[Cite as State v. Scahel, 2016-Ohio-18.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102557




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           MARK SCAHEL
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-05-463690-A and CR-08-517978-A

        BEFORE: Keough, P.J., McCormack, J., and Stewart, J.

        RELEASED AND JOURNALIZED: January 7, 2016
ATTORNEY FOR APPELLANT

Michael J. O’Shea
O’Shea & Associates Co., L.P.A.
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Justine Dionisopoulos
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Mark Scahel, appeals the trial court’s decision denying

his motion to dismiss. For the reasons that follow, we reverse and remand the matter to

the trial court to issue an order vacating Scahel’s convictions and dismissing the cases

with prejudice.

       {¶2} In March 2005, Scahel was charged in Cuyahoga C.P. No. CR-05-463690

with four counts of criminal nonsupport in violation of R.C. 2929.19. Notice of the

indictment was sent to Scahel on March 25, 2005, by certified mail to an address in

Brunswick, Ohio. The certified mail was returned to the court as “unclaimed.” When

Scahel did not appear for arraignment on April 5, 2005, a capias was issued, and a letter

of apprehension was sent to the Medina County Sheriff’s Office. On September 28,

2007, a letter of apprehension was subsequently sent to the King County Sheriff’s Office

in Seattle, Washington, notifying the department that an arrest warrant for Scahel existed

out of Cuyahoga County, Ohio and that the state of Ohio would extradite Scahel if he was

arrested in their jurisdiction.

       {¶3} In November 2008, Scahel was charged in Cuyahoga C.P. No. CR-08-517978

with two counts of criminal nonsupport in violation of R.C. 2929.19. Notice of the

indictment was sent to Scahel on November 25, 2008, by certified mail to an address in

Seattle, Washington.      The certified mail was returned to the court as “unclaimed.”

When Scahel did not appear for arraignment, a capias was issued.
       {¶4} On August 18, 2011, Scahel was arrested in the state of Washington as a

“fugitive from justice” based on the Ohio warrant issued under CR-08-517978. On

August 19, 2011, Scahel appeared before the Kitsap County District Court in Washington,

where he refused to waive extradition to the state of Ohio; bail was set at $20,000, which

he posted on August 20. Scahel appeared before the Washington court on the fugitive

from justice charge three times — September 19, October 17, and November 14. On

November 18, the state of Washington dismissed the charge against Scahel.

       {¶5} On October 9, 2012, Scahel was located in Klamath County, Oregon.

Despite only being told that the Klamath County law enforcement was “out with the

subject,” the Cuyahoga County Sheriff’s Department sent a letter of detainer to the

authorities in Klamath County. Later it was discovered that Scahel was in fact arrested

on October 9. No further action was taken by the state of Ohio in connection with

Scahel’s interaction with the authorities in Oregon.

       {¶6} In April 2013, the capiases issued in the underlying cases were recalled when

Scahel voluntarily turned himself in to authorities in Cuyahoga County. He subsequently

moved to dismiss these cases against him, alleging that the state violated his right to a

speedy trial in violation of R.C. 2945.71. Specifically, Scahel contended that when he

was arrested in the state of Washington in 2011 and then again in the state of Oregon in

2012, the state of Ohio failed to extradite him to answer to these felony charges even

though the state had notice of his apprehension in both of those states.
       {¶7} Following an evidentiary hearing, the trial court issued a written decision

concluding that Scahel’s right to a speedy trial had not been violated. Scahel appealed.

See State v. Scahel, 8th Dist. Cuyahoga No. 100705, 2014-Ohio-3042 (“Scahel I”). On

appeal, this court found that Scahel’s motion to dismiss was based on statutory grounds,

but the trial court denied his motion on constitutional speedy trial grounds. Id. at ¶ 5-7.

Therefore, this court reversed the trial court and remanded the matter for the trial court to

consider Scahel’s statutory speedy trial arguments. Id.

       {¶8} On remand, the trial court issued another written decision. Although the

court acknowledged the instructions given by this court in Scahel I, it again conducted a

constitutional speedy trial analysis and denied Scahel’s motion, finding no speedy trial

violation.

       {¶9} Scahel now appeals the trial court’s decision, contending that the trial court

erred in denying his motion to dismiss for violation of his right to a speedy trial. While

we note that the trial court again conducted only a constitutional analysis, the state

conceded at oral argument that Scahel satisfied his burden of showing that more than 270

days elapsed between arrest and trial but asserted that various tolling provisions apply that

extend this time. With this concession, we will review Scahel’s assigned error.

       {¶10} Whether a trial court’s ruling on a speedy trial question was correct presents

a mixed question of law and fact. State v. Borrero, 8th Dist. Cuyahoga No. 82595,

2004-Ohio-4488, ¶ 10, citing State v. Barnette, 12th Dist. Fayette No. CA2002-06-011,

2003-Ohio-2014. Appellate courts apply a de novo standard of review to the legal issues
but afford great deference to any findings of fact made by the trial court, if supported by

competent and credible evidence.       State v. Barnes, 8th Dist. Cuyahoga No. 90847,

2008-Ohio-5472, ¶ 17. This court must construe the statutes strictly against the state

when reviewing the legal issues in a speedy trial claim. Brecksville v. Cook, 75 Ohio

St.3d 53, 57, 661 N.E.2d 706 (1996). Moreover, in analyzing the procedural timeline

record of the case, this court is required to strictly construe any ambiguity in the record in

favor of the accused. State v. Johnson, 8th Dist. Cuyahoga Nos. 78097, 78098, and

78099, 2001 Ohio App. LEXIS 999, *6 (Mar. 8, 2001).

         {¶11} R.C. 2945.71 requires the state to bring a felony defendant to trial within

270 days of arrest. If a defendant is not brought to trial within the speedy trial limits, the

court, upon motion, must discharge the defendant. R.C. 2945.73(B).              A defendant

establishes a prima facie case for discharge based on a speedy trial violation when he or

she demonstrates that more than 270 days elapsed before trial. See State v. Butcher, 27

Ohio St.3d 28, 500 N.E.2d 1368 (1986). The burden then shifts to the state to show that

the tolling provisions of R.C. 2945.72 extended the speedy trial time limit. Cook at

55-56.

         {¶12} Despite the concession made at oral argument that Scahel satisfied his

burden of proving that more than 270 days elapsed for speedy trial purposes, the state

contends in its appellate brief that the speedy trial clock did not begin until Scahel turned

himself in to the Cuyahoga County authorities in April 2013. In support, the state cites

this court’s decision in State v. Hill, 8th Dist. Cuyahoga No. 40429, 1980 Ohio App.
LEXIS 11371 (Apr. 3, 1980). In that case, Hill was indicted on April 21, 1975, and went

capias four days later. Subsequent to the indictment, Hill moved from Ohio and a

detainer was sent to New Jersey in October 1976. After Hill was arrested in New Jersey

in October 1976 on the outstanding Ohio warrant, the extradition proceedings were

continued three times because Ohio authorities failed to appear in New Jersey to bring

Hill back to Ohio. After the case in New Jersey was dismissed for failure to prosecute,

Hill was arrested in September 1978 in Ohio on the outstanding warrant. Hill moved to

dismiss the case, contending that because the state failed to exercise diligence in securing

his availability for trial when he was in the custody of New Jersey authorities, the state of

Ohio violated his right to a speedy trial and he should be discharged.

       {¶13} This court disagreed with Hill. Emphasizing that he moved from Ohio

subsequent to the indictments against him, this court found that any delay in bringing Hill

to trial was attributable to his own actions. Id. at *7-8 (“However, it is important to note

that it was appellant who removed himself from this jurisdiction and made himself

unavailable after the indictments were returned against him.”). The court determined,

therefore, that the speedy trial clock began when he was arrested in Ohio in 1978.

       {¶14} This case is distinguishable from Hill. In this case, it is unknown when

Scahel moved from the state of Ohio to the state of Washington. The certified mail sent

to Scahel at an Ohio address after the 2005 indictment was returned unclaimed.

Furthermore, Scahel was served notice of the 2007 indictment at a Washington address;

therefore, he did not relocate after indictment — he was already living outside the state of
Ohio. There is nothing in the record, nor has the state identified any evidence in the

record, for us to conclude that Scahel had any knowledge of the indictments prior to his

arrest in Washington.

       {¶15} The trial court found that the speedy trial clock began on August 18, 2011,

the day that Scahel was arrested in Kitsap County, Washington on Cuyahoga County’s

outstanding felony warrant — “The question then becomes whether the time from August

18, 2011 until Scahel’s return to Ohio on or about April [4], 2013 caused a violation of

his speedy trial rights.” (Trial court Revised Opinion on Remand, January 6, 2015).

The trial court’s finding is supported by competent and credible evidence.

       {¶16} Our review of the record shows that the state of Ohio initiated Scahel’s

arrest in Washington by virtue of the Ohio arrest warrants issued in 2005 and 2008.

Therefore, the state of Ohio had 270 days to bring Scahel to trial from the date of his

arrest on April 18, 2011 in Washington. See State v. Boso, 4th Dist. Washington No.

95CA10, 1996 Ohio App. LEXIS 4215, *13 (Sept. 11, 1996) (the statutory requirements

of R.C. 2945.71 apply beginning from the time the appellant was arrested in West

Virginia at the request of Ohio authorities).

       {¶17} Because the speedy trial clock began on August 18, 2011, over 270 days had

elapsed between his arrest in Washington and the time the motion to dismiss was filed in

2013; Scahel therefore established a prima facie case of a speedy trial violation. Again,

the state concedes that if we determine that the arrest in Washington starts the speedy trial
clock, the time has run and Scahel has satisfied his burden of demonstrating that more

than 270 days had passed. The burden now shifts to the state.

       {¶18} Under R.C. 2945.72, the time within which an accused must be brought to

trial is extended for various reasons, including

       [a]ny 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. (Emphasis
       added.)

R.C. 2945.72(A). See, e.g., State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853

N.E.2d 283; State v. Pirkel, 8th Dist. Cuyahoga No. 93305, 2010-Ohio-1858; State v.

Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283.

       {¶19} Because Scahel did not waive extradition, the time would have been tolled

under the express conditions of R.C. 2945.72(A). However, the time is tolled only if the

state exercised reasonable diligence in securing Scahel’s availability. The state contends

it satisfied its obligations under the law.

       {¶20} Whether the state exercised reasonable diligence in securing Scahel’s

availability is based on the circumstances of the case and the actions taken by the state.

In State v. Major, 180 Ohio App.3d 29, 2008-Ohio-6534, 903 N.E.2d 1272 (6th Dist.), the

Sixth District held that the state did not exercise reasonable diligence in securing the

defendant’s availability despite the defendant’s refusal to waive extradition. The court

ruled that the evidence showed that the defendant did not leave Ohio to evade

prosecution, and the state failed to timely secure a governor’s warrant. The court held
that this “inaction by [the state] is not the diligence necessary to toll speedy trial time.”

Id. at ¶ 24.

       {¶21} In this case, much like in Major, there is no evidence that Scahel left the

state of Ohio to evade prosecution, but there is evidence that the state failed to timely

secure a governor’s warrant.

       {¶22} The states of Ohio, Washington, and Oregon have adopted the Uniform

Criminal Extradition Act (“Act”). See R.C. 2963.01 et seq. (Ohio), RCW 10.88 et seq.

(Washington), and ORS 133.743 et seq. (Oregon). Pursuant to the Act, extradition is an

official action between the executive authorities of two states. See R.C. 2963.02; Boso,

4th Dist. Washington No. 95CA10, 1996 Ohio App. LEXIS 4215. The Act also makes a

separate provision for the arrest of a fugitive from justice upon the filing of a complaint

before the judge in the state where the fugitive is located. See R.C. 2963.11.

