[Cite as State v. Johnson, 2017-Ohio-1043.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                     :   Hon. John W. Wise, J.
                                               :   Hon. Craig R. Baldwin, J.
 -vs-                                          :
                                               :   Case No. CT2016-0041
                                               :
 THEODORE JOHNSON                              :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 16-CA-41



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            March 21, 2017




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 KENNETH W. OSWALT                                 ROBERT C. BANNERMAN, ESQ.
 LICKING CO. PROSECUTOR                            P.O. Box 77466
 PAULA M. SAWYERS                                  Columbus, OH 43207-0098
 20 S. Second St., Fourth Floor
 Newark, OH 43055
Licking County, Case No. 16-CA-41                                                          2



Delaney, J.

       {¶1} Appellant Theodore Johnson appeals from the May 17, 2016 Judgment

Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On January 6, 2016, around 10:50 p.m., appellant was discovered

unlocking an exit door at a Kroger store location in Licking County, Ohio. Appellant had

a shopping cart full of items and admitted he was stealing the items to sell them for cash

to another store.   Police asked whether appellant had any contraband on him and

appellant produced a napkin containing a white powder which he said was crushed

Percocet. The substance was tested and determined to be .11 grams of heroin.

       {¶3} Appellant was arrested on January 7, 2016 and remained incarcerated

throughout these proceedings.

       {¶4} On January 14, 2016, appellant was charged by indictment with one count

of theft pursuant to R.C. 2913.02(A), a felony of the fifth degree, and entered a plea of

not guilty.

       {¶5} Pursuant to a Pretrial Entry dated February 17, 2016, a jury trial was

scheduled for March 23, 2016. An additional notation on the entry states, “The parties

agree that the speedy trial provisions require that the trial in this matter be held no later

than: April 28, 2016; the last date for disposition under the Rules of Superintendence is

7-20-16.”

       {¶6} The jury trial did not proceed on March 23, 2016. A Judgment Entry on that

date states a jury trial in an earlier-scheduled criminal matter took place and the instant

case was thus continued “until the next available date.”
Licking County, Case No. 16-CA-41                                                       3


       {¶7} On March 31, 2016, appellant was charged by superseding indictment with

one count of theft pursuant to R.C. 2913.02(A), Count I, and one count of possession of

heroin pursuant to R.C. 2925.11(A)(C)(6)(a), Count II. Both offenses are felonies of the

fifth degree.

       {¶8} The matter was scheduled for jury trial on April 21, 2016.

       {¶9} On April 12, 2016, appellant filed a “Demand for Testimony of State’s

Expert” pursuant to R.C. 2925.51, demanding that the person who tested the heroin or

signed the report thereof appear and testify at trial.

       {¶10} On April 14, 2016, appellee filed a motion to continue the jury trial because

the B.C.I. forensic scientist was unavailable on the trial date of April 21, 2016 and

appellant was unwilling to stipulate to the lab results. The motion noted appellant’s

opposition to the motion to continue.

       {¶11} On April 19, 2016, the trial court granted appellee’s motion to continue and

the jury trial was set for May 17, 2016.

       {¶12} On May 13, 2016, appellant filed a Motion to Dismiss for Lack of Speedy

Trial. Appellee responded with a motion in opposition.

       {¶13} On May 17, 2016, the trial court overruled appellant’s motion to dismiss,

stating in pertinent part:

                      * * * *.

                      The Court notes [appellant] was arrested January 7, 2016 and has

                been incarcerated since that date. This case was originally scheduled for

                jury trial on March 23, 2016, well within his statutory and constitutional

                required 90-day speedy trial limit of April 6, 2016. The March 23 date was
Licking County, Case No. 16-CA-41                                                          4


             continued due to an older case going to trial that date to the date of April

             21, 2016. Prior to the April 21 date, the case was continued on the basis of

             a necessary witness being unavailable for trial that date, continuing the case

             to May 17, 2016.

                    The case having been originally set within time and continued

             beyond the time dates for reasons for which is permissible to extend the

             speedy trial time and for reasons that toll [appellant’s] right to speedy trial,

             the Court finds the motion to be not well taken and is DENIED [sic].

                    * * * *.

       {¶14} On May 17, 2016, appellant appeared before the trial court and entered

pleas of no contest. The trial court accepted appellant’s pleas and sentenced him to two

consecutive prison terms of 10 months each, for an aggregate term of 20 months.

       {¶15} Appellant now appeals from the judgment entries of conviction and

sentence entered on May 17, 2016.

       {¶16} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶17} “APPELLANT WAS DENIED HIS SPEEDY TRIAL RIGHT.”

                                       ANALYSIS

       {¶18} In his sole assignment of error, appellant argues the instant case should

have been dismissed due to the trial court’s denial of his right to a speedy trial. We

disagree.

       {¶19} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a
Licking County, Case No. 16-CA-41                                                          5


person accused of a crime is a fundamental right made obligatory on the states through

the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 383 N.E.2d 579 (1978);

State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980). Our review of a trial court's

decision regarding a motion to dismiss based upon a violation of the speedy trial

provisions involves a mixed question of law and fact. State v. Larkin, 5th Dist. No.2004–

CA–103, 2005–Ohio–3122, ¶ 11. Due deference must be given to the trial court's findings

of fact if supported by competent, credible evidence. Id. However, we must independently

review whether the trial court properly applied the law to the facts of the case. Id.

Furthermore, when reviewing the legal issues presented in a speedy trial claim, an

appellate court must strictly construe the relevant statutes against the state. Brecksville

v. Cook, 75 Ohio St.3d 53, 57, 1996–Ohio–171, 661 N.E.2d 706.

       {¶20} A person charged with a felony must be brought to trial within 270 days

unless the right to a speedy trial is waived. R.C. 2945.71(D)(2). If a person is held in jail

in lieu of bond, then each day that the suspect is in custody counts as three days. R.C.

2945.71(E). Pursuant to R.C. 2945.73, a person who is not brought to trial within the

proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged”

and further criminal proceedings based on the same conduct are barred. “When reviewing

a speedy-trial issue, an appellate court must calculate the number of days chargeable to

either party and determine whether the appellant was properly brought to trial within the

time limits set forth in R.C. 2945.71.” State v. Riley, 162 Ohio App.3d 730, 2005–Ohio–

4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).

       {¶21} Certain events toll the accumulation of speedy-trial time. R.C. 2945.72

states in pertinent part:
Licking County, Case No. 16-CA-41                                                         6


                     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;

                     * * * *.

                     (H) The period of any continuance granted on the accused's

              own motion, and the period of any reasonable continuance granted

              other than upon the accused's own motion;

                     * * * *.

       {¶22} In the instant case, the relevant date of arrest is January 7, 2016. Pursuant

to R.C. 2945.71(C)(2), appellee had 270 days to try appellant, subject to the triple-count

provision of 2945.71(E) [April 5, 2016] and barring any tolling events.

       {¶23} The record of this case, however, is replete with tolling events, the first of

which is appellant’s discovery demand (January 19, 2016) which tolled time until appellee

responded (February 4, 2016) [16 days, or April 21, 2016]. State v. Counts, 170 Ohio

App.3d 339, 2007–Ohio–117, 867 N.E.2d 432, ¶ 56 (5th Dist.), citing State v. Brown, 98

Ohio St.3d 121, 781 N.E.2d 159, syllabus [“A demand for discovery or a bill of particulars

is a tolling event pursuant to R.C. 2945.72(E)”]; State v. Barcus, 5th Dist. Licking No. 15-

CA-12, 2015-Ohio-2255, ¶ 27.
Licking County, Case No. 16-CA-41                                                           7


       {¶24} The next tolling event occurred on March 23, 2016, when the trial court

issued a judgment entry sua sponte continuing the jury trial to an unspecified date. See,

State v. Cook, 2016-Ohio-2823, 64 N.E.3d 350 (5th Dist.). Pursuant to R.C. 2945.72(H),

any reasonable continuance granted other than upon the accused's own motion may

extend speedy-trial time; here, the trial court noted an older criminal case was tried that

day and the court was unavailable. When sua sponte granting a continuance under R.C.

2945.72(H), the trial court must enter the order of continuance and the reasons therefor

by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for

bringing a defendant to trial. State v. Mincy, 2 Ohio St.3d 6, 441 N.E.2d 571 (1982),

syllabus. The trial court complied with Mincy. See, Cook, supra, 2016-Ohio-2823 at ¶ 79.

       {¶25} On March 31, 2016, the superseding indictment was filed.1 The matter was

scheduled for jury trial on April 21, 2016, which was still within speedy-trial limits. On

April 12, however, appellant filed the “Demand for Testimony of State’s Expert” requiring

appellee’s expert to appear at trial. On April 14, 2016, appellee filed a motion to continue

the jury trial because the B.C.I. forensic scientist was unavailable on April 21, 2016; the

motion was granted by the trial court on April 19, 2016 [tolling time for 7 days] and the

jury trial was set for May 17, 2016 [tolling time for 28 days].

       {¶26} Appellee’s motion to continue was necessary because the absence of the

forensic scientist could have rendered the B.C.I. drug test report inadmissible. See, State

v. Shivers, 5th Dist. Tuscarawas No. 2002AP40029, 2003-Ohio-338.               Continuances

granted on the state's motion will toll the running of speedy trial time if the continuance is



1The filing of the superseding indictment premised upon the same facts as alleged in the
original indictment is counted against the state if the defendant is held in jail. See, State
v. Broughton, 62 Ohio St.3d 253, 259–60, 581 N.E.2d 541 (1991).
Licking County, Case No. 16-CA-41                                                              8

reasonable and necessary under the circumstances of the case. State v. Hersman, 5th

Dist. Licking No. 98 CA 59, 1998 WL 817764, *2, citing State v. Saffell, 35 Ohio St.3d 90,

91, 518 N.E.2d 934 (1988). The record must affirmatively demonstrate that the

continuance was reasonable and necessary. Id. A continuance must be journalized

before the expiration of the time limit specified in R.C. 2945.71. Id., citing State v. King,

70 Ohio St.3d 158, 162, 637 N.E.2d 903 (1994) and Mincy, supra, 2 Ohio St.3d 6 at

syllabus. The reasonableness of a continuance is determined by examining the purpose

and length of the continuance as specified in the record. Id., citing State v. Lee, 48 Ohio

St.2d 208, 210, 357 N.E.2d 1095 (1976). “[I]t is difficult, if not unwise, to establish a per

se rule of what constitutes ‘reasonableness' beyond the ninety-day stricture of R.C.

2945.71. Invariably resolution of such a question depends on the peculiar facts of a

particular case.” Saffell, supra, 35 Ohio St.3d at 91.

       {¶27} In the instant case, the trial court granted appellee’s request for a

continuance because the B.C.I. forensic scientist was unavailable to testify on April 21,

2016. In Saffell, the Ohio Supreme Court held a continuance based on the arresting

officer’s unavailability on the trial date was not unreasonable. Id. at 92. Here, we find the

trial court's decision continue the trial due to the unavailability of the forensic scientist was

reasonable and necessary, and therefore tolled the running of speedy trial time under

R.C. 2945.72(H). We also note the trial court granted appellee’s request for continuance

prior to the expiration of the April 21 deadline. Hersman, supra, 5th Dist. Licking No. 98

CA 59, 1998 WL 817764, *2. The continuance to May 17, 2016 was not unreasonable

under the circumstances.
Licking County, Case No. 16-CA-41                                                         9


       {¶28} We find appellant’s speedy-trial rights were not violated. Appellant further

argues, though, the trial court was required to hold a hearing on his motion to dismiss on

speedy trial grounds.    Appellant speculates that at such a hearing, he could have

established appellee “could have obtained a replacement analyst” to testify to the

contents of the B.C.I. report on the testing of the heroin. We find this argument to be

directly contrary to his own “Demand for Testimony of State’s Expert” of April 12, 2016,

in which he “demand[ed] the testimony of any expert who prepared the report or

testimony of the person signing the report.” (Emphasis added.)

       {¶29} Moreover, as we have observed, “there is no statute, Rule of Criminal

Procedure or case law which requires a trial court to conduct an evidentiary hearing on a

motion to dismiss for want of speedy trial, and a number of courts have found that the trial

court need not hold an evidentiary hearing on a speedy trial motion if the court is able to

determine the issue from the record.” State v. Rucker, 5th Dist. Richland No. 12CA39,

2013-Ohio-2493, ¶ 22, citing State v. Freeman, 8th Dist. No. 85137, 2005–Ohio–3480, ¶

62, reversed on other grounds in In re Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006–Ohio–2109, 847 N.E.2d 1174, citing Whitehall v. Rovnak, 10th Dist.

Franklin No. 92AP–919, 1992 WL 385944 (Dec. 24, 1990); State v. Wilson, 5th Dist.

Holmes No. 323, 1981 WL 6089 (Jan. 22, 1981).

       {¶30} Upon our independent review, we find the trial court's findings of fact in its

decision overruling the motion to dismiss are supported by competent, credible evidence.

Appellant’s sole assignment of error is this overruled.
Licking County, Case No. 16-CA-41                                                  10


                                    CONCLUSION

       {¶31} Appellant’s sole assignment of error is overruled and the judgment of the

Licking County Court of Common Pleas is affirmed.

By: Delaney, P.J. and

Wise, J.

Baldwin, J., concur.
