[Cite as State v. Cimpaye, 2020-Ohio-2740.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellant                        :   Appellate Case No. 28304
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CRB-4581
                                                    :
 JOSEPHINE CIMPAYE                                  :   (Criminal Appeal from Municipal Court)
                                                    :
         Defendant-Appellee                         :
                                                    :

                                               ...........

                                              OPINION

                              Rendered on the 1st day of May, 2020.

                                               ...........

TROY B. DANIELS, Atty. Reg. No. 0084957 and HOPE L. SMALLS, Atty. Reg. No.
0091610, City of Dayton Assistant Prosecuting Attorneys, 335 West Third Street, Room
372, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellant

CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
    Attorney for Defendant-Appellee

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




DONOVAN, J.
                                                                                          -2-




        {¶ 1} Plaintiff-appellant State of Ohio appeals an order of the Dayton Municipal

Court, which granted the motion to dismiss filed by defendant-appellee Josephine

Cimpaye. The State filed a timely notice of appeal with this Court on February 20, 2019.

        {¶ 2} The record establishes that on July 28, 2018, Cimpaye was arrested for

domestic violence and transported to the Montgomery County Jail. On July 29, 2018,

the State filed complaints against Cimpaye charging her with two counts of domestic

violence, in violation of R.C. 2919.25(A), and two counts of assault, in violation of R.C.

2903.13(A).    All four counts were misdemeanors of the first degree.         At Cimpaye’s

arraignment on July 30, 2018, the trial court became aware that she required a Swahili

interpreter, but one was not available at that time.1 Accordingly, the trial court entered a

plea of not guilty on Cimpaye’s behalf and scheduled a pretrial hearing on August 20,

2018.

        {¶ 3} On July 31, 2018, an employee at the Montgomery County Jail contacted the

trial court and indicated that an interpreter had visited Cimpaye at the jail. After speaking

with Cimpaye, the interpreter reported to jail staff that she was exhibiting troublesome

mental health issues such as talking to someone who was not there. Cimpaye also told

the interpreter that the walls were speaking to her. A jail employee informed the trial

court that, pursuant to its authority under R.C. Chap. 5122, the Montgomery County

Sheriff’s Department was civilly committing Cimpaye on an emergency basis to the Miami

Valley Hospital for a 48-hour hold. After further communications on the same day (July



1 An entry filed on July 30, 2018, indicates that Cimpaye was granted a conditional own
recognizance bond.
                                                                                             -3-


31) between the trial court, the jail, the prosecutor, and defense counsel, it was

determined that Cimpaye’s mental condition had deteriorated to the point that she needed

to be taken to a different mental health facility for psychiatric care. Notably, the trial court

record and the stipulations at the motion to dismiss hearing do not reveal if Cimpaye was

hospitalized between July 31 and August 10, 2018, and returned to jail after any

emergency hold.

       {¶ 4} On August 10, 2018, the Montgomery County Sheriff’s Department

transported Cimpaye to Northcoast Behavioral Health (“Northcoast”) for emergency

treatment pursuant to R.C. Chap. 5122. 2         On August 14, 2018, a motion was filed

pursuant to R.C. Chap. 5122 in a local probate court to civilly commit Cimpaye for an

extended period.3 The probate court granted the commitment order, and Cimpaye was

involuntarily committed to Northcoast for a period of not less than 90 days and no longer

than two years.

       {¶ 5} At the scheduled pretrial hearing on August 20, 2018, the trial court notified

the State and defense counsel that Cimpaye was receiving treatment at Northcoast. The

trial court further stated that it was tolling speedy trial time as of the date of the pretrial

hearing until Cimpaye’s condition could be assessed by mental health professionals and

communicated back to the trial court. Tr. 10-11, 44-45. On August 30, 2018, the trial




2The stipulation at the motion to dismiss hearing referred to this as a 72-hour emergency
hold.
3The record is unclear regarding which probate court issued the civil commitment orders,
but the trial court opined that it was likely the Summit County Probate Court, where
Northcoast is located, and neither the State nor Cimpaye asserted otherwise.
                                                                                        -4-


court issued an entry ordering a competency and sanity evaluation of Cimpaye. 4

Although the order was faxed to Northcoast, a representative from the facility later

represented that Northcoast had no knowledge of the order. Tr. 46.

