COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60998 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KENNETH ANDERSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 27, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court : Case No. 90-TRC-14239 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: LYNN A. McLAUGHLIN, ESQ. JOHN SHEEHAN, ESQ. ASST. CITY PROSECUTOR 1648 Hanna Building Justice Center - 8th Floor 1422 Euclid Avenue 1200 Ontario Street Cleveland, Ohio 44115 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, P.J., Appellant Kenneth Anderson appeals from his convictions for operating a motor vehicle while under the influence of alcohol, operating a motor vehicle with a blood alcohol content of .19, and operating a motor vehicle the wrong way on a one-way street. For the reasons set forth below, we affirm. I. Appellant was issued a citation by the Cleveland Police Department on March 18, 1990, for operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A), operating a motor vehicle with a blood alcohol content of .19 in violation of R.C. 4511.19, and operating a motor vehicle the wrong way on a one-way street. At this time appellant was also issued a summons to appear in the Cleveland Municipal Court on March 19, 1990. Appellant appeared in court on March 19, 1990, but was told that his paperwork was not in the court file, and that he would receive another summons at a future date. On or about March 20, 1990, an attempt was made by the Cleveland Municipal Court to serve appellant with a summons for an April 3, 1990 court date. The original summons is in the court's file, along with a copy which is marked "not found." Appellant denies receiving a copy of the summons. On July 22, 1990, appellant was stopped for speeding by the Mentor Police Department. At that time he was informed that a - 3 - capias warrant had been issued for him due to his failure to appear at the April 3, 1990 hearing. Appellant finally appeared in the Cleveland Municipal Court on August 28, 1990, at which time he was arrested and released on personal bond. Appellant pled not guilty and requested a trial by jury. Appellant was issued a summons to appear in court on September 28, 1990. That court date was continued to October 15, 1990 at appellant's request. On October 15, 1990, appellant filed a motion to dismiss alleging that he had been denied his constitutional right to a speedy trial. That motion was denied by the court at an oral hearing on the matter held on October 29, 1990. At that time the court set the matter for final disposition on November 14, 1990. On November 14, 1990 appellant, in open court, changed his plea from not guilty to no contest. The plea was accepted by the court and appellant was found guilty as charged. This appeal timely follows. II. For his sole assignment of error, appellant argues that the trial court erred in failing to grant his motion to dismiss due to the denial of his right to a speedy trial. Appellant was charged with violating Ohio's drunk driving statute, R.C. 4511.19, a violation of which is a misdemeanor of the first degree. Pursuant to R.C. 2945.71(B): "A person against whom a charge of misdemeanor, other than a minor misdemeanor, - 4 - is pending in a court of record, shall be brought to trial: "*** "(2) within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree. ***." Appellant contends that the 90 day period expired at some time prior to his November 14, 1990 plea hearing. Appellant does not set forth specific facts he believes necessitate this finding. Appellant asserts only that he did not know the status of his case until July 22, 1990, when he was cited by the Mentor Police, and that he lived openly in the community at the address printed on the citation throughout the pendency of this action. Appellant was cited and served with a summons on March 18, 1990. At the hearing on March 19, 1990, appellant was told that the papers in his file were not yet before the court. Appellant's speedy trial time began to run on March 19th, the day after his arrest. A second summons was issued by the court on March 20, 1990 indicating that appellant should appear in court on April 3, 1990. That summons was not received by appellant. The original summons and a time stamped copy are in the trial court's record. The time stamped copy indicates that a deputy attempted personal service on appellant on March 20, 1990 at appellant's home address, but that appellant was "not found." Appellant asserts - 5 - that he has lived at that address throughout the pendency of this action. The manner and means by which a summons may be properly served are set forth in Crim. R. 4. As it pertains to this case, Crim. R. 4(D) provides that: "Summons may be served upon a defendant by delivering a copy to him personally, or by leaving it at his usual place of residence with some person of suitable age and discretion than residing therein, or, except when the summons is issued in lieu of executing a warrant by arrest, by mailing it to the defendant's last known address by certified mail with a return receipt requested." As a general rule, a prosecution is not commenced so as to toll the running of the statute of limitations merely by issuance of a summons, unless "reasonable diligence" is exercised to execute the summons. State v. Morris (1984), 20 Ohio App. 3d 321. See, also, State v. Davis (April 20, 1987), Cuyahoga App. No. 52030, unreported. We believe that the same standard applies to appellant's speedy trial rights. In the Morris case, the court found that "reasonable diligence" is exercised where the prosecution can demonstrate that an effort was made to serve the summons in a manner provided by Crim. R. 4(D). Morris, supra, at 323. Since the City of Cleveland attempted to serve appellant by personal service, a manner proscribed by Crim. R. 4(D), we find that reasonable diligence was exercised, and that appellant's speedy trial time continued to run from March 19, 1990. - 6 - Appellant's failure to appear at the scheduled hearing on April 3, 1990, his subsequent notification by the Mentor police, and arrest on a capias warrant by the Cleveland Police Department, resulted in the termination of all speedy trial days accrued from March 19, 1990. A new speedy trial period of 90 days began to run on August 29, 1990, the day after appellant's arrest on a capias warrant. State v. Bauer (1980), 61 Ohio St. 2d 83; State v. Lockett (Feb. 18, 1988), Cuyahoga App. No. 53334, unreported. On August 28, 1990 the trial court set the matter for hearing on September 28, 1990. From August 29, 1990 to September 28, 1990, 31 speedy trial days elapsed. The hearing was postponed to October 15, 1990 at appellant's request. No additional speedy trial days elapsed, for that period of delay was occasioned by appellant's conduct. Bauer, supra, at 84. On October 15, 1990, appellant moved to dismiss the case alleging a violation of his right to a speedy trial. The court set the matter for hearing on October 29, 1990. Once again the delay was occasioned by appellant's conduct and, therefore, no speedy trial time elapsed. Id. On October 29, 1990, appellant's motion to dismiss was denied, and the trial court indicated that the next available date for trial would be November 7, 1990. Appellant's counsel indicated that he could not try the case on that date, and the matter was then set for trial on November 17, 1990. Nine speedy - 7 - trial days elapsed from October 29, 1990 to November 7, 1990, bringing the total to 40. No speedy trial time elapsed from November 7, 1990 through November 14, 1990 as the delay was at appellant's request. Id. On November 14, 1990, appellant pled no contest to the charges in the complaint, and the trial court found him guilty. At that date, only 40 speedy trial days had elapsed. For these reasons, we find that appellant's assignment of error is not well taken. Judgment affirmed. - 8 - 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 Cleveland Municipal 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. LEO M. SPELLACY, J., and HARPER, J., CONCUR. JOHN F. CORRIGAN 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. .