[Cite as State v. Fisher, 2012-Ohio-6144.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA3292
                               :
     vs.                       :     RELEASED 12/07/12
                               :
JASON D. FISHER,               : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Stephen K. Sesser, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Richard W. Clagg,
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Jason D. Fisher, appeals his conviction of one count of

possession of cocaine by the Ross County Court of Common Pleas. Appellant

asserts the trial court erred when it overruled Appellant’s motion to dismiss the

charge against him on speedy trial grounds. For the reasons which follow, we

agree. Accordingly, we reverse the decision of the trial court and discharge the

Appellant.
Ross App. No. 11CA3292                                                             2


                                         FACTS

         {¶2} On October 16, 2009, Appellant was indicted on one count of

possession of crack cocaine, in violation of R.C. 2925.11(A). The trial court

docket reflects Appellant was served the indictment on March 26, 2010, and

arrested the same day. He was arraigned on March 29, 2010. Appellant was

held on a $50,000.00 cash or real estate bond, which he never posted. The trial

court established a jury trial date of June 8, 2010.

         {¶3} During the pendency of the proceedings, Appellant’s initial counsel

filed a motion to withdraw. When Appellant obtained new counsel, a motion

for leave to file a motion to suppress was filed. In addition, Appellant

subsequently filed: (1) a request for preservation of specimen of substances for

the purposes of independent analysis by a defense expert, and (2) a motion for

production of laboratory data for the purposes of independent review.

         {¶4} Likewise, the State of Ohio also filed various motions throughout

2010 and 2011. The State filed a motion to compel. The State also filed five

motions to continue the jury trial date. Four of the motions to continue were

based upon the unavailability of the State’s key witnesses. The fifth motion to

continue was based upon the unavailability of the assistant prosecuting

attorney. Eventually, a trial date of June 15, 2011 was established by the trial

court.
Ross App. No. 11CA3292                                                                3


       {¶5} On May 19, 2011, Appellant filed a motion to dismiss for the

State’s failure to bring him to trial within the statutory speedy trial time limits

set forth in R.C. 2945.71. The trial court vacated the June trial date and set the

motion to dismiss for hearing on July 5, 2011. The motion to dismiss was

denied at the hearing. The court rescheduled trial for September 7 and 8, 2011.

       {¶6} The jury trial commenced on September 7, 2011. On September 8,

2011, the duly empaneled jury found Appellant guilty as charged. Appellant

was sentenced on September 29, 2011. This appeal ensued.

                              ASSIGNMENT OF ERROR

       I. THE TRIAL COURT ERRED IN OVERRULING FISHER’S
       MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.

                               LEGAL ANALYSIS

       {¶7} In his sole assignment of error, Appellant asserts that he was

entitled to a dismissal of the charge against him, based on failure to try him in

accordance within the statutory speedy trial time limit. Specifically, Appellant

argues that his right to speedy trial was violated because the State of Ohio

repeatedly filed motions to continue his trial, based on unavailability of

witnesses and unavailability of an assistant prosecutor. Appellant contends that

the State’s requests were not reasonable or supported by the record. Appellee

has responded that it used due diligence in attempting to secure its witnesses
Ross App. No. 11CA3292                                                               4


for trial and that Appellant fails to recognize his own actions in causing initial

delays in bringing the case to trial.

                           STANDARD OF REVIEW

       {¶8} We begin by noting that appellate 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. See, e.g., State v.

Horsley, 4th Dist. No. 10CA3152, 2011-Ohio-1355, 2011 WL 1025113, at ¶9;

State v. Skinner, 4th Dist. No. 06CA2931, 2007-Ohio-6320, 2007 WL

4200591, at ¶9. We accord due deference to the trial court’s findings of fact if

supported by competent credible evidence. However, we independently review

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

e.g., State v. Woltz, 4th Dist. No. 93CA1980, 1994 WL655905. Furthermore,

when reviewing the legal issues presented in a speedy trial claim, we must

strictly construe the relevant statutes against the state. Skinner, at ¶8;

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

State v. Miller, 113 Ohio App.3d 606, 608, 681 N.E.2d 90 (1996); State v.

Cloud, 122 Ohio App.3d 626, 702 N.E.2d 500 (1997).

                  STATUTORY RIGHT TO SPEEDY TRIAL

       {¶9} Ohio recognizes both a constitutional and statutory right to a

speedy trial. State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-1401,

2009 WL 795212, at ¶15. See e.g. State v. King, 70 Ohio St.3d 158, 1994-
Ross App. No. 11CA3292                                                              5


Ohio-412,637 N.E.2d 903, syllabus. R.C. 2945.71 embodies the statutory right

and states “a person against whom a charge of felony is pending shall be

brought to trial within two hundred seventy (270) days after his arrest.” R.C.

2945.71(C)(2). Section 10, Article I of the Ohio Constitution and the Sixth

Amendment to the United States Constitution embody the constitutional right

to a speedy trial. Alexander, at ¶15, citing State v. Selvage, 80 Ohio St.3d 465,

466, 1997-Ohio-287, 687 N.E.2d 433. See, also, Klopfer v. North Carolina,

386 U.S. 213, 223, 87 S.Ct. 988 (1967) (applying the Sixth Amendment to the

states through application of the Fourteenth Amendment).

      {¶10} Under R.C. 2945.71(E), each day that a defendant is incarcerated

in lieu of bond on the pending charge counts as three days. State v. Toler, 4th

Dist. No. 09CA3 101, 2009-Ohio-6669, 2009 WL 4863350, at ¶17.

      {¶11} An accused presents a prima facie case for discharge by

demonstrating his case was pending for a time exceeding the statutory limits

provided in R.C. 2945.71. Id.; State v. Butcher, 27 Ohio St.3d 28, 30-31, 500

N.E.2d (1986). The burden then shifts to the state to produce evidence

demonstrating that the accused was not entitled to be brought to trial within the

two hundred seventy (270) day period. State v. Chambers, 4th Dist. No.

10CA12, 2011-Ohio-1055, 2011 WL 809571, at ¶11, citing State v. Baker, 92

Ohio App.3d 516, 525, 636 N.E.2d 363 (1993).
Ross App. No. 11CA3292                                                             6


      {¶12} R.C. 2945.72 sets forth the circumstances under which the two

hundred seventy (270) day period may be extended. The running of the

speedy-trial clock may be temporarily stopped, or tolled, only for reasons listed

in R.C. 2945.72, which states in pertinent part:

“[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:***(D) Any period of delay occasioned by the neglect or improper
act of the accused; (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***.” R.C. 2945.72 (D), (E), and (H). State v. King,
3rd Dist. No. 16-11-07, 2012-Ohio-1281, 2012 WL 1029454, at ¶33.

      {¶13} These tolling events “do not unconditionally extend the time limit

in which an accused must be brought to trial, but, rather, this limit is ‘merely

extended by the time necessary in light of the reason for the delay.’” State v.

Arrizola, 79 Ohio App.3d 72, 75, 606 N.E.2d 1020, (3rd Dist.1992), quoting

Committee Comment to H.B. 511. “In reviewing a speedy-trial issue, a court is

required to count the days of delay chargeable to either side and determine

whether the case was tried within applicable time limits.” State v. Sanchez, 110

Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶8.

      {¶14} When computing any period of time prescribed by an applicable

statute, the date of the act or event from which the period begins to run is not

included. Alexander, at ¶18, citing State v. Saffin, 4th Dist. No. 07CA2967,

2008-Ohio-338, ¶9; R.C.1.14; Crim R.45(A). Time is calculated to run the day
Ross App. No. 11CA3292                                                              7


after the date of arrest. State v. Miller, 9th Dist. Nos. 10CA009922,

10CA009915, 2012-Ohio-1263, 2012 WL 1020239, at ¶9, quoting State v.

Brownard, 9th Dist. No. 06CA009053, 2007-Ohio-4342, 2007 WL 2409752, at

¶12. Additionally, we do not include the date a motion was filed when

calculating speedy trial time, unless that date also was the date the court entered

an order resolving the motion. See e.g., Toler, at ¶19. See also Staffin, at ¶9,

fn. 1.

