COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59678 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES F. DAVIS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-207104 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public L. CHRISTOPHER FREY, ESQ. Defender Assistant Prosecuting Attorney ROBERT M. INGERSOLL, ESQ. The Justice Center Assistant Public Defender 1200 Ontario Street The Marion Building, Room 307 Cleveland, OH 44113 1276 West Third Street Cleveland, OH 44113-1569 - 1 - HARPER, J.: Defendant-appellant, James F. Davis, was indicted by the Cuyahoga County Grand Jury in a four-count indictment on March 25, 1986. He was charged in counts one and two with violating R.C. 2925.03 and in counts three and four with violating R.C. 2925.13. All counts of the indictment included prior drug conviction and violence specifications. Appellant, at his arraignment on March 10, 1987, pled not guilty to all counts. On March 19, 1987, appellant filed a Motion to Dismiss for failure to timely bring him to trial. The trial court held a hearing on the motion on April 22, and subsequently denied it on July 28, 1987. Appellant changed his previously entered not guilty pleas to no contest on July 28, 1987. The trial court thereafter sentenced him to concurrent terms of two (2) to fifteen (15) years on counts one and two, and one and one-half (1-1/2) years on counts three and four. Appellant was granted a delayed appeal pursuant to App. R. 5 and assigns two errors for review. A careful review of the record compels affirmance. I. Appellant, in his first assignment of error, asserts that: "JAMES DAVIS WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL." Appellant contends that he was denied his constitutional right to a speedy trial when he filed his motion to dismiss three - 2 - hundred ninety-seven (397) days after his arrest. As two hundred seventy (270) days passed since his arrest, he asserts that he made a prima facie case for discharge under the speedy trial statutes. He argues that the state failed to demonstrate how "[a]ny period of delay occasioned by the neglect or improper act of the accused" tolled the speedy trial time. Appellant thus claims that the trial court erred by denying his motion to dismiss for lack of speedy trial pursuant to R.C. 2945.71. Appellant's arrest occurred on February 26, 1986 after making two sales to undercover Cleveland narcotics officers. He informed the arresting officers that he resided at 7117 St. Clair Avenue, Cleveland, Ohio. He also supplied them with his parents' address, 474 East 143rd Street, Cleveland, Ohio. Appellant was incarcerated in the County Jail until March 4, 1986 when he posted a $2500 bond. He appeared for three preliminary hearings which were held on February 28, March 10, and March 18, 1986. At the last hearing, appellant was told that his case was being bound over to the Cuyahoga County Grand Jury. Appellant lived with his parents at 474 East 143rd Street after his release from jail on March 4, 1986. On April 30, 1986, he forwarded a change of address card to the Post Office changing his mailing address to 1341 East 170th Street, Cleveland, Ohio. Appellant, however, continued to live with his parents. Appellant's summons for an April 4, 1986 arraignment was mailed to the St. Clair address on March 25, 1986. The summons - 3 - was returned to the Cuyahoga County Sheriff's Department with the notation, "Moved, Left no forwarding address." A capias was issued on April 4, 1986. Since July 16, 1985, appellant was on probation as a result of CR 196529. Mary Beth Snyder, appellant's probation officer, learned of the outstanding capias on February 18, 1987, by way of a computer check while preparing a probation report. The sheriff's department arrested appellant when he reported to the probation office on March 5, 1987. A. Appellant waives his right to assert a speedy trial violation for the period of February 26, 1986, the date of his initial arrest, to March 5, 1987, the date of his rearrest. State v. Lockett (Feb. 18, 1988), Cuyahoga App. No. 53334, unreported; State v. Williams (June 18, 1987), Cuyahoga App. Nos. 52297, 52298, 52299, 52300, 52301, unreported. The issuance of the capias caused the speedy trial time to run anew on March 5, 1987. See Lockett, supra; Williams, supra; State v. Bauer (1980), 61 Ohio St. 2d 83, 85. The time between March 5, 1987, the date of rearrest, and July 28, 1987 when appellant entered no contest pleas and was sentenced, was within the provisions of R.C. 2945.71(C)(2). B. Both the state and appellant fail to recognize that appellant waived the speedy trial time from the date of initial arrest to the date of rearrest. Since appellant's argument is - 4 - based on lack of notice of the arraignment, we