         [Cite as State v. Gage, 2017-Ohio-8897.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-160824
                                                        TRIAL NO. 15TRD-41331
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

TALIS GAGE,                                         :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 8, 2017




Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,

Glaser Law Office and Angela J. Glaser, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Presiding Judge.

       {¶1}    Defendant-appellant Talis Gage appeals a conviction for walking in a

roadway and impeding traffic under Cincinnati Municipal Code 506-47. We find no

merit in his sole assignment of error, and we affirm his conviction.

                                I.     Facts and Procedure

       {¶2}    On September 19, 2015, Gage was arrested and charged with

obstructing official business under R.C. 2921.31, a second-degree misdemeanor, and

walking in a roadway and impeding traffic, a minor misdemeanor. He first asserted

his right to speedy trial on May 26, 2016. He was not tried until October 19, 2016,

over a year after his arrest.

       {¶3}    Immediately before trial, the state dismissed the obstructing-official-

business charge, and the case proceeded to a bench trial on the minor misdemeanor.

Gage was found guilty, and this appeal followed.

       {¶4}    In his sole assignment of error, Gage contends that the trial court

erred in denying his motion to dismiss. He argues that the state’s delay in bringing

him to trial violated both his statutory and constitutional rights to a speedy trial.

This assignment of error is not well taken.

                                 II.   Standard of Review

       {¶5}    Our review of the trial court’s decision involves mixed questions of fact

and law. We give due weight to the inferences drawn from the facts found by the

trial court as long as they are supported by competent, credible evidence. We review

the trial court’s conclusions of law de novo to determine whether the facts satisfy the

applicable legal standard. State v. Rice, 1st Dist. Hamilton No. C-150191, 2015-Ohio-

5481, ¶ 15.



                                              2
                    OHIO FIRST DISTRICT COURT OF APPEALS


                         III. Statutory Right to a Speedy Trial

       {¶6}   Gage was charged with a minor misdemeanor and a second-degree

misdemeanor, which was not dismissed until the day of trial.         R.C. 2945.71(D)

provides that “[a] person against whom one or more charges of different degrees * * *

all of which arose out of the same act or transaction, are pending shall be brought to

trial on all of the charges within the time period required for the highest degree of

the offense charged * * * .” The state must bring a person charged with a second-

degree misdemeanor to trial within 90 days of the person’s arrest or the service of

summons. R.C. 2945.71(B)(2).

       {¶7}   Because Gage showed that he was not tried within 90 days of his

arrest, he established a prima facie violation of the speedy-trial statutes. State v.

Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162, ¶ 5 (1st Dist.);

State v. Hirsch, 129 Ohio App.3d 294, 315, 717 N.E.2d 789 (1st Dist.1998). The state

bears the burden to show that actions or events chargeable to the defendant have

tolled enough time so that the defendant was tried within the speedy-trial period.

State v. Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060692, 2007-Ohio-

4881, ¶ 28; Brewster at ¶ 6.

       {¶8}   Extensions of the time period within which the state must try the

accused are permissible only for the reasons expressed in R.C. 2945.72. State v.

Saffel, 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988); Matthews at ¶ 28. Those

reasons include: (1) 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; (2) any period of delay necessitated by the accused’s lack of counsel; (3) any

period of delay occasioned by the neglect or improper act of the accused; (4) any

period of delay necessitated by reason of a plea in bar or abatement, motion,



                                          3
                     OHIO FIRST DISTRICT COURT OF APPEALS



proceeding, or action made or instituted by the accused; (5) the period of any

continuance granted on the accused’s own motion; and (6) the period of any

reasonable continuance granted other than on the accused’s own motion.           R.C.

2945.72(A), (C), (D), (E) and (H).

       {¶9}    Gage was arrested on September 9, 2015, and the time began running

the following day. State v. Ollison, 9th Dist. Summit No. 27994, 2016-Ohio-7029, ¶

8; State v. Stewart, 2d Dist. Montgomery No. 21462, 2006-Ohio-4164, ¶ 16. On

September 21, 2015, he appeared in court and asked for a continuance to speak to an

attorney.     On September 28, although he appeared in court, he refused to

acknowledge his own presence in the courtroom, and a capias was issued.

       {¶10} On October 8, 2015, the court journalized a motion and entry recalling

the capias and reset the date for an arraignment. The entry specifically stated that

Gage “knowingly and voluntarily extends the time limitations to be brought to trial *

* * from the date of the original arrest to the next scheduled date.” It was signed by

the defendant personally, not just his counsel. Thus, Gage knowingly waived his

speedy-trial rights from the date of his arrest until October 16, the next scheduled

date, and none of that time was chargeable to the state. See State v. King, 70 Ohio

St.3d 158, 160, 637 N.E.2d 903 (1994); State v. Kristofferson, 1st Dist. Hamilton No.

C-050736, 2006-Ohio-6046, ¶ 5.

       {¶11} At the next three hearings held on October 16, October 28, and

December 1, 2015, Gage asked for continuances. Thus, the speedy-trial time was

tolled. At a hearing on December 17, he failed to appear in court and another capias

was issued.

       {¶12} On February 18, 2016, the court journalized an entry recalling the

capias issued on December 17, 2015. Again, Gage himself signed the entry, which



                                          4
                     OHIO FIRST DISTRICT COURT OF APPEALS



stated that he “knowingly and voluntarily extended the time limitations to be

brought to trial” from date of his arrest until “the next scheduled date.” Gage again

waived his speedy-trial rights from the date of his arrest until the next scheduled

hearing date on March 3, 2016. Therefore, there was still no time chargeable to the

state.

         {¶13} At two subsequent hearings, on March 3 and March 17, Gage asked for

continuances, so that time was also not chargeable to the state. On March 31, the

case was referred to the assignment commissioner for a jury trial, which would have

started the speedy-trial time running, except that Gage executed another speedy-trial

waiver for the period from March 31 until May 4. So, due to either continuances

requested by Gage or waivers, no time elapsed that was chargeable to the state from

the date of arrest until May 4, 2016.

         {¶14} On May 4, the case was continued on a “defense request for pretrial”

because Gage was incarcerated on pending charges in the Greene County jail. Since

the continuance was a result of his motion, the time was not chargeable to the state.

         {¶15} On May 23, Gage’s counsel indicated that he was incarcerated in the

Greene County jail and that he wanted to be brought back to Hamilton County for

trial. The matter was continued for a jury trial. Gage executed another waiver of the

time from May 23, until June 28, 2016.

         {¶16} The record shows that on May 31, 2016, he withdrew that waiver. The

waiver was effective from the date it was executed until the date it was withdrawn.

See State v. Boles, 2d Dist. Montgomery No. 18762, 2003-Ohio-2693, ¶ 24. But even

if we do not consider that waiver, Gage was still tried within the speedy-trial period.

         {¶17} The time from May 4 to May 23 was not chargeable to the state

because the continuance was granted at Gage’s request. On May 23, when the matter



                                           5
                      OHIO FIRST DISTRICT COURT OF APPEALS



was set for a jury trial, the time began to run. Gage argues that the state failed to

exercise reasonable diligence to have him returned to Hamilton County for trial. We

need not consider those arguments because even if we consider all that time to be

chargeable to the state, Gage was still tried within the speedy-trial limits.

         {¶18} The next hearing occurred on May 26, so three days elapsed that were

chargeable to the state. At that hearing, Gage moved to dismiss the charges for lack

of a speedy trial. The trial court overruled that motion on May 31. The time from

May 26 to May 31 was not chargeable to the state because the delay was attributable

to Gage’s own motion.

         {¶19} The time again started running on May 31 and continued to run until a

hearing on September 13. During that time, a total of 78 days chargeable to the state

elapsed, and when added to the three days that had already elapsed, the total was 81

days. At the September 13 hearing, Gage again asked for a continuance, causing the

time to be tolled until the trial date of October 19.

         {¶20} Thus, from the date that Gage was arrested until the October 19, 2016,

trial date, only 81 days chargeable to the state elapsed. Therefore, Gage was tried

within the speedy-trial period. The trial court did not err in overruling Gage’s

motion to dismiss based on the alleged violation of his statutory right to a speedy

trial.

                         IV. Constitutional Right to a Speedy Trial

         {¶21} Gage further contends that the delay violated his constitutional right to

a speedy trial. Both the United States and the Ohio Constitution guarantee the right

to a speedy trial. State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589 (1971), paragraph

one of the syllabus; State v. Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-

5791, ¶ 6. The right to a speedy trial applies to unjustifiable delays both before and


                                             6
                    OHIO FIRST DISTRICT COURT OF APPEALS



after prosecution commences. Meeker at paragraph three of the syllabus; Pierce at ¶

6.

       {¶22} In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972), the United States Supreme Court set forth a balancing test for determining

whether a defendant’s constitutional speedy-trial rights have been violated. The

factors to be weighed are “the length of the delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Id. at 533. No

single factor is determinative. Id.; Rice, 1st Dist. Hamilton No. C-150191, 2015-Ohio-

5481, at ¶ 23. Instead, “they are related factors and must be considered together with

such other circumstances as may be relevant.” Pierce at ¶ 7, quoting Barker at 533.

       {¶23} First Factor—Length of Delay. The first factor is a threshold inquiry.

