COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69075 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION KENNETH JAMES : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 8, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-320,584 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor PAUL J. DALEY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: THOMAS G. KELLEY Attorney at Law 516 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: This is an appeal from a judgment of the Court of Common Pleas wherein the court dismissed criminal charges against defendant- appellee Kenneth James for the state's failure to comply with the speedy trial statute, R.C. 2945.71. For the reasons stated below, we affirm. On September 13, 1994, defendant James was arrested for domestic violence as the result of an incident in which he had threatened his former girlfriend and her child with a sawed-off shotgun and held them against their will. However, when charged, the defendant was charged with two misdemeanors, to-wit: aggra- vated menacing and aggravated trespass, rather than a domestic violence charge. Subsequent to his arrest on September 13, 1994, the defendant did not make bond and remained in jail. On Novem- ber 16, 1994, in the Cleveland Municipal Court, the defendant pled no contest to the aggravated menacing charge, and the City of Cleveland dropped the aggravated trespass charge. The defendant was sentenced to one hundred eighty days incarceration and fined $1,000. The court suspended $500 of the fine and ninety days of the sentence. The defendant was also placed on two years active probation. - 3 - After the appellant's appearance in Cleveland Municipal Court on November 16, 1994, Cleveland Police Detective Hamilton received an assignment to follow up on this incident on the advice of the municipal court judge. A complaint against the defendant was taken to the city prosecutor for a warrant to be issued. A felony arrest warrant was issued for the defendant on November 25, 1994. Upon learning that the defendant was in the Warrensville Workhouse, the detective notified the workhouse of the warrant and requested the defendant be arrested on the completion of his sentence. The defendant was arrested on the warrant on January 30, 1995 and was indicted on March 13, 1995 in a two-count indictment for violation of both R.C. 2905.01, Kidnapping, with a firearm specification, and R.C. 2903.11, Felonious Assault, with a firearm specification. The defendant was arraigned on these charges March 21, 1995. He pled not guilty, and the original $10,000 bond was continued. Defendant never made bond and remained in jail since his initial arrest on September 13, 1994. On April 7, 1995, the defendant filed a motion to dismiss based upon the speedy trial statute, R.C. 2945.71. On April 19, 1995, the state filed its brief in opposition to the motion. A hearing on the motion to dismiss was held over a period of three days, April 26, May 4 and May 16, 1995. The trial court granted the defendant's motion to dismiss on May 16, 1995 and ordered the defendant released. The state filed a timely appeal. For the reasons set forth below, we affirm. - 4 - The state presents a single assignment of error for our review. I. THE TRIAL JUDGE ERRED IN RELYING ON THE STATE OF OHIO V. CLAY CASE IN GRANTING THE DEFEN- DANT'S MOTION TO DISMISS WHEN IT IS DISTIN- GUISHED FROM THE CASE AT BAR. The record before us reflects that the felony charges of kidnapping, with a firearm specification, and felonious assault, with a firearm specification, brought against the defendant- appellee on March 13, 1994 arose from the same set of facts as did the original misdemeanor charges. Those facts were known to the prosecutor at the time the original misdemeanor charges were brought. Each of the individuals who testified at the motion hearing testified that all of the facts of this matter were known to the police authorities on September 13, 1994 and that the facts never changed. Although the record reflects that Detective Hamilton initially stated at the motion hearing that new informa- tion was revealed on November 16, 1995 in the municipal court hearing, upon cross-examination, he was unable to identify any new or additional information upon which the felony indictments were based. Appellant State of Ohio does not challenge the proposition that the felony charges arose from the same facts and that those facts were known to the state at the time the initial charges were brought against the defendant-appellee. - 5 - After a full hearing on the motion to dismiss and in reliance on appellee's Exhibit A, which indicated the facts upon which the charges were based, the trial court granted the appellee's motion to dismiss based upon the holding of State v. Clay (1983), 9 Ohio App.3d 216, where the court stated, "When new and additional charges arise from the same facts as did the original indictment, the time within which trial is to begin on the additional charges is subject to the same statutory limitations period that is applied to the original charge." Id. at syllabus. It is the position of the appellant State of Ohio that the court erred in applying the rationale of Clay where the facts of Clay and the subject matter of the case sub judice are distin- guishable. The state does not argue that the indictments brought against this defendant were based upon any new evidence discov- ered, but the state contends that Clay should not apply where the original charges which were brought against the defendant were misdemeanor charges and the subsequent charges were felony indict- ments. The state attempts to distinguish Clay from the case sub judice by noting that the defendant Clay had a felony indictment in existence against him when the new charges were brought and the defendant here had only misdemeanor charges against him. It is the contention of the state that in the instant case, where the defendant-appellee was originally charged with misdemeanor charges, the later charges, felonious assault and kidnapping, are the "original indictments" against him. The state contends that the - 6 - speedy trial time for the defendant-appellee in this case did not begin to run until the "original