[Cite as State v. Whaley, 2010-Ohio-4853.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 09 CO 30
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
WALTER WHALEY                                 )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Columbiana County,
                                                   Ohio
                                                   Case No. 09 CR 2

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Robert Herron
                                                   Columbiana County Prosecutor
                                                   Atty. John E. Gamble
                                                   Assistant Prosecuting Attorney
                                                   105 South Market Street
                                                   Lisbon, Ohio 44432

For Defendant-Appellant:                           Atty. Douglas A. King
                                                   Hartford, Dickey & King Co., LPA
                                                   91 West Taggart Street
                                                   P.O. Box 85
                                                   East Palestine, Ohio 44113

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                   Dated: September 30, 2010
                                                                                       -2-


WAITE, J.

       {¶1}   Appellant, Walter P. Whaley, appeals his conviction for domestic

violence claiming a statutory speedy trial violation occurred pursuant to R.C. 2945.71

et seq. Appellant filed a motion to dismiss on speedy trial grounds, but the motion

was overruled. He then pleaded no contest to the charge and was sentenced by the

Columbiana County Court of Common Pleas to two years in prison.                 Appellant

acknowledges that he missed a pretrial hearing and that a warrant was then issued

for his arrest, delaying the final trial date. Appellant contends that only a portion of

the delay in the trial date should be attributed to him, and thus, according to his

interpretation of the speedy trial statute, R.C. 2945.71 et seq., he should have been

discharged. The state argues that this case is governed by State v. Bauer (1980), 61

Ohio St.2d 83, 84, 399 N.E.2d 555, which held that: “[A] defendant who fails to

appear at a scheduled trial, and whose trial must therefore be rescheduled for a later

date, waives his right to assert the provisions of R.C. 2945.71 through 2945.73 for

that period of time which elapses from his initial arrest to the date he is subsequently

rearrested.” Id. at 85. Bauer applies to the facts of this case because Appellant

failed to report to his probation officer and failed to appear at a scheduled hearing.

Appellant was subsequently rearrested and trial was set for the next available date.

These circumstances fit squarely within the parameters set by Bauer, hence the

statutory speedy trial time between Appellant’s initial arrest and the date he was

rearrested is tolled. Based on that tolling event, the statutory speedy trial time did not
                                                                                    -3-

expire and the trial court was correct in overruling Appellant’s motion to dismiss. The

judgment of the trial court is affirmed.

                                   History of the Case

       {¶2}   Appellant was arrested on December 27, 2008, after the Columbiana

County Sheriff’s Department investigated a domestic violence report at 7137 Hillview

Drive in Hanover, Ohio. On December 29, 2008, a criminal complaint was filed in the

Columbiana County Municipal Court, charging Appellant with one count of domestic

violence. The victim listed in the complaint was Appellant’s father, Donald Whaley.

Appellant allegedly hit his father in the back of the head and threatened to kill him.

Bond was set at $25,000. Appellant appeared before the court on January 5, 2009,

waived his preliminary hearing, and bond was changed to a $25,000 recognizance

bond. Two of the conditions of bond were that Appellant would have no contact with

the victim and would appear in court at any date set for any proceeding.          After

Appellant was released from jail, the case was bound over to the Columbiana County

Grand Jury.

       {¶3}   Appellant was indicted on February 25, 2009, on a third degree felony

domestic violence charge, R.C. 2919.25(A). The indictment stated that Appellant had

previously been convicted of child endangering and that the victim was a family or

household member.

       {¶4}   The state could not deliver the summons and indictment to the address

given by Appellant, which was the address of the victim, Donald Whaley, at 7137

Hillview Drive in Hanover. The summons was converted to an arrest warrant, and
                                                                                    -4-

Appellant was arrested for the second time on April 20, 2009. Bond was reset at

$25,000 cash, and trial counsel was appointed due to Appellant’s indigence.

       {¶5}    On April 27, 2009, Appellant notified the court that his new address was

6163 Lusk Lock Road in Lisbon.

       {¶6}    On April 27, 2009, the court scheduled an oral hearing in the matter for

May 8, 2009.

