs discovery and inspection. Subsections (A) and (H)

state the following:



               (A) Purpose, Scope and Reciprocity. This rule is to provide all

       parties in a criminal case with the information necessary for a full and fair

       adjudication of the facts, to protect the integrity of the justice system and

       the rights of defendants, and to protect the well-being of witnesses,

       victims, and society at large. All duties and remedies are subject to a

       standard of due diligence, apply to the defense and the prosecution

       equally, and are intended to be reciprocal. Once discovery is initiated by

       demand of the defendant, all parties have a continuing duty to supplement

       their disclosures.

               (H) Discovery: Right to Copy or Photograph. If the defendant

       serves a written demand for discovery or any other pleading seeking

       disclosure of evidence on the prosecuting attorney, a reciprocal duty of

       disclosure by the defendant arises without further demand by the state.

       The defendant shall provide copies or photographs, or permit the

       prosecuting attorney to copy or photograph, the following items related to

       the particular case indictment, information or complaint, and which are

       material to the innocence or alibi of the defendant, or are intended for use
Fairfield County, Case No. 13-CA-33                                                          10


       by the defense as evidence at the trial, or were obtained from or belong to

       the victim, within the possession of, or reasonably available to the

       defendant, except as provided in division (J) of this rule:

                 (1) All laboratory or hospital reports, books, papers, documents,

       photographs, tangible objects, buildings or places;

                 (2) Results of physical or mental examinations, experiments or

       scientific tests;

                 (3) Any evidence that tends to negate the guilt of the defendant, or

       is material to punishment, or tends to support an alibi. However, nothing in

       this rule shall be construed to require the defendant to disclose

       information that would tend to incriminate that defendant;

                 (4) All investigative reports, except as provided in division (J) of this

       rule;

                 (5) Any written or recorded statement by a witness in the

       defendant’s case-in-chief, or any witness that it reasonably anticipates

       calling as a witness in surrebuttal.



       {¶16} The amendment of Crim.R. 16 on July 1, 2010 was a basic shift from

previous practice and placed an affirmative duty on a defendant to provide evidence

he/she intended to use to support his/her defense. The staff notes to the rule explain

the following:
Fairfield County, Case No. 13-CA-33                                                      11


              The purpose of the revisions to Criminal Rule 16 is to provide for a

       just determination of criminal proceedings and to secure the fair, impartial,

       and speedy administration of justice through the expanded scope of

       materials to be exchanged between the parties. Nothing in this rule shall

       inhibit the parties from exchanging greater discovery beyond the scope of

       this rule. The rule accelerates the timing of the exchange of materials,

       and expands the reciprocal duties in the exchange of materials.          The

       limitations on disclosure permitted under this rule are believed to apply to

       the minority of criminal cases.

              The new rule balances a defendant's constitutional rights with the

       community’s compelling interest in a thorough, effective, and just

       prosecution of criminal acts.

              The Ohio criminal defense bar, by and through the Ohio

       Association of Criminal Defense Lawyers and prosecutors, by and through

       the Ohio Prosecuting Attorneys Association, jointly drafted the rule and

       submitted committee notes to the Commission on the Rules of Practice

       and Procedure. The Commission on the Rules of Practice and Procedure

       discussed, modified, and adopted the notes submitted in developing these

       staff notes.


       {¶17} Appellant filed his request for discovery on June 29, 2012. On the same

date, prior to the state responding to the request, appellant filed his reciprocal discovery

response, stating "Defendant reserves the right to call any and all witnesses as listed on

the State of Ohio's Response to Defendant's Request for Discovery." On July 19, 2012,
Fairfield County, Case No. 13-CA-33                                                   12


the state complied with appellant's discovery request in writing and requested reciprocal

discovery. See, Exhibit B, attached to February 6, 2013 Entry Re: Defendant's Motion

to Dismiss.

       {¶18} Appellant's blind reciprocal discovery response filed prior to the state

providing discovery placed the state in the untenable position of not knowing what

appellant intended to produce under Crim.R. 16(H). We agree with the trial court's

analysis that appellant's reciprocal discovery was not made with due diligence as

required under Crim.R. 16(A).      We find the trial court tolling twenty-five days for

appellant's non-compliance with reciprocal discovery not to be unreasonable given the

fact that appellant was incarcerated in Franklin County and was not present in the

county of the trial court or defense counsel.

       {¶19} Upon review, we find the trial court did not err in denying appellant's

motion to dismiss.

       {¶20} The sole assignment of error is denied.
Fairfield County, Case No. 13-CA-33                                              13


      {¶21} The judgment of the Court of Appeals of Fairfield County, Ohio is hereby

affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




SGF/sg 121
