[Cite as State v. Taylor,

.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO.

) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) DAVID E. TAYLOR ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2007 CR 202

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Robert Herron Columbiana County Prosecutor Atty. Tammie Riley Jones Atty. Kyde L. Kelly Assistant Prosecuting Attorneys 105 South Market Street Lisbon, Ohio 44432

For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones 42 North Phelps Street Youngstown, Ohio 44503-1130

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: February 28, 2011 -2-

WAITE, P.J.

{1} Appellant David E. Taylor is challenging his conviction, following a jury

trial, on one count of possession of cocaine on the basis of a speedy trial violation.

Appellant was already in prison for another crime when he was indicted on the drug

possession charge. On July 12, 2007, Appellant delivered a request for speedy

disposition of untried indictments, pursuant to R.C. 2941.401, which then gave the

state 180 days to try this case. Appellant contends that the case was not brought to

trial within 180 days and that the verdict should be overturned. The record indicates

that Appellant did not raise the speedy trial violation prior to trial and has waived the

issue for appeal. Furthermore, the record contains a written waiver of speedy trial

rights effective to June 18, 2008, and trial was actually held on June 18, 2008.

Appellant’s assignment of error is overruled and the judgment of the trial court as to

both his conviction and sentencing is affirmed.

History of the Case

{2} On June 28, 2007, Appellant was indicted in Columbiana County for

possession of cocaine, a fifth degree felony pursuant to R.C. 2925.22(A). Appellant

was incarcerated in Lorain, Ohio, when the indictment was issued. On July 12, 2007,

Appellant filed a 180-day demand for trial pursuant to R.C. 2941.401. On September

28, 2007, Appellant filed a motion to suppress. The motion was overruled on March

27, 2008. On April 1, 2008, Appellant signed a written waiver of speedy trial rights

that was valid until June 18, 2008. A jury trial was held on June 18-19, 2008. The

jury convicted Appellant on the single count in the indictment. Sentencing took place -3-

on August 29, 2008. During the sentencing hearing, Appellant mentioned that he

thought he had “filed a plea for speedy trial, disposition.” (8/29/08 Tr., p. 9.) The

court did not respond to Appellant’s comment and sentenced him to nine months in

prison. The sentencing judgment entry was filed on August 29, 2008. Appellant filed

a pro se notice of appeal on October 1, 2008, followed by a motion for delayed

appeal, which we sustained on November 25, 2008. Appellant also filed a motion for

stay of execution of sentence pending appeal, which this Court granted on February

4, 2009, on condition that Appellant post a $10,000 bond. No bond was posted.

Appellant also filed a motion for limited remand to resolve a speedy trial issue. The

state opposed the motion, arguing that there was no pending speedy trial issue, and

the motion was overruled on May 28, 2009.

ASSIGNMENT OF ERROR

{3} “The trial court erred in trying Mr. Taylor beyond his statutory speedy

trial deadline.”

{4} Appellant contends that a speedy trial violation occurred in this case

and that the trial court should have dismissed the drug possession charge. An

accused is guaranteed the right to a speedy trial by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. In Ohio,

the right to a speedy trial has been implemented by statutes that impose a duty on

the state to bring a defendant who has not waived his rights to a speedy trial to trial

within the time specified by the particular statute. R.C. 2945.71-73 contains the

general speedy trial provisions. R.C. 2941.401 is a more specific speedy trial statute -4-

that applies only to defendants who are already imprisoned for other crimes. The

provisions of R.C. 2945.71-73 and R.C. 2941.401 are mandatory and are strictly

enforced by the courts. State v. Pachay (1980),

,

.

{5} An appellate court's review of a speedy trial claim is a mixed question

of law and fact. State v. Masters,

,

,

, citing State v. High (2001),

,

. Accordingly, a reviewing court must give due deference to the trial court's

findings of fact if they are supported by competent, credible evidence, but will

independently review whether the trial court correctly applied the law to the facts of

the case.

{6} Appellant was in prison when he was indicted on possession of

cocaine. He argues that, because he was in prison when he was indicted, the

applicable speedy trial statute in this case is R.C. 2941.401, which states:

{7} “When a person has entered upon a term of imprisonment in a

correctional institution of this state, and when during the continuance of the term of

imprisonment there is pending in this state any untried indictment, information, or

complaint against the prisoner, he shall be brought to trial within one hundred eighty

days after he causes to be delivered to the prosecuting attorney and the appropriate

court in which the matter is pending, written notice of the place of his imprisonment

and a request for a final disposition to be made of the matter, except that for good

cause shown in open court, with the prisoner or his counsel present, the court may -5-

grant any necessary or reasonable continuance. The request of the prisoner shall be

accompanied by a certificate of the warden or superintendent having custody of the

prisoner, stating the term of commitment under which the prisoner is being held, the

time served and remaining to be served on the sentence, the amount of good time

earned, the time of parole eligibility of the prisoner, and any decisions of the adult

parole authority relating to the prisoner.

{8} “The written notice and request for final disposition shall be given or

sent by the prisoner to the warden or superintendent having custody of him, who

shall promptly forward it with the certificate to the appropriate prosecuting attorney

and court by registered or certified mail, return receipt requested.

{9} “The warden or superintendent having custody of the prisoner shall

promptly inform him in writing of the source and contents of any untried indictment,

information, or complaint against him, concerning which the warden or

superintendent has knowledge, and of his right to make a request for final disposition

thereof.

{10} “* * *

{11} “If the action is not brought to trial within the time provided, subject to

continuance allowed pursuant to this section, no court any longer has jurisdiction

thereof, the indictment, information, or complaint is void, and the court shall enter an

order dismissing the action with prejudice. * * *”

{12} It is evident from the record, and the state does not dispute, that

Appellant made a timely demand for speedy disposition of untried indictments as -6-

described in R.C. 2941.401. It is also evident that there are more than 180 days

between the date Appellant made his request for speedy disposition of untried

indictments and the date of trial. Appellant’s notice was delivered on July 12, 2007,

and trial took place on June 18, 2008. The state contends that Appellant failed to

assert a speedy trial violation prior to trial, thus waiving any error, and that there were

tolling events attributable to Appellant that should be deducted from the speedy trial

calculation.

{13} Appellee is correct that a defendant must raise a R.C. 2941.401 speedy

trial objection prior to trial and cannot raise the issue for the first time on appeal.

State v. Howard (1992),

,

; State v.

Schmuck, 3d Dist. No.6-08-13,

. Failure to raise defenses or

objections that must be raised prior to trial constitutes a waiver of those defenses or

objections. Crim.R. 12(H). “[T]he failure to raise the question of such a violation

denies the [state] the opportunity to establish that tolling of the statute occurred.”

State v. Turner,

,

,

.

Although Appellant made a vague reference in passing to a speedy trial problem

during sentencing, speedy trial objections must be made prior to trial rather than

waiting until the sentencing hearing. Schmuck at ¶15.

{14} Further, Appellant signed a waiver of speedy trial rights that was valid

until June 18, 2008, the day on which the trial actually commenced. The statutory

right to a speedy trial may be waived by a defendant or by his counsel on the

defendant's behalf. State v. McRae (1978),

,

. -7-

A defendant is bound by such a waiver. State v. McBreen (1978),

,

.

{15} Finally, the court brought the case to trial within 180 days if certain

tolling events are taken into account. The tolling provisions of R.C. 2945.72 apply to

the 180-day speedy trial time limit of R.C. 2941.401. State v. Skorvanek, 9th Dist.

No. 08CA009400,

; State v. Shepherd, 11th Dist. No.2003-A-0028,

; State v. Ray, 2d Dist. No.2004-CA-64,

; State v.

Nero (Apr. 4, 1990), 4th Dist. No. 1392. The speedy trial clock is tolled when the

defendant is unavailable for hearing. R.C. 2945.72(A). The speedy trial clock is also

tolled by any motion, proceeding or action of the accused that necessitates a delay.

R.C. 2945.72(E). Although it is not necessary to rely on tolling provisions to overrule

Appellant’s assignment of error due to the fact that Appellant has waived any speedy

trial error, it is obvious from the record that numerous tolling events occurred that are

attributable to him. Almost a month was spent in locating and transporting Appellant

from the Lorain Correctional Facility for arraignment. Appellant filed motions for

discovery and for a bill of particulars, which the state needed time to answer.

Appellant filed a motion to suppress on September 28, 2007, and the motion was

ultimately overruled on March 27, 2008. These events tolled the speedy trial clock by

over seven months, and Appellant was brought to trial well within the 180-day time

period after taking these tolling events into account.

{16} In conclusion, Appellant has not established that any reversible error

occurred with respect to his claim of a speedy trial error. Appellant failed to raise a -8-

speedy trial objection prior to trial, thus waiving the error on appeal. The record

reveals that he also signed a waiver of speedy trial. Finally, even if he had timely

raised a speedy trial objection, the record reflects a number of events that tolled the

speedy trial clock and brought the trial date within the 180-day time period allowed by

R.C. 2941.401. Appellant’s assignment of error is overruled and the judgment of the

trial court is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.