[Cite as Cleveland v. Smerglia, 2020-Ohio-3181.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

CITY OF CLEVELAND,                                 :

                Plaintiff-Appellee,                :
                                                             No. 108745
                v.                                 :

NICHOLAS SMERGLIA,                                 :

                Defendant-Appellant.               :



                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: June 4, 2020


                     Criminal Appeal from the Cleveland Municipal Court
                                Case No. 2018-CRB-017653


                                            Appearances:

                Barbara A. Langhenry, Cleveland Director of Law, and
                Nicholas Kolar, Assistant Director of Law, and Karrie
                Howard, Chief Prosecutor, for appellee.

                Mike Heller Law Firm, and Michael A. Heller, for
                appellant.


ANITA LASTER MAYS, J.:

                   Plaintiff-appellant Nicholas Smerglia (“Smerglia”) appeals his

conviction for negligent assault. We affirm the trial court’s judgment.
I.   Facts and Background

                On September 9, 2018, Smerglia was at the Jack Casino in Cleveland

when he allegedly touched the buttocks of female patron J.M. Smerglia defended

that his arm accidentally brushed against the area in passing. The incident was

recorded on surveillance video. Smerglia was apprehended by sheriff deputies,

questioned and subsequently barred from the Casino.

                On October 2, 2018, Smerglia was charged with sexual imposition

under R.C. 2907.06. Defense counsel withdrew and the case was continued to allow

Smerglia to obtain new counsel who appeared on January 11, 2019. On February 12,

2019, the trial court denied Smerglia’s pretrial motion to dismiss for speedy trial.

Smerglia was convicted on February 12, 2019, and subsequently registered as a Tier

One sex offender.

                Smerglia’s motion to vacate the verdict and for a new trial was granted

on March 11, 2019. The case was reassigned and after several pretrials, on May 30,

2019, Smerglia pleaded guilty to the amended charge of negligent assault under

R.C. 2903.14.

                The instant appeal ensued.

II. Assignments of Error

                Smerglia assigns four errors on appeal:

      I. The trial court erred in denying defendant’s motion to dismiss for a
      speedy trial violation.

      II. The trial court erred and abused its discretion in sentencing
      defendant as though he was convicted of the underlying (charged)
      offense, not the charge that he actually pleaded to, resulting in a
      sentence that is        arbitrary,   unlawful,    unreasonable     and/or
      unconscionable.

      III. The court erred and abused its discretion in preventing defense
      counsel from a full opportunity to assert arguments and/or objections
      on defendant’s behalf and in failing to hear or consider mitigating
      circumstances in denial of defendant’s Sixth Amendment rights.

      IV. The trial court failed to properly consider applicable statutory
      misdemeanor sentencing statutes (including but not limited to
      R.C. 2929.21 and 2929.22) and procedures (including but not limited
      to, Crim.R. 32) and/or was otherwise unlawful (including but not
      limited to, violation of defendant’s due process rights and right to
      counsel).

III. Discussion

      A.    Speedy Trial Violation

           1.    Standard of Review

                Under Ohio’s speedy trial statutes, a trial court shall discharge a

defendant if the trial court and prosecution fail to bring the defendant to trial within

the time required by R.C. 2945.71 and 2945.72. See R.C. 2945.73(B). The Ohio

Supreme Court has “imposed upon the prosecution and the trial courts the

mandatory duty of complying with” the speedy trial statutes. State v. Singer, 50

Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977). Thus, courts must strictly construe the

speedy trial statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661

N.E.2d 706 (1996), citing State v. Madden, 10th Dist. Franklin No. 04AP-1228,

2005-Ohio-4281, ¶ 25.

                Once the statutory time limit has expired, the defendant has

established a prima facie case for dismissal. State v. Howard, 79 Ohio App.3d 705,

707, 607 N.E.2d 1121 (8th Dist.1992). At that point, the burden shifts to the state to
demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. State v.

Geraldo, 13 Ohio App.3d 27, 28, 468 N.E.2d 328 (6th Dist.1983). State v. Greene,

8th Dist. Cuyahoga No. 91104, 2009-Ohio-850, ¶ 24.

      Our review of a challenge of a constitutional speedy trial violation often
      raises a mixed question of law and fact. State v. Barnes, 8th Dist.
      Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 19. We apply a de novo
      review to the legal issues, but afford great deference to any factual
      findings made by the trial court. Id.

