COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71866 CITY OF BRECKSVILLE : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION MICHAEL E. HAUFF : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 30, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court, No. 96-TRD-6931A-B. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Roger A. Wadsworth, Esq. Prosecutor, City of Brecksville 8927 Brecksville Road Brecksville, OH 44141 For Defendant-Appellant: Gary D. Smith, Esq. 11221 Pearl Road Strongsville, OH 44136 2 DAVID T. MATIA, P.J.: Michael Hauff, defendant-appellant, appeals from his conviction in the Garfield Heights Municipal Court, Case No. 96- TRD-06931, of the offenses of speeding and driving under suspension. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On September 13, 1996, Michael Hauff, defendant-appellant, was cited for speeding and driving under suspension in the City of Brecksville, Ohio, in violation of R.C. 4511.21 and R.C. 4507.02(B)(1) respectively. Defendant-appellant had two prior convictions for driving under suspension. After a number of pretrial hearings, defendant-appellant's case was scheduled for a bench trial on October 21, 1996. Approximately one month prior to trial, defendant-appellant executed a written waiver of his right to speedy trial. On October 21, 1996, defendant-appellant appeared and trial commenced. The state's first witness was the arresting officer. At this time, the state indicated that it had issued a subpoena to the custodian of records of the Bureau of Motor Vehicles, however, the custodian of records had failed to appear. Therefore, the state was unable to present evidence from the Bureau of Motor Vehicles regarding defendant-appellant's license suspension. Due to the state's inability to produce the necessary Bureau of Motor Vehicle evidence, defendant-appellant moved to dismiss the 3 proceedings against him for lack of prosecution. The trial court denied defendant-appellant's motion to dismiss and sua sponte rescheduled the case for trial on November 4, 1996. On November 4, 1996, defendant-appellant again appeared and trial commenced. However, the state was still unable to obtain the presence of the custodian of records of the Bureau of Motor Vehicles although it maintained that a second subpoena had been issued. Defendant-appellant moved to dismiss the proceedings a second time for lack of prosecution. The trial court denied defendant-appellant's second motion to dismiss and again sua sponte rescheduled the case for trial on December 2, 1996. On December 2, 1996, defendant-appellant appeared and the case proceeded to trial during which an employee from the Bureau of Motor Vehicles testified that notice of a driver's license suspension was properly mailed to defendant-appellant prior to the date of defendant-appellant's underlying arrest. The trial court then found defendant-appellant guilty of driving under suspension and speeding, 45 m.p.h. in a 25 m.p.h. zone. Defendant-appellant was sentenced on the offense of driving under suspension to 180 days in jail and a $1,000 fine. The trial court suspended 135 days jail time and $650 of the fine and placed defendant-appellant on three years probation. Defendant-appellant was sentenced on the speeding violation to pay court costs. On December 18, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. On December 4 19, 1996, the trial court granted a stay of execution of sentence pending the outcome on appeal. The instant appeal now follows. II. ASSIGNMENT OF ERROR Michael Hauff's, defendant-appellant's, sole assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS FOR LACK OF PROSECUTION WHEN THE STATE FAILED TO PRODUCE ITS ESSENTIAL PROSECUTION WITNESS ON TWO, SUCCESSIVE OCCASIONS. . THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS AND SUA SPONTE RESCHEDULING THE TRIAL DATE. Defendant-appellant argues, through his sole assignment of error, that the trial court abused its discretion by denying his motion to dismiss the proceedings for lack of prosecution. Specifically, defendant-appellant maintains that the state's failure to produce its witness from the Bureau of Motor Vehicles for trial on two separate occasions constituted a violation of his right to a speedy trial as guaranteed by the Ohio and United States Constitutions. Defendant-appellant argues further that the trial court improperly continued the subject trial in order to allow the state the opportunity to fully present its case even after the state had admittedly been unprepared for trial on two previous occasions demonstrating an unreasonable and unconscionable attitude by the trial court. The state maintains that the allowance of the two continuances was well within the sound discretion of the trial court and was 5 not, in any way, unreasonable or unconscionable under the circumstances. The state further maintains that defendant- appellant's constitutional right to a speedy trial was not violated where he executed a written waiver of speedy trial and was nevertheless brought to trial within the statutory guidelines set forth by R.C. 2945.71(B)(2). . STANDARD OF REVIEW FOR A MOTION FOR A CONTINUANCE. The granting or denial of a motion for continuance is a matter within the sound discretion of the trial court. State v. Burke (1995), 73 Ohio St.3d 399, 407. An appellate court will not disturb a trial court's decision granting a motion for continuance absent a showing of an abuse of discretion. State v. Grant (1993), 67 Ohio St.3d 465, 479. The term abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable under the circumstances. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219; Sta te v. Dixon (Mar. 13, 1997), Cuyahoga App. No. 68338, unreported; State v. Murawski (July 17, 1997), Cuyahoga App. No. 70854, unreported. The reviewing court must weigh the potential prejudice to the defendant against the trial court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice. State v. Powell (1990), 49 Ohio St.3d 255, 259; State v. Henderson(May 15, 1997), Cuyahoga App. No. 70743, unreported. The relevant factors include the length of the delay requested; whether other continuances have been requested and received; the 6 inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or is dilatory in nature; and whether the defendant contributed to the circumstance which gives rise to the request. State v. Ungar (1981), 67 Ohio St.2d 65; State v. Grant, supra. . STANDARD OF REVIEW FOR SPEEDY TRIAL. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. In addition to these constitutional speedy trial provisions, R.C. 2945.71(B)(2) provides that a defendant charged with a misdemeanor of the first degree shall be brought to trial within ninety days after arrest or service of summons. State v. Shilling (Dec. 30, 1996), Washington App. No. 96-CA-30, unreported. The Ohio legislature has enacted the speedy trial statutes as a rational effort to enforce the constitutional right to a public speedy trial, and the limitations imposed by the statutes are to be strictly enforced by the courts. State v. Pachay (1980), 64 Ohio St.2d 218, 416 N.E.2d 589 at syllabus; In re: Jerry Fuller (Dec. 14, 1994), Summit App. No. C93-08-3075/3076, unreported. However, a defendant may waive the right to a speedy trial provided that such waiver is knowingly and voluntarily made. State v. Adams (1989), 43 Ohio St.3d 67, 69, 588 N.E.2d 1025. The Ohio Supreme Court recently held that, in order for a defendant's waiver of speedy trial to be valid, it must be expressed in writing or made 7 in open court on the record. State v. King (1994), 70 Ohio St.3d 158, 637 N.E.2d 903 at syllabus. . THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS. In the present case, defendant-appellant was arrested and charged with driving under suspension, a first degree misdemeanor, on September 13, 1996. Pursuant to R.C. 2945.71(B)(2), defendant- appellant had to be brought to trial within ninety days after arrest or service of summons when charged with a first degree misdemeanor. In this instance, defendant-appellant's speedy trial time would have expired on December 12, 1996. However, on September 24, 1996, defendant-appellant executed a written waiver of his right to speedy trial which stated: I, Michael Hauff, the defendant in the above case(s), have been informed that I have a constitutional right to a speedy trial, but I, hereby, in open court, waive this right and consent to this case being continued, even if it has to be continued indefinitely. Nevertheless, defendant-appellant was still brought to trial on December 2, 1996, well within the statutorily mandated time for trial as set forth in R.C. 2945.71(B)(2). A review of the record in this case fails to demonstrate any evidence to indicate that defendant-appellant's written waiver of speedy trial was anything other than a knowing and voluntary waiver. In addition, the record demonstrates further that the two sua sponte trial continuances by the trial court were, in fact, for legitimate reasons and entirely reasonable under the circumstances. State v. McRae (1978), 55 Ohio St.2d 149. Therefore, it cannot now 8 be said that the trial court abused its discretion in any manner by sua sponte continuing the trial date on two separate occasions to allow the state to secure the presence of one of its witnesses. State v. Hart (Aug. 16, 1989), Summit App. No. 13951, unreported. This is particularly true in light of the fact that defendant- appellant's speedy trial time did not expire prior to the ultimate trial date in this case and, even if it had, a valid written waiver of speedy trial had been executed. For the foregoing reasons, defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. 9 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 Garfield Heights 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. JOSEPH J. NAHRA, J., CONCURS; TIMOTHY E. MCMONAGLE, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .