COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60509 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GORDON L. SMITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-251011. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant Public Defender Room 307, Marion Building Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Gordon Smith, appeals from his conviction for ten counts of felonious sexual penetration. The appellant, through his appeal, raises the issue of a speedy trial. The appellant's appeal is not well taken. I. THE FACTS A. THE INDICTMENT On April 19, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for ten counts of felonious sexual penetration in violation of R.C. 2907.12. Each count of felonious sexual penetration also contained an aggravated felony specification. It should be noted that the conduct of the appellant, which precipitated the ten counts of felonious sexual penetration, involved two children who were under the age of thirteen years. B. THE ARRAIGNMENT On April 27, 1990, the appellant was arraigned wherein a plea of not guilty was entered to all ten counts of the indictment. Although a bond was set by the trial court in the amount of $2,500.00, the appellant remained incarcerated. C. THE APPELLANT IS REFERRED FOR PSYCHIATRIC TESTING On May 7, 1990, the trial court ordered that the appellant be referred to the Psychiatric Clinic, pursuant to R.C. 2945.371 and R.C. 2945.39, in order to determine the appellant's competency to stand trial and further determine the appellant's sanity at the time of the act. -3- D. A COMPETENCY REPORT IS DELIVERED TO THE TRIAL COURT A competency report, dated June 18, 1990, was delivered to the trial court. On July 2, 1990, the trial court conducted a pretrial hearing at which time the appellant was determined to be competent to stand trial. E. APPELLANT WAIVES JURY TRIAL On August 7, 1990, the appellant waived his right to a trial before a jury and a trial was commenced before the bench. During the course of trial, the appellant moved for dismissal of all counts of the indictment based upon the failure to commence trial within two hundred and seventy days of the appellant's arrest. The trial court denied the appellant's motion to dismiss as based upon a lack of speedy trial. F. APPELLANT'S CONVICTION AND SENTENCE OF THE TRIAL COURT On August 9, 1990, the trial court found the appellant guilty of each of the ten counts of felonious sexual penetration. The trial court immediately sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio, for a term of life as to each of the ten counts of felonious sexual penetration. The trial court further ordered that each sentence of life imprisonment run consecutive to each other. G. THE TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for ten counts of felonious sexual penetration. -4- II. APPELLANT'S SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE APPELLANT'S MOTION FOR DISMISSAL, AS THE APPELLANT WAS NOT BROUGHT TO TRIAL WITHIN THE TIME LIMITS SET FORTH IN R.C. 2945. A. ISSUE RAISED: APPELLANT DENIED RIGHT TO SPEEDY TRIAL The appellant, in his sole assignment of error, argues that the trial court erred as a result of denying the motion to dismiss which was based upon a lack of speedy trial. Specifically, the appellant argues that he was not brought to trial within two hundred and seventy days of arrest as mandated by R.C. 2945.71(C)(2) vis-a-vis the trial court's improper computation of the period of time which was tolled as a result of the appellant's referral for a psychiatric examination. The appellant's sole assignment of error is not well taken. B. STATUTORY REQUIREMENT FOR A SPEEDY TRIAL R.C. 2945.71 provides that an individual who has been charged with a felony offense must be brought to trial within two hundred and seventy days of his arrest: (C) A person against whom a charge of felony is pending: (1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge; -5- (2) Shall be brought to trial within two hundred seventy days after his arrest. In addition, R.C. 2945.71(E) provides that each day of actual incarceration of a defendant in lieu of bail shall be counted as three days: (E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section. (Emphasis added.) C. FACTORS WHICH TOLL TIME FOR A SPEEDY TRIAL The running of the statutory period for a speedy trial, however, may be tolled upon the application of the nine factors enumerated in R.C. 2945.72: 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: (A) 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, 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; (B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial; (C) Any period of delay necessitated by the accused's lack of counsel, provided that such -6- delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law; (D) Any period of delay occasioned by the neglect or improper act of the accused; (E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; (F) Any period of delay necessitated by a removal or change of venue pursuant to law; (G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order; (H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion; (I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending. D. APPELLANT CLAIMS THAT A MAXIMUM PERIOD OF ONLY FORTY DAYS COULD BE TOLLED AS A RESULT OF A PSYCHIATRIC EXAMINATION In the case sub judice, the appellant argues that a period of time was tolled per R.C. 2945.72(B) as a result of the psychiatric examination which determined the appellant's competency to stand trial. The appellant, however, argues that forty days was the maximum period of time which could be tolled vis-a-vis the psychiatric examination. Thus, the appellant argues that he was incarcerated in lieu of bail for a period of more than two hundred and seventy days without the benefit of a trial. E. CASE LAW OF THIS JURISDICTION -7- This court has repeatedly addressed and rejected the argument that the maximum period of time which can be tolled as a result of a psychiatric examination is forty days. In State v. Porter (May 7, 1981), Cuyahoga App. No. 42937, unreported, this court held that: In the instant matter, the examiner's report was not submitted until March 27, 1980, forty-four days after the court journalized its entry ordering the report. Under the appellant's theory, the excess of fourteen days should not apply in tolling the speedy trial statute. When added to the previously expired eighty days, the extra days would cause the ninety-day requirement to be exceeded. We are unable to accept the appellant's theory. Revised Code 2945.72(B) specifically provides that the speedy trial time is extended by "any period" during which the accused's mental competence to stand trial is being determined. The Ohio Supreme Court has assented to this provision. State v. Spratz (1979), 58 Ohio St. 2d 61; State v. Walker (1976), 46 Ohio St. 2d 157. The extension allowed under R.C. 2945.72(B) is neither expressly nor impliedly limited to a specific time period. Moreover, there is nothing in the language of R.C. 2945.371 to warrant a finding that it was intended to alter or affect, in any manner, the provisions of R.C. 2945.72(B). It appears that the legislative objective of R.C. 2945.731 is to facilitate judicial expediency in providing a clear procedure for evaluating the competency of an accused. Where the appointed examiner fails to submit his report within the thirty days specified, the accused may bring this fact to the attention of the trial court to assure that its orders are enforced. State v. Porter, supra, at 7. -8- In addition, this court in State v. Foley (June 17, 1982), Cuyahoga App. No. 43843, held that: Defendant points out that the competency statutes, if strictly followed, would have caused the competency examination to be completed within thirty days and the hearing to be conducted within ten days thereafter. Defendant argues, therefore, that his motion for psychiatric examination should toll the speedy trial statute only for forty calendar days. If so, trial would have commenced within 533 rather than 653 speedy trial days and thus would still have been untimely. We reject defendant's argument. Although R.C. 2945.371(D) requires a written report within thirty days after referral and R.C. 2945.37(A) requires a hearing within ten days after the filing of the report, we find these time requirements to be directory rather than mandatory. See, e.g., In re McClintock (1978), 58 Ohio Misc. 5. There is no indication that the legislature intended to deprive the court of jurisdiction for failure to comply with these time requirements or to invalidate any action taken beyond the time periods. As stated in State, ex rel. Jones v. Farrar (1946), 146 Ohio St. 467, 472: "Whether a statute is mandatory or directory is to be ascertained from a consideration of the entire act, its nature, its effect and the consequences which would result from construing it one way or another. In each instance, it is necessary to look to the subject matter of the statute and consider the importance of the provision which has been disregarded and the relation of that provision to the general object intended to be secured by the act." We believe that the spirit of the competency statutes, which are designed to protect the defendant, is best implemented and preserved by an interpretation which regards the time requirements as directory. There is no reason therefore why a defendant may not waive these time requirements. (Footnotes omitted.) State v. Foley, supra, at 4. -9- Finally, in State v. Oliver (Oct. 17, 1985), Cuyahoga App. No. 49613, unreported, this court held that: Defendant initially claims that R.C. 2945.39 requires that a psychiatric examination be completed within 30 days, and the hearing conducted within ten days thereafter. Defendant thus argues that his motion for a psychiatric evaluation cannot toll the speedy trial statute beyond 40 days. This argument has been previously addressed and rejected by this court with respect to R.C. 2945.37, the competency statute, in State v. Foley (June 17, 1982), Cuyahoga Cty. App. No. 43843, unreported. State v. Oliver, supra, at 8. F. HISTORICAL REVIEW OF APPELLANT'S "SPEEDY TRIAL" COMPUTATION Based upon the application of Porter, Foley and Oliver to the present appeal, this court can but find that the appellant was brought to trial within two hundred and seventy days as mandated by R.C. 2945.71. Historical Date and Activity Chargeable or Tolled Time 1) March 20, 1990 - appellant arrested and incarcerated in lieu of bond -to- 2) May 7, 1990 - appellant 47 x 3 = 141 days referred to Psychiatric (Chargeable Time) Clinic for examination to determine competency to stand trial and sanity and time of act -to- 3) July 2, 1990 - pretrial hearing 0 days held by trial court at which (57 days tolled time per -10- time appellant determined to be R.C. 2945.72(B); mental competent to stand trial competency determined) -to- 4) August 7, 1990 - non-jury trial 36 x 3 = 108 days trial commenced before the trial (Chargeable Time) court Total Elapsed Chargeable Time 249 days G. APPELLANT WAS NOT DENIED THE RIGHT TO A SPEEDY TRIAL The record before this court shows that the appellant was brought to trial within two hundred and seventy days. A period of fifty-seven days was tolled as a result of the application of R.C. 2945.72(B). The appellant was not denied a speedy trial. State v. Thomas (Jan. 16, 1992), Cuyahoga App. No. 59723, unreported; State v. Samuel (May 9, 1991), Cuyahoga App. No. 58464, unreported. Thus, the appellant's sole assignment of error is not well taken and the judgment of the trial court is affirmed. 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. NAHRA, J. and HARPER, J., CONCUR. DAVID T. MATIA CHIEF 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. .