       {¶7}    Appellant remained in jail until April 28, 2009, and was again released

on a recognizance bond of $25,000. The conditions of the bond required Appellant

to report and be subject to the Adult Parole Authority, to have no contact with the

victim, and to submit to home confinement and electronic monitoring.

       {¶8}    On April 30, 2009, Appellant failed to appear at a scheduled meeting

with his probation officer at the Adult Parole Authority. On May 1, 2009, another

arrest warrant was issued based on this failure.

       {¶9}    The court held its scheduled hearing on May 8, 2009. Appellant did not

appear for the hearing, either.     The court issued a judgment entry finding that

Appellant was on home confinement with electronic monitoring, had failed to appear

at the Adult Parole Authority, and that a bench warrant had been issued to arrest

him.

       {¶10} Appellant was arrested for a third time on May 14, 2009.

       {¶11} On May 19, 2009, the state filed a request for discovery.

       {¶12} On May 21, 2009, the court held a scheduling conference hearing. Trial

was then set for August 10, 2009. (5/22/09 J.E.) The court ordered Appellant to
                                                                                    -5-

respond to the state’s discovery request by June 19, 2009.              Bond was set at

$100,000. Appellant did not post bond and has remained incarcerated since May

14th.

        {¶13} On July 22, 2009, Appellant filed a motion to dismiss due to the

violation of his statutory speedy trial rights as set forth in R.C. 2945.71.

        {¶14} On August 5, 2009, the state filed a motion to compel discovery.

        {¶15} On August 7, 2009, Appellant responded to the state’s discovery

request.

        {¶16} The court held a hearing on August 10, 2009, to resolve the motion to

dismiss and it was overruled.

        {¶17} On August 10, 2009, Appellant entered into a Crim.R. 11 plea

agreement.    He agreed to enter a plea of no contest to one count of domestic

violence, R.C. 2919.25(A), a third degree felony. The state agreed to recommend a

sentence of two years in prison. The court held a change of plea hearing and notified

Appellant of the constitutional and nonconstitutional rights that he was waiving.

Appellant was immediately sentenced to two years in prison. The court entered its

judgment on August 10, 2009, and this appeal followed.

                               ASSIGNMENT OF ERROR

        {¶18} “DEFENDANT/APPELLANT WAS DENIED HIS STATUTORY RIGHT

TO A SPEEDY TRIAL.”
                                                                                       -6-

       {¶19} Appellant bases this appeal on the trial court’s decision to overrule his

motion to dismiss based on a violation of the speedy trial rights contained in R.C.

2945.71 to 2945.73.

       {¶20} The Sixth Amendment to the United States Constitution provides that

an “accused shall enjoy the right to a speedy and public trial.” Section 10, Article I of

the Ohio Constitution also provides a criminal defendant the right to a speedy public

trial by an impartial jury.

       {¶21} R.C. 2945.73(B) codifies a criminal defendant's right to a speedy trial

and states: “Upon motion made at or prior to the commencement of trial, a person

charged with an offense shall be discharged if he is not brought to trial within the time

required by sections 2945.71 and 2945.72 of the Revised Code.”              A defendant

charged with a felony must be brought to trial within 270 days of his or her arrest.

R.C. 2945.71(C)(2). However, “each day during which the accused is held in jail in

lieu of bail on the pending charge shall be counted as three days.” R.C. 2945.71(E).

This is known as the triple count provision.

       {¶22} A defendant establishes a prima facie case for dismissal once the

statutory time limit has expired. State v. Butcher (1986), 27 Ohio St.3d 28, 30-31,

500 N.E.2d 1368.        At that point, the state has the burden to demonstrate any

extension or tolling of the time limit. Id. In this case, Appellant was initially arrested

on December 27, 2008, and filed his motion to dismiss on July 22, 2009. This is a

period of 208 days. Appellant was incarcerated at various times during this litigation,

including continuous incarceration from May 14, 2009, onward. Each of these days
                                                                                       -7-

is counted as three days for statutory speedy trial purposes, thus bringing Appellant

over the 270-day mark required to establish a prima facie case when calculated from

his initial arrest on December 27, 2008.