       {¶23} In Boso, the Fourth District succinctly set forth the procedure when a

foreign state arrests an individual:

       Basically, the statutes provide that when a complaint is made before a judge
       in a foreign state, stating that a crime has been committed in another state
       and that the accused has fled, the judge shall issue a warrant for the
       apprehension and delivery of the accused. Id. When the accused is
       brought before the foreign court, if it appears the accused is the person
       charged and that he has fled from justice, the judge must by warrant,
       commit the accused to jail for such a period of time not to exceed thirty
       days as will enable formal extradition proceedings to occur. However, the
       accused is entitled to furnish bail unless the underlying offense is
       punishable by death or life imprisonment under the law of the state where
       committed. See R.C. 2963.13 and 2963.14. In releasing the accused upon
       a bond pending preparation of a governor’s warrant for extradition, the
       court must specify a time for the accused’s appearance and surrender. Id.
       If the accused is not arrested under a governor’s warrant within the time
       specified above, the judge may discharge the accused or recommit the
       accused for a period not to exceed sixty days or again, place the accused on
       bail after setting a new date for surrender and appearance. See R.C.
       2963.15. Thus, a state has ninety days to process an extradition request
       after causing an accused to be arrested on a fugitive warrant.

Id. at *11-12. See also RCW 10.88 et seq. This is the procedure that was followed

when Scahel was arrested in the state of Washington.

       {¶24} The state of Ohio knew that Scahel had refused to waive extradition the day

after his arrest, yet it waited a week to issue a detainer requesting that he be held without

bond pending extradition.     Furthermore, the governor’s warrant application was not

prepared by the state of Ohio until two or three weeks after Scahel refused to waive

extradition. There is no documentary evidence in the record of the governor’s warrant

application. Furthermore, there was no evidence or testimony presented as to when the

actual governor’s warrant was issued or whether the state of Washington received the

warrant. The trial court found, and we agree, that it is unclear whether a governor’s

warrant was ever issued by the Ohio Governor, or if it was, whether it was ever received

by the appropriate authorities in Washington while they were still exercising control over

Scahel. As the trial court pointed out, “it is doubtful that the authorities received any

notification since Scahel’s Fugitive from Justice charges in Washington were dismissed

by the Kitsap County District Court on November 18, 2011.”

       {¶25} While the initial efforts of the prosecution constituted reasonable diligence,

the state did nothing after it applied for the governor’s warrant to secure Scahel. It has a

duty to follow-up with this application; the state cannot sit idly by without continuing
with its obligation and responsibility to secure a defendant’s availability once it is put on

notice that a defendant is being held in a foreign state awaiting extradition. Moreover,

after receiving notice that the state of Oregon had apprehended Scahel on October 9,

2012, the state again did not do any sort of follow-up or investigation after it sent the

detainer on that same day.

       {¶26} The state places much emphasis on the fact that Ohio was not informed of

Scahel’s court dates in Washington and that there was no guarantee that he would appear

at those court dates.    It was not the duty of the state of Washington, however, to

repeatedly contact the state of Ohio — it is Ohio’s duty and responsibility to bring Scahel

to trial within 270 days of his arrest. The evidence presented showed that a court date

was scheduled for Scahel’s return on September 19, 2011; this information was available

when the state learned that Scahel posted bond. However, the testimony revealed that no

one from the state of Ohio contacted Kitsap County to verify when Scahel was scheduled

to appear in court. More importantly, the state of Ohio did not appear at this hearing, or

any subsequent hearing, to apprehend Scahel.

       {¶27} Although there was no guarantee Scahel would appear for his court dates

after posting bond, this did not absolve the state of Ohio from its obligations under the

law. A perfunctory telephone call would have revealed that Scahel was appearing for his

scheduled court hearings in Washington. While the state of Ohio through its county

prosecutor’s office may have followed its procedures in applying for a governor’s
warrant, it did not continue with its obligation to ensure that the warrant was issued or

that the state of Washington received the warrant.

       {¶28} Construing the statutes strictly against the state, we find that the speedy trial

time began when Scahel was arrested in Washington and because the state did not

exercise reasonable diligence in securing him, the time was not tolled. Scahel’s right to a

speedy trial was violated in these cases.

       {¶29} Accordingly, Scahel’s assignment of error is sustained; the decision of the

trial court is reversed. The cases are remanded to the trial court to issue an order

vacating Scahel’s convictions and dismissing the cases with prejudice.

       {¶30} Judgement reversed and remanded with instructions.

       It is ordered that appellant recover from appellee 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 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.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR
