COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60097 STATE OF OHIO : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : LINDA L. DOANE : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-249524 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: MARK E. SULLIVAN 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 -2- SPELLACY, P.J.: On September 22, 1989, defendant-appellee Linda L. Doane ("appellee") was arrested by the Lakewood Police Department and charged with corrupting another with drugs, drug abuse, and possession of criminal tools. On October 3, 1989, appellee was sentenced to a term of prison at the Ohio State Reformatory for women in Criminal Case No. 224913 as a probation violator. On November 8, 1989, while she was incarcerated in Marysville, Ohio, appellee made a request for early disposition of the charges brought against her in Lakewood, Ohio. Appellee made her request pursuant to R.C. 2941.401. In a letter dated November 8, 1989, a representative from the Ohio State Reformatory for Women informed the prosecuting attorney that appellee was requesting early disposition of her pending case. The letter was sent directly to the Prosecuting Attorney for the Cuyahoga County Municipal Court and copies were also sent to the Clerk of Courts and the Lakewood Police Department. On November 16, 1989, the Cuyahoga County Clerk of Courts received the notice that appellee was requesting an early 1 disposition of her case. The clerk's office filed said notice in Criminal Case No. 224913, which was the case appellee was incarcerated for as a probation violator. 1 Neither the State nor appellee could conclusively say that the Cuyahoga County Prosecutor's Office received appellee's notice of her request for early disposition. -3- On December 20, 1989, appellee was indicted by the Cuyahoga County Grand Jury in Criminal Case No. 246615. Appellee was indicted for a Drug Law violation under R.C. 2925.11; a Drug Law violation under R.C. 2925.02; and Possession of Criminal Tools, in violation of R.C. 2923.24. On February 28, 1990, appellee was re-indicted by the Cuyahoga County Grand Jury in Criminal Case No. 249524. Appellee was re-indicted for the same three counts, with the addition of specifications to Counts One and Two for a prior conviction. At her arraignment on March 8, 1990, appellee pleaded not guilty to the charges set forth in her indictment. On March 28, 1990, appellee appeared in court with her counsel for a scheduled trial. However, pursuant to appellee's motion, the trial was continued to April 11, 1990. On April 16, 1990, appellee appeared for trial with her counsel once again. However, since the trial court was engaged in another trial, the trial was continued to May 15, 1990. On May 15, 1990, with appellee and her counsel present, the trial court notified the parties that the case was on standby due to its engagement in another trial. The parties were told that with a two-hour notice, they could convene. Finally, on May 18, 1990, the trial court continued the trial to May 29, 1990, because a prosecution witness was unavailable and the trial court was engaged in another trial. Apparently, neither appellee nor her counsel was present on May -4- 18, 1990 when the trial was continued. However, the attorneys were notified of the continuance. On May 29, 1990, appellee filed a motion to dismiss pursuant to R.C. 2941.401. Appellee argued that the State failed to bring her to trial within 180 days after notice of her request for early disposition was caused to be delivered. On May 29, 1990, appellee's case was called for trial. Due to the pendency of other matters before the trial court and appellee's filing of her motion to dismiss, the trial court ruled that it was in recess until June 1, 1990. On June 1, 1990, the trial court addressed appellee's motion to dismiss by entertaining oral arguments by both sides and reviewing evidence. The trial court found that appellee substantially complied with the notification requirements of R.C. 2941.401. The trial court further found that appellee was not brought to trial within the statutory period of 180 days. Accordingly, the trial court granted appellee's motion to dismiss. The State filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRS IN DISMISSING THE DEFENDANT WHEN REASONABLE CONTINUANCES ARE GIVEN WHICH EXTEND THE TIME LIMITS OF REVISED CODE SECTION 2941.401. II. THE TRIAL COURT ERRS IN DISMISSING THE CASES WHERE THE DEFENDANT FAILS TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF REVISED ACTION SECTION 2941.401. The State's assignments of error will be addressed together since they both pertain the propriety of the trial court's order -5- granting appellee's motion to dismiss pursuant to R.C. 2941.401. R.C. 2941.401 provides in pertinent part: When a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. R.C. 2941.401 is a specific statute which prevails and predominates over the general speedy trial statutes, i.e. R.C. 2945.71, et seq. See R.C. 2945.71(F). Thus, when a defendant is incarcerated, R.C. 2941.401 governs the time within which the State must bring him to trial. State v. Butcher (Dec. 12, 1985), Cuyahoga App. No. 49879, unreported, affirmed on other grounds (1986), 27 Ohio St. 3d 28. By its language, R.C. 2941.401 does not operate until the defendant delivers written notice to both the prosecuting attorney and the appropriate court, stating her place of imprisonment and requesting final disposition of the untried indictment, information or complaint. State v. Turner (1982), 4 Ohio App. 3d 305, paragraph two of the syllabus. Once the defendant has substantially complied with R.C. 2941.401, the -6- State must bring her to trial within 180 days. Id.; See, also State v. Drowell (1991), 61 Ohio Misc. 2d 623. In the instant case, the record reveals that appellee was incarcerated in Marysville, Ohio while charges were pending against her in Lakewood, Ohio. On November 8, 1989, a representative from the penal institution sent notice of appellee's request for early disposition to the Cuyahoga County Clerk of Courts, the Lakewood Police Department and to the Prosecuting Attorney. Receipt of said notice was acknowledged by the Clerk of Courts on November 16, 1989 and by an agent or representative of the Prosecuting Attorney. We find that appellee substantially complied with R.C. 2941.401. Although no indictment had been returned until after the receipt of notice, there were charges pending against appellee while she was incarcerated. Appellee sent notice of her request for early disposition to the Clerk of Courts and to the 2 Prosecutor's office. We conclude that appellee fulfilled both notice requirements of R.C. 2941.401. The issue now is whether the State failed to bring appellee to trial within 180 days of November 16, 1989, the date on which the Clerk of Courts and the prosecuting attorney received notice. Appellant was brought to trial on May 29, 1990. We find 2 The fact that the Clerk of Courts filed appellee's Notice of her request for early disposition in Criminal Case No. 224913, her prior conviction case, does not mean that appellee failed to meet the notice requirements under R.C. 2941.401. -7- that a total of 194 days elapsed between November 16, 1989 and the commencement of appellee's trial. Once a defendant has demonstrated that 180 days have expired under R.C. 2941.401, she has established a prima facie case for dismissal. See, State v. Geraldo (1983), 13 Ohio App. 3d 27; the State then bears the burden of demonstrating any tolling or extensions of time. See, Geraldo, supra. On March 28, 1990, appellee's trial was continued until April 11, 1990, upon her own request. We find that this continuance tolled the speedy trial time for 14 days. On April 16, 1990, the trial court continued appellee's trial to May 15, 1990, because it was engaged in another trial. We find that this continuance was for good cause and it tolled the statutory period for 29 days. After calculating the number of days that tolled the 180 day statutory period under R.C. 2941.401, we find that appellee was 3 properly brought to trial within 180 days. Accordingly, we conclude that the trial court erred in dismissing appellee's case for lack of a speedy trial. The State's assignments of error are well taken and are sustained. 3 We do not find that the trial court's continuance of the trial from May 18, 1990 to May 29, 1990 tolled the statutory period, because neither appellee nor her counsel was present in open court. R.C. 2941.401 specifically provides that a continuance may be granted when the defendant or her counsel is present in open court. -8- Trial court judgment is reversed and this case is remanded for further proceedings. This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) its costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. KRUPANSKY, P.J., CONCURS; HARPER, J., DISSENTS (See Dissenting Opinion Attached) LEO M. SPELLACY PRESIDING 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60097 : STATE OF OHIO : : : Plaintiff-Appellant : : DISSENTING -vs- : : OPINION LINDA L. DOANE : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1992 HARPER, J., DISSENTING: The majority articulated fully the importance of R.C. 2941.401 in relation to other speedy trial statutes, to wit, R.C. 2945.71, et seq., but failed in its decision to give it such treatment. For that and other reasons set forth below, I must respectfully dissent from the majority opinion. The state, in its first assignment of error, argues that appellee was brought to trial within the 180 days allowed by the statute and the dismissal of the case by the court was, therefore, an error. R.C. 2941.401 is plain on its face. A -2- defendant who causes notice to be delivered to the prosecuting attorney demanding trial shall be brought to trial within 180 days. The statute also provides that, "*** for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance." In a challenge for a violation of the speedy trial provision, a reviewing court is required to determine, (1) whether the defendant's trial was had after the expiration of the 180 days mandated by the statute: (2) if the trial was had after 180 days, the court should further determine whether continuances were granted. If continuances were granted, they must be necessary or reasonable. Aurora v. Patrick (1980), 61 Ohio St. 2d 107. The issue of what is reasonable or necessary cannot be established by a per se rule but must be on a case by case basis. State v. Saffell (1988), 35 Ohio St. 3d 90. Thus, in the within case, we look at the totality of the circumstances to determine if appellant's right to speedy trial was violated. In its review, the majority failed to recognize that practices that undercut the implementation of the speedy trial provision cannot be used to extend the prescribed statutory time limits. State v. Pudlock (1975), 44 Ohio St. 2d 104; State v. Patrick, supra. R.C. 2941.40.1 states in pertinent part as follows: "When a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against -3- the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner. "The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested." (Emphasis added.) First, we must determine at what point the 180 days begins to run. The statute states that the 180 days begins "after he causes to be delivered to the prosecuting attorney. ***" From the language of the statute, the 180 days starts after a defendant takes an action by delivering his notice. This act is completed when the notice is received by the authorities where the accused is held. The simple explanation why the 180 days begins to run from the date the application is delivered to the authorities where the accused is being held is because the delivery to the prosecutor and the court is to be made by the authorities as proscribed by the statute. It is not difficult to understand why the legislature painstakingly worded the statute as it did. An -4- individual in prison is already considered a scorn to society and there should be no urgency to bring him to trial as would be expected in the case of an individual who is not in prison. This attitude for a potential unwarranted delay is what the legislature tried to safeguard by not requiring the time of receipt as the proper time to start counting the 180 days required to bring the accused to trial. It is a safeguard designed to prevent wrongful restraint of liberty that might result from the malice and procrastination of the state authorities (whether it be by the warden, the superintendent having custody of the accused and/or the prosecutor). In the within case, the record shows that the authorities where appellee was held received the notice on November 8, 1989, and on the same day, mailed it to the prosecuting attorney of the Cuyahoga County Municipal Court. Therefore, the statute began to run on November 8, 1989 when the appellant, through the warden, caused her notice to be delivered, and not the date of receipt (Nov. 16, 1989) as opined by the warden's letter, argued in appellant's brief and affirmed by the majority. Furthermore, the phrase "after he causes to be delivered" is plain on its face and it is unnecessary and unpersuasive to be given another meaning by the majority. It, therefore, follows that the majority's construction of the time of receipt, by the clerk of courts and/or the prosecuting attorney, as the time the statute begins to run is inconsistent with the legislative intent, and for that, we part ways. It is my opinion that the -5- majority is wrongly construing "causes to be delivered" to mean the same as "delivered". Appellee should have been brought to trial on May 7, 1990 in order to come within the 180 days required by the statute. From November 8, 1989 to May 29, 1990 equalled 202 days, which is 22 days more than the statutory required time. Our next inquiry is to determine whether the continuances were necessary or reasonable within the circumstances of this case. I will draw a brief outline for easy understanding of my computations. Dates Explanation No. of Days chargeable or not chargeable to the state. Nov. 8, 1989 to Date letter caused 202 days. May 29, 1990 to be sent until the date of trial. Mar. 28, 1990 to Appellee's motion 14 days. April 11, 1990 for continuance. Not chargeable and to be deducted. April 16, 1990 to Court engaged in 29 days. May 15, 1990 trial. Chargeable. May 15, 1990 to Court engaged in 3 days. May 18, 1990 trial; counsel put Not chargeable. on standby. May 18, 1990 to Unavailability of 11 days. May 29, 1990 prosecution Chargeable. witness and court in civil trial No. 61774. Total number of days chargeable to the state: 185 days. This court has ruled on many occasions that the provisions of R.C. 2945.71 et seq. are couched in mandatory terms and must be strictly construed against the state. Cleveland v. Austin -6- (1978), 55 Ohio App. 2d 369, see also State v. Singer (1977), 50 Ohio St. 2d 103, 109; State v. Ball (Feb. 15, 1990), Cuyahoga App. No. 57903, unreported; State v. Geraldo (1983), 13 Ohio App. 3d 27, 28. See also, State v. Cross (1971), 26 Ohio St. 2d 270; State v. Gray (1964), 1 Ohio St. 2d 21, 30. R.C. 2941.401 carries the same mandatory weight, and even more, as the majority acknowledged. Therefore, a motion for discharge pursuant to R.C. 2941.401 must be carefully reviewed for strict compliance. The first continuance was granted as a result of appellee's motion, from March 28, 1990 to April 11, 1990, a total of 14 days. The law is settled that in order for a continuance to be acceptable, the record must sufficiently demonstrate the necessity of the continuance for purposes of appellate review. Elmwood Place v. Denike (1978), 56 Ohio St. 2d 427. We need not review the reasonableness of appellee's motion, since a defendant cannot benefit from delays occasioned by her own actions. State v. Martin (1978), 56 Ohio St. 2d 289. Therefore, the 14 day delay caused by appellant tolled the running of the statute. A second continuance was granted from April 16, 1990 to May 15, 1990. The journal entry stated "court engaged in trial". It has been held that a "brief sua sponte continuance in order to accommodate the court's crowded docket is reasonable within the meaning of R.C. 2945.72(H)". Cleveland v. Austin (1978), 55 Ohio App. 2d 369, 376; see also State v. Lee (1976), 48 Ohio St. 2d 208. The second continuance in the within case accounted for 29 days. A sua sponte continuance must be necessary or reasonable. -7- A continuance because the court is engaged in trial may be rendered unreasonable by the number of days the continuance is granted for. See State v. McRae (1978), 55 Ohio St. 2d 149. It is my opinion that the trial court failed in the duty placed upon it to bring appellee to trial by not affirmatively demonstrating the reasonableness of continuing this instant case for 29 days in spite of its knowledge that this is a case of an accused who is already in prison. See McRae, supra. Within the contents of this case, to allow 29 days as a brief and reasonable delay is to permit the evasion of the statute. In State v. Wentworth (1978), 54 Ohio St. 2d 171, the Ohio Supreme Court held: "There appears in the record an entry form indicating that the crowded conditions of the court's docket would not permit an earlier setting of the trial date in appellant's cause. However, a standardized entry form completed by the trial court indicating a crowded court docket is alone insufficient to support a sua sponte continuance order substantially extending the date of trial beyond the mandatory time limitations of R.C. 2945.71(B)(2)." Another continuance was granted from May 15 to 18, 1990 again because the court was engaged in trial and counsel were put on standby. Three days are not unreasonable and should toll the statutory time. On May 18, 1990, another continuance was granted until May 29, 1990, a total of eleven days. The journal entry states: "DUE TO UNAVAILABILITY OF PROSECUTION WITNESS AND COURT DUE TO CONTINUATION OF TRIAL CV 61774. TRIAL IN THIS MATTER IS CONTINUED TO MAY 29, 1990 AT 9:00 A.M. ATTORNEY'S [sic] NOTIFIED." -8- Three things render the above entry unacceptable to toll the statutory speedy trial time. Firstly, "due to unavailability of prosecution witness" is insufficient to grant a continuance without further elaborating why the witness was unavailable and what efforts were made to procure the witness for trial. This court held in State v. Mitchell (June 13, 1991), Cuyahoga App. No. 58447, unreported, that: "When a trial court makes a sua sponte order of continuance, it must state its reasons unequivocally and free of dual interpretations, bearing in mind that all ambiguities will be resolved in favor of bringing the trial within the statutory provisions." See also State v. Mincy (1982), 2 Ohio St. 3d 6. There is no record of entry made by the prosecution requesting a continuance due to the unavailability of the state's witness. I am a little taken aback by how the trial court knew that the state's witness was unavailable without a motion, especially since the court's journal indicates that attorneys are to be notified, an indication that counsel were not present at the time of the continuance. Secondly, the journal entry also stated that the trial court was unavailable due to continuation of civil trial No. 61774. While a continuance can be granted due to a crowded docket, a civil trial which does not carry any statutory mandatory time for trial should not take precedence over a criminal trial that has both statutory and constitutional mandatory trial time, especially in the within case with so many prior continuances. Thirdly, R.C. 2941.401 requires that the court grant any -9- necessary or reasonable continuance "in open court, with the prisoner or his counsel present". In the within case, a sua sponte continuance was granted without either counsel or prisoner present and no reason was given why they were not present. Therefore, within the circumstances of this case, the evidence of record is insufficient to demonstrate the necessity of the last continuance for purposes of appellate review, therefore, it too cannot toll the statutory time. As we held in Mitchell, supra: "When the state fails in its duty to assist the court in ensuring that an accused is brought to trial within the time mandated by R.C. 2945.71 et seq., State v. Benson (1985), 29 Ohio App. 3d 321, the reviewing court must order the discharge of the accused pursuant to R.C. 2945.73(B)." In Cross, supra, the Ohio Supreme Court made it affirmatively clear that any attempt to dilute the meaning of the speedy trial provisions by clever arguments of the state would be met with judicial intolerance. (See Cross, supra, where the state argued that the trial court should have denied the accused's application for dismissal "because the state was at all times ready for trial.") The Supreme Court responded by stating: "Where an accused files an application for discharge pursuant to Section 2945.71, Revised Code, the sole fact that the state may be then ready to proceed to trial does not affect the accused's right to a discharge." In following this tradition, I do not hesitate to state that since appellee was denied the right given her by the mandatory provisions of both the federal and state constitutions and the statutes of Ohio, the trial court, therefore, acted properly in granting appellee's motion for dismissal. .