State v. Cochern, 8th Dist. Cuyahoga No. 104960, 2018-Ohio-265, ¶ 47.

                Thus, the proper methodology “in speedy trial cases is to simply count

the number of days passed, while determining to which party the time is chargeable,

as directed in R.C. 2945.71 and 2945.72.” In re F. S., 10th Dist. Franklin No. 11AP-

244, 2011-Ohio-6135, ¶ 7, citing State v. Gonzalez, 10th Dist. Franklin No. 08AP-

716, 2009- Ohio-3236, ¶ 9.

                We note that the only transcript submitted to this court is the

sentencing transcript. We also note that a transcript of proceedings for the speedy

trial motion has not been provided. Without the filing of a transcript, an appellate

court presumes regularity in the proceedings and accepts the factual findings of the

trial court as true. Bailey v. Bailey, 8th Dist. Cuyahoga No. 98173, 2012-Ohio-5073

¶ 8, citing Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-965,

2012- Ohio-1665, ¶ 8. Our review is limited to the legal conclusions of the trial court.

Id.

           2.     Discussion

                 Sexual imposition is a third-degree misdemeanor.
      (A) No person shall have sexual contact with another, not the spouse of
      the offender; cause another, not the spouse of the offender, to have
      sexual contact with the offender; or cause two or more other persons to
      have sexual contact when any of the following applies:

      (1) The offender knows that the sexual contact is offensive to the other
      person, or one of the other persons, or is reckless in that regard.

      ***

      (B) No person shall be convicted of a violation of this section solely
      upon the victim’s testimony unsupported by other evidence.

      (C) Whoever violates this section is guilty of sexual imposition, a
      misdemeanor of the third degree.

R.C. 2907.06.

                “‘The Sixth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution guarantee a criminal defendant the

right to a speedy trial.’” State v. Wilson, 8th Dist. Cuyahoga No. 107926, 2019-Ohio-

2741, ¶ 10, quoting State v. Harvey, 7th Dist. Mahoning No. 17 MA 0023, 2018-

Ohio-2777.

                In Ohio, “‘[t]his guarantee is implemented in R.C. 2945.71, which

provides the specific time limits within which a person must be brought to trial.’”

Wilson, quoting Harvey, citing State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-

1823, 887 N.E.2d 319, ¶ 10.

                R.C. 2945.71(B)(1), provides:

      (B) 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:

      (1) Within forty-five days after the person’s arrest or the service of
      summons, if the offense charged is a misdemeanor of the third or
      fourth degree, or other misdemeanor for which the maximum penalty
      is imprisonment for not more than sixty days.

               R.C. 2945.72 provides the tolling provisions for speedy trial

computation. “However * * * those extensions must be strictly construed against

the state.” State v. Williams, 8th Dist. Cuyahoga No. 107748, 2020-Ohio-378, ¶ 11,

citing State v. Sanders, 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524.

R.C. 2945.72 provides in relevant 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:

      ***

      (C) 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;

      ***

      (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(C), (E), and (H).

              The complaint was filed October 2, 2018. Smerglia received the

summons on October 6, 2018. The case was continued to October 17, 2018, for

pretrial, and continued again to November 7, 2018. Smerglia argues that the 45-day
period expired on November 21, 2018. Smerglia admits that the time was tolled

from the December 3, 2018 emergency and limited appearance motion filed by

counsel to inform the court that defense counsel had resigned from the practice of

law on November 21, 2018, and could not represent Smerglia at the scheduled

December 5, 2018 hearing and requested a continuance. The new pretrial date was

set for January 14, 2019. On December 11, 2018, Smerglia was served with a new

summons and agrees that the speedy trial clock recommenced. On January 11, 2019,

new defense counsel entered an appearance and states that the defense was ready to

proceed on the January 14, 2019. At pretrial, the trial court set the new trial date for

February 12, 2019. On February 8, 2019, defense counsel filed a motion to dismiss

and on February 11, filed an amend motion to dismiss for speedy trial. The trial

court dismissed both motions and trial commenced on February 12, 2019. Smerglia

calculates that 120 days accrued for speedy trial purposes after receipt of the initial

summons.

