[Cite as State v. Shaffer, 2018-Ohio-768.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellant                      :   Appellate Case No. 27503
                                                   :
 v.                                                :   Trial Court Case No. 16-CRB-6920
                                                   :
 PATRICK SHAFFER                                   :   (Criminal Appeal from
                                                   :    Municipal Court)
          Defendant-Appellee                       :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 2nd day of March, 2018.

                                              ...........

EBONY N. WREH, Atty. Reg. No. 0080629, City of Dayton Prosecutor’s Office, 335 W.
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellant

ANGELINA N. JACKSON, Atty. Reg. No. 0077937, 117 S. Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellee

                                             .............
                                                                                          -2-


HALL, J.

       {¶ 1} The State of Ohio appeals the trial court’s dismissal of this case on speedy-

trial grounds. We conclude that the trial court erred by finding a speedy-trial violation. So

we reverse.

                                      I. Background

       {¶ 2} On October 5, 2016, Patrick Shaffer was arrested and charged with domestic

violence and assault, both first degree misdemeanors. He was held on bond, and trial

was scheduled for October 20. On October 19, Shaffer filed a motion to modify his bond

and a motion for continuance. The trial court sustained both motions and modified

Shaffer’s bond to electronic home detention and scheduled a pretrial on November 7. At

the pretrial, the trial was rescheduled for November 23. On November 15, the state filed

a motion to continue the trial “due to the number of witnesses and the trial date’s proximity

to Thanksgiving.” The court granted the continuance, and the trial was rescheduled for

November 30. But later the parties and the court agreed to hold a competency hearing

on that day for a prospective child witness. The trial was rescheduled for January 4, 2017

at the conclusion of the competency examination. By entry filed on December 5, 2016,

(Doc. #60), the trial court found the child incompetent to testify.

       {¶ 3} On December 22, 2016, the state filed a notice that it intended to present

statements of the child under Evid.R. 807. (Doc. #72-73). Shaffer responded on

December 29, 2016 with a motion in limine to exclude the child’s statements, arguing that

the state’s notice was deficient. (Doc. #74-77). On January 3, 2017, the day before trial,

the parties discussed the matter in chambers and it was decided that the state would

move for a continuance to supplement its Evid.R. 807 notice with additional information.
                                                                                         -3-


The following day, January 4, the state filed a motion for continuance and the parties put

their arguments on the record as to the sufficiency of the 807 notice. The trial court

sustained the state’s motion to continue, and the parties selected February 9th as the

date for an Evid.R. 807 hearing and for the new trial date. The state filed its supplemental

Evid.R. 807 notice at the end of January.

       {¶ 4} On February 6, Shaffer filed a motion to dismiss on speedy-trial grounds. He

argued that his right to a speedy trial had been violated because the state failed to bring

him to trial within the 90-day time limit under R.C. 2945.71. A dismissal hearing was held,

after which the state filed a supplemental response and Shaffer filed a post-hearing brief

in support of dismissal. On February 28, the court granted the motion to dismiss.

       {¶ 5} The state appealed.

                                       II. Analysis

       {¶ 6} In its sole assignment of error, the state argues that the trial court erred by

sustaining Shaffer’s motion to dismiss on speedy-trial grounds. The state contends that

the court incorrectly found a statutory speedy-trial violation. We review a trial court’s

decision on a defendant’s motion to dismiss based on speedy-trial grounds for abuse of

discretion. See State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 12 (“The

trial court’s decision overruling Defendant’s motion to dismiss based upon constitutional

speedy trial grounds is reviewed under an abuse of discretion standard.”).

       {¶ 7} A criminal defendant’s right to a speedy trial by the state is guaranteed by

both the United States Constitution and the Ohio Constitution. State v. Sanchez, 110 Ohio

St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 6. The time limits for bringing a defendant

to trial are found in R.C. 2945.71 to 2945.73. “Speedy-trial provisions are mandatory, and,
                                                                                         -4-


pursuant to R.C. 2945.73(B), a person not brought to trial within the relevant time

constraints ‘shall be discharged,’ and further criminal proceedings based on the same

conduct are barred. R.C. 2945.7[3](D).” Id. at ¶ 7.

       {¶ 8} A person charged with a first-degree misdemeanor must be brought to trial

within 90 days of the arrest date. R.C. 2945.71(B)(2). “The running of the speedy-trial

clock may be temporarily stopped, that is, tolled, only for reasons listed in R.C. 2945.72.”

Sanchez at ¶ 8. One of those reasons is a “reasonable continuance granted other than

upon the accused’s own motion.” R.C. 2945.72(H).