      {¶ 6} The agreed to a timeline of events as set forth by the court at the motion to

dismiss hearing.    This timeline established that on November 15, 2018, Cimpaye

voluntarily committed herself for additional treatment at Northcoast as the civil

commitment laws require a reevaluation after 90 days. Cimpaye remained at Northcoast

as a voluntary patient until she was discharged on January 15, 2019, at which point she

was transported back to the Montgomery County Jail.

      {¶ 7} On January 16, 2019, Cimpaye appeared before the trial court represented

by counsel but without an interpreter. At that time, Cimpaye’s counsel indicated that she

intended to file a motion to dismiss Cimpaye’s case on speedy trial grounds. The trial

court then scheduled a motion to dismiss hearing to be held on January 22, 2019, and

set bond at $10,000 cash/surety. Cimpaye’s counsel filed a motion to dismiss the next

day, January 17, 2019, in which she argued that Cimpaye’s speedy trial time had expired

pursuant to R.C. 2945.38(C)(3).

      {¶ 8} On January 22, 2019, the trial court held a hearing on Cimpaye’s motion to

dismiss. At the hearing, Cimpaye argued that her speedy trial time had expired pursuant

to R.C. 2945.38(C)(3) and R.C. 2945.73(C). Cimpaye contended that she had been held

in custody for 179 days and that the time she was in treatment at Northcoast should be

counted as jail time pursuant to R.C. 2945.73(C).


4 Notably, a written not guilty by reason of insanity plea had not been filed. We question
the trial court’s authority to order such an evaluation sua sponte, but note that the issue
has not been raised.
                                                                                         -5-


       {¶ 9} Ruling from the bench, the trial court found that Cimpaye had been held in

custody for 179 days, from July 28, 2018, until January 22, 2019. The trial court also

found that tolling the time Cimpaye spent at Northcoast was “unreasonable and

unjustified” due to the “length of the delay.” Tr. 53. The trial court concluded the tolling

had to be a “date certain.” Tr. 55. The trial court further found that while Cimpaye was

at Northcoast, both involuntarily and voluntarily, she was under a “police hold,” and

therefore charged all of that time against the State. The trial court calculated a total of

124 days chargeable to the State, which exceeded the 90 days permitted pursuant to

R.C. 2945.71, absent a tolling event. Accordingly, the trial court held that Cimpaye’s

right to a speedy trial had been violated and granted her motion to dismiss.

       {¶ 10} It is from this judgment that the State now appeals.

       {¶ 11} The State’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED WHEN IT DISMISSED THE STATE’S CASE

       ON SPEEDY TRIAL GROUNDS.

       {¶ 12} The State contends that the trial court erred when it granted Cimpaye’s

motion to dismiss on speedy trial grounds. 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.”).

       {¶ 13} The right to a speedy trial is guaranteed by the United States and Ohio

Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Ohio's

speedy trial statute, R.C. 2945.71, “was implemented to incorporate the constitutional
                                                                                         -6-


protection of the right to a speedy trial” provided in the United States and Ohio

Constitutions. Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706 (1996). As

such, that statute must be strictly construed against the State. Id.

       {¶ 14} 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, 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.” State v. Sanchez,

110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 7.

       {¶ 15} Pursuant to R.C. 2945.71(B)(2), a person against whom a first-degree-

misdemeanor charge is pending must be brought to trial within 90 days of arrest. A

defendant establishes a prima facie case for discharge once he or she demonstrates that

he or she has not been brought for trial within the time limits set forth in R.C. 2945.71.

State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). When a defendant

has established he or she was tried outside speedy-trial time limits, the burden shifts to

the state to show that the time limit was extended under R.C. 2945.72. Id. at ¶ 31.

       {¶ 16} Although the time limits contained in R.C. 2945.71 must be strictly enforced,

R.C. 2945.72 provides a number of events and circumstances that will toll the running of

a defendant's speedy-trial time. State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904,

971 N.E.2d 937, ¶ 24. Pursuant to R.C. 2945.72, the time within which an accused must

be brought to trial may be extended for those reasons specifically enumerated in the

statute. One such reason for an extension is where the competency of the accused is

being challenged. In particular, R.C. 2945.72(B) provides that the time may be extended

for “[a]ny period during which the accused is mentally incompetent to stand trial or during
                                                                                           -7-


which his mental competence to stand trial is being determined * * *.” (Emphasis added.)

      {¶ 17} In the instant case, Cimpaye was arrested on July 28, 2018.               When

computing speedy trial time, the day of arrest is not counted. State v. Cline, 2d Dist.

Champaign No. 2002-CA-05, 2003-Ohio-4712, ¶ 27, rev’d on other grounds, 103 Ohio

St.3d 471, 816 N.E.2d 1069, 2004-Ohio-5701 (2004). Therefore, the time for bringing

Cimpaye to trial began running on July 29, 2018, the day after her arrest. Id.

      {¶ 18} As previously stated, Cimpaye was transported on August 10, 2018, by the

Montgomery County Sheriff’s Department to Northcoast for emergency treatment

pursuant to R.C. 5122.5 Thus, the State urges us to use August 10, 2018, as the date

that Cimpaye’s speedy trial time was tolled. Not counting the first day of Cimpaye’s

incarceration, the period between July 29, 2018, and August 10, 2018, amounts to 13

days in jail. Pursuant to R.C. 2945.71(E), that amount is tripled for a total of 39 days

chargeable to the State.    The State acknowledges that there is no case law which

expressly states that speedy trial time is tolled under R.C. 2945.72 when a defendant is

civilly committed pursuant to R.C. 5122, rather than ordered to be evaluated for

competency to stand trial pursuant to R.C. 2945.37.

      {¶ 19} In support of its argument for reversal, the State cites State v. Buhr, 1st Dist.

Hamilton No. C-780337, 1979 WL 208730 (Mar. 14, 1979), wherein the defendant was

civilly committed while charges were pending against him. Id. at *1. Prior to being bound

over, however, he was transported to a state hospital for emergency treatment due to

psychiatric issues. Id.   On appeal, the issue decided by the court was whether the



5 Neither the record nor the stipulations of facts definitively establishes if any
hospitalization actually occurred between July 31, 2018, and August 9, 2018.
                                                                                         -8-


defendant should have received a hearing and legal representation prior to being

committed.    The Buhr court stated that “the commitment * * * made pursuant to a

psychiatric clinic report that [the defendant] was a danger to himself and needed

immediate hospitalization * * * should not be charged against the state.” Id. at *2.

       {¶ 20} The State also cites State v. Claprood, 5th Dist. Licking No. 94 CA 34, 1995

WL 495258 (May 10, 1995), wherein the defendant attempted to hang himself in jail after

being arrested for abduction. Id. at *1. Accordingly, the defendant was committed to a

psychiatric hospital by a probate court. Id.     On appeal for speedy trial issues, the

Claprood court stated that the time spent in the psychiatric hospital as a result of his

suicide attempt would not be charged against the State for speedy trial purposes. Id. at

*5.   The State argues that based upon the language from the Buhr and Claprood

opinions, it is “implied that the time was tolled during the period” in which Cimpaye was

civilly committed for psychiatric issues by the Montgomery County Sheriff’s Department.

       {¶ 21} However, as noted by the State in its brief, “a comparison of R.C. 5122 and

R.C. 2945 reveals that they are distinct in nature, scope and in the goals they serve. Civil

commitment proceedings under R.C. 5122 seek to treat certain categories of mentally ill

people. R.C. 2945, in contrast, sets forth the necessary framework for ascertaining the

competency of a defendant charged in a criminal case.” State v. Stafford, 7th Dist. Noble

No. 265, 2002-Ohio-5243, ¶ 34. Additionally, as we previously stated, Ohio's speedy

trial statute, R.C. 2945.71, must be strictly construed against the State. Brecksville, 75

Ohio St.3d at 55, 661 N.E.2d 706. For those reasons, we disagree with the State and

find that the nine days between August 10 and August 19, 2018, during which Cimpaye

had been civilly committed to Northcoast, were chargeable to the State for speedy trial
                                                                                           -9-


purposes.

       {¶ 22} As previously stated, however, on August 20, 2018, the trial court held a

hearing wherein it notified the State and defense counsel that Cimpaye was receiving

treatment at Northcoast. The trial court further stated that it was tolling speedy trial time

beginning on August 20, 2018, until Cimpaye’s condition could be assessed by mental

health professionals and related back to the trial court. Tr. 10-11, 44-45. Significantly,

defense counsel did not object to the decision of the trial court to toll speedy trial time as

of the date of the August 20, 2018 hearing. Accordingly, we find the trial court’s decision

to toll Cimpaye’s speedy trial time beginning on August 20, 2018, was reasonable and

justified under the unique circumstances presented in the instant case, as Cimpaye

became unavailable due to her deteriorating mental state, was hospitalized out of county,

and, as noted, defense counsel did not register any objection, either orally or in writing,

to the trial court’s reasonable decision to toll Cimpaye’s speedy trial rights.

       {¶ 23} R.C. 2945.37 sets forth the procedures a trial court must adhere to when

the issue of a defendant’s competency to stand trial is raised. R.C. 2945.37(C) states in

pertinent part:

       The court shall conduct the hearing required or authorized under division

       (B) of this section within thirty days after the issue is raised, unless the

       defendant has been referred for evaluation in which case the court shall

       conduct the hearing within ten days after the filing of the report of the

       evaluation * * *.

(Emphasis added).

       {¶ 24} Additionally, we find that Cimpaye’s reliance on R.C. 2945.38(C)(3) as a
                                                                                        -10-


basis for dismissal of her case was wholly misplaced. R.C. 2945.38(C)(3) states as

follows:

       No defendant shall be required to undergo treatment, including any

       continuing evaluation and treatment, under division (B)(1) of this section for

       longer than whichever of the following periods is applicable:

       ***

       (3) Sixty days, if the most serious offense with which the defendant is

       charged is a misdemeanor of the first or second degree[.]

       {¶ 25} Only after the hearing before the trial court regarding the defendant’s

competency would the procedures established in R.C. 2945.38 apply. R.C. 2945.37(G)

provides:

       If, after a hearing, the court finds by a preponderance of the evidence that,

       because of the defendant's present mental condition, the defendant is

       incapable of understanding the nature and objective of the proceedings

       against the defendant or of assisting in the defendant's defense, the court

       shall find the defendant incompetent to stand trial and shall enter an order

       authorized by section 2945.38 of the Revised Code.)

(Emphasis added).

       {¶ 26} As previously stated, the trial court ordered Cimpaye to submit to the

competency evaluation at Northcoast in an entry filed on August 30, 2018. However, no

evaluation report was submitted to the trial court prior to the motion to dismiss hearing

held on January 22, 2019. Because it had yet to receive the competency evaluation from

Northcoast, the trial court was unable to hold a competency hearing pursuant to R.C.
                                                                                           -11-


2945.38(C), which would have, in turn, allowed it to render a determination regarding

Cimpaye’s competency to stand trial. Accordingly, the time constraints set forth in R.C.

2945.38(C)(3) upon a finding of incompetency are not applicable to the instant case.

       {¶ 27} We further conclude that it was error for the trial court to hold that all of the

days that Cimpaye remained hospitalized at Northcoast were chargeable to the State for

speedy trial purposes. As previously stated, Northcoast failed to perform a competency

evaluation of Cimpaye pursuant to court order while she was hospitalized at the facility in

the time frame set forth in the order and by statute. Nevertheless, the Ohio Supreme

Court has addressed the issue of whether the tolling period ends when an examiner who

is ordered to file a competency report fails to do so within the prescribed statutory time

frame of R.C. 2945.371(G) (formerly R.C. 2945.371(D)). State v. Palmer, 84 Ohio St.3d

103, 106, 702 N.E.2d 72 (1998). R.C. 2945.371(G) provides that where a trial court

orders a competency examination, the examiner's report shall be filed with the court within

thirty days after entry of an order for examination.       Pursuant to R.C. 2945.37(A), a

hearing must then be held within ten days after the filing of the report (which is forty days

from when the court orders the evaluation).          Here, Northcoast never performed a

competency evaluation, although the record reflects that the trial court’s order was

submitted to Northcoast.

       {¶ 28} R.C. 2945.72(B) clearly provides that the speedy trial time is extended by

“any period” during which the accused's competency is being determined. Palmer at 106.

The statutory extension in R.C. 2945.72(B) is not limited to a specific time period. Id.

Nowhere in R.C. 2945.72 or former R.C. 2945.371 does it state that if a report is not filed

when due, the tolling period ends and time begins to run again for speedy trial purposes.
                                                                                            -12-


Id. Therefore, the tolling effect of R.C. 2945.72(B) cannot be cut short by an examiner's

failure to file a competency report within the prescribed time frame. The tolling provision

of R.C. 2945.72(B) does not end when a competency examiner fails to issue a report

within the time limits imposed by R.C. 2945.371(G). Although no report was prepared

by September 30, 2018, this was not fatal to the prosecution, as a “date certain” is not

mandatory; an involuntary civil commitment was in play, Cimpaye elected continued

treatment over a return to jail, and she had not asserted her speedy trial rights.