               The city arrived at a combined total of 136 days, and counters that

R.C. 2945.72(C), (E), and (H) tolled the statute for 91 days and counts only 45 days

against the city. According to the city: (1) 24 days were tolled as the result of

Smerglia’s October 23, 2018 motion for discovery; (2) 19 days were tolled beginning

November 15, 2018, due to defense counsel’s resignation from law practice; (3) 40

days were tolled effective December 3, 2018, when the emergency motion and

limited appearance of counsel was filed to advise of defense counsel’s resignation

and requested a continuance; (4) three days were tolled from new counsel’s
appearance until Smerglia moved to request a trial on January 14, 2019; and (5) five

days were tolled by Smerglia’s February 8, 2019 motion to dismiss the case. The city

calculates that 91 days were tolled and 45 days accrued for speedy trial purposes.

                We conduct a de novo review of the docket to compile a speedy trial

calculation. Smerglia was served with a summons on October 6, 2018, and was

found guilty of the charge at the February 12, 2019 trial for a total of 130 days.

                The period from the service of summons on October 6, 2018 to the

arraignment on October 22, 2018, equals 17 days charged against the city for a

speedy trial.    Smerglia moved for discovery on October 23, 2018, and on

November 7, 2018, Smerglia filed a motion to compel discovery. The city filed its

answer to Smerglia’s discovery request on November 8, 2018. R.C. 2945.72(H).

Smerglia’s motion to compel discovery was rendered moot by the city’s compliance

on November 8, 2018. A discovery motion tolls the speedy trial time. State v. Bell,

8th Dist. Cuyahoga No. 87769, 2006-Ohio-6592, ¶ 20, citing State v. Brown, 98

Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159. Therefore, we determine that the

activities during October 23, 2018, to November 8, 2018, equals 17 days that tolled

against Smerglia.

                The trial court continued the November 7, 2018 pretrial to

November 14, 2018, per the court’s own order. With November 8, 2018, already

accounted for as part of the discovery motion period, the days that may be attributed

to the speedy trial count are the six days of November 9, 2018, through

November 14, 2018.
               The November 14, 2018 judgment entry continues the case to

December 5, 2018. The trial court’s journal entry does not indicate whether the

request was made by a party or the court’s own order. However, on December 3,

2018, substitute counsel filed an emergency limited appearance to advise the trial

court of prior defense counsel’s resignation from the practice of law effective

November 21, 2018, and requested a continuance to secure new counsel.

R.C. 2945.72(C) tolls the speedy time trial for a period where a defendant is without

counsel.

               This case is analogous to Cleveland v. Beasley, 8th Dist. Cuyahoga

No. 92539, 2010-Ohio-769. In Beasley, a scheduled trial date was continued at the

court’s request to September 10, 2008, which was 56 days after the original trial

date. However, on July 23, 2008, a week after the original trial date, counsel filed a

notice of disqualification due to a court-ordered CLE suspension. Beasley argued

that the trial court abused its discretion when it failed to discharge him on speedy

trial grounds. This court determined that under R.C. 2945.72(C), once the court

received the notice of disqualification, Beasley’s lack of counsel facilitated a delay

that extended speedy trial. This court went on to state “the fact that a court-ordered

continuance had already been entered did not alter the fact that a delay was

otherwise necessitated by Beasley’s lack of counsel.” Id. at ¶ 17.

               Thus, November 15, 2018, through November 21, 2018, equates to

seven days elapsing against the city for speedy trial purposes. On December 3, 2018,

substitute counsel filed a limited appearance for the sole purpose of advising the
    trial court of defense counsel’s resignation on November 21, 2018, and to request a

    continuance to obtain counsel. On December 5, 2018, the trial court issued an entry

    that continued the case to January 14, 2019, and requested issuance of a new

    summons. The entry states that the continuance was necessary to allow defendant

    time to hire new counsel. Therefore, we find that the period of November 22, 2018,

    through January 14, 2019, tolls the speedy trial count under R.C. 2945.72(C).

                   New defense counsel filed an appearance on January 11, 2014. The

    trial was continued by journal entry on January 14, 2019, to February 12, 2019, at

    defendant’s request as indicated therein. Smerglia filed a motion to dismiss for a

    speedy trial violation on February 8, 2019, that was amended on February 11, 2019.

    On February 12, 2019, defendant was tried and sentenced. As a result, the speedy

    trial count was further tolled until the time terminated on February 12, 2019.

    Therefore, tolling continued pursuant to R.C. 2945.72(H) from January 15, 2019, to

    February 12, 2019.

                    The following chart depicts the trial court’s activity in this case:

Dates                Events                                Speedy Days        Tolling Days
October 6, 2018, to Service     of    summons    until     17                 0
October 22, 2018     arraignment hearing.
October 23, 2018, to Smerglia moved for discovery.         0                  17
November 8, 2018     Discovery response served on
                     November 7, 2018, as noted in
                     November 8, 2018, response of
                     city to motion to compel.
November 9, 2018, to Trial court continued November 7,     6 days             0
November 14, 2018    2018 pretrial to November 14,
                     2018.                                 (November 8,
                                                           2018, covered in
                                                           prior entry)
Dates                Events                                Speedy Days      Tolling Days
November 15, 2018, November 14, 2018 judgment              19 days          2
to December 5, 2018 entry continued the November 14,
                     2018 pretrial to December 5, 2018.    (November 15,    December 4,
                     Defense counsel was present.          2018, to         2018, to
                     Entry does not list at whose          December 3,      December 5,
                     request but December 3, 2018           2018)           2018. (See
                     limited notice of appearance                           Beasley, infra.)
                     advised that defense counsel
                     resigned from law practice
                     effective November 21, 2018, and
                     requested continuance.
December 6, 2018, to December 5, 2018, trial court         0                69 days
February 12, 2019    issued judgment entry that
                     continued trial to January 14,
                     2019, pursuant to emergency
                     request by substitute counsel on
                     December 3, 2018, to allow
                     Smerglia to hire new counsel. New
                     counsel filed entry of appearance
                     on January 11, 2019. The
                     January 14, 2019 judgment entry
                     continued the case for trial to
                     February 12, 2019, at defendant’s
                     request. Also, on February 8, 2019,
                     Smerglia moved for a speedy trial
                     violation dismissal, amended the
                     motion on February 11, 2019. The
                     motion was heard and denied on
                     February 12, 2019, and Smerglia
                     entered a plea.
Totals                                                     42               88


                   This court calculates that 42 days elapsed for speedy trial purposes

    against the city and the balance of 88 days were tolled. Even if this court included

    the dates of December 4, 2018, and December 5, 2018, for speedy trial purposes, the

    speedy trial days that elapsed against the state would total 44 days. The 44-day total

    is also under the 45-day speedy trial limitation for a misdemeanor of the third
degree. We determine that the trial court did not err when it denied Smerglia’s

motions to dismiss for speedy trial.

                 The first assigned error lacks merit.

      B. Sentencing

                 The remaining challenges are to Smerglia’s sentence. We combine

the errors for ease of analysis.

                 Smerglia argues that the trial court erroneously considered the

subsequently vacated sexual imposition conviction in crafting a sentence; failed to

allow counsel to assert arguments and objections and to consider mitigating factors;

and failed to properly consider the requirements of R.C. 2929.21 and 2929.22

governing misdemeanor sentences.

              1. Standard of Review

                 “A trial court enjoys broad discretion in imposing sentence on a

misdemeanor offense.” Lakewood v. Dobra, 8th Dist. Cuyahoga No. 106001, 2018-

Ohio-960, ¶ 8, citing Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-

Ohio-2265, ¶ 7. “The sentence imposed by the trial court will not be disturbed on

appeal absent an abuse of this discretion.” Id.

      In fashioning a misdemeanor sentence, a trial court must consider the
      overriding purposes of misdemeanor sentencing “to protect the public
      from future crime by the offender and others and to punish the
      offender.” R.C. 2929.21. The trial court must also consider all factors
      enumerated in R.C. 2929.22(B).

Id. at ¶ 9.
                 Generally, a trial court’s failure to consider the factors is an abuse of

discretion. Id. at ¶ 10, citing Maple Hts. v. Sweeney, 8th Dist. Cuyahoga No. 85415,

2005-Ohio-2820, ¶ 7. “[T]he trial court is not required to make factual findings on

the record related to these factors.” Dobra at ¶ 10, citing Sweeney at ¶ 8. “‘[A]bsent

a showing to the contrary by the defendant,’” “‘when a misdemeanor sentence is

within the statutory limits, the trial court is presumed to have considered’” the

factors required by R.C. 2929.22. Id., quoting id.

           2.      Discussion

                 R.C. 2929.21 sets forth the purposes of misdemeanor sentencing.

“The overriding purposes of misdemeanor sentencing are to protect the public from

future crime by the offender and others and to punish the offender.”

R.C. 2929.21(A).

      To achieve those purposes, the sentencing court shall consider the
      impact of the offense upon the victim and the need for changing the
      offender’s behavior, rehabilitating the offender, and making restitution
      to the victim of the offense, the public, or the victim and the public.

Id.

                R.C. 2929.22 guides the trial court’s determination of an appropriate

misdemeanor sentence. Factors include:

      the nature and circumstances of the offense; whether the
      circumstances indicate that the offender has a history of persistent
      criminal activity and poses a substantial risk of reoffending; and
      whether the circumstances regarding the offender and the offense
      indicate that the offender’s history, character, and condition reveal a
      substantial risk that the offender will be a danger to others and that the
      offender’s conduct has been characterized by a pattern of repetitive,
      compulsive, or aggressive behavior with heedless indifference to the
      consequences. See R.C. 2929.22(B)(1)(a)-(c). Additionally, the court
      may consider any other factors that are relevant to achieving the
      purposes and principles of sentencing. R.C. 2929.22(B)(2).

S. Euclid v. Bickerstaff, 8th Dist. Cuyahoga No. 107526, 2019-Ohio-2223, ¶ 8.

               The trial court required that 25-year-old Smerglia acknowledge the

impropriety of his conduct. Smerglia apologized to the victim, and the victim

addressed the trial court. Defense counsel asked the trial court for leniency based

on mitigating factors such as the support of Smerglia’s family, his employment, lack

of a criminal record, and feelings of remorse. Counsel suggested imposition of a fine

or minimal term of probation.

               The trial court rejected defense counsel’s suggestion:

      Court: If he had been found guilty, he would have been a registered
      offender for how many years? * * *

      City:        15.

      Court:      — so to think he’s gonna walk out of here with a fine, that’s
                  not gonna happen. That’s not gonna happen.

                  He was found what? He was found guilty, he had a trial.

      City:       He did.

      Counsel:    Well —

      Court:      — no. He had a trial and, I think, part of it is, just in —
                  there’s no dispute of the facts so, and now he’s plead guilty,
                  so one’s been given great consideration. But to think you
                  gonna walk out of here with just a fine, that is not gonna
                  happen.

                  He’s gonna be, my position is, because I had a similar case
                  and the Court felt, because really what it is, there’s now a
                  truth of pleading movement and what that truth of pleading
                  movement is, that they know there are efforts to try to
                   circumvent consequences that were, clearly, legislated for
                   certain behavior.

(Tr. 9-11.)

                The trial court observed that the amended charge did not include

requirements that would have attached if the original charge applied.

       So he is circumventing that, that he doesn’t have the label, but he’s not
       gonna walk out of here with a fine.

       He’s going to get the maximum supervision which is five years. This
       Court believes that is a fair balance because with registration, that puts
       the community on notice that the person needs watching. So you need
       watching, this is a sexual offense.

       Now, the actual offense itself, has been sugarcoated a little bit, but, no,
       you’re not gonna walk out of here with a fine.

       He’s going to get the maximum supervision which is five years. This
       Court believes that this is a fair balance because with the registration,
       that puts the community on notice that the person needs watching. So
       you need watching, this is a sexual offense.

(Tr. 11.)

               The trial court continued to explain the considerations and concerns

underlying the sentence. Defense counsel objected to the trial court’s reference to

the previously vacated conviction. The trial court interjected,

       he’s pleading guilty now right? * * * The stakes are high. * * * You
       violated somebody, the world is gonna know for a very long time, very
       long time. So that you’re only being supervised half that time, that’s a
       very good break. * * *

       Sentence of the court is $500 and 60 days, the days are suspended. It’s
       five years of active probation with 50 hours of community work service
       that needs to be completed by December the 31st.

       If satisfactorily compliance after two years, it will be inactive.
(Tr. 14-15.)

               Smerglia pled to negligent assault, a third-degree misdemeanor

punishable by a fine up to $500.00 and maximum jail time of 60 days or up to five

years of probation. R.C. 2929.24. Smerglia was represented by counsel at the

sentencing who argued for mitigation. The trial court, though not required to do so,

stated its rationale on the record and cited the factors required by R.C. 2929.21 and

2929.22. The sentence in this case was within the statutory limits. Dobra, 8th Dist.

Cuyahoga No. 106001, 2018-Ohio-960, ¶ 9.

               The second, third, and fourth assigned errors also lack merit.

IV. Conclusion

               The trial court’s judgment is affirmed.

      It is ordered that appellee recover from appellant 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

Cleveland 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

EILEEN T. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