         {¶15} Before we calculate the speedy trial time, we begin with a

summary of the relevant dates and events:

         October 16, 2009                       Indictment by Ross County
                                                Grand Jury.

         March 26, 2010                         Indictment served; Appellant
                                                arrested.

         March 29, 2010                         Appellant arraigned.

         April 1, 2010                          Court’s pretrial order;
                                                jury trial June 8, 2010.

         April 2, 2010                          Appellant’s initial counsel files
                                                motion to withdraw.

         April 29, 2010                         Appellant’s new counsel files
                                                notice of appearance. 27 days
                                                have elapsed between the
                                                filing of the motion to
                                                withdraw and the notice of
                                                new counsel.

         June 4, 2010                           Appellant’s counsel files
                                                motion for leave to file motion
Ross App. No. 11CA3292                                        8


                           to suppress.

      August 20, 2010      Suppression hearing date. 77
                           days have elapsed between the
                           suppression filing and hearing
                           dates.

      August 26, 2010      State files motion to compel.

      August 30, 2010      State files 1st motion to
                           continue jury trial date of
                           September 2, 2010, based on
                           unavailability of Mary Cisco.
                           9 days have elapsed between
                           resolution of the suppression
                           motion and the State’s 1st
                           motion to continue.

      September 1, 2010    Court grant’s State’s motion
                           to continue; new jury trial date
                           set for December 6, 2010.

      September 9, 2010    Appellant’s request for
                           preservation of specimen of
                           substances for purposes of
                           independent analysis.

      September 17, 2010   Court sustains State’s motion
                           to compel.

      October 25, 2010     Court grants Appellant’s
                           request for preservation.

      December 2, 2010     State files 2nd motion to
                           continue jury trial date of
                           December 6, 2010 based on
                           unavailability of Jeffrey
                           Turneau. 94 days have
                           elapsed between the filing of
                           the States 1st and 2nd motions
                           to continue trial.
Ross App. No. 11CA3292                                        9



      December 15, 2010   Court grants State’s 2nd
                          motion to continue; trial
                          rescheduled to January 24,
                          2011.

      December 21, 2010   Appellant files motion for
                          production of laboratory data
                          for purposes of independent
                          review; court grants motion.

      January 20, 2011    State files 3rd motion to
                          continue trial based on
                          unavailability of Trooper
                          Mikesh. 47 days have elapsed
                          between the filing of the State’s
                          2nd and 3rd motions to
                          continue trial.

      January 21, 2011    Court grants motion to
                          continue; sets new trial date
                          of April 20, 2011.

      April 1, 2011       State files 4th motion to
                          continue trial based on the
                          unavailability of Jeffrey
                          Turneau; 71 days have elapsed
                          between the filing of the 3rd
                          4th State’s motions to continue.

      April 12, 2011      Court grants State’s motion;
                          sets new trial date of May 19,
                          2011.

      May 11, 2011        State files 5th motion to
                          continue based on
                          unavailability of the
                          assistant prosecuting attorney.
                          40 days have elapsed between
                          the filing of the State’s 4th
                          and 5th motions to continue.
Ross App. No. 11CA3292                                                             10



       May 18, 2011                             Court grants motion; sets new
                                                trial date of June 15, 2011.

       May 19, 2011                             Appellant files motion to
                                                dismiss based on speedy trial
                                                grounds; court sets hearing on
                                                motion for July 5, 2011. 8 days
                                                elapse between the 5th motion
                                                to continue and Appellant’s
                                                motion to dismiss.

       July 5, 2011                             Court denies Appellant’s
                                                motion to dismiss in open
                                                court; entry denying motion
                                                filed July 22, 2011; new trial
                                                set for September 7, 2011.
                                                47 days elapse between the
                                                filing of Appellant’s motion to
                                                dismiss and the court’s ruling.

