COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68487 CITY OF PARMA : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION EHOR DOBROMILSKY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 2, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Parma Municipal Court : Case No. 93CRB01951-1-1 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Chief Prosecutor DAVID W. TOETZ, Assistant City of Parma 5750 West 54th Street Parma, Ohio 44129 For defendant-appellant: ANDREW J. SIMON Attorney at Law 55 Public Square, #1490 Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Ehor Dobromilsky, appeals from his conviction for the offense of domestic violence in violation of R.C. 2919.25. Defendant-appellant assigns one error for our review. For the reasons set forth below we reverse. Defendant Dobromilsky was arrested on September 6, 1993 and charged with violating R.C. 2919.25, Domestic Violence, a first degree misdemeanor. On September 7, 1993 the defendant signed a Motion for Extension of time for Trial "hereby waiving the time for trial requirements set forth in Section 2945.71 of the Ohio Revised Code." The partial waiver reads in pertinent part: Time for trial, if found necessary, to be not more than 90 days after pretrial conference set for 9-22-93 at 9:00 a.m. *** Time for trial, if found necessary to be not more than 90 days after pretrial conference. A pretrial was set for September 22, 1993. Subsequent pre- trials were set for October 6, 1993, November 17, 1993, and Janu- ary 12, 1994. On February 4, 1994, defendant filed a motion to dismiss the charge pursuant to R.C. 2945.73 (B) for failure to be brought to trial within the ninety-day time period for a first degree misde- meanor as required by R.C. 2945.71. The motion was denied by the - 3 - trial court on March 16, 1994. Trial was scheduled for April 20, 1994. On April 14, 1994, defendant filed a motion for continuance of the April 20, 1994 trial date until after the his divorce proceedings had been concluded. By journal entry of April 18, 1994, the trial court granted the continuance of the April 20, 1994 trial date, and a telephone pretrial was set for June 15, 1994. The June 15, 1994 telephone pretrial was held on July 7, 1994. Additional pretrials were scheduled for August 3, 1994, August 24, 1994 and October 20, 1994. The matter was set for trial December 8, 1994 and went forward on that date. Defendant made a second motion to dismiss the charges because he was not brought to trial within the ninety-day time period for a first degree misdemeanor as required by R.C. 2945.71. The trial court denied the motion to dismiss and subsequently found the defendant guilty of domestic violence. Defendant-appellant filed a timely notice of appeal of his conviction for the offense of domestic violence. In support of his appeal, the defendant-appellant assigned one error for our review: THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE OF THE APPELLANT BY DENYING APPELLANT'S TWO MOTIONS TO DISMISS, IN VIOLA- TION OF APPELLANT'S STATUTORY AND/OR CONSTI- TUTIONAL RIGHT TO A SPEEDY TRIAL. - 4 - Defendant-appellant in his sole assignment of error argues that the trial court erred in denying his motions to dismiss the indictment against him pursuant to R.C. 2945.71. R.C. 2945.71 provides in pertinent part: (B) A person against whom a charge of misde- meanor, other than a minor misdemeanor, is pending in a court of record shall be brought to trial: * * * (2) within ninety days after his arrest of the service of summons, if the offense charged is a misdemeanor or the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days. R.C. 2945.72, which governs the tolling or extension of time under the speedy trial statute, provides in pertinent part: The time within which an accused must be brought to trial, or, in the case of felony to preliminary hearing trial and, may be extended only by the following: * * * (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; * * * (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; *** Therefore, the time limits established in R.C. 2945.71 can be extended by the circumstances listed in R.C. 2945.72. - 5 - In the case sub judice, the defendant-appellant, Ehor Dobromilsky, was arrested on September 6, 1993 and charged with violating R.C. 2919.25, Domestic Violence, which required the defendant to be brought to trial within ninety days pursuant to R.C. 2945.71. The defendant, however, on September 7, 1993, signed a partial waiver of speedy trial, continuing the trial to a date ninety days after the September 22, 1993 pretrial. On December 20, 1994, ninety days had elapsed from the scheduled pretrial of September 22, 1993. I. The February 4, 1994 Motion to Dismiss Careful scrutiny of the waiver of speedy trial signed by the defendant-appellant on September 7, 1993 shows that the waiver is an express waiver of limited duration. Pursuant to the words of the waiver, the appellant had the expectation of being brought to trial within ninety days of the September 22, 1993 pretrial, on or before December 20, 1993. The argument of the city that the waiver, once signed by the appellant, tolled the time chargeable to the city for the duration of the waiver has no merit. The appellant clearly waived the time from the signing of the waiver on September 7, 1993 until the anticipated pretrial of September 22, 1993, at which time, pursuant to the plain language of the waiver, the appellant expected the ninety days to begin running. Appellant - 6 - filed his motion to dismiss one hundred two days after the first day in which his speedy trial time began running. The trial court based its denial of the motion to dismiss on the theory that the continuances of the pretrials in this matter were chargeable to the defendant-appellant and, therefore, tolled the time from the September 22, 1993 pretrial to each successively- scheduled pretrial. By judgment entry of March 16, 1994, the trial court made the finding that: *** this file reflects that the continuances of the pretrials, resetting from pretrial dates of September 22, 1993, October 6, 1993, November 17, 1993, were all at the [appellant's] request, which was journalized by the Court, so that these days would be chargeable to the [appellant]. Defendant-appellant argues that continuances pursuant to subsection (H) of R.C. 2945.72 may only cause the time period to be extended if: (1) the continuance is recorded in the journals of the court; and (2) the journal entry identifies to whom the continuance is charged; and (3) if it is the court's continuance, the journal entry sets forth the reasons justifying the continuance; and (4) the recording of the journal entry with the justifying reasons for the continuance is completed prior to the time period set forth in R.C. 2945.71. State v. Geraldo (1983), 13 Ohio App.3d 27; State v. Mincy (1982), 2 Ohio St.3d 6; State v. Benson (1985), 29 Ohio App.3d 321; State v. Ball (1990), 66 Ohio App.3d 224; State v. Brooks (Nov. 23, 1994) Cuyahoga App. No. 65853, unreported. Appellant contends that, because there is no official record - 7 - demonstrating that the rescheduling of the pretrials of September 22, 1993, October 6, 1993, November 17, 1993 and January 12, 1994 was at the defendant's request, the trial court erred in not granting the motion to dismiss of February 4, 1994. We agree. The reasons stated by the trial court for denying the appel- lant's motion to dismiss of February 4, 1994 are insufficient to sustain the ruling. The speedy trial statute implements the constitutional guar- antee of public speedy trial, and the trial courts are to strictly enforce the legislative mandates evident in these statutes. State v. Pachay (1980) 64 Ohio St.2d 218. A careful review of the record before this court does not indicate that the continuances were at the appellant's request and journalized by the court. It is well settled that the court speaks only through its journal. State v. Benson, supra. The city has not provided any journal entry which indicates that the continuances of the pretrials in this matter were, in fact, at the request of the appellant in this matter. The record reflects that the continuances were noted on the file jacket as "ADR," presumably "at the defendant's request." However, as we have stated before, "noting the continuance, to whom it is charged and the reason for the continuance on the file jacket or on a court journal which is not signed by the judge and file is insufficient." State v. Cuebas (Nov. 17, 1994) Cuyahoga App. No. 66488, unreported. - 8 - As we have stated before, "the fact that orders regarding continuances affect substantial right, this Court cannot approve such unjournalized continunances being counted against a defendant for purposes of speedy trial computations." State v. Benson, supra. Based upon the plain language of the express waiver of limit- ed duration signed by the appellant, the appellant had every right to believe that he would be brought to trial not more than ninety days after the pretrial conference set for September 22, 1993. Each of the days from September 23, 1993 to the filing of the motion to dismiss on February 4, 1994 is chargeable to the city absent a journalized entry indicating that the continuance of the pretrial was at the defendant-appellant's request. As one hundred two days had elapsed by the date of the filing of appellant's motion to dismiss on February 4, 1994, the appellant was not brought to trial within the statutory time limits as required under R.C. 2945.71-2945.73 and, therefore, the trial court erred in denying the appellant's February 4, 1994 motion to dismiss. II. December 8, 1994 Motion to Dismiss Consistent with our decision that the trial court improperly denied the appellant's motion to dismiss of February 4, 1994, we need not address the appellant's arguments on the trial court's denial of the second motion to dismiss. App.R. 12(A)(1)(c). - 9 - Defendant-appellant's sole assignment of error is well taken; therefore, the conviction of Ehor Dobromilsky must be reversed. Judgment reversed. - 10 - This cause is reversed and appellant is discharged. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to Parma Munici- pal 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. JAMES M. PORTER, P.J. CONCURS JOSEPH J. NAHRA, J. DISSENTS (See attached opinion) JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. 68487 CITY OF PARMA, : : : Plaintiff-Appellee : D I S S E N T I N G : vs. : O P I N I O N : EHOR DOBROMILSKY, : : : Defendant-Appellant : DATE: NOVEMBER 2, 1995 NAHRA, J., DISSENTING: The defendant waived the speedy trial requirement for "not more than 90 days after pretrial conference." The pretrial conference was continued several times, without objection, and the trial was held within 90 days of the last pretrial. Thus, I would hold the .