[Cite as State v. Thompson, 2014-Ohio-3706.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.       27232

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CLEOPHUS THOMPSON, JR.                               COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 13 04 1102

                                DECISION AND JOURNAL ENTRY

Dated: August 27, 2014



        BELFANCE, Presiding Judge.

        {¶1}    Defendant-Appellant Cleophus Thompson appeals from the decision of the

Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}    Mr. Thompson was arrested on April 20, 2013, and was later indicted on two

counts of felonious assault with two accompanying firearm specifications. After the trial date

was rescheduled twice, on December 5, 2013, Mr. Thompson filed a motion to dismiss based on

an alleged violation of his statutory speedy trial rights. While the trial court never ruled on the

motion, on December 18, 2013, Mr. Thompson pleaded no contest to one count of felonious

assault and the accompanying firearm specification. The remaining count and specification were

dismissed. The trial court sentenced Mr. Thompson to four years for felonious assault and a

mandatory term of three years for the firearm specification for a total of seven years. Mr.

Thompson has timely appealed, raising two assignments of error for our review.
                                                   2


                                                  II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO DISMISS THOMPSON’S CASE, AS REQUIRED BY LAW,
       AFTER THE STATE VIOLATED THOMPSON’S CONSTITUTIONAL AND
       STATUTORY RIGHTS TO A SPEEDY TRIAL.

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN [IT] DID NOT
       DISMISS THE CASE AFTER THE STATE VIOLATED THOMPSON’S
       CONSTITUTIONAL RIGHT TO DUE PROCESS BY KEEPING HIM
       INCARCERATED FOR A PROLONGED PERIOD OF TIME DURING THE
       PENDENCY OF HIS CASE.

       {¶3}    In Mr. Thompson’s two assignments of error he asserts that the trial court erred in

denying his motion to dismiss as his right to a speedy trial was violated. Because this Court does

not possess the complete record of the proceedings, we overrule his assignments of error.

       {¶4}    Both the Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. State

v. Pachay, 64 Ohio St.2d 218, 219 (1980). “There is also a statutory right to a speedy trial in

Ohio.” State v. Jackson, 9th Dist. Lorain No. 11CA010012, 2012-Ohio-3524, ¶ 8. Speedy trial

statutes constitute a rational effort to enforce the constitutional right to a public speedy trial of an

accused charged with the commission of a felony or a misdemeanor. Pachay at syllabus.

Accordingly, the prosecution and the trial courts have a mandatory duty to try an accused within

the time frame provided by the statute and strict compliance with the statute is required. State v.

Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 14.

       {¶5}    “R.C. 2945.71 dictates the time limits within which a defendant must be brought

to trial. Under R.C. 2945.71(C)(2), a person charged with a felony ‘[s]hall be brought to trial

within two hundred seventy days after the person’s arrest.’ This time period may be extended
                                                  3


for a number of reasons enumerated under R.C. 2945.72.” State v. McCormick, 9th Dist. Summit

No. 24516, 2009-Ohio-3169, ¶ 6. Therefore, to determine if the trial court erred in denying Mr.

Thompson’s motion to dismiss based on speedy trial grounds, this Court must review the entire

record and “‘determine the exact number of days that should have been tallied against the

state[.]’” Id., quoting State v. Broughton, 62 Ohio St.3d 253, 257 (1991).

       {¶6}    Unfortunately, the only transcript in the record on appeal is the transcript of Mr.

Thompson’s sentencing hearing. There are no transcripts of any pretrial hearings or status

conferences. Additionally, we note that there is no entry in the record denying Mr. Thompson’s

motion to dismiss. Thus, we do not even have the benefit of knowing why the trial court denied

Mr. Thompson’s motion to dismiss. It appears that such may have happened on the record as

part of Mr. Thompson’s plea hearing. However, that transcript is not in our record either.

Without the transcripts or the appropriate substitutes pursuant to the appellate rules, this Court

cannot know whether there are additional tolling events that would be attributable to Mr.

Thompson or whether he may have waived his right to a speedy trial in open court on the record.

See Ramey at ¶ 18 (“To be effective, an accused’s waiver of his or her constitutional and

statutory rights to a speedy trial must be expressed in writing or made in open court on the

record.”) (Internal quotations and citation omitted.). Further this Court is unable to determine

whether Mr. Thompson asserted below that his constitutional right to a speedy trial was also

violated, as his motion to dismiss only discusses his statutory right.

       {¶7}    As noted above, particularly in speedy trial cases, this Court is required to review

the entire record to determine if the trial court erred. See McCormick at ¶ 6; see also State v.

Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, at ¶ 33 (“[A]n appellate court may affirm a

conviction challenged on speedy-trial grounds even if the trial court did not expressly enumerate
                                                 4


any reasons justifying the delay when the reasonableness of the continuance is otherwise

affirmatively demonstrated by the record.”).

       An appellant has the responsibility of providing the reviewing court with a record
       of the facts, testimony, and evidentiary matters that are necessary to support the
       appellant’s assignments of error. In the absence of such a record or a substitute
       statement of the evidence as permitted by App.R. 9(C) and (D), an appellate court
       must presume regularity in the trial court’s proceedings and accept the validity of
       its judgment.

(Internal quotations and citations omitted.) Akron v. Kulasa, 9th Dist. Summit No. 19815, 2000

WL 353987, *4 (Apr. 5, 2000). Given the importance of the right to a speedy trial, this Court

would obviously prefer to have a complete record so that it could review the issue on the merits

and evaluate whether Mr. Thompson’s rights have been violated. However, in light of the

current state of the record, we are required to affirm the trial court’s judgment.1 See id. at *5.

Accordingly, we overrule Mr. Thompson’s assignments of error.

                                                III.

       {¶8}    In light of the foregoing, we affirm the judgment of the Summit County Court of

Common Pleas.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.


       1
          We note that nothing in this opinion should be read to foreclose Mr. Thompson’s ability
to file a motion to reopen pursuant to App.R. 26(B).
                                                5


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



WHITMORE, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
