[Cite as State v. Boda, 2013-Ohio-2258.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :            OPINION

                 Plaintiff-Appellee,            :
                                                             CASE NOS. 2012-G-3088
        - vs -                                  :                  and 2012-G-3089

JOSEPH M. BODA,                                 :

                 Defendant-Appellant.           :


Criminal Appeals from the Chardon Municipal Court, Case Nos. 2011 TRC 02342 and
2011 TRD 02355.

Judgment: Affirmed.


Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024
(For Plaintiff-Appellee).

Paul A. Daher, 700 West St. Clair Avenue, Suite 218, Cleveland, OH 44113 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Joseph M. Boda, appeals the final sentencing judgments in two

criminal actions before the Chardon Municipal Court. In seeking the vacation of his

convictions for driving while under the influence of alcohol and failure to control, he

contends that both actions should have been dismissed on the basis that he was denied

his statutory and constitutional rights to a speedy trial.

        {¶2}     During the early morning hours of April 23, 2011, appellant was operating
his motor vehicle on Chagrin Mills Road in Geauga County when it was stopped by an

officer of the Russell Township Police Department. According to the officer, the stop

was based upon his observance of erratic driving by appellant, including the striking of a

mailbox as appellant was turning around in a private driveway. Upon conducting field

sobriety tests, the officer placed appellant under arrest and ultimately cited him on two

OVI offenses and failure to stay within a marked lane of travel. Since the destruction of

the mailbox took place in a separate jurisdiction, a second officer issued the citation for

failure to control.

       {¶3}    Appellant was released from the county jail on the same day as his arrest.

Three days later, his trial counsel filed a written notice entering a not guilty plea and

waving appellant’s right to a speedy trial.

       {¶4}    The initial pretrial conference for both of appellant’s cases was scheduled

for June 8, 2011. On that date, appellant filed a written motion to continue the pretrial

conference on the basis that the parties were still engaging in discovery. This motion

contained a separate statement that appellant was waiving his constitutional and

statutory rights to a speedy trial.      Directly below the statement was appellant’s

signature.

       {¶5}    The trial court granted the motion to continue, and the pretrial conference

was re-scheduled for July 27, 2011. During the proceeding on that date, appellant’s trial

counsel informed the court that discovery still had not been completed. As a result, the

conference was again postponed. A similar procedure was followed in the scheduled

conference of August 15, 2011; i.e., the conference was continued when the trial court

was told that discovery was still ongoing. Finally, during the next scheduled conference




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of September 7, 2011, the parties were able to report that all discoverable materials had

been provided to appellant. However, his trial counsel then requested additional time in

which to file a motion to suppress all evidence obtained during the traffic stop.

       {¶6}   The motion to suppress was eventually filed on October 25, 2011. Over

the next six months, no new submissions were filed by either party, and the trial court

did not take any steps to go forward on the suppression motion.

       {¶7}   On May 1, 2012, the trial court issued a notice stating that an evidentiary

hearing on the motion to suppress would be held on May 30, 2012. At the beginning of

that proceeding, appellant moved the trial court to dismiss all pending charges on the

grounds that he had been denied his speedy trial rights. In support of this new motion,

his trial counsel argued that an unreasonable amount of time has elapsed between the

September 2011 conference and the suppression hearing. The trial court overruled the

motion to dismiss, expressly noting that the trial record contained a waiver of appellant’s

speedy trial rights.

       {¶8}   After the trial court made its ruling, appellant informed the trial court that

he would not be going forward on the motion to suppress. Instead, he agreed to enter a

plea of no contest to one charge of driving while under the influence of alcohol, pursuant

to R.C. 4511.19(A)(1)(a), and the charge of failure to control his motor vehicle, pursuant

to R.C. 4511.202. The remaining two citations were then dismissed. Upon accepting

the plea, the trial court found appellant guilty of both offenses and immediately imposed

the sentence.

       {¶9}   In relation to the charge of driving while under the influence, the trial court

ordered appellant to serve 180 days in the county jail, with 174 suspended, imposed a




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$525 fine and costs, suspended his license to drive for one year, and placed him on

probation for one year. The trial court levied a $35 fine and costs for failure to control.

       {¶10} In appealing both convictions, appellant asserts one assignment of error:

       {¶11} “The trial court committed error when it failed to dismiss the indictments

against [appellant] because his right to a speedy trial was violated.”

       {¶12} In claiming that he was denied his constitutional right to a speedy trial,

appellant focuses upon the number of days elapsing between filing his motion to

suppress and the scheduled hearing date. He submits that the seven-month delay in

going forward on the suppression motion was unduly excessive and, thus, was

presumptively prejudicial to him. In support, he emphasizes that the record is silent as

to why the trial court failed to schedule the evidentiary hearing sooner.

       {¶13} In asserting the foregoing argument, appellant acknowledges that, as part

of the written notice of his initial plea of not guilty, his trial counsel expressly waived his

speedy trial rights. Nevertheless, according to appellant, this waiver was not binding

upon him for purposes of contesting the delay in the consideration of his motion to

suppress. First, he notes that he personally never signed a written waiver of his rights

before the trial court. Second, he asserts that, even if the waiver by his trial counsel

was valid, its duration was not unlimited.

       {¶14} As a general proposition, the defendant in a criminal action can waive his

constitutional and statutory rights to a speedy trial so long as the determination is made

both knowingly and voluntarily. State v. King, 70 Ohio St.3d 158, 160 (1994). However,

“for purposes of trial preparation, a defendant’s statutory right to a speedy trial may be

waived, with or without the defendant’s consent, by the defendant’s counsel.”               Id.




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Furthermore, a valid waiver can be made either in writing or in open court on the record.

Id. at 161.

       {¶15} The written notice of appellant’s initial plea also contained an

unambiguous waiver of his speedy trial rights signed by trial counsel.            Therefore,

pursuant to King, the written waiver was valid. Simply stated, the governing case law

does not require that a defendant sign a written waiver of his speedy trial rights before

the trial court.

       {¶16} Additionally, appellant’s written motion to continue the June 2011 pretrial

conference stated: “I waive my statutory, constitutional and procedural rights to a

speedy trial.” This waiver was signed by appellant. Accordingly, two valid speedy trial

waivers were filed.

       {¶17} Regarding the duration of a speedy trial waiver, when such a waiver does

not contain any reference to a specific time period, it will be deemed to be unlimited in

duration.     See State v. Kuriger, 175 Ohio App.3d 676, 2008-Ohio-1673, ¶16 (7th

Dist.2008); State v. Peek, 9th Dist. No. 10CA0040, 2011-Ohio-3624, ¶6. Neither of the

two valid waivers referred to a specific time frame or limit. Thus, there was no limit to

the duration of appellant’s speedy trial waiver.

       {¶18} “‘[F]ollowing an express written waiver of unlimited duration by an accused

of his speedy trial rights[,] the accused is not entitled to a discharge for delay in bringing

him to trial unless the accused files a formal written objection to any further

continuances and makes a demand for trial, following which the state must bring him to

trial within a reasonable time.’” State v. Braden, 197 Ohio App.3d 534, 2011-Ohio-

6691, ¶41 (11th Dist.2011), quoting State v. O’Brien, 34 Ohio St.3d 7, 9 (1987).




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       {¶19} Prior to orally moving for dismissal of the pending charges at the outset of

the suppression hearing, appellant never submitted a written objection or demanded a

hearing on his pending motion. To this extent, appellant failed to withdraw his speedy

trial rights waiver. Accordingly, the trial court correctly denied the motion to dismiss as

there was a valid waiver of speedy trial rights.

       {¶20} It is the judgment and order of this court that the judgments of the

Chardon Municipal Court are affirmed.


TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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