will address his error as argued by him, although we expressly find that his speedy trial time commenced on March 5, 1987. The Sixth Amendment to the United States Constitution guarantees a defendant a right to a speedy trial. Section 10, Article I of the Ohio Constitution provides a similar provision. A defendant's right to a speedy trial is codified in R.C. 2945.71. This statute was enacted as "'*** 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 and shall be strictly enforced by the courts of this state.'" State v. Packay (1980), 64 Ohio St. 2d 218, syllabus. Appellant was charged with various felonies. The state was thereby statutorily required to bring appellant to trial within 270 days after his arrest: "(C) A person against whom a charge of felony is pending: "*** "(2) Shall be brought to trial within two hundred seventy days after his arrest." R.C. 2945.71(C)(2). Appellant was arrested on February 26, 1986. He filed his motion to dismiss on March 19, 1987. The 270 day statutory time limit was clearly exceeded as approximately 397 days/1/\ elapsed /1/\ Under the triple count provision of R.C. 2945.71(E), 18 days elapsed between February 26, 1986 and March 4, 1986 due to appellant's incarceration. - 5 - between the date of arrest and the date of filing of the motion to dismiss. The R.C. 2945.71 time limits may be extended pursuant to R.C. 2945.72. This statute 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: "*** "(D) Any period of delay occasioned by the neglect or improper act of the accused; "***" The state's position is that 270 days did not pass because the time between the issuance of the capias and the date of rearrest was tolled due to appellant's neglect. This position has merit. In State v. Philpot (Feb. 22, 1990), Cuyahoga App. No. 56596, unreported, this court reviewed a similar case. The defendant provided the arresting police officers with his mother's address as his address. We determined that the act of providing his mother's address and not a suitable address where he could be contacted was an improper one. Thus, in applying R.C. 2945.72(D), we held that the trial court did not err in going forward with defendant's trial. Id., 4. Likewise, in State v. McClaine (Dec. 15, 1983), Cuyahoga App. No. 46969, unreported, the defendant failed to provide a suitable address. The defendant was not rearrested until three - 6 - hundred four days from the issuance of the summons. We held that: "[A]bsent evidence that his failure to receive such notice resulted from circumstances beyond his control, defendant was obliged to accept and receive that notice at the address he supplied. "Defendant had a duty while on bail to make sure that the court knew where he could be readily located. "*** "***, the defendant has a *** duty of diligence and care in providing a suitable address where he can be contacted after he has been arrested and released on bail. Failure by the defendant to make himself readily available for subsequent appearances by providing a reliable address can be 'neglect or [an] improper act of the accused' which extends the speedy trial time limits, pursuant to R.C. 2945.72(D)." McClaine, supra, 3-4. A defendant cannot assert that his right to speedy trial is denied when, by his own neglect or improper act, he is the cause of the delay. State v. Coleman (Feb. 14, 1980), Cuyahoga App. No. 40489, unreported, 5, citing R.C. 2945.72(D); State v. Wentz (1975), 49 Ohio App. 2d 96. Appellant's attempt to transfer responsibility to the state by arguing that since the probation officer knew of his address and he provided his mother's address, the state could have located him, does not alter our finding that his neglect caused the delay herein. On the one hand, a court during preliminary matters should expressly inform an arrestee of how he will learn if he is subsequently charged in an indictment. It should even be suggested that the arrestee contact or even better personally appear at the prosecutor's office to inquire about the matter. Even if this procedure - 7 - avoids the costly process of issuing capiases in a minimal number of cases, a court should so instruct. On the other hand, the state carries no burden of seeking out and finding an individual charged in an indictment when the individual fails to provide an address where he could receive notice of the indictment. Although appellant herein initially provided an address, he failed to meet the burden of providing his new address. If he provided that address and the state neglected to send notice of the indictment to the address, then appellant would have a valid argument. That, however, is not the case here. R.C. 2945.72(D) is, therefore, applicable and the trial court did not err by denying his motion to