[Cite as State v. Nichols, 2013-Ohio-308.]


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


STATE OF OHIO,                                    :
                                                  :
             Plaintiff-Appellee,                  :         Case No: 12CA955
                                                  :
             v.                                   :
                                                  :         DECISION AND
JAMES NICHOLS,                                    :         JUDGMENT ENTRY
                                                  :
             Defendant-Appellant.                 :         Filed: January 29, 2013



                                             APPEARANCES:

James Nichols, Nelsonville, Ohio, pro se Appellant.

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County
Assistant Prosecutor, West Union, Ohio, for Appellee.


Kline, J.:

        {¶1}      James Nichols (hereinafter “Nichols”) appeals the judgment of the Adams

County Court of Common Pleas, which convicted him of failure to appear. On appeal,

Nichols claims that his speedy-trial rights were violated. Because this case was

resolved in well under 270 speedy-trial days, we disagree. Accordingly, we overrule

Nichols’s assignment of error and affirm the judgment of the trial court.

                                                  I.

        {¶2}      In the present case, Nichols claims that his speedy-trial rights were

violated and, as a result, that we should reverse his conviction for failure to appear.

        {¶3}      In a previous case, Nichols was found guilty of disseminating material

harmful to juveniles and tampering with evidence. See generally State v. Nichols, 4th
Adams App. No. 12CA955                                                              2


Dist. No. 11CA912, 2012-Ohio-1608 (hereinafter “Nichols I”). Nichols, however, did not

appear for his sentencing hearing in Nichols I. As a result, the trial court issued a

capias on April 19, 2011, and Nichols was taken into custody that same day.

       {¶4}   For his convictions in Nichols I, Nichols eventually received four years and

nine months in prison. Nichols I at ¶ 33.

       {¶5}   On April 4, 2012, this court reversed Nichols’s conviction for tampering

with evidence. See Nichols I at ¶ 74.

       {¶6}   On April 12, 2012, Nichols was indicted for failure to appear. This is the

indictment in the present case, and the indictment is based on Nichols’s failure to

appear for the sentencing hearing in Nichols I.

       {¶7}   Nichols was incarcerated while the present case was pending. From the

record, however, we cannot discern the precise reason for Nichols’s incarceration. We

reversed his conviction for tampering with evidence, so Nichols was not incarcerated for

that conviction. (But he could have been in custody pending a final resolution of the

tampering-with-evidence charge, either by the Supreme Court of Ohio or in a retrial.

We simply do not know how Nichols’s time in custody may relate to Nichols I, 2012-

Ohio-1608.) Furthermore, we cannot determine when, exactly, his sentence for

disseminating material harmful to juveniles ended. Therefore, it is possible that Nichols

was being held solely on the pending charge for failure to appear. As a result, we will

determine Nichols’s speedy-trial days under both (1) a single-day analysis and (2) a

triple-count analysis.

       {¶8}   On June 1, 2012, the trial court judge recused himself because of a

potential conflict of interest. A new judge was assigned to the case on June 5, 2012.
Adams App. No. 12CA955                                                              3


       {¶9}   On June 13, 2012, Nichols filed a motion to dismiss on speedy-trial

grounds. Nichols claimed that the speedy-trial clock started running on April 19, 2011,

the date on which he was taken into custody for the Nichols I sentencing hearing. On

July 16, 2012, however, the trial court denied Nichols’s motion to dismiss.

       {¶10} On July 20, 2012, Nichols filed a request for discovery. The record does

not show that the state ever responded to this request.

       {¶11} Finally, on August 23, 2012, Nichols pled no contest to failure to appear.

The trial court then sentenced Nichols accordingly.

       {¶12} Nichols appeals and asserts the following assignment of error: “THE

TRIAL COURT ERRED BY VIOLATING THE APPELLANT’S SPEEDY TRIAL RIGHTS

UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.”

                                             II.

       {¶13} Under his sole assignment of error, Nichols contends that his speedy-trial

rights were violated.

       {¶14} “‘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. Bailey, 4th Dist. No. 09CA3287, 2010-Ohio-2239, ¶ 56, quoting State v.

Eldridge, 4th Dist. No. 02CA2842, 2003-Ohio-1198, ¶ 5. “‘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. Finally, we 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).
Adams App. No. 12CA955                                                              4


       {¶15} Ohio’s Speedy Trial Act “place[s] a burden upon the prosecution and the

courts to try criminal defendants within a specified time after arrest.” State v. Mincy, 2

Ohio St.3d 6, 8, 441 N.E.2d 571 (1982); accord Bailey, 2010-Ohio-2239, at ¶ 55. Under

the act, “[a] person against whom a charge of felony is pending * * * [s]hall be brought to

trial within two hundred seventy days after the person’s arrest.” R.C. 2945.71(C)(2).

              Each day the state holds an accused in jail solely on the

              pending charge counts for three days towards the 270-day

              limit. R.C. 2945.71(E); State v. Sanchez, 110 Ohio St.3d

              274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 7. In other

              words, if the defendant remains incarcerated solely on the

              pending felony, the state has 90 days to bring the defendant

              to trial unless some activity “tolls” the running of the speedy

              trial time limit. State v. Smith, 4th Dist. No. 10CA3148,

              2011-Ohio-602, ¶ 20.

“Upon review of 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.” Sanchez at ¶ 8.

                                             A.

       {¶16} Nichols argues that his speedy-trial time started running on April 19, 2011,

the date on which he was taken into custody on the capias. However, because the

capias had nothing to do with the indictment in the present case, we disagree.

       {¶17} “For purposes of calculating speedy-trial time pursuant to R.C.

2945.71(C), a charge is not pending until the accused has been formally charged by a
Adams App. No. 12CA955                                                                 5


criminal complaint or indictment, is held pending the filing of charges, or is released on

bail or recognizance.” State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, 859

N.E.2d 532, syllabus; accord State v. Thomas, 4th Dist. No. 06CA825, 2007-Ohio-5340,

¶ 11. And here, the failure-to-appear charge was not pending until April 12, 2012, the

date on which Nichols was indicted for failure to appear. The trial court did an excellent

job of explaining why the speedy-trial clock did not start to run on April 19, 2011.

                     [T]here was a capias issued on the 19th of April for

              failure to appear and you were apparently taken into custody

              on that date because the sentencing [in Nichols I, 2012-

              Ohio-1608,] occurred on the next day. That capias is the

              mechanism by which a party [who] is required to be before

              the Court [but] does not appear, that is the mechanism by

              which the Court forces the appearance of that party or

              witness or whomever it may be in that proceeding. That in

              and of itself is not a criminal offense.

                     A criminal offense is initiated through the filing of a

              complaint or indictment or bill of information. And in this

              case the charge of failure to appear was returned in the

              indictment in this case I believe on April 12th of this year.

              Although that may be a year later, almost a year later[, the]

              statute of limitation in this type of offense is six years.

                     * * * [Y]ou were not charged with any offense, as I

              understand it, you were only picked up [for sentencing in
Adams App. No. 12CA955                                                               6


              Nichols I]. A failure to appear capias is not a charge, as I

              said, it’s just a mechanism by which the attendance of

              persons are required to be before the Court and is enforced

              when they fail to appear. And so that is what happened in

              this case. July 10, 2012 Transcript at 13-14.

       {¶18} Simply put, Nichols was taken into custody to ensure his appearance at

the sentencing hearing in Nichols I. And after that, Nichols remained in custody to

serve his sentences for (1) disseminating matter harmful to juveniles and (2) tampering

with evidence. See Nichols I at ¶ 33. (This court later reversed the tampering-with-

evidence conviction. Id. at ¶ 74.) There was no action on the failure-to-appear charge

until the filing of the April 12, 2012 indictment. As a result, for purposes of speedy-trial

time, the failure-to-appear charge was not pending until April 12, 2012.

                                             B.

       {¶19} Furthermore, the record demonstrates that this case was resolved in less

than 270 speed-trial days.

       {¶20} Nichols was indicted on April 12, 2012.

       {¶21} On June 1, 2012, the first trial court judge recused himself, which tolled

the speedy-trial time until a new judge could be assigned. See Lyndhurst v. Di Fiore,

8th Dist. No. 88654, 2007-Ohio-3538, ¶ 10. Therefore, 50 speedy-trial days elapsed

between the indictment and the recusal. Under the triple-count provision, this would

amount to 150 speedy-trial days.

       {¶22} On June 5, 2012, a new judge was assigned to this case. The assignment

restarted Nichols’s speedy-trial clock.
Adams App. No. 12CA955                                                               7


       {¶23} On June 13, 2012, Nichols filed his motion to dismiss, which tolled the

speedy-trial clock. See, e.g., State v. Martin, 7th Dist. No. 09 CO 43, 2011-Ohio-6537,

¶ 70; State v. Lemons, 11th Dist. No. 2009-T-0032, 2010-Ohio-3807, ¶ 121. Therefore,

8 speedy-trial days elapsed between the assignment of the second judge and the

motion to dismiss. This would amount to a total of 58 speedy-trial days (or 174 under

the triple-count provision). “[T]he time that elapsed while a motion to dismiss was

pending [is not] included for purposes of R.C. 2945.71.” Id., citing State v. Bickerstaff,

10 Ohio St.3d 62, 67, 461 N.E.2d 892 (1984). Therefore, Nichols’s speedy-trial time

was tolled until July 16, 2012, when the trial court denied his motion to dismiss.

       {¶24} On July 20, 2012, Nichols filed a discovery request, which also tolled his

speedy-trial time. See State v. Caulton, 11th Dist. No. 09 MA 140, 2011-Ohio-6636, ¶

32, citing State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, at ¶¶

23-24, 26. Thus, between July 16, 2012, and July 20, 2012, Nichols accumulated 4

more speedy-trial days for a total of 62 (or 186 under the triple count provision). The

record does not show that the state ever responded to Nichols’s July 20, 2012 discovery

request. Nevertheless, in the absence of an actual response, a discovery request tolls

the speedy-trial clock for a reasonable time. See State v. Byrd, 8th Dist. No. 91433,

2009-Ohio-3283, ¶ 7. Courts have interpreted a reasonable time to mean 30 days. See

State v. Barb, 8th Dist. No. 90768, 2008-Ohio-5877, ¶ 9; State v. Bailey, 11th Dist. No.

2005-P-0081, 2006-Ohio-6206, ¶ 19; State v. Saultz, 4th Dist. No. 09CA3133, 2011-

Ohio-2018, ¶ 15. Therefore, Nichols’s discovery request tolled his speedy-trial time until

August 19, 2012. And because Nichols pled no contest on August 23, 2012, his case

was resolved in well under 270 speedy-trial days.
Adams App. No. 12CA955                                                         8


                                          C.

       {¶25} Accordingly, we overrule Nichols’s assignment of error and affirm the

judgment of the trial court.

                                                              JUDGMENT AFFIRMED.
Adams App. No. 12CA955                                                            9


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

      The Court finds that there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Adams 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. & Abele, J.: Concur in Judgment & Opinion.


                                  For the Court


                                  BY: ____________________________
                                      Roger L. Kline, 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.