Therefore, the 60-day delay from November 15, 2018, to January 15, 2019, cannot be

deemed unjustified or unreasonable.

       {¶ 29} Notably, as soon as Cimpaye was discharged from Northcoast and returned

to the Montgomery County Jail on January 15, 2019, defense counsel filed a motion to

dismiss on speedy trial grounds on January 17, 2019. The trial court, however, never

made a competency determination regarding Cimpaye, and therefore, the tolling of R.C.

2945.72(B) never ceased once Cimpaye was returned to jail from Northcoast. 6

Accordingly, the trial court erred when it found that the days between January 15, 2019,

and January 22, 2019, to be chargeable to the State for speedy trial purposes.

       {¶ 30} As pertinent to this appeal, R.C. 2945.73(C)(1) states as follows:

       Regardless of whether a longer time limit may be provided by sections

       2945.71 and 2945.72 of the Revised Code, a person charged with

       misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting


6 Although not specifically required by statute, we find that the better practice in a situation
where the trial court has ordered a civilly committed defendant to undergo a competency
evaluation would be for the trial court to make periodic inquiries and set status report
dates regarding the progress made by the mental health facility tasked with performing
the evaluation so that it is resolved in a timely and efficient manner.
                                                                                          -13-


       trial on the pending charge:

       (1) For a total period equal to the maximum term of imprisonment which

       may be imposed for the most serious misdemeanor charged[.]

       {¶ 31} Here, the trial court incorrectly found that Cimpaye was in custody for 179

days from July 28, 2018, through January 15, 2019. Nevertheless, by the trial court’s

own calculation of 179 days, the time limit set forth in R.C. 2945.73(C)(1) had not been

reached because Cimpaye was charged with four first degree misdemeanors, each

carrying a maximum penalty of 180 days in jail.         Therefore, the maximum term of

imprisonment that Cimpaye could have been ordered to serve was 180 days, which had

not been exceeded. Thus, R.C. 2945.73(C)(1) was inapplicable.

       {¶ 32} In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),

the Supreme Court established a balancing test for determining whether a defendant's

constitutional right to a speedy trial has been violated. The four factors are “[l]ength of

delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the

defendant.” Barker at 530. “[T]hese four factors are balanced considering the totality of

the circumstances, with no one factor controlling.” State v. Perkins, 2d Dist. Clark No. 08-

CA-0081, 2009-Ohio-3033, ¶ 8.

       {¶ 33} In our view, Cimpaye’s argument that she was prejudiced by the delay while

she was in treatment at Northcoast is undermined by the fact that she voluntarily elected

to remain at the mental health facility on November 15, 2018. Thus, a significant portion

of the delay in the instant case, from November 15, 2018, to January 15, 2019, was solely

attributable to Cimpaye, who voluntarily chose to remain in treatment at Northcoast when

she could have elected to return to Montgomery County and face the charges for which
                                                                                       -14-


she was being accused. “We by no means advocate the failure of an examiner to timely

file a report. However, if a defendant is dissatisfied with the slow response time, he or

she can petition the court to enforce its order or request a hearing.” State v. Palmer, 84

Ohio St.3d 103, 702 N.E.2d 72 (1998), fn.1.

      {¶ 34} We note that the record does not contain an entry appointing counsel for

Cimpaye at arraignment. However, we note that on August 15, 2018, Attorney Navay

Vaughn from the Montgomery County Public Defender’s Office filed a “NOTICE OF

ATTORNEY” in the instant case. Furthermore, to the extent Cimpaye argues that she

was not represented by counsel, the record establishes that she was in fact represented

by counsel from the public defender’s office at every stage of the case: 1) July 30, 2018,

Arraignment, Attorney Chuck Grove, Tr. 3; 2) July 31, 2018, Phone Conference, Attorney

Rusch, Tr. 9; 3) August 20, 2018, Attorney Navay Vaughn, Tr. 8; 4) January 16, 2019,

Attorney Michael Walczak, Tr. 14; 5) January 17, 2019, Attorney Navay Vaughn, Tr. 21;

6) January 22, 2019, Attorney Hope Smalls, Tr. 38.

