[Cite as State v. Large, 2015-Ohio-33.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                             :

        Plaintiff-Appellee                                :    C.A. CASE NO.     23947

v.                                                        :    T.C. NO.   09CRB1690

RICKY L. LARGE                                            :     (Criminal appeal from
                                                                 Municipal Court)
        Defendant-Appellant                      :

                                                          :

                                                ..........

                                                OPINION

              Rendered on the             9th        day of   January      , 2015.

                                                ..........

RAYMOND DUNDES, Atty. Reg. No. 0041515, 195 S. Clayton Road, New Lebanon, Ohio
45345
      Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 E. Fifth Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                                ..........

FROELICH, P.J.

        {¶ 1} Ricky L. Large pled no contest to assault, a first-degree misdemeanor, in the

Municipal Court of Montgomery County; a charge of aggravated menacing was dismissed.
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The trial court sentenced Large to 180 days in jail, with credit for 60 days served. Before

Large completed serving his jail sentence, the sentence was stayed pending appeal.

       {¶ 2}     Large appeals from his conviction, claiming that the trial court erred in

failing to dismiss the charges on speedy trial grounds. For the following reasons, the trial

court’s judgment will be vacated.

                                    I. Procedural History

       {¶ 3}    On August 26, 2009, Large reportedly entered, without permission, the home

of his pregnant girlfriend, choked her, and threatened her. That day, Large’s girlfriend

signed complaints for assault and aggravated menacing, both first-degree misdemeanors, but

nothing was filed with the court. On August 27, 2009, a prosecutor approved a felony charge

of aggravated burglary. On September 4, 2009, Large was arrested on a warrant related

only to that felony charge, and he remained in jail while the case was sent to a grand jury.

       {¶ 4}    On September 24, 2009, the grand jury returned a no true bill. (The record

suggests that Large’s girlfriend informed the grand jury that she “might have exaggerated”

the underlying facts of the case.) On September 25, 2009, while still in jail, police officers

notified the jail that Large should not be released because he was going to be charged with

assault and aggravated menacing based on the complaints signed by Large’s girlfriend on

August 26.     The August 26 misdemeanor complaints were filed with the court on

September 28, and Large was formally notified of the charges.

       {¶ 5}    During an October 7, 2009 pretrial conference, defense counsel sought

dismissal of the misdemeanor charges on speedy-trial grounds. Counsel argued that Large

had been incarcerated for thirty-four days since his September 4, 2009 arrest and that the
                                                                                              3

ninety-day speedy-trial time had expired due to the “in jail” triple-count provision of R.C.

2945.71(E). Defense counsel asserted that speedy-trial time began running on September 4,

2009, when Large was arrested on the felony charge, because the subsequent misdemeanor

charges involved the same incident. The trial court overruled the motion, opining that

speedy-trial time did not start to run until September 28, 2009, when Large was notified of

the misdemeanor charges. Large then pled no contest to the assault charge, in exchange for

which the aggravated menacing charge was dismissed. The trial court found him guilty.

       {¶ 6}     Prior to sentencing, Large sought to withdraw his plea, claiming that he did

not admit to choking the complainant, because allegations of choking were not included in

the complaint. A hearing on the motion was scheduled for November 18, 2009. At the

hearing, Large sought to re-raise the speedy trial issue. The trial court granted defense

counsel two weeks to file a written motion, and it continued the hearing on the motion to

withdraw the plea. On January 14, 2010, the trial court denied Large’s written request to

reconsider the speedy-trial issue, and the hearing on the motion to withdraw Large’s plea

was rescheduled for February 10, 2010. On February 10, Large informed the trial court that

he was withdrawing his motion to withdraw his plea, and the trial court proceeded to

sentence Large accordingly.

       {¶ 7}    Large timely appealed, and we appointed counsel. In 2013, we removed

initially-appointed counsel, and the case proceeded with new counsel, who has effectuated

the preparation and filing of a transcript and filed an appellate brief. The State has not filed

a response.

       {¶ 8}    Large’s sole assignment of error states:
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       APPELLANT SHOULD BE DISCHARGED BECAUSE THE TRIAL

       COURT ERRED BY FAILING TO DISCHARGE APPELLANT FOR A

       VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL PURSUANT TO R.C.

       § 2945.71-73.

       {¶ 9}    Large claims that the trial court erred in denying his motion to dismiss on

speedy trial grounds. He states that the misdemeanor charges arose from the same facts as

the original felony charge (aggravated burglary), and thus his speedy trial time began to run

on September 4, 2009, when he was arrested on the felony charge.

       {¶ 10} 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

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.

       {¶ 11}    A defendant can establish a prima facie case for a speedy trial violation by

demonstrating that the trial was held past the time limit set by statute for the crime with

which the defendant is charged.         State v. Gray, 2d Dist. Montgomery No. 20980,

2007-Ohio-4549, ¶ 15. “If the defendant can make this showing, the burden shifts to the

State to establish that some exception[s] applied to toll the time and to make the trial timely.

 If the State does not meet its burden, the defendant must be discharged. R.C. 2945.73.”

(Citation omitted.) Id.

       {¶ 12}    Under R.C. 2945.71(B)(2), a person charged with a misdemeanor of the
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first degree must be brought to trial within 90 days after the person’s arrest or service of

summons. A person charged with a felony must be brought to trial within 270 days of the

person’s arrest. R.C. 2945.71(C)(2). If a person is charged with multiple charges of

different degrees, the speedy trial time is based on the highest degree of the offense charged.

 R.C. 2945.71(D). Each day during which an individual is held in jail in lieu of bail on the

pending charge is counted as three days. R.C. 2945.71(E).

       {¶ 13}     It is undisputed that Large was arrested on September 4, 2009, and charged

with a felony arising out of the incident on August 26, 2009. When the grand jury returned

a no true bill on September 24, Large was then charged by complaint with misdemeanors

arising out of the same August 26 incident. Large was held in jail on the charges from

September 4 until November 4, when he was apparently released and placed on house arrest.

       {¶ 14}    Large argues that his discharge is mandated by the holding of State v.

Adams, 43 Ohio St.3d 67, 538 N.E.2d 1025 (1989). There, the Ohio Supreme Court stated

that, “‘[w]hen new and additional charges arise from the same facts as did the original

charge and the state knew of such facts at the time of the initial indictment, the time within

which trial is to begin on the additional charge is subject to the same statutory limitations

period that is applied to the original charge.’” Adams at 68, quoting State v. Clay, 9 Ohio

App.3d 216, 218, 459 N.E.2d 609 (11th Dist.1983). Consistent with Adams, the supreme

court has further held that, “[i]n issuing a subsequent indictment, the state is not subject to

the speedy-trial timetable of the initial indictment, when additional criminal charges arise

from facts different from the original charges, or the state did not know of these facts at the

time of the initial indictment.” State v. Baker, 78 Ohio St.3d 108, 676 N.E.2d 883 (1997),
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syllabus.

         {¶ 15} In this case, the two new misdemeanor charges arose from the same facts as

the original felony charge, and the facts were known to the State at the time Large was

charged with a felony. Accordingly, Large’s speedy trial time for the misdemeanors began

to run on September 5, 2009, the day after he was arrested on the felony aggravated burglary

charge.1 See, e.g., Oregon v. Kohne, 117 Ohio App.3d 179, 690 N.E.2d 66 (6th Dist.1997)

(holding that the time between the defendant’s bind-over to a grand jury on a felony charge

and the grand jury’s return of a no-bill is chargeable against the speedy-trial deadline for

subsequently-filed misdemeanor charges involving the same incident); State v. Alexander,

4th Dist. Scioto No. 08CA3221, 2009-Ohio-1401, ¶ 18.

         {¶ 16} Moreover, we agree with the Twelfth District that, under the circumstances

before us, R.C. 2945.71(D) does not apply to extend the speedy trial time for the

misdemeanor offenses to 270 days, the speedy trial deadline for the original felony charge.