indictments" against the defendant were handed down because misdemeanor charges are "mere complaints brought by the complainant and the police." The reasoning of the state flies in the face of all policy rationale of the speedy trial statutes, and we therefore disagree. Speedy trial guarantees apply to those accused of misdemean- ors as well as those accused of felonies. "The statutory speedy trial provisions R.C. 2945.71 et seq constitute 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. Pachay (1980), 64 Ohio St.2d 218, at the syllabus. As our court stated in State v. Floyd (Oct. 25, 1978), Cuyahoga App. No. 39929, unreported, "The state is prohibited from engaging in practices which undercut the intent and purposes of speedy trial statutes." Id. at 5. Therefore, as here, speedy trial provisions shall be enforced by our courts for those accused of both misdemeanors and felonies. The Ohio speedy trial statute, R.C. 2945.71, provides that a person against whom a charge of felony is pending shall be brought to trial within two hundred seventy days after his arrest. Each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. R.C. 2945.71(E). Therefore, such person, as the defendant-appellee in this matter, - 7 - who has at all times remained in jail must be brought to trial within ninety days. The question arises in this case as to when the speedy trial time starts to run. "The constitutional guarantees of a speedy trial are applicable to unjustifiable delays in commencing prose- cution, as well as to unjustifiable delays after indictment." State v. Meeker (1971), 26 Ohio St.2d 9, syllabus 3. Appellant relies on the language of Meeker as cited in State v. Basca (June 3, 1982), Cuyahoga App. No. 43997, unreported, for the proposition that until a defendant is charged or indicted, he is in no posi- tion to demand a speedy trial. In the case of Basca, the court stated, citing Meeker, "However, it would not appear that a person who has not been charged or indicted for a particular offense or offenses has any duty to take the initiative in his own prosecu- tion. Prior to such a charge, he is in no position to demand a speedy trial." Id. at 5. As in Basca and Meeker, the state contends that prior to the defendant being charged with the par- ticular offenses, here the felony indictments, the speedy trial time does not begin to run. The state's reliance on Basca and Meeker is misplaced. The facts of Basca and Meeker are clearly distinguishable from the case sub judice. The defendants in both Basca and Meeker were not charged with a crime at the time of their initial arrest and, therefore, in each of those instances, the court determined the triggering event for the speedy trial time was not, in fact, the - 8 - arrest but the charging of an offense. Such is not the case here. The defendant-appellee was not arrested, released and subsequently charged with an offense at a later date as the defendants in Basca and Meeker. Here, the appellee was charged with two misdemeanors as a result of his actions, which were fully known to the authori- ties on the date of his arrest. Alternatively, the state contends that the "arrest" of the appellee in this matter did not occur until his "arrest on the felony indictment." The state relies on the proposition stated in the case of State V. Cross (1975), 48 Ohio App.2d 357, that "prior to arrest, the limitation on criminal prosecution is governed by R.C. 2901.13, which provides a six-year period within which to commence prosecution for felonies other than murder." Id. at 357. However, the record before us clearly indicates that the arrest in this case occurred on September 13, 1994, with all the facts which formed the basis for the felony charges being known to the state on that date. The right to a speedy trial arises after one is charged with a crime. Click v. Eckle (1962) 174 Ohio St. 88, 91. Defendant- appellee was arrested and charged with two misdemeanor counts on September 13, 1994. The triggering event for the appellee's speedy trial time was the charging of the crimes against him. All of the information necessary for the appellee's felony indictments was before the state when the initial misdemeanor charges were brought. The charges which were brought against appellee on March 13, 1995 - 9 - arose from the same set of facts known to the state at the time of the initial charge. As the court stated in State v. Wood (1992), 81 Ohio App.3d 489: We agree with the holding in State v. Clay supra that when new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statu-tory limitations period that is applied to the original charge. Any other interpretation would clearly frustrate the purposes of the speedy trial statute. The state does not suggest there were any undiscovered facts relating to the events which led to the appellant's arrest. Id. at 492. Consistent with the court's holding in State v. Clay and State v. Wood, the speedy trial time on the additional charges is subject to the same statutory limitations period as is applied to the original charge. The charges brought against this appellee were felony charges which, pursuant to the statute R.C. 2945.71, required the state to bring the defendant-appellee to trial within two hundred seventy days or ninety days if he were in jail, as was the case here. The defendant-appellee was in jail continuously from September 13, 1994. The state had ninety days from September 13, 1994 to bring the appellee to trial on the felony charges which arose from the same facts which were known to it at the time of the initial charges brought against this appellee. This, the state failed to do. - 10 - As the court so succinctly stated in Clay, "In this case the state simply failed to properly prosecute the charges lodged against the appellee." Id. at 216. Therefore, the state having failed to bring the defendant- appellee to trial within the required statutory time, the trial court properly granted the appellee's motion to dismiss. The judgment of the trial court is affirmed. - 11 - It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas 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. and ANN DYKE, J. CONCUR 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, .