[Cite as State v. March, 2016-Ohio-3288.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2015-08-070

                                                  :            OPINION
   - vs -                                                       6/6/2016
                                                  :

THOMAS MARCH,                                     :

        Defendant-Appellant.                      :



                    CRIMINAL APPEAL FROM MASON MUNICIPAL COURT
                                Case No. 15 CRB 00770



Bethany S. Bennett, Mason City Prosecutor, 5950 Mason Montgomery Road, Mason, Ohio
45040, for plaintiff-appellee

Maxwell D. Kinman, 423 Reading Road, Mason, Ohio 45040, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Thomas March, appeals a decision of the Mason

Municipal Court overruling his motion to dismiss on speedy trial grounds after he was

convicted of public indecency. We affirm.

        {¶ 2} The parties filed an Agreed Statement of the Case prior to this appeal,

therefore the relevant facts are not in dispute. March was arrested on June 12, 2015 and

charged with public indecency in violation of R.C. 2907.09. The charge was levied as a fifth-
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degree felony due to the fact that March had a number of prior convictions involving the

same offense. Following a preliminary hearing, the case was bound over to the grand jury.

       {¶ 3} On July 13, 2015, the grand jury returned an indictment charging March with

two counts of public indecency in violation of R.C. 2907.09(B)(1). One count represented a

fifth-degree felony, while the other count represented a second-degree misdemeanor. Both

charges were premised upon the same set of factual allegations. Later that day, the

prosecution requested a nolle prosequi on the felony count. The case was transferred back

to the municipal court to proceed on the misdemeanor charge alone.

       {¶ 4} Incarcerated in county jail since the date of his arrest, March was released on

his own recognizance on July 20, 2015. He subsequently filed a motion to dismiss the

misdemeanor charge on speedy trial grounds. In an entry dated July 23, 2015, the municipal

court denied the motion.     That same day, March entered a no contest plea to the

misdemeanor charge. The trial court accepted the plea and imposed sentence. March

timely appealed, raising one assignment of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED BY FAILING TO DISMISS THE CASE BASED

UPON THE VIOLATION OF THE APPELLANT'S RIGHT TO A SPEEDY TRIAL.

       {¶ 7} March argues that the misdemeanor charge against him should have been

dismissed because the state violated his right to a speedy trial.

       {¶ 8} Appellate review of speedy-trial issues involves a mixed question of law and

fact. State v. Redelman, 12th Dist. Clinton No. CA2012-04-010, 242, 2013-Ohio-657, ¶ 19.

Typically, a reviewing court affords due deference to the trial court's findings of fact if

supported by competent, credible evidence. Id. As stated, the facts of this case are not in

dispute. Accordingly, we shall focus on whether the municipal court correctly applied the law

to the facts. Id.
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       {¶ 9} Both the Ohio and United States Constitutions guarantee a criminal defendant

the right to a speedy trial. Article I, Section 10, Ohio Constitution; Sixth Amendment to the

U.S. Constitution. See also State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-229. This

fundamental right was codified by the Ohio General Assembly at R.C. 2945.71 et seq. The

deadlines imposed by the speedy trial statutes are mandatory and must be strictly enforced.

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 81.

       {¶ 10} A court reviewing a speedy trial issue must calculate the number of days

attributable to either party and determine whether the defendant was brought to trial within

the statutorily prescribed time limits. State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, ¶

19 (12th Dist.). Generally, a person charged with a felony must be brought to trial within 270

days after the date of arrest. R.C. 2945.71(C)(2). One charged with a second-degree

misdemeanor must be tried within 90 days after the date of arrest. R.C. 2945.71(B)(2). The

date of arrest itself is not included in the computation. State v. Messer, 12th Dist. Clermont

No. CA2006-10-084, 2007-Ohio-5899, ¶ 12.

       {¶ 11} When an accused is held in jail on the pending charge in lieu of bail, each day

is counted as three days. R.C. 2945.71(E). Thus, subject to certain tolling events, a person

jailed on a felony charge must be tried within 90 days. Similarly, one jailed on a second-

degree misdemeanor charge must be tried within 30 days.

       {¶ 12} The procedural posture in the case at bar involves a unique application of the

speedy trial rules. As stated, March was initially charged with felony public indecency and

jailed upon his June 12 arrest. Just over one month later, the grand jury returned a two-count

indictment reflecting the felony charge and adding a misdemeanor public indecency charge.

Both were based upon the same set of factual allegations. After the felony count was nolled,

March pled no contest to the misdemeanor offense.

       {¶ 13} Typically, where multiple charges arising out of the same course of conduct are
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levied against an accused, the speedy trial period for the highest degree of offense charged

controls. R.C. 2945.71(D). But when the accused is initially charged with felony and

misdemeanor level offenses and the felony charge is later dismissed, which speedy trial time

period should be applied?

       {¶ 14} March submits that he should have been brought to trial within 30 days

because the case eventually proceeded solely on the misdemeanor charge. Though his

appellate brief does not contain mathematical calculations, we presume he arrived at this 30-

day figure by applying the triple-count provision in R.C. 2945.71(E) to the requisite 90-day

period for those charged with a second-degree misdemeanor. See R.C. 2945.71(B)(2).

       {¶ 15} March's July 23 plea was entered 41 days after his arrest. Omitting the two

days during which the municipal court considered March's motion to dismiss, the total time

period between his arrest and disposition was 39 days. See R.C. 2945.71(E); State v.

Bickerstaff, 10 Ohio St.3d 62, 67 (1984) (the filing of a motion to dismiss acts as a tolling

event for speedy trial purposes). If March's proffered application of the law is correct, this

exceeded the 30-day speedy trial deadline for a defendant incarcerated on a second-degree

misdemeanor charge. However, we decline to adopt March's approach.

       {¶ 16} In State v. Fields, 12th Dist. Clermont No. CA99-07-077, 2000 WL 342134 (Apr.

3, 2000), this court entertained an appeal involving a defendant indicted on a felony charge

of driving under the influence of alcohol or drugs (DUI). Id. at * 1. The state reduced the

charge to misdemeanor DUI after discovering that one of the three prior offenses which

underlay the felony DUI charge was not properly journalized. Id. Fields moved to dismiss on

speedy trial grounds, arguing that he was not tried within the requisite statutory period for

misdemeanor offenses. Id. The trial court denied the motion. Id.

       {¶ 17} On appeal, this court considered the speedy trial implications of reducing a

felony to a misdemeanor. Id. at * 5-6. We expressed our reluctance at placing an unduly
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severe burden on the state to proceed against all suspects whose conduct may constitute

either a felony or a misdemeanor as if they should be tried for the misdemeanor. Id. at * 6.

We further noted that the state pursued the initial felony charge against Fields in good faith,

and reduced the charge to a misdemeanor after discovering one of the prior DUI convictions

was defective. Id.

       {¶ 18} Ultimately, this court upheld Fields' DUI conviction. Id. We reasoned that a

defendant's speedy trial rights are served if he is brought to trial within 270 days of the initial

felony arrest and within 90 days of the reduced charge, whichever is earlier. Id. See also

State v. Cattee, 14 Ohio App.3d 239, 242-243 (4th Dist.1983). Applying the holding to the

procedural posture of the case, we determined that Fields was tried well within 270 days of

his initial arrest, and within 90 days of the reduction in charges. Fields at * 6.

       {¶ 19} These principles apply with equal force to the present matter. When March was

arrested on the initial felony charge and incarcerated in lieu of bail, the deadline for bringing

him to trial was 90 days after his arrest, or September 10, 2015. R.C. 2945.71(C)(2) and (E).

Once the prosecution nolled the felony count and proceeded on the misdemeanor, the state

was required to bring March to trial within 30 days of the amendment to the indictment, or

August 12, 2015. R.C. 2945.71(B)(2) and (E). In accordance with Fields, the August

deadline controlled as the earlier of the two. Fields at *6. March entered his no contest plea

and was convicted on July 23, 2015. Because this preceded the August deadline, March's

speedy trial rights were not violated.

       {¶ 20} In sum, where a criminal defendant is initially charged with felony and

misdemeanor level offenses and the felony charge is later dismissed, the defendant's speedy

trial rights are served if he is tried within 270 days of the initial felony arrest and within the

applicable misdemeanor time period following the reduction in charges. Here, March was

tried well within these timeframes.
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      {¶ 21} In view of our conclusion that March was not entitled to a dismissal of the

misdemeanor charge on speedy trial grounds, his sole assignment of error is overruled.

      {¶ 22} Judgment affirmed.


      M. POWELL, P.J., and S. POWELL, J., concur.




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