In State v. Miller, 12th Dist. Warren No. CA2009-01-008, 2009-Ohio-4831, the defendant

was originally charged with felony OVI; misdemeanor charges were added, but they were

dismissed a few days later. The defendant was later indicted on a felony OVI. When it

came to the parties’ attention that the defendant did not have the necessary prior OVI

convictions to warrant a felony charge, the State dismissed the indictment and the defendant

was released. Two weeks later, the defendant was re-charged with misdemeanors. The

Twelfth District held that the defendant’s speedy trial time began to run when she was

             1
                 Large uses September 4, 2009, as the starting date for his speedy trial time. However, the date of arrest is not
   counted as part of the speedy trial time. See, e.g., State v. Wilson, 2d Dist. Montgomery No. 24577, 2012-Ohio-3098, ¶ 10; State
   v. Stewart, 2d Dist. Montgomery No. 21462, 2006-Ohio-4164, ¶ 16.
                                                                                              7

arrested on the felony OVI, and that the speedy-trial time applicable to a felony did not apply

where the felony indictment was dismissed prior to the defendant’s being charged with

misdemeanors involving the same incident.

        {¶ 17} Large’s felony case terminated when the grand jury returned a no true bill.

See Alexander at ¶ 25. He was not released, and new misdemeanor charges arising from the

same incident were filed. Because the misdemeanor charges were instituted after the felony

case terminated, R.C. 2945.71(D) did not operate to apply the 270-day speedy trial time for

the original aggravated burglary charge to the two new misdemeanor charges.

        {¶ 18} From September 5 (the day after Large’s arrest) until October 7, 2009, when

he raised the speedy trial issue with the trial court, Large had been jailed in lieu of bond for

32 calendar days. Counted on a three-to-one basis, Large had been held on the pending

charges for 96 speedy trial days, more than the 90-day limit allowed for first-degree

misdemeanors. Accordingly, we conclude that the trial court erred in denying Large’s

motion to dismiss on speedy trial grounds.

        {¶ 19} Large’s assignment of error is sustained.

        {¶ 20} Large’s conviction for assault will be vacated.

                                            ..........

DONOVAN, J., concurs.

HALL, J., dissenting:

        {¶ 21} On the facts presented, I would hold that the disposition of this case in the

trial court did not violate speedy-trial limits.

        {¶ 22} Appellant Ricky Large was charged by complaint with a felony, one count of
                                                                                                8

aggravated burglary, in the County Court of Montgomery County (Area One) on August 28,

2009. He was arrested on a warrant that had been issued on that felony charge. At that time,

the State had ninety days (270 divided by three) to bring him to trial if he remained in jail

until the trial or plea. Only after the grand jury did not indict were misdemeanor charges

filed. This, to me, is a reasonable and efficient manner to process the case. It doesn’t make

sense to file misdemeanor charges that are encompassed by a felony charge until it is

determined that there will be no indictment for a felony. One then must decide how to apply

speedy-trial limitations.

       {¶ 23} The majority cites State v. Adams, 43 Ohio St. 3d 67, 538 N.E. 2d 1025

(1989), for the proposition that new or additional charges are subject to the same speedy-trial

limitations as the original charge. In Adams, the Ohio Supreme Court adopted the rule

established in State v. Clay, 9 Ohio App. 3d 216, 218, 459 N.E.2d 609 (11th Dist.1983):

“‘[W]hen new and additional charges arise from the same facts as did the original charge and

the state knew of such facts at the time of the initial indictment, the time within which trial is

to begin on the additional charge is subject to the same statutory limitations period that is

applied to the original charge.” Adams at 68, quoting Clay at 218. However, neither of those

cases sheds light on the issue in this case.

       {¶ 24} In Clay, the defendant was arrested and charged with several felonies.

Several months later, the defendant was indicted on additional felony charges related to the

same events. Therefore, all of the charges were governed by the speedy-trial time frame

applicable to felonies, beginning from the date of arrest, which had been exceeded. In

Adams, the defendant was arrested on an OVI charge under R.C. 4511.19(A)(3). He waived
                                                                                                 9

speedy-trial time. Thereafter, that charge was dismissed and he was charged with a violation

of R.C. 4511.19(A)(1). The Adams court held that the speedy-trial waiver for the first charge

did not waive speedy-trial time for the subsequent charge. Therefore, the ninety-day speedy

trial time for the subsequent charge began at arrest on the initial charge and had expired,

requiring dismissal. Because the facts in both Clay and Adams are significantly different

than here, I do not believe either case is dispositive.

       {¶ 25} In my view, the fact pattern here is more akin to State v. Gasnik, 132 Ohio

App.3d 612, 725 N.E.2d 1162 (1st Dist.1998). There the defendant was charged on July 13,

1997 with two counts of failure to confine a dog, fourth-degree misdemeanors, and two

counts of failure to display dog-registration tags, both minor misdemeanors. Under R.C.

2945.71, the fourth-degree misdemeanors were required to be tried in forty-five days and the

minor misdemeanors in thirty days. On August 15, 1997, the State amended the

fourth-degree offenses to minor misdemeanors. On August 29, 1997, the defendant was

found guilty of all charges. Speedy-trial time calculations excluded fourteen days from

August 1, 1997 until August 15, 1997 due to a continuance requested by the defense.

       {¶ 26} On appeal, the defendant in Gasnik argued that thirty-two days of

speedy-trial time elapsed between the filing of the charges and trial. The First District

adopted the following rule: “When an original charge is reduced to a lesser charge that

carries a shorter speedy-trial time limit, the speedy-trial deadline will be the earlier of (1) the

speedy-trial deadline for the original charge, applied from the date of the original charge, or

(2) the speedy-trial deadline for the lesser charge, applied from the date that the original

charge was reduced to the lesser charge.” Id. at 614. Therefore, in Gasnik the speedy-trial
                                                                                            10

time expired at the earlier of forty-five days after the initiation of the fourth-degree

misdemeanor charges or thirty days after reduction of those charges to minor misdemeanors,

excluding the requested continuance. Applying this rule, the First District found no

speedy-trial violation. The rule followed in Gasnik has been applied in similar cases. See

State v. Johnson, 7th Dist. Mahoning No. 12 MA 137, 2014-Ohio-4253, ¶ 93; State v. Clark,

11th Dist. Lake No. 2007-L-139, 2008-Ohio-2760, ¶ 30; State v. Phillips, 19 Ohio App.3d

85, 482 N.E.2d 1337 (10th Dist.1984).

       {¶ 27} I also note that the Gasnik rule accommodates R.C. 2945.71(D), which

states: “A person against whom one or more charges of different degrees, whether felonies,

misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of the

same act or transaction, are pending shall be brought to trial on all of the charges within the

time period required for the highest degree of offense charged, as determined under divisions

(A), (B), and (C) of this section.” Thus, if Large had been charged with the felony and the

misdemeanor charges at arrest, and he had remained in custody, and the felony later had

been dismissed, the time for trial of the misdemeanor charges would have been the earlier of

ninety days from arrest or thirty days from dismissal of the felony, whichever was earlier.

Because it would be whichever is earlier, I do not propose that the 270-day time limit for the

felony applies to the misdemeanor charges if and when the felony is no longer pending.

Here Large’s plea disposition was within both ninety days from arrest and thirty days from

the time when the felony was no longer pending. Accordingly, his statutory speedy-trial

right was not violated.

       {¶ 28} I recognize that there is some case law to the contrary. In State v. Miller,
                                                                                              11

12th Dist. Warren No. CA2009-01-008, 2009-Ohio-4831, ¶ 22, that court held that the

speedy-trial time applicable to a felony cannot be applied where a felony indictment is

dismissed and a defendant then is charged with misdemeanors involving the same incident.

In City of Oregon v. Kohne, 117 Ohio App.3d 179, 690 N.E.2d 66 (6th Dist.1997), that court

held that the time between the defendant’s bind-over to a grand jury on a felony charge and

the grand jury’s return of a no-bill is chargeable against the speedy-trial deadline for

subsequently-filed misdemeanor charges. But I conclude that the Gasnik rule is a better

application of the speedy-trial limitations, preventing unnecessary duplicate filings in

multiple courts and still protecting the timeliness of disposition. Accordingly, I dissent.

                                          ..........



Copies mailed to:

Raymond Dundes
Lori R. Cicero
Hon. James L. Manning
