[Cite as Brook Park v. Wright, 2018-Ohio-953.]


                  Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105003




                              CITY OF BROOK PARK
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    LISA M. WRIGHT
                                                       DEFENDANT-APPELLANT




                                   JUDGMENT:
                              VACATED AND REMANDED


                                      Criminal Appeal from the
                                       Berea Municipal Court
                                      Case No. 14 CRB 02076

        BEFORE: Laster Mays, J., Blackmon, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: March 15, 2018
                               -i-
ATTORNEY FOR APPELLANT

Timothy R. Sterkel
1414 South Green Road, Suite 310
Cleveland, Ohio 44121


ATTORNEYS FOR APPELLEE

Carol Dillon Horvath
Lakewood Law Director
P.O. Box 42022
Brook Park, Ohio 44142

Peter A. Sackett
P.O. Box 771306
Lakewood, Ohio 44107
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Lisa M. Wright (“Wright”) appeals her conviction and

sentence and asks this court to vacate and remand to the trial court for further

proceedings.   We vacate and remand.

       {¶2} Wright was found guilty of assault, a first-degree misdemeanor, in violation

of the city of Brook Park Codified Ordinance 537.03(A).     She was sentenced to one-year

of basic probation, ordered to pay a $100 fine, ordered to perform ten hours of community

service, and ordered to complete an anger management class.

I.     Facts

       {¶3} On October 10, 2014, the city of Brook Park issued a misdemeanor citation

form, ordinance complaint, and summons to Wright, charging her with assault. On

November 19, 2014, Wright appeared in the Brook Park Mayor’s Court, where she

pleaded not guilty to assault.   The case was transferred to Berea Municipal Court on

November 25, 2014.        The case was continued to February 2, 2015.         At this time,

Wright asked for a continuance because of a family emergency, and did not show for

pretrial on February 2.   The trial court issued a warrant because of the failure to appear.

Once the trial court received Wright’s request and her attorney’s letter, the warrant was

withdrawn on February 13, 2015. Wright’s case was continued to March 23, 2015.

The record is void of any information regarding why there was another continuance

granted, and the case was continued to April 20, June 15, July 13, September 14,
October 5, and November 23, 2015.         The case was continued again to February 8,

February 22, May 9, and June 13, 2016. Finally, on June 13, 2016, a bench trial was

held, and Wright was found guilty. Wright was sentenced on August 17, 2016.

       {¶4} It is important to note that on April 28, 2016, between the February 22 and

May 9 continuances, Wright filed a jury demand with the trial court that was denied for

being untimely. As a result of the denial of the jury demand and the alleged violation of

a speedy trial, Wright has filed this timely appeal arguing three assignments of error for

our review.

       {¶5} Wright’s assignments of error are as follows:

       I.     The trial court committed error when it denied appellant’s written
              jury demand and proceeded with a bench trial;

       II.    Appellant was denied her constitutionally guaranteed right to a
              speedy trial; and

       III.   Appellant was denied her right to effective assistance of counsel
              guaranteed to her by the Sixth Amendment to the United States
              Constitution and Article I, Section 10 of the Ohio Constitution.

The second assignment of error is dispositive of the case, so we need not address the

other two.1 App.R. 12(A)(1)(c).      The state did not file an opposing brief or appear at

oral argument.

II.    Law and Analysis

       {¶6} In Wright’s second assignment of error, she argues that she was denied her


       At oral argument counsel for appellant withdrew assignment of error one and focused on
       1


assignment of error two.
constitutionally guaranteed right to a speedy trial.   “When an appellate court reviews an

allegation of a speedy trial violation, it ‘should apply a de novo standard of review to the

legal issues but afford great deference to any findings of fact made by the trial court.’

State v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 17.”              State v.

Wyland, 8th Dist. Cuyahoga No. 94463, 2011-Ohio-455, ¶ 36.

       When reviewing a speedy trial issue, the appellate court counts the days and
       determines whether the number of days not tolled exceeds the time limits
       for bringing the defendant to trial as set forth in R.C. 2945.71. State v.
       Gibson, 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421, ¶ 15; State v.
       Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415, ¶14-16, citing
       State v. Barnett, 12th Dist. Fayette No. CA2002-06-011, 2003-Ohio-2014, ¶
       7. If the state has violated a defendant’s right to a speedy trial, then upon
       motion made at or prior to trial, the defendant “shall be discharged,” and
       further criminal proceedings based on the same conduct are barred. R.C.
       2945.73(B); State v. Torres, 7th Dist. Jefferson Nos. 12 JE 30 and 12 JE 31,
       2014-Ohio-3683, ¶ 18.

State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 20.


       {¶7} Ohio’s General Assembly enacted R.C. 2945.71 to govern speedy trial time.

       Subject to division (D) of this section, 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 as follows:
       ***

             (2) Within 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.

R.C. 2945.71(B)(2).

       {¶8} The record reveals that the appellant was originally cited on October 10,

2014, with a misdemeanor summons citation. The appellant did not appear in the Brook
Park Mayor’s Court until November 19, 2014. It is important to recognize that R.C.

2945.71(B)(2) is applicable to courts of record.

       {¶9} The appellant states that the city of Brook Park Mayor’s Court violated her

speedy trial rights. “A mayor’s court is a court not of record and therefore R.C.

2945.71(A) governs the time within which a trial must be held.” Brooklyn v. Romano,

8th Dist. Cuyahoga No. 78338, 2001 Ohio App. LEXIS 2878 (June 28, 2001).

       R.C. 2945.71(A) mandates that: [a] person against whom a charge is
       pending in a court not of record, or against whom a charge of minor
       misdemeanor is pending in a court of record, shall be brought to trial within
       thirty days after his arrest or service of summons.

(Emphasis added).    Brecksville v. Cook, 8th Dist. Cuyahoga No. 65766, 1994 Ohio App.

LEXIS 3502 (Aug. 11, 1994).

       {¶10} Crim.R. 45 governs the computation of time. It states:

       In computing any period of time prescribed or allowed by these rules, by the
       local rules of any court, by order of court, or by any applicable statute, the
       date of the act or event from which the designated period of time begins to
       run shall not be included. The last day of the period so computed shall be
       included, unless it is a Saturday, Sunday, or legal holiday, in which event
       the period runs until the end of the next day which is not Saturday, Sunday,
       or legal holiday. When the period of time prescribed or allowed is less than
       seven days, intermediate Saturdays, Sundays, and legal holidays shall be
       excluded in computation.

Crim.R. 45(A).

       {¶11} Wright received her summons on October 10, 2014, and Brook Park

Mayor’s Court had 30 days thereafter to bring Wright to trial. Brook Park Mayor’s

Court set Wright’s trial date for October 22, 2014.      The record is unclear as to why

Wright’s trial did not commence then. Brook Park Mayor’s Court rescheduled Wright’s
court date to November 5, 2014 and sent notice to Wright. Again the record is void of

an explanation as to why a trial did not commence on that day. The trial date was

rescheduled to November 19, 2014, which is more than 30 days after Wright received her

original summons. Per Crim.R. 45(A), time begins the day after the summons was given

to Wright. From October 11, 2014 until November 19, 2014, 39 days had lapsed.

      {¶12} Wright did not raise the issue of her speedy trial rights in the trial court.

      As such, a reviewing court’s analysis is generally limited to reviewing
      issues raised on appeal solely for plain error or defects affecting a
      defendant’s substantial rights pursuant to Crim.R. 52(B). State v. Tisdale,
      8th Dist. Cuyahoga No. 74331, 1998 Ohio App. LEXIS 6143 (Dec. 17,
      1988). The plain error doctrine should be invoked by an appellate court only
      in exceptional circumstances to prevent a miscarriage of justice. State v.
      Cooperrider (1983), 4 Ohio St.3d 226, 227, 448 N.E.2d 452. Plain error
      will be recognized only where, but for the error, the outcome of the case
      would clearly have been different. Id.

State v. King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399, ¶ 8 (8th Dist.).

      {¶13} We understand that appellant did not file a motion to dismiss in the trial

court based upon speedy trial violations pursuant to R.C. 2945.73.

      Generally, a defendant who fails to file such a motion to the text of the note
      has waived his statutory right to a speedy trial and is estopped from raising
      this defense on appeal. State v. Talley, 5th Dist. Richland No. 06 CA 93,
      2007-Ohio-2902; State v. Stoutemire 8th Dist. Cuyahoga No. 49685, 1985
      Ohio App. LEXIS 9009 (Oct. 24, 1985). Nevertheless, courts have
      addressed the merits of such an argument despite the waiver. See, e.g.,
      State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72; State v.
      Starks, 6th Dist. Lucas Nos. L-05-1417 and L-05-1419, 2007-Ohio-4897.

      Some cases, however, have also addressed the failure to file such a motion
      under a plain error standard. See State v. Hinson, 8th Dist. Cuyahoga No.
      87132, 2006-Ohio-3831; State v. Simms, 10th Dist. Franklin Nos. 05AP-806
      and 05AP-807, 2006-Ohio-2960 (appellant waived all but plain error on his
      statutory speedy trial claims); State v. Burgess, 11th Dist. Lake No.
       2003-L-069, 2004-Ohio-4395 (trial counsel’s failure to object waived
       review of the speedy trial claim absent plain error); State v. Griffin, 9th
       Dist. Medina No. 2440-M, 1995 Ohio App. LEXIS 5613 (Dec. 20, 1995).
       Plain error involves both alleged omissions of trial counsel and alleged
       error on the part of the trial court or in the trial proceedings. State v. Nelson,
       2d Dist. Champaign No. 00CA12, 2001 Ohio App. LEXIS 975 (Mar. 9,
       2001), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).

State v. Conkright, 6th Dist. Lucas No. L-06-1107, 2007-Ohio-5315, ¶ 17 – 18.

       {¶14}    We find that to prevent a miscarriage of justice, the plain error doctrine

must be invoked. See State v. Hinson, 8th Dist. Cuyahoga No. 87132, 2006-Ohio-3831, ¶

12.   Therefore, we find that the trial court committed plain error, and that Wright’s

outcome of the case would have been different, i.e. dismissal of the charges versus a

finding of guilt.

       {¶15} Hence,

       [i]f a defendant’s speedy trial rights are in fact violated, however, the
       appropriate remedy would be to reverse and vacate the conviction.
       Therefore, in our view, reviewing the failure to file a motion to dismiss
       pursuant to R.C. 2945.73 under a plain error standard allows us the
       discretion to address such a claim and provide the proper remedy when
       appropriate.

Id. at ¶ 20.

       {¶16}    Wright’s second assignment of error is sustained. We need not address

the remaining error per App.R. 12(A)(1)(c).

       {¶17}    Judgment vacated and remanded to the trial court to remove all collateral

penalties associated with this charge.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the Berea

Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



________________________________________
ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, P.J., and
LARRY A. JONES, SR., J., CONCUR
