[Cite as State v. Chambers, 2011-Ohio-1055.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       JACKSON COUNTY


STATE OF OHIO,                                      :

        Plaintiff-Appellant,                        :    Case No. 10CA12


        vs.                                         :

CHRISTOPHER CHAMBERS,                               :    DECISION AND JUDGMENT ENTRY


      Defendant-Appellee.              :
________________________________________________________________

                                               APPEARANCES:

COUNSEL FOR APPELLANT:                   Jonathan D. Blanton, Jackson County Prosecuting
                                         Attorney, 295 Broadway Street, Suite 100, Jackson, Ohio
                                         45640

COUNSEL FOR APPELLEE:                    Jeremy J. Masters, 250 East Broad Street, Suite 1400,
                                         Columbus, Ohio 43215


_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-3-11

ABELE, J.

        {¶ 1} This is an appeal from a Jackson County Common Pleas Court judgment that

dismissed the indictment against Christopher Chambers, defendant below and appellee herein.

The court determined that the State of Ohio, plaintiff below and appellant herein, failed to try

appellee within the statutory speedy trial time limit.

        {¶ 2} Appellant raises the following assignment of error for review:
JACKSON, 10CA12                                                                                                                2


                   “DID THE TRIAL COURT ERR IN FINDING THAT THE
                   DEFENDANT-APPELLEE’S RIGHT TO A SPEEDY TRIAL
                   HAD BEEN VIOLATED?”

         {¶ 3} In March 2007, appellee was charged in the Jackson County Municipal Court with

one count of breaking and entering and one count of assault. He was arrested on March 16,

2007 and remained in jail until August 29, 2007.1

         {¶ 4} On May 10, 2007, the Jackson County Grand Jury returned an indictment that

charged appellee with assault and breaking and entering. After appellee's arraignment, the trial

court set the matter for a July 30, 2008 status conference. Appellee did not appear for the status

conference.

         {¶ 5} On February 5, 2010, appellee filed a pro se motion to dismiss due to an alleged

speedy trial violation. On February 17, 2010, appellee entered a guilty plea to the breaking and

entering charge, and the court dismissed the assault charge. On April 29, 2010, the court

permitted appellee to withdraw his guilty plea.

         {¶ 6} On June 11, 2010, appellee filed a motion to dismiss due to an alleged speedy trial

violation. On June 14, 2010, the trial court held a hearing to consider appellee’s motion.

Following the hearing, the trial court found that appellee had been in jail between March 17,

2007 and August 29, 2007 on the pending charge. The court then employed the triple-count

provision and determined that by August 29, 2007, four hundred ninety-eight days elapsed for

speedy trial purposes. The court thus concluded that the state failed to bring appellee to trial on

         1
              We could not locate anything in the record submitted to this court to verify these dates. We observe, however,
that the trial court used these dates to calculate the speedy trial time and in the absence of evidence to the contrary, we
presume that the trial court’s factual findings are correct.
JACKSON, 10CA12                                                                                          3

the pending charges within two hundred seventy days and dismissed the charges. The state now

appeals.

        {¶ 7} In its sole assignment of error, the appellant argues that the trial court erroneously

determined that the state failed to bring appellee to trial within the statutory speedy trial time

limits. In particular, the appellant asserts that appellee’s failure to appear at the July 30, 2008

status conference forfeited his right to assert a violation of the speedy trial statute for those days

preceding his failure to appear. Under the facts present in the instant case, however, we do not

agree with the appellant.

        {¶ 8} Initially, we note that a trial court’s decision regarding a motion to dismiss based

upon a violation of the speedy trial provisions presents a mixed question of law and fact for our

review. See, e.g., State v. Toler, Ross App. No. 09CA3103, 2009-Ohio-6669, at ¶15; State v.

Alexander, Scioto App. No. 08CA3221, 2009-Ohio-1401, at ¶15. We accord due deference to

the trial court’s findings of fact if competent, credible evidence supports them. We will,

however, independently review whether the trial court properly applied the law to the facts of the

case. See, e.g., State v. Skinner, Ross App. No. 06CA2931, 2007-Ohio-6320, at ¶8; State v.

Thomas, Adams App. No. 06CA825, 2007-Ohio-5340 at ¶8.

        {¶ 9} Ohio's speedy trial provisions, R.C. 2945.71 to 2945.73, seek to enforce an

accused’s constitutional right to a speedy and public trial. State v. Pachay (1980), 64 Ohio St.2d

218, 416 N.E.2d 589, syllabus. In Brecksville v. Cook (1996), 75 Ohio St.3d 53, 55, 661 N.E.2d

706, 707, the court discussed an accused’s right to a speedy trial:

                “Ohio’s speedy trial statute was implemented to incorporate the
        constitutional protection of the right to a speedy trial provided for in the Sixth
        Amendment to the United States Constitution and in Section 10, Article I, of the
JACKSON, 10CA12                                                                                       4

       Ohio Constitution. State v. Broughton (1991), 62 Ohio St.3d 253, 256, 581
       N.E.2d 541, 544; see Columbus v. Bonner (1981), 2 Ohio App.3d 34, 36, 2 Ohio
       B.Rep. 37, 39, 2 Ohio App.3d 34, 440 N.E.2d 606, 608. The constitutional
       guarantee of a speedy trial was originally considered necessary to prevent
       oppressive pretrial incarceration, to minimize the anxiety of the accused, and to
       limit the possibility that the defense will be impaired. State ex rel. Jones v.
       Cuyahoga Cty. Ct. of Common Pleas (1978), 55 Ohio St.2d 130, 131, 9 Ohio
       App.3d 108, 109, 378 N.E.2d 471, 472.
                Section 10, Article I of the Ohio Constitution guarantees to the party
       accused in any court ‘a speedy public trial by an impartial jury.’ ‘‘Throughout the
       long history of litigation involving application of the speedy trial statutes, this
       court has repeatedly announced that the trial courts are to strictly enforce the
       legislative mandates evident in these statutes. This court’s announced position of
       strict enforcement has been grounded in the conclusion that the speedy trial
       statutes implement the constitutional guarantee of a public speedy trial.’ (Citations
       omitted.) State v. Pachay (1980), 64 Ohio St.2d 218, 221, 416 N.E.2d 589, 591.
       We are acutely conscious of the magnitude of the rights we interpret today. We
       have also previously explained, however, that ‘the prescribed times for trial set
       forth in R.C. 2945.71 are not absolute in all circumstances, but a certain measure
       of flexibility was intended by the General Assembly by the enactment of R.C.
       2945.72, wherein discretionary authority is granted to extend the trial date beyond
       the R.C. 2945.71 time prescriptions.”

       {¶ 10} In seeking to enforce an accused’s constitutional right to a speedy trial, R.C.

2945.71(C)(2) requires the state to try a person charged with a felony within two hundred seventy

days after his arrest. For purposes of computing the two hundred seventy day period, R.C.

2945.71(E) provides that each day an accused spends in jail awaiting trial on the pending charge

counts as three days. The date of arrest is not counted in calculating the number of speedy trial

days that have elapsed. State v. Lautenslager (1996), 112 Ohio App.3d 108, 109-110, 677 N.E.2d

1263; State v. McCornell (1993), 91 Ohio App.3d 141, 145, 631 N.E.2d 1110, 1112; State v.

Steiner (1991), 71 Ohio App.3d 249, 250-251, 593 N.E.2d 368, 369.

       {¶ 11} Once an accused demonstrates that more than two hundred seventy days have

elapsed between his initial arrest and the date of his trial, the accused establishes a prima facie
JACKSON, 10CA12                                                                                 5

case for dismissal. State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368,

1369-1370; State v. Baker (1993), 92 Ohio App.3d 516, 525, 636 N.E.2d 363, 369; State v.