“Simply to trigger a speedy trial analysis, an accused must allege that the interval

between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay.”   State v. Jackson, 1st Dist. Hamilton Nos. C-

150657, C-150658, C-150659 and C-150660, 2016-Ohio-5196, ¶ 10, quoting Doggett

v. United States, 505 U.S. 647, 651-652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

       {¶24} In general, courts have found delays over one year to be presumptively

prejudicial. State v. Selvage, 80 Ohio St.3d 465, 468, 687 N.E.2d 433 (1997); Pierce,

1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, at ¶ 8; Jackson at ¶ 10. This court

has held that in a case involving a misdemeanor assault, a nine-month delay was

presumptively prejudicial. State v. Sears, 166 Ohio App.3d 166, 2005-Ohio-5963,

849 N.E.2d 1060, ¶ 12 (1st Dist.). Gage was not tried until over a year after his

arrest. Therefore, the delay is presumptively prejudicial and requires this court to

consider the remaining factors.




                                          7
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} Second Factor—Reason for the Delay.          Gage argues that the state

failed to exercise due diligence in getting him back to Hamilton County from Greene

County where he was incarcerated on other charges. Gage’s argument ignores that

the bulk of the delay was attributable to Gage. The state did not ask for a single

continuance. Gage asked for seven continuances, failed to appear even when he was

not incarcerated elsewhere, failed to acknowledge his own presence at an early

hearing, and waived most of the remaining time.        Delay that is caused by the

defendant does not count against the state. Rice, 1st Dist. Hamilton No. C-150191,

2015-Ohio-5481, at ¶ 25. Under the circumstances, this factor weighs heavily in

favor of the state.

       {¶26} Third Factor—Assertion of the speedy-trial right. The third factor

addresses the timeliness and frequency of the defendant’s assertion of his speedy-

trial rights. Rice at ¶ 27. If a defendant sits on his speedy-trial rights, the factor

weighs against the defendant. Jackson, 1st Dist. Hamilton Nos. C-150657, C-150658,

C-150659 and C-150660, 2016-Ohio-5196, at ¶ 14. Gage did not assert his speedy-

trial rights until eight months after he had been arrested and only after he had asked

for a number of continuances and had repeatedly waived his rights. Therefore, this

factor weighs in favor of the state.

       {¶27} Fourth Factor—Prejudice Caused by the Delay. A court should assess

prejudice “in light of the interests of defendants which the speedy trial right was

designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. In

Barker, the court identified three interests:     (1) to prevent oppressive pretrial

incarceration; (2) to minimize the accused’s anxiety and concern; and (3) to limit the

possibility that the defense will be impaired. The last concern is, by far, the most

serious. When witnesses “die or disappear during a delay, the prejudice is obvious.”



                                          8
                     OHIO FIRST DISTRICT COURT OF APPEALS



Rice, 1st Dist. Hamilton No. C-150191, 2015-Ohio-5481, at ¶ 28, quoting Barker at

532.

       {¶28} Gage was not incarcerated prior to trial, so the first interest is not

involved here. As to the second interest, these charges may have caused Gage some

anxiety and concern, but they would not be as concerning as the felony charges he

faced in Greene County.

       {¶29} As to the prejudice element, this court has stated that in aggravated

cases involving excessive delay, prejudice may be presumed despite the defendant’s

inability to identify particular testimony or evidence that has become unavailable due

to the passage of time. Rice at ¶ 28, citing Doggett, 505 U.S. at 655-656, 112 S.Ct.

2686, 120 L.Ed.2d 520. This case is not so egregious that this court will presume

prejudice. The eight-month delay in this case does not compare to the years of delay

that occurred in cases where prejudice was presumed, especially considering that the

state was responsible for very little of the delay. See Doggett at 655-658; Pierce, 1st

Dist. Hamilton No. C-160699, 2017-Ohio-5791, at ¶ 15-17; Jackson, 1st Dist.

Hamilton No. C-150657, C-150658, C-150659 and C-150660, 2016-Ohio-5196, at ¶

16-20; Rice at ¶ 28-29.

       {¶30} The record does not show that Gage suffered actual prejudice from the

delay. His defense at trial was not impaired. The offense occurred during a protest

of police brutality. It was captured on video and seen by numerous witnesses. Gage

did not dispute the facts as set forth by the state. His defense was a legal argument—

that he was exercising his First Amendment right to free speech. Therefore, the

fourth factor weighs in favor of the state.

       {¶31} Gage argues that his ability to be released or obtain reasonable bond in

Greene County was affected by these pending charges. This argument is purely



                                              9
                     OHIO FIRST DISTRICT COURT OF APPEALS



speculative. Nothing in the record supports this assertion. But even if this assertion

is true, it would not tip the balance in Gage’s favor.

       {¶32} With three of the Barker factors weighing in favor of the state, we

cannot hold that Gage’s constitutional right to a speedy trial was violated. Therefore,

the trial court did not err in denying his motion to dismiss for the alleged violation of

his constitutional speedy-trial rights.

                                          V. Summary

       {¶33} In sum, the trial court did not err in denying Gage’s motion to dismiss.

Consequently, we overrule his sole assignment of error and affirm his conviction.

                                                                    Judgment affirmed.


C UNNINGHAM and M YERS , JJ., concur.


Please note:
       The court has recorded its own entry this date.




                                            10