       {¶16} Here, Appellant was arrested on March 26, 2010. The speedy trial

count begins one day later on March 27, 2010. Appellant never posted bond

and was held in jail on the single charge. Pursuant to the triple-count rule of

R.C. 2945.71(E), he had to be brought to trial in ninety (90) days, i.e. by June

24, 2010. As previously noted, Appellant was not brought to trial until

September 7, 2011, five hundred and thirty (530) days after his arrest.

Consequently, Appellant has made a prima facie showing that his speedy trial

rights were violated by four hundred and forty (440) days. We turn next to

analysis of the reasonableness and necessity of the continuances requested by

the State.
Ross App. No. 11CA3292                                                            11


       {¶17} Pursuant to R.C. 2945.72(H), the time within which an accused

must be brought to trial is extended by “[t]he 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.” State v. Carmon, 10th

Dist. No. 11AP-818, 2012-Ohio-1615, 2012 WL 1247173, at ¶16.

       {¶18} It is permissible for a trial court to grant the state a continuance of

a trial date beyond the statutory speedy trial time limit if the continuance is

reasonable and necessary under the circumstances. State v. Baker,12th Dist.

No. CA2005-05-017, 2006-Ohio-2516, 2006 WL 1381698, at ¶33, citing State

v. Saffell, 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988); Aurora v. Patrick, 61

Ohio St.2d 107, 109, 399 N.E.2d 1220 (1980). In these circumstances, the

concept of “reasonable” must be strictly construed against the state. State v.

Stamps, 127 Ohio App.3d 219, 224, 712 N.E.2d 762 (1998), fn. 5. If the

continuance is not reasonable, the continuance must be charged against the

state for speedy trial purposes. Id., at *225. “To evidence reasonable, [a

continuance] must be supported by an explanation.” Id. “[A] trial court must

journalize the continuance before the expiration of the time limit set forth in

R.C. 2945.71 and must state the reason for the continuance.” Id.

       The State’s First Continuance

       {¶19} August 30, 2010 was the State’s first motion for continuance. In

its motion, the State advised that Mary Cisco was unavailable for trial. The
Ross App. No. 11CA3292                                                           12


State considered Ms. Cisco an essential witness because she had analyzed the

DNA which would prove ownership of the drugs at issue. The reason for

unavailability was “due to a pre-planned trip out of town. Further, she has a

previously issued subpoena to appear for trial in Butler County.” The record

reflects that on August 23, 2010, the State issued its subpoenas for necessary

witnesses to appear at trial on September 2, 2010. In its journal entry dated

September 1, 2010, the trial court found that the motion was well-taken and

reasonable as Cisco was a necessary state’s witness. The entry further noted

that the speedy trial provisions of 2945.71 were tolled pursuant to R.C.

2945.72(H). The trial was continued to December 6, 2010. This was the first

continuance sought by the State and was based upon the unavailability of a key

witness. Consequently, we consider the trial court’s decision to continue this

matter to have been reasonable and necessary under the circumstances. As a

result of this continuance, the trial date was extended to December 6, 2010.

During this time, ninety-eight (98) days would have elapsed, however, the State

sought a second continuance on December 2, 2010 and thus, ninety-four (94)

days actually elapsed.

      The State’s Second Continuance

      {¶20} The record reflects that subpoenas were issued to the State’s

necessary witnesses for the December 6th trial date on November 16, 2010.

The State’s second request to continue trial was made on December 2, 2010.
Ross App. No. 11CA3292                                                            13


This motion stated that another essential witness, Jeffrey Turneau, was

unavailable to appear at trial on December 6th because of a previously issued

subpoena to appear in Licking County. The motion informed Mr. Turneau was

necessary because he analyzed the drugs in question and was a witness for the

chain of custody of DNA swabs used.

       {¶21} The trial court granted the State’s motion, and the entry was

journalized on December 15, 2010. The court found the motion was well -

taken, the State’s witness was “necessary,” and the reason for continuance

reasonable. The trial was continued to January 24, 2011. The trial court also

noted that speedy trial provision was tolled pursuant to R.C. 2945.72(H). We

believe the State acted diligently in obtaining attendance of its witnesses for

trial. We also find the trial court properly journalized its decision and that the

continuance was reasonable under the circumstances. During this time, fifty-

one (51) days would have elapsed. However, the State requested a third

continuance on January 20, 2011. Thus forty-seven (47) days actually elapsed.

       The State’s Third Continuance

       {¶22} The State issued subpoenas for attendance at the third scheduled

trial date, January 24, 2011, on December 22, 2010. The State filed its third

motion to continue trial on January 20, 2011. The reason for this motion was

the unavailability of Trooper Teresa Mikesh, a canine handler who performed a

search of Appellant’s vehicle and acted as the arresting officer. It was advised
Ross App. No. 11CA3292                                                           14


that Trooper Mikesh would be unavailable due to mandatory canine training.

On January 21, 2011, the trial court journalized its grant of the motion for

continuance, finding that Trooper Mikesh was necessary and the request was

reasonable. The court further noted that the speedy trial provisions of

2945.72(H) were tolled. The trial was continued to April 20, 2011. Again, we

find no impropriety with the journal entry or the reason for continuance. During

this time, ninety (90) days would have elapsed. However, on April 1, 2011, the

State requested a fourth continuance, and thus, seventy-one (71) days actually

elapsed.

      The State’s Fourth Continuance

      {¶23} The State’s fourth request for continuance was based upon, again,

the unavailability of Jeffrey Turneau. The State’s subpoenas for the pertinent

witnesses was filed March 16, 2011. The motion, filed April 1, 2011, stated

that Turneau was unavailable due to a previously issued subpoena for his

attendance in Knox County and, as previously noted, his necessity as a State’s

witness to prove chain of custody. On April 12, 2011, the trial court

journalized its entry of continuance again noting that the request was

reasonable as Turneau was a necessary state’s witness. The entry also stated

speedy trial provisions were tolled pursuant to R.C. 2945.72(H). The jury trial

was continued to May 19, 2011. During this time, forty-eight (48) days would

have elapsed. However, on May 11, 2011, the State requested its fifth and final
Ross App. No. 11CA3292                                                             15


continuance so only forty (40) days actually elapsed. We also find this

continuance to be necessary and reasonable in light of the circumstances.

      The State’s Fifth Continuance

      {¶24} On May 6, 2011, a subpoena was issued for the necessary state

witnesses. The State then filed a motion to continue trial on May 11, 2011,

based on the unavailability of the prosecutor due to a pre-planned vacation, his

honeymoon. Defense counsel was notified of the request for continuance. The

trial court’s entry of May 18, 2011, states that for good cause shown, the trial

was continued to June 15, 2011, and that the speedy trial provisions were tolled

pursuant to R.C. 2945.72. On May 19, 2011, the State issued its subpoena for

the necessary witnesses to appear at the June trial date.

      {¶25} Appellant asserts the State’s fifth request was not reasonable

because the assistant prosecutor had just been assigned the case in April or May

and the previous prosecutor had a fuller and more comprehensive knowledge of

the case, having been assigned it for the previous year or so. Thirty-five (35)

days would have elapsed between the fifth continuance request and the June

15th trial date. However, on May 19, 2011, Appellant filed his motion to

dismiss based on speedy trial grounds. Actually only eight (8) days elapsed.

      {¶26} Throughout these proceedings, we perceive no lack of due

diligence on the part of the State in securing its witnesses. We also find that

the continuances requested were reasonable and supported by a properly
Ross App. No. 11CA3292                                                           16


journalized record. We find the number of tolled days due to the State’s

requests for continuances totaled two hundred and sixty (260) days. Subtracting

two hundred and sixty (260) from the four hundred and forty (440) days of

overage, there remains one hundred and eighty (180) days of overage. We turn

next to consideration of delays caused by Appellant.

      Appellant’s Attorney’s Motion to Withdraw

      {¶27} On April 2, 2010, Appellant’s initial counsel filed a leave to

withdraw as attorney. On April 29, 2010, Appellant’s current counsel filed a

notice of representation. R.C. 2945.72 (C) provides that time for trial may be

extended in the circumstance wherein an accused is without counsel as follows:

“Any period of delay necessitated by the accused’s lack of counsel, provided

that such delay is not occasioned by any lack of diligence in providing counsel

to an indigent accused upon his request as required by law….” In this matter,

Appellant’s first attorney filed a motion to withdraw due to possible conflict

because he had previously represented Appellant’s co-defendant. The record

does not reflect that this motion was ruled on; however, new counsel eventually

filed a notice of appearance. The motion to withdraw constituted a tolling event

of twenty-seven (27) days, chargeable against Appellant. This time did not

overlap with any continuance granted to Appellee.

      Appellant’s Motion to Suppress
Ross App. No. 11CA3292                                                                                   17


        {¶28} A defendant’s motion for discovery or for a bill of particulars tolls

the speedy trial clock. See e.g., State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-

7040, 781 N.E.2d 159, syllabus. Additionally, a defense motion tolls the time,

for a reasonable time, even if the trial date is not rescheduled. Toler, at ¶20.

See, State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio- 4478, 853 N.E.2d

283,¶25-26. Courts also recognize that a motion to disclose the identity of a

confidential informant tolls the speedy trial clock. Toler, ¶20. See, e.g., State

v. Nelson,12th Dist. No. CA2007-11-046, 2009-Ohio-555, 2009 WL 295400, at

¶10. A motion to suppress was deemed to have contributed to delay, pursuant

to R.C. 2945.72 (E) in State v. Myers, 97 Ohio St. 3d 335, 780 N.E.2d 186

(2002), at ¶44.

          {¶29} In this matter, Appellant’s case was initially assigned to trial on

June 8, 2010. The trial assignment was made by entry dated April 30, 2010.

On May 20, 2010, the State issued subpoenas for its various witnesses to

appear on June 6, 2010.1 Appellant filed a motion for leave to file a motion to

suppress on June 4, 2010. Although there is no entry vacating the June 8th trial

date, there is an entry dated June 14, 2010, setting the suppression for hearing

on August 20, 2010. Pursuant to R.C. 2945.72(E), the suppression motion

constitutes a tolling event of seventy-seven (77) days between the June 4th

filing and the August 20th resolution of the motion. This time does not overlap

1
 An apparently corrected subpoena was issued on May 24, 2010 for the same witnesses to appear at trial
on June 8, 2010.
Ross App. No. 11CA3292                                                             18


with the first continuance requested by the State of Ohio. The new trial date

was scheduled pursuant to a scheduling order filed by the court on August 20,

2010, presumably after the conclusion of the suppression hearing. This time is

also chargeable against Appellant.

      Appellant’s Motion to Dismiss

      {¶30} Appellant filed his motion to dismiss and the June trial date was

vacated. The motion set for hearing on July 5, 2011. On July 5th, the motion

was overruled and trial rescheduled for September 6, 2011. During the time

between the filing of the motion to dismiss and the court’s ruling on it, forty-

seven (47) days elapsed. These days are chargeable against Appellant.

      {¶31} The total number of days for delays chargeable against Appellant

is one hundred and fifty-one (151). After subtracting one hundred and fifty-one

(151) days from one hundred and eighty (180) days, the remaining amount of

overage after analysis of the continuances requested by Appellee, there

remained twenty-nine (29) days. For further purposes of clarity, we now

consider miscellaneous remaining events which transpired during these

proceedings.

      The State’s Motion to Compel

      {¶32} A defendant’s failure to respond within a reasonable time to a

prosecution’s request for reciprocal discovery constitutes neglect that tolls the

running of speedy-trial time pursuant to R.C. 2945.72(D). King, supra at 38,
Ross App. No. 11CA3292                                                          19


citing State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, ¶24. Here, The

speedy trial clock had begun running again on August 20, 2010, after resolution

of the motion to suppress. Then, the State filed its motion to compel on August

26, 2010. The speedy trial clock tolled again on August 30, 2010, when the

State filed its first motion to continue. On September 17, 2010, the court

granted the State’s motion to compel. Discovery was not provided until

November 2, 2010. However, this time would run concurrent or overlap with

the time already granted on the State’s first continuance of trial until December

6, 2010, except for the nine (9) days between August 20, 2010 and August 30,

2010. This number of days would reduce the remaining overage from twenty-

nine (29) days to twenty (20) days.

      Appellant’s request for preservation of substances for the purpose of
independent analysis

      {¶33} On September 9, 2010, Appellant filed the above request. We

construe the request for preservation of substances and the supplemental

request for discovery as another tolling event. See State v. Miller, 9th Dist. No.

10CA009922, 10CA009915, 2012-Ohio-1263, 2012 WL 1020239, at ¶13,

(appellate court held that defense counsel’s request to continue trial for

purposes of obtaining and expert report from accident reconstructionist was

held to be tolling event.) The trial court granted Appellant’s request for

preservation on October 25, 2010. During this time, forty-six (46) days
Ross App. No. 11CA3292                                                             20


elapsed. However, this time also coincides with the time previously granted as

the State’s first continuance. Therefore, the time overlaps and does not add

additional time for speedy trial purposes of the State.

      Appellant’s motion for production of laboratory data for purposes of
independent review.

      {¶34} Appellant also filed a motion for production of laboratory data for

purposes of independent review on December 21, 2010. The motion was

granted on the same date. However, at this point, the trial court had granted the

State’s second request for continuance and trial was currently scheduled for

January 24, 2011. Therefore, the one (1) day which would have been

chargeable against Appellee was encompassed in the continuance period.

      {¶35} In the case sub judice, Appellant was held in jail on one charge

and should have been brought to trial within ninety (90) days. He was arrested

on March 27, 2010, and did not go to trial until September 7, 2011. He was

originally scheduled for trial on June 8, 2010, but he filed a motion to suppress

which tolled time initially. In sum, five hundred thirty (530) days elapsed from

the date of Appellant’s arrest until he was brought to trial. Subtracting ninety

(90) days from five hundred and thirty (530) leaves a total of four hundred and

forty (440) days. Of those remaining four hundred and forty (440) days of

overage, Appellant’s trial dates were continued at the State’s request for a total

of two hundred and sixty (260) days. These continuances were reasonable,
Ross App. No. 11CA3292                                                            21


necessary, and properly journalized. Delays were also occasioned at the

request of the Appellant for another one hundred and fifty-one (151) days. The

speedy trial clock was also running for nine (9) days between the resolution of

the suppression motion on August 20, 2010 and the filing of the State’s first

motion to continue on August 30, 2010. We summarize as follows:

      530 days                          The total number of days Appellant
                                        awaited trial.

       90                               Speedy trial time.

      440 days                          Overage

      260 days                          Attributed to continuance sought by
                                        the State and granted by the court.

      151 days                          Attributed to delays occasioned by
                                        the Appellant.

         9 days                         Span of time between resolution of
                                        Appellant’s motion to suppress and
                                        filing of the State’s first motion to
                                        continue.

      {¶36} We add the two hundred and sixty days (260) days attributed to

the State’s continuances, the one hundred and fifty-one (151) days attributed to

Appellant’s delays, and the nine (9) miscellaneous days for a total of four

hundred and twenty (420) days. Subtracting four hundred and twenty (420)

days from five hundred and thirty (530) days, (the time Appellant awaited

trial,) we are left with a surplus of one hundred and ten (110) days. Thus, for

statutory speedy trial purposes, Appellant was brought to trial in one hundred
Ross App. No. 11CA3292                                                        22


and ten (110) days, outside of the 90-day triple-count provision of R.C.

2945.71’s time limitation. Appellant’s speedy trial rights were violated by

twenty (20) days. Accordingly, we sustain the assignment of error, reverse the

trial court’s judgment, and order that Appellant be discharged.

                                               JUDGMENT REVERSED

Harsha, J. Concurring.

      {¶37} I do not agree that granting five continuances for the state to

secure its witness and a trial attorney was reasonable. Thus, I concur in

Judgment Only.
Ross App. No. 11CA3292                                                      23



                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED and that the
Appellant recover of 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 Ross County Common Pleas 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.
Exceptions.

Harsha, J.: Concurs in Judgment Only with Opinion.
Abele, P.J.: Dissents.


                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge


                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