       {¶ 9} When reviewing a speedy-trial issue, “a court is required to count the days of

delay chargeable to either side and determine whether the case was tried within

applicable time limits.” Sanchez at ¶ 8. The trial court here found that from the date of

Shaffer’s arrest to the date that he filed the dismissal motion, 109 days were chargeable

to the state:

        10/5/2016 - 10/19/2016                    42 days (triple count)
        10/19/2016 - 11/7/2016                    Shaffer’s continuance
        11/8/2016 - 11/15/2016                    State’s continuance
        11/15/2016 - 11/30/2016                   State’s continuance
        11/30/2016 - 1/3/2017                     35 days
        1/3/2017 - 2/6/2017                       32 days


But the state argued in its supplemental response to the hearing on the motion to dismiss

that it should be charged with only 85 days:

        10/5/2016 - 10/19/2016                    42 days (triple count)
        10/19/2016 - 11/7/2016                    Shaffer’s continuance
        11/7/2016 - 11/15/2016                    8 days
        11/15/2016 - 11/30/2016                   State’s continuance
                                                                                             -5-


        11/30/2016 - 1/3/2017                       35 days
        1/3/2017 - 1/4/2017                         Shaffer’s pending motion in limine
        1/4/2017 - 2/9/2017                         State’s continuance


       {¶ 10} By our calculations, both the trial court’s and the state’s speedy-trial

calculations are off by a day or two. (We note that in its supplemental response the state

mistakenly says that the chargeable days total 84.) But all that matters for our purposes

is the last time period, no matter if it is a few days longer or shorter. The last period is the

key difference between the state’s calculations and those of the trial court.1 The state

says that it should not be charged with 32 days in that period because it had been granted

a “reasonable continuance.” If the state is correct, there is no speedy-trial problem.

       {¶ 11} The state filed its final motion for continuance on January 4, 2017, stating

as the reason: “To supplement notice of intention under 807 because defense * * * wants

additional evidence/facts re: circumstances of statements.” At the hearing on the matter,

the trial court stated that it was granting the continuance for the reason given in the

motion. (Jan. 4, 2017 Tr. 14) (saying that it was granting the motion so that the state could

“supplement the motion with * * * the circumstances of the out-of-court statement”).

Indeed, the transcript of the hearing indicates that the parties and the trial court all agreed

that the continuance would be granted for this reason.

       {¶ 12} The trial court did not specifically make a reasonableness finding nor did

the court explain, in its written decision or elsewhere, why it charged the state with the

days in that final period. There was little discussion of these days at the February 8, 2017



1 For his part, Shaffer disagrees with the calculations of both the trial court and the
state. By his calculation, the state should be charged with 130 days.
                                                                                          -6-


dismissal hearing. This may be because the trial court, at that time, thought that the

speedy-trial time had already expired by the time the state filed its last continuance

motion. (Feb. 8, 2017 Tr. 26) (“I’m—here’s where I am. I think on the January fourth, this

is where I was until you objected and said it was thirty-nine. I came in here on the fourth.

Time was up. January fourth the time was up.”). But the entry granting the motion

indicates that the court did find that the continuance was reasonable for speedy-trial

purposes. The combined “MOTION and ENTRY,” filed by the state and signed by the

judge, states: “Time extended pursuant to O.R.C. § 2945.72(H).”

       {¶ 13} “The rationale supporting speedy-trial legislation is to prevent inexcusable

delays caused by indolence within the judicial system.” (Citation omitted.) Sanchez, 110

Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 8. We can see no good reason to

find that the state’s last continuance was not reasonable. Accordingly we must conclude

that the trial court incorrectly charged the state with 32 days during that last period. This

means that when Shaffer filed his motion to dismiss, only 77 days were chargeable to the

state with the trial date just three days away.2 That means there was no violation of the

90-day speedy-trial time limit. Finally, that means the trial court erred by sustaining

Shaffer’s motion to dismiss.

                                      III. Conclusion

       {¶ 14} The sole assignment of error is sustained. The trial court’s judgment is

reversed, and this case is remanded for further proceedings.

                                      .............


2 Alternatively, we note that the defense December 29, 2016 “Motion in Limine,” filed
contrary to the State’s Evid.R. 807 notice, had yet to be ruled upon further extending
speedy trial time. Sanchez, at ¶ 23-27.
                                       -7-


FROELICH, J. and TUCKER, J., concur.




Copies mailed to:

Ebony N. Wreh
Angelina N. Jackson
Hon. Mia Wortham Spells