       {¶23} Appellant is not raising his constitutional right to speedy trial and is

relying solely on the statutory provisions. Statutory speedy trial issues present mixed

questions of law and fact. State v. Hiatt (1997), 120 Ohio App.3d 247, 261, 697

N.E.2d 1025. Therefore, reviewing courts must, “accept the facts as found by the

trial court on some competent, credible evidence, but freely review the application of

the law to the facts.” Id. Courts then independently review whether an accused was

deprived of his statutory right to a speedy trial, strictly construing the law against the

state. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706.

       {¶24} On review of an alleged speedy trial violation, the court must count the

number of days that have passed and determine which party is responsible for any

delay. State v. High (2001), 143 Ohio App.3d 232, 241, 757 N.E.2d 1176. R.C.

2945.72(A) provides that speedy trial time will be tolled when the accused is

unavailable for hearings. R.C. 2945.72(D) tolls speedy trial time for “[a]ny period of

delay occasioned by the neglect or improper act of the accused[.]” R.C. 2945.72(H)

tolls the speedy trial time for “[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[.]”
                                                                                      -8-

        {¶25} The time for speedy trial begins to run when an accused is arrested;

however, the actual day of the arrest is not counted. State v. Cross, 7th Dist. No. MA

74, 2008-Ohio-3240, ¶17.

        {¶26} Courts must “carefully examine the facts in the case to prevent a

‘mockery of justice’ by discharging defendants if in fact the delay was occasioned by

their acts.” State v. Bauer (1980), 61 Ohio St.2d 83, 84, 399 N.E.2d 555.

        {¶27} Appellant and the state agree that, at most, 139 days of speedy trial

time had elapsed prior to May 14, 2009, when Appellant was arrested for the third

time in this case. Appellant remained incarcerated after that date, and his speedy

trial clock would have expired on or about June 27, 2009 (using the triple count

provision), unless there are any extensions or tolling events that apply. The question

in this case is whether Appellant’s failure to appear at a scheduled hearing on May 8,

2009, tolls any or all of the speedy trial time prior to the date of his scheduled trial,

August 10, 2009.

        {¶28} The state argued at trial and on appeal that the time prior to May 14,

2009, should be tolled and charged to Appellant. The state points out that Appellant

violated the terms of his bond on April 30, 2009, resulting in the issuance of an arrest

warrant, then he failed to appear at the next scheduled court hearing on May 8, 2009.

Appellant was rearrested on May 14, 2009. The court held an oral conferencing

hearing on May 21, 2009, and on that date the court set trial for the next available

date.
                                                                                      -9-

       {¶29} The state relies primarily on State v. Bauer to establish that the time

prior to May 14, 2009, should be charged to Appellant. In Bauer, the defendant was

arrested on October 24, 1976, for grand theft. He was released on a recognizance

bond on October 29, 1976. Bauer was subsequently indicted on this charge and on

additional charges of aggravated burglary and grand theft.         His trial on the first

charge was set for May 5, 1977. Bauer failed to appear when the matter came for

disposition on that date.    The trial court forfeited Bauer’s appearance bond and

issued a bench warrant for his arrest. Bauer was subsequently apprehended on

June 5, 1977. Trial was rescheduled for September 26, 1977, and, on September

22, 1977, his counsel filed a motion to discharge Bauer under the provisions of R.C.

2945.71 et seq. The motion was denied. At trial, Bauer pleaded no contest to the

charge of grand theft and was sentenced to one to five years in the Ohio State

Penitentiary.

       {¶30} The Ohio Supreme Court upheld the judgment of the trial court. Bauer

explained that the proper focus of the court when attributing time delays under the

speedy trial statute is to find the underlying source of the delay. Id. at 84. Bauer

then analyzed the delays in the case in the light of R.C. 2945.72(D), which allows trial

time to be tolled due to the “neglect or improper act of the accused”. “[T]hrough his

own design [the defendant] chose to shun this right and impede the prompt

administration of this cause.    [The defendant] will not be permitted to enjoy the

protection of these statutes, as to a time period prior to his failure to appear, when by

his actions he has waived their benefits.” Id.
                                                                                    -10-

       {¶31} The defendant in Bauer argued that the only part of the delay that

should have been attributed to him was the time between his initial trial date, which

he failed to attend, and the date of his recapture. Id. at 85. The Bauer Court rejected

this argument. “We find this solution unworkable and inconsistent with the efficient

administration of justice. There is no justification for a rule which could require a

court to reschedule, within a few days after his rearrest, the trial of a defendant who

has forfeited his appearance bond.      Such a holding would not comport with the

realities of congested court dockets which are typically set months in advance.” Id.

       {¶32} The Bauer Court determined that all the trial time from the initial arrest

to the date of rearrest was attributable to the defendant: “It is our conclusion that a

defendant who fails to appear at a scheduled trial, and whose trial must therefore be

rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71

through 2945.73 for that period of time which elapses from his initial arrest to the date

he is subsequently rearrested. In the instant cause, this includes the period of time

between October 24, 1976, and June 5, 1977.” Id.

       {¶33} The facts of the instant case are remarkably similar to those in Bauer.

Appellant was arrested, posted a recognizance bond, and was later indicted. He

failed to appear at a scheduled hearing (as well as breaking other terms of his bond),

and the case was continued until he could be apprehended. Shortly after he was

apprehended, a final trial date was set, but the date was beyond the 270-day speedy

trial period as measured from the date of his original arrest. Appellant filed a motion

to dismiss on statutory speedy trial grounds, it was overruled, and he pleaded no
                                                                                    -11-

contest to the charge. Except for the fact that Appellant missed an intermediate

hearing date rather than the final hearing date, this matter involves facts that are

practically identical to the chain of events in Bauer.

       {¶34} Although Bauer involved a defendant missing his final trial date, various

courts have extended Bauer to include a variety of other missed appointments,

hearings and court-ordered events. State v. Gibson (1992), 75 Ohio App.3d 388,

599 N.E.2d 438 (Bauer applied when defendant missed a scheduling conference);

State v. Eldridge, 4th Dist. No. 02CA2842, 2003-Ohio-1198 (Bauer applied because

defendant missed his arraignment); State v. Campbell, 11th Dist. No. 2003-A-0056,

2005-Ohio-3091 (Bauer applied when defendant missed a preliminary hearing); State

v. Evans (Dec. 30, 1999), 12th Dist. No. CA98-11-237 (Bauer applied when

defendant failed to appear at a hearing to resolve counsel’s motion to withdraw).

       {¶35} We ourselves continue to apply Bauer to a variety of situations in which

a defendant fails to appear for scheduled court dates. In State v. Napoli (July 13,

1981), 7th Dist. No. 80 C.A. 50, we applied the holding of Bauer to a situation in

which the defendant failed to appear at his preliminary hearing. In State v. Captor

(Jan. 14, 1997), 7th Dist. No. 95-JE-40, we applied Bauer to a situation in which the

defendant missed two preliminary hearings and a rescheduled trial date.

       {¶36} Bauer directly applies to the situation which occurred in the instant

case, and the entire time period from Appellant’s initial arrest on December 27, 2008,

until the day he was rearrested is attributable to Appellant. Appellant’s trial date was

set within the time allotted by R.C. 2945.71 as measured from his rearrest on May
                                                                                  -12-

14, 2009. Since there was no statutory speedy trial violation, the trial court was

correct in overruling Appellant’s motion to dismiss.

       {¶37} It is also apparent that, even if we do not apply Bauer and look strictly

to individual tolling events in the record, there is no speedy trial violation in this

matter. The parties agree that, at most, 139 days of speedy trial time elapsed prior to

May 14, 2009, at which time Appellant was rearrested and remained incarcerated.

On May 19, 2009, the state filed a request for discovery. Appellant did not respond

to the request, eventually requiring the state to file a motion to compel.        R.C.

2945.72(D) extends the time for trial for “[a]ny period of delay occasioned by the

neglect or improper act of the accused[.]” The Ohio Supreme Court has held that, “a

defendant's failure to respond within a reasonable time to a prosecution request for

reciprocal discovery constitutes neglect that tolls the running of speedy-trial time

pursuant to R.C. 2945.72(D).” State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374,

860 N.E.2d 1011, ¶24. The speedy trial time is charged to the defendant in this

situation whether or not the state files a motion to compel discovery, but in this case

the state did file such a motion. Appellant did not respond to the state’s discovery

request until August 7, 2009, which was only three days before the trial court

overruled his motion to dismiss and three days before he entered his guilty plea to

the charge of domestic violence. If we charge the time between May 14th and 19th,

and between August 7th and 10th, to the state, that adds an additional 24 days to the

speedy trial time (using the triple count provision). When added to the 139 days
                                                                                   -13-

attributable to the state prior to May 14, 2009, the total time expired was 163 days.

This is well below the 270 days allowed by the speedy trial statute.

       {¶38} The trial court was correct in overruling Appellant’s motion to dismiss

premised on a statutory speedy trial violation, and the judgment of conviction and

sentence of the trial court is affirmed.


Vukovich, P.J., concurs.

DeGenaro, J., concurs in judgment only with concurring in judgment only opinion.
                                                                                  -14-

DeGenaro, J., concurring in judgment only, with concurring opinion:
       {¶39} I agree with my colleagues that there is no speedy trial violation in this

case because, at most, 163 days had run against the 270 days allowed by the

statute. But I must respectfully dissent from their conclusion that the facts in this

case are remarkably similar to Bauer, as well as their conclusion that the holding of

Bauer should be extended to this case.

       {¶40} For Appellant’s failure to appear at the scheduling hearing, I would toll

the speedy trial statute from May 8, 2009 until he was arrested on May 14, 2009, or 6

days. For several reasons, I would not hold that he waived the speedy trial time

retroactive to his arrest on December 27, 2008.

       {¶41} First, Bauer is distinguishable by the significant fact that the defendant

there failed to show on the day of trial. And while it is impossible to determine from

the opinion when the speedy trial time ran in Bauer, one could reasonably conclude it

was close, based upon the following language in response to the defendant’s

argument that the time should toll, not waive the statute:

       {¶42} “We find this solution unworkable and inconsistent with the efficient

administration of justice. There is no justification for a rule which could require a

court to reschedule, within a few days after his rearrest, the trial of a defendant who

has forfeited his appearance bond.       Such a holding would not comport with the

realities of congested court dockets which are typically set months in advance.”

(emphasis added) Bauer at 84-85.

       {¶43} For the Ohio Supreme Court, clearly the controlling factor was that the

defendant failed to appear on the day of trial. And a reasonable inference is that a
                                                                                      -15-

secondary factor was that perhaps the state was up against the speedy trial date,

and tolling the time would have still not left enough time within which to set a new trial

date. Here, a trial date had not yet been set when Appellant failed to appear at the

May 8, 2009 scheduling hearing.           He did not fail to appear for trial.      These

circumstances do not warrant tolling the speedy trial retroactively from the date of

Appellant’s arrest for the offense on December 27, 2008. Thus, I would toll the

speedy trial time for 6 days, from May 8, 2009 until May 14, 2009 when Appellant

was arrested for his failure to appear.

       {¶44} Second, four of the cases cited by the majority from this and other

appellate districts, are factually distinguishable from this case. In Gibson, two trial

dates had been set and continued on the defendant’s motion for treatment in lieu of

conviction and counsel’s motion to withdraw. After those motions, the defendant

failed to appear at two scheduling conferences and was arrested out of state. This

appeared to be a significant fact to the Third District, as it first cited to Bauer for the

following proposition: “The Supreme Court of Ohio has held that an accused who

escapes the jurisdiction, thereby rendering himself inaccessible to the court, waives

his right to a speedy trial.” Gibson at 391.

       {¶45} As in Bauer, the defendant in Evans and Captor, a Seventh District

case, failed to appear at trial. And in Eldridge, although the defendant failed to

appear at his arraignment, he was not arrested until over one year after the

scheduled arraignment date.
                                                                                        -16-

       {¶46} Admittedly, I cannot factually distinguish this case from the Eleventh

District's Campbell or from this Court's Napoli case. Yet, I can distinguish them from

a philosophical standpoint. Only the time from the defendant’s non-appearance until

his arrest for that omission should toll the speedy trial time; it should not toll the

statute retroactively to the original arrest date. Such a severe sanction should only

occur in the rare cases, where, as in Bauer, Evans and Captor, the defendant failed

to appear at trial. Courts should not permit defendants to game the system by having

a trial date set close to the speedy trial deadline, and then not appear at trial, in the

hopes that the court’s docket precludes resetting the case within the remaining time.

       {¶47} It is interesting to note that in Campbell, the state argued that Bauer

should be extended to tolling the speedy trial statute not just until the defendant is

arrested for his non-appearance, but until the date of the rescheduled court

proceeding. The Eleventh District rejected that argument, holding that the triggering

date for tolling purposes is the defendant’s re-arrest. Campbell at ¶15        Even more

noteworthy, the court discharged the defendant, ultimately concluding the speedy

trial statute had run. Id. at ¶27.

       {¶48} Here, as in Campbell, Napoli, and perhaps even in Eldridge, I would

have held that only the time from the defendant’s non-appearance until his re-arrest

for that absence tolls the speedy trial statute. In Campbell it would not have changed

the outcome.     In Napoli and Eldridge, it would have resulted in the defendant’s

discharge. But whether or not I would have ultimately joined the majority in Eldridge

is a closer call given the standard of review, as articulated by the Fourth District:
                                                                                   -17-

         {¶49} “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. Brown (1998), 131 Ohio App.3d 387, 391, 722 N.E.2d 594; State v.

Kuhn (June 10, 1998), Ross App. No. 97CA2307. 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. Furthermore, when reviewing the legal issues presented in a speedy

trial claim, we 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.” Eldridge

at ¶5.

         {¶50} The conduct of Appellant does not rise to the level of “imped[ing] the

prompt administration” of his case as the conduct of the defendant did in Bauer, and

cautioned against by the Ohio Supreme Court. I would not extend Bauer here. We

should not be so quick to curtail the right to a speedy trial, as acknowledged by the

Eleventh District:

         {¶51} "[T]he concept of due process as embodied in the constitutional right to

a speedy trial is found in both the Sixth Amendment to the United States Constitution

and Section 10, Article I of the Ohio Constitution. It was even set forth in R.C.

2945.71 by our legislature as recently as 1981.

         {¶52} “The writers of the Constitution and our legislators obviously did not

think the concept of a speedy trial was an insignificant technicality, and neither do we

on this court. Thus, in such a situation as we now face, our concern must be with the
                                                                                  -18-

preservation of the integrity of the legal process.” State v. Campbell, 11th Dist. No.

2003-A-0056, 2005-Ohio-3091, at ¶29-30, quoting State v. Stamper (1995), 102 Ohio

App.3d 431, 442, 657 N.E.2d 365.

        {¶53} Here, the speedy trial statute was tolled by the response time to the

state’s discovery request (80 days), filing the speedy trial motion (an additional 3

days), and Appellant’s failure to appear at the May 8, 2009 scheduling hearing until

he was re-arrested on May 14, 2009 (6 days). Given these tolling events, Appellant’s

August 11, 2009 trial date was within the 270 day speedy trial time. For this reason, I

concur with the majority's judgment that there was no speedy trial violation in this

case.