dismiss. See, State v. Bauer (1980), 61 Ohio St. 2d 83. Appellant's first assignment of error is accordingly overruled. II. Appellant's second assignment of error is that: "JAMES DAVIS HAS BEEN DENIED HIS CONSTITUTIONAL RIGHT TO AN APPEAL OF HIS CONVICTION BY THE FACTS THAT A TRANSCRIPT OF HIS PLEA DOES NOT EXIST AND THAT A REASONABLE SUBSTITUTE FOR SAID TRANSCRIPT COULD NOT BE PREPARED." The transcript of appellant's plea proceeding was destroyed in a fire in the offices of the Cuyahoga County Court of Common Pleas. Appellant submitted an App. R. 9(C) statement which was accepted and signed by the trial court. The statement primarily encompassed the motion to dismiss hearing. He asserts that he - 8 - could not effectively prepare a statement of the plea proceedings because he had no means to reconstruct the proceedings. App. R. 9(C) states as follows: "If *** a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. *** The *** appellee *** may serve objections or propose amendments ***. Thereupon, the statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. This Court has held that: "App. R. 9(C) offer[s] defendant a chance to place anything in the record which would help him effectuate his appeal. It cannot be said he was denied a full and fair appeal due to the accidental destruction of his transcript." State v. Grant (Oct. 4, 1990), Cuyahoga App. No. 57537, unreported at 11. See also State v. Vidmar (Nov. 21, 1990), Cuyahoga App. No. 56143, unreported at 5. State v. Richards, Jr. (Nov. 1, 1990), Cuyahoga App. No. 57664, unreported at 5. In State v. Griffin (Dec. 21, 1989), Cuyahoga App. No. 57673, unreported, this court addressed the issue at length. "In the absence of a record the proceedings at trial are presumed correct. State v. Brown (1988), 38 Ohio St. 3d 305 (evidence missing from record but no mention of any attempt to comply with App. R. 9(C), (D) or (E)). The burden is on an appellant to demonstrate alleged error and provide the appellate court with the essential transcript. Knapp v. Laboratories (1980), 61 Ohio St. 2d 197. If a transcript is 'unavailable' an appellant has an obligation to provide a complete record pursuant to App. R. 9(C), (D) or (E). "In Brown there was no indication that the notes and trial judge were unavailable as in Knapp and this case. In Knapp the judgment denying a new trial was not affirmed despite the inability of appellant to provide a transcript when an ill reporter could not transcribe notes. Id. at 199. Although the record - 9 - failed to show any attempt to comply with App. R. 9 the court remanded for the appointment of a new judge to replace the one removed and an attempt to supply a record. Id. at 199-200. The court said that the trial court should consider granting a new trial if all reasonable solutions were exhausted. Id. at 200. "In the normal case, as in Brown, an appellant must comply with 9(C) in his or her direct appeal instead of asking for a new trial. The trial judge will reconcile the conflicting versions submitted by appellants and appellees. *** In the rare instance that a transcript and a trial judge are both unavailable Knapp dictates fairness over form. Appellate counsel must compile a 9(C) statement. A good faith effort requires the use of all possible sources, not just trial counsel's recollection. If the effort is fruitless the trial judge should grant a new trial, as recommended in Knapp, rather than merely rubberstamp the prosecutor's version." In the case sub judice, appellant asserts that neither he nor trial counsel could recall much information of the plea proceedings. However, as set forth supra, "[a] good faith effort requires the use of all possible sources, not just trial counsel's recollection." Appellant's reliance on trial counsel's recollection is, therefore, inadequate. Although the trial court adopted appellant's 9(C) statement which contained statements concerning his inability to recreate the record, this court refuses to infer that the state or the trial court agreed that it was impossible to prepare a statement. This court also notes that it is odd that appellant was capable of compiling a 9(C) statement pertaining to his motion to dismiss by relying on court documents and a copy of a transcript from the motion to dismiss hearing. Yet, the transcript from the plea proceedings was not available and appellant could thus not compile a 9(C) statement pertaining to it. - 10 - Appellant was not denied his constitutional right to an appeal because the transcript of his plea proceedings was destroyed by fire. Appellant failed to adequately attempt to reconstruct the proceedings. His second assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, P.J., and BLACKMON, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .