[Cite as In re D.S.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97757

IN RE: D.S. A Minor Child

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Juvenile Court Division Case No. DL-09119366

BEFORE: Jones, P.J., S. Gallagher, J., and Keough, J.

RELEASED AND JOURNALIZED: May 17, 2012 ATTORNEYS FOR APPELLANT

Timothy Young State Public Defender

BY: Sheryl A. Trzaska Laura E. Austen Assistant State Public Defenders 250 East Broad Street Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Milko Cecez Assistant County Prosecutor Juvenile Division 2210 Cedar Road, 3rd Floor Cleveland, Ohio 44115

and

Brian R. Radigan Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:

{¶1} D.S., a juvenile, appeals his delinquency adjudication, rendered after a bench

trial. We reverse and remand for D.S.’s discharge.

I. Procedural History

{¶2} On October 20, 2009, a delinquency complaint was filed against then 16-year

old D.S. The complaint charged one count of murder with one- and three-year firearm

specifications. In January 2010, the state filed a motion requesting the juvenile court to

relinquish jurisdiction over the prosecution of the case. In April 2010, the juvenile court

denied the state’s motion. On May 4, 2010, the state filed a notice of intent to seek a

serious youthful offender (“SYO”) dispositional sentence.

{¶3} On May 28, 2010, a grand jury indicted D.S. as a SYO, charging him with

one count of murder, two counts of attempted felonious assault, and two counts of

felonious assault. All the charges contained one- and three-year firearm specifications.

In July 2010, D.S. waived his right to a jury trial, and on August 16, 2010, the case

proceeded to a bench trial. The trial court found D.S. delinquent of all charges and

specifications.

{¶4} The trial court imposed a juvenile disposition for murder and committed D.S.

to the department of youth services (“DYS”) until his 21st birthday. For the SYO

portion of his sentence, the trial court imposed a 15-year-to-life adult prison term and a

three-year firearm specification for murder; two one-year prison terms with two three-year firearm specifications for each of the attempted felonious assault charges; and

two two-year prison terms with two three-year firearm specifications for each of the

felonious assault charges. The trial court ordered that the terms for the underlying

charges be served concurrently, but that the firearm specifications be served

consecutively to each other and prior to the terms on the underlying charges. The trial

court stayed the adult portion of D.S.’s sentence on the condition of his successful

completion of the juvenile disposition.

{¶5} D.S. appealed, but this court dismissed the appeal for lack of a final,

appealable order and remanded the case “with instructions to expeditiously enter

disposition on all counts of delinquency pursuant to Juv.R. 29.” In re D.S., 8th Dist. No.

95803,

.1

{¶6} On remand, the trial court conducted another dispositional hearing and

ordered D.S. to serve concurrent DYS commitments of a minimum of one year, maximum

until his 21st birthday, with one-year firearm specifications for the felonious assault

charges. The trial court further ordered that the two counts of attempted felonious

assault and the attendant firearm specifications merge with the felonious assault charges

as allied offenses.

{¶7} D.S. has appealed again and for his first assignment of error contends that his

right to a speedy trial was violated and his trial attorney was ineffective for failing to file

1 This court found that the juvenile court’s “‘blanket’ juvenile disposition for murder did not cover D.S.’s four assault adjudications with firearm specifications, as they were not addressed in the dispositional hearing or journal entry.” Id. at ¶ 11. a motion to dismiss on that ground. We agree and dispose of the appeal on this

assignment of error.

II. Law and Analysis

{¶8} We initially address the state’s contention that, because D.S. did not

challenge his right to a speedy trial at the trial court level, the proper procedure would be

for him to file a postconviction relief petition alleging ineffective assistance of counsel so

that both parties “could develop the issue of whether tolling occurred.” The state cites

State v. Vance, 5th Dist. Nos. 2003CA0041 and 2003CA0030,

, in support

of its position. In Vance, the Fifth Appellate District chose this avenue, finding that the

“record was not properly developed on this issue.” Id. at ¶ 46.

{¶9} We find that the record is developed enough for us to consider this

assignment of error and, therefore, follow our line of cases wherein we have reviewed the

issue for plain error. See State v. Bari, 8th Dist. No. 90370,

; State v.

Mitchell, 8th Dist. No. 88977,

; and Cleveland v. Ali, 8th Dist. No.

88604,

.

{¶10} A plain error review to determine whether a defendant’s right to a speedy

trial was violated requires a two-part analysis. State v. Boone, 8th Dist. No. 81155,

, ¶ 6. We first determine whether the speedy trial deadline expired

before D.S. was tried, and second, whether his trial attorney’s failure to raise the issue at

the trial court constituted ineffective assistance.

{¶11} In order to substantiate a claim of ineffective assistance of counsel, D.S. is required to demonstrate that (1) the performance of defense counsel was seriously flawed

and deficient, and (2) the result of D.S.’s trial or legal proceeding would have been

different had defense counsel provided proper representation. Strickland v. Washington,

,

,

(1984), paragraph two of the syllabus;

State v. Brooks,

,

(1986).

{¶12} Statutory speedy trial time periods do not apply to cases initiated in juvenile

court. State ex rel. Williams v. Court of Common Pleas,

,

(1975). The Ohio Supreme Court explained as follows:

The time limits set forth in R.C. 2945.71(C) apply only to a “(a) person against whom a charge of felony is pending * * *.” A juvenile who has lodged against him an affidavit alleging that he is delinquent because he committed an act which, if committed by an adult, would constitute a felony is not a person against whom a charge of felony is pending. The juvenile becomes such a person and is, therefore, included with the scope of R.C. 2945.71(C) only if and when the Juvenile Court relinquishes jurisdiction over the case and transfers it to the appropriate “adult” court. (Internal citations omitted.)

{¶13} One exception to the non-applicability of the statutory speedy trial time

periods to juveniles is when the state seeks a SYO dispositional sentence. R.C.

2152.13(C)(1), which governs SYO dispositional sentences, provides in relevant part that:

Once a child is indicted, or charged by information or the juvenile court

determines that the child is eligible for a serious youthful offender

dispositional sentence, the child is entitled to an open and speedy trial by

jury in juvenile court and to be provided with a transcript of the proceedings. The time within which the trial is to be held under Title

XXIX of the Revised Code commences on whichever of the following dates

is applicable:

(a) If the child is indicted or charged by information, on the date of the

filing of the indictment or information.

(b) If the child is charged by an original complaint that requests a serious

youthful offender dispositional sentence, on the date of the filing of the

complaint.

(c) If the child is not charged by an original complaint that requests a serious youthful offender dispositional sentence, on the date that the prosecuting attorney files the written notice of intent to seek a serious youthful offender dispositional sentence.

{¶14} R.C. 2152.13(C)(2) provides that:

If the child is detained awaiting adjudication, upon indictment or being

charged by information, the child has the same right to bail as an adult

charged with the offense the alleged delinquent act would be if committed

by an adult. Except as provided in division (D) of section 2152.14 of the

Revised Code,2 all provisions of Title XXIX of the Revised Code and the

Criminal Rules shall apply in the case and to the child. The juvenile court

shall afford the child all rights afforded a person who is prosecuted for

committing a crime including the right to counsel and the right to raise the

2 The section provides for a hearing prior to the juvenile court invoking the adult portion of a juvenile’s SYO dispositional sentence. issue of competency. The child may not waive the right to counsel.

{¶15} D.S. contends that, under R.C. 2152.13(C)(1)(c), his speedy trial time began

to run on May 4, 2010, when the state filed its notice of intent to seek a SYO dispositional

sentence, which is a contention not challenged by the state, and with which we agree.

{¶16} Speedy trial for felony charges is governed by R.C. 2945.71(C)(2), which

states that a defendant “[s]hall be brought to trial within two hundred seventy days after

the person’s arrest.” “For purposes of computing time under divisions * * * (C)(2) * * *

of this section, 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).

{¶17} The time to bring a defendant to trial can be extended for any of the reasons

enumerated in R.C. 2945.72, including (1) “[a]ny period of delay occasioned by the

neglect or improper act of the accused,” (2) “any period of delay necessitated by reason of

a plea in bar or abatement, motion, proceeding, or action made or instituted by the

accused,” or (3) “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.” R.C. 2945.72(D), (E), and (H).

{¶18} D.S. remained in custody throughout the pendency of this case. Therefore,

he needed to be brought to trial within 90 days from May 4, 2010, the start of his speedy

trial time, barring any extensions by tolling events. The state contends that D.S. engaged

in motion practice that tolled speedy trial time. Specifically, the state cites the motion

D.S. made at a June 16, 2010 hearing for transcripts of the probable cause hearing. The motion was granted on the record the same day, and therefore, no tolling occurred.

{¶19} The state contends that time was tolled nonetheless as a result of this motion

because after granting the motion the trial court continued the matter, according to the

state, “so defense counsel could obtain the transcript and review it.” But the journal

entry granting the continuance merely stated that the matter was continued. This court

has previously declined to toll the statutory speedy trial time in instances where the trial

court has not indicated the reason for a continuance, stating that:

The granting of a continuance must be recorded by the trial court in its journal entry which also must identify the party to whom the continuance is chargeable. * * * In order to toll the statutory time limits, a journal entry must show that a continuance was requested by the defendant or give sufficient explanation as to the reason for the continuance.

State v. Gabel, 8th Dist. No. 69607,

(Oct. 31, 1996). Because the

entry did not indicate the reason for the continuance, it was not chargeable against D.S.

{¶20} The state, relying on State v. Palmer,

,

,

, also contends that time was tolled in this case because D.S. failed to

respond to its discovery request. In Palmer, the defendant filed a written demand for

discovery. The state responded five days later and requested reciprocal discovery. The

defendant did not respond to the state’s request until 60 days later, and the response

merely stated that the defense would be using the state’s witnesses and materials. The

defendant later alleged his speedy trial rights were violated.

{¶21} The trial court found that 30 of the 60 days that passed before the

defendant’s response were unreasonable and thus tolled the speedy trial time for thirty days under R.C. 2945.72(D), for delay occasioned by the neglect or improper act of the

defendant. Id. at ¶ 7. With 30 days attributed to the defendant, the speedy trial time

had not expired at the time of trial. Thus, the defendant’s motion to dismiss was denied.

On appeal, the Eleventh Appellate District reversed on the grounds that the state neither

filed a motion to compel discovery nor demonstrated prejudice from the defendant’s

untimely response. State v. Palmer, 11th Dist. No. 2004-P-0106,

.

{¶22} The Supreme Court disagreed with the Eleventh District and upheld the trial

court’s decision. The Court concluded that a defendant who does not respond in a

timely fashion to the state’s request for reciprocal discovery is responsible for neglect

under R.C. 2945.72(D). Id. at ¶ 20, 24. The Court further held that the state need not

show prejudice or delay in the trial date and that the state was not required to file a

motion to compel to ensure tolling of the speedy trial clock. Id. at ¶ 21-22, 24. Finally,

the Court stated that it is up to the trial court to determine the date by which the defendant

should have reasonably responded based upon the totality of the facts and circumstances

in the case. Id. This court has interpreted the “reasonable time” requirement to mean

30 days. State v. Barb, 8th Dist. No. 90768,

.

{¶23} D.S. makes a compelling argument that this case is distinguishable from

Palmer because the State’s discovery request was made in January 2010, before his

speedy trial rights even started to run in May 2010. Therefore, D.S. contends that “[t]o

toll the time for [30] days from the service of the State’s discovery request would result in

a date that is several months prior to [D.S.’s] speedy trial time beginning to run.” The state, however, contends that 30 days should be tacked on as of May 4, 2010, when the

speedy trial time began to run. This issue of otherwise tolling events that occur prior to

speedy trial rights running in a SYO dispositional sentencing case presents an apparent

case of first impression. We do not believe that we should “reach back” to events that

occurred prior to D.S.’s speedy trial rights even being implicated.

{¶24} Moreover, this case is distinguishable from Palmer. At the time the state

filed its demand for discovery on January 13, 2010, this case was pending only as a

juvenile case. Juv.R. 24(A), governing discovery in juvenile cases, provides that

“[u]pon written request, each party of whom discovery is requested shall * * * produce

promptly the * * * information, documents, and material in that party’s custody, control,

or possession * * *.” Juv.R. 24(B) provides that “[i]f a request for discovery is refused,

application may be made to the court for a written order granting the discovery.” Juv.R.

24 is similarly worded as Crim.R. 16 in regard to court intervention in discovery matters.

Crim.R. 16(L)(1) provides:

The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.

{¶25} In Palmer, the Ohio Supreme Court explained that, because of the use of the

word “shall” in Crim.R. 16, compliance with the rule is mandatory rather than

discretionary. Thus, the Court held that tolling of statutory speedy trial time based on a defendant’s neglect in failing to respond within a reasonable time to the state’s request for

discovery is not dependent upon the state’s filing of a motion to compel. The Court

noted that the “provisions of Crim.R. 16