Howard (1992), 79 Ohio App.3d 705, 707, 607 N.E.2d 1121; State v. Geraldo (1983), 13 Ohio

App.3d 27, 28, 468 N.E.2d 328. 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 day period. Baker, 92 Ohio App.3d at 526, 636 N.E.2d at 369; Howard, supra; State v.

Bowman (1987), 41 Ohio App.3d 318, 319, 535 N.E.2d 730.

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

day period may be extended. R.C. 2945.72 provides:

                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:
                (A) Any period during which the accused is unavailable for hearing or
       trial, by reason of other criminal proceedings against him, within or outside the
       state, by reason of his confinement in another state, or by reason of the pendency
       of extradition proceedings, provided that the prosecution exercises reasonable
       diligence to secure his availability;
                (B) Any period during which the accused is mentally incompetent to stand
       trial or during which his mental competence to stand trial is being determined, or
       any period during which the accused is physically incapable of standing trial;
                (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;
                (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;
                (F) Any period of delay necessitated by a removal or change of venue
       pursuant to law;
                (G) Any period during which trial is stayed pursuant to an express
       statutory requirement, or pursuant to an order of another court competent to issue
       such order;
                (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;
JACKSON, 10CA12                                                                                         6

                  (I) Any period during which an appeal filed pursuant to section 2945.67 of

        the Revised Code is pending.

        {¶ 13} If an accused is not brought to trial within the time limits set forth in the speedy

trial statutes, and if the R.C. 2945.72 exceptions do not apply, R.C. 2945.73 requires the court,

upon motion prior to trial, to discharge the accused.

        {¶ 14} After our review of the record in the case sub judice, we agree with the trial

court’s conclusion that the state failed to bring appellee to trial within the statutory speedy trial

time limit. As the trial court found, appellee was in jail on the pending charge for one hundred

sixty-six days. Because appellee was in jail, each of the one hundred sixty-six days counts as

three days for speedy trial purposes. Under this triple-count mechanism, four hundred

ninety-eight speedy trial days elapsed between March 17, 2007, and August 29, 2007. During

this time period, a trial date was not set. Also during this time period, appellee did not fail to

appear for any scheduled court appearances. The appellant has not offered any explanation as to

why it did not seek to try appellee before the speedy trial clock expired in 2007. Rather, the

appellant argues that because appellee failed to appear at a status conference over one year after

the speedy trial time limit had already expired, he waived his right to assert a speedy trial

violation.

        {¶ 15} To support its argument, the appellant cites State v. Bauer (1980) 61 Ohio St.2d

83, 399 N.E.2d 555. In Bauer, the court held: “[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. In Bauer, the court initially set a trial
JACKSON, 10CA12                                                                                     7

date within the speedy trial time limit, but the defendant failed to appear for that timely-set court

date. The Bauer court refused to allow a defendant to assert the speedy trial protections when

the defendant’s own actions resulted in the expiration of the time limit.

       {¶ 16} By contrast, in the case sub judice it was not the accused’s actions that resulted in

the expiration of the speedy trial time limit. Rather, the speedy trial time had expired prior to

the time appellee failed to appear at the July 30, 2008 status conference. Under these

circumstances, we do not believe that the rule set forth in Bauer applies so as to bar appellee

from asserting a speedy trial violation. Our holding is limited, however, to those situations

when the speedy trial time limit expires before the defendant’s failure to appear at a court

hearing.

       {¶ 17} Accordingly, based upon the foregoing reasons we hereby overrule the appellant’s

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

                                                                         JUDGMENT AFFIRMED.

                                       JUDGMENT ENTRY

       It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Jackson County

Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

       Harsha, P.J. & McFarland, J.: Concur in Judgment & Opinion
JACKSON, 10CA12                                                                                  8

                                     For the Court




                                                           BY:
                                          Peter B. Abele, 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.