      {¶ 35} Lastly, in support of her argument that her speedy trial time was not tolled

while she was in treatment at Northcoast, Cimpaye cites State v. Johnson, 8th Dist.

Cuyahoga App. Nos. 78097-78099, 2001 WL 233401 (Mar. 8, 2001), which analyzed

Palmer and tolling for a competency determination under R.C. 2945.72(B). The Johnson

court determined that such a “tolling only occurs if competency is being determined.” Id.

at *3. The Johnson court's determination was based on the fact that, while the accused

was referred for an evaluation, the accused was never actually transported from the jail

to the evaluation facility. In the present case, unlike Johnson, Cimpaye was transported

to Northcoast, and was subject to evaluation for her competency to stand trial. Johnson
                                                                                        -15-


is therefore distinguishable from the instant case.

       {¶ 36} In conclusion, from July 29, 2018, (the day after Cimpaye’s arrest) to August

19, 2018, the 22 days she spent in jail were chargeable against the State. Counting each

of those days as three days pursuant to R.C. 2945.71(E) amounts to 66 days in jail for

speedy trial purposes.     Furthermore, because the trial court had yet to receive a

competency report, make a finding of competency upon stipulation or otherwise, and/or

conduct a competency hearing, the tolling of R.C. 2945.72(B) never ceased once

Cimpaye returned to jail from Northcoast, and none of the days she spent in jail from

January 15, 2019, through January 22, 2019, were chargeable to the State.7 Therefore,

the total number of days attributable to the State for speedy trial purposes was only 66

days. Because fewer than 90 days had passed, we find that Cimpaye‘s statutory speedy

trial rights were not violated, nor was any delay unreasonable or unjustified in derogation

of her speedy trial rights under the Ohio and U.S. Constitutions. Thus, the trial court

erred when it granted Cimpaye’s motion to dismiss on speedy trial grounds.

       {¶ 37} The State’s assignment of error is sustained.

       {¶ 38} The State’s sole assignment of error having been sustained, the judgment

of the trial court is reversed, and this matter is remanded for proceedings consistent with

this opinion.

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

FROELICH, J., concurs.


7  We note that the motion to dismiss filed by Cimpaye on January 17, 2019, tolled speedy
trial time pursuant to R.C. 2945.72(E) while the motion was pending. State v. Bickerstaff,
10 Ohio St.3d 62, 67, 461 N.E.2d 892 (1984) (holding that “a motion to dismiss acts to
toll the time in which a defendant must be brought to trial. * * * Therefore, the time that
elapsed while the motions were pending is not included for purposes of R.C. 2945.71.”)
                                                                                         -16-


HALL, J., concurring:

       {¶ 39} I agree with my colleagues that when the trial court ordered tolling of speedy

trial time on August 20, 2018 because Cimpaye’s mental health condition was being

assessed as an inpatient at Northcoast, that stopped the speedy trial clock. That event

was followed by the trial court’s August 30, 2018 order of competency and sanity

evaluations for Cimpaye which, for whatever reasons, were never completed before she

appeared in court for a hearing on her motion to dismiss on January 22, 2019.

Accordingly, all that time is not chargeable against the State because R.C. 2945.72(B)

extends speedy trial time for any period during which competency is being determined.

That being so, speedy trial time had not expired when the trial court dismissed the case

on January 22, 2019, and that conclusion alone is sufficient for the reversal of the speedy

trial dismissal entered in the trial court.

       {¶ 40} I write separately though to express my opinion, contrary to that stated in

the majority opinion paragraph 21, that speedy trial time was also tolled on or before

August 10, 2018, when Cimpaye was civilly committed under R.C. 5122.10 et seq. to the

custody of Northcoast, because, as the statute requires, she was a danger “to self or

others if allowed to remain at liberty.” I fail to see how a trial court can be expected to

proceed in light of such an involuntary civil commitment to a mental health facility half-

way across the state. Nonetheless, because this case can be decided by reference to the

issue of competency and the procedures required under R.C. 2945.37, it is not necessary

for us to decide whether civil commitment under R.C. 5122.10 was also a tolling event for

speedy trial purposes.
                        -17-




Copies sent to:

Troy B. Daniels
Hope L. Smalls
Carlo C. McGinnis
Hon. Deirdre E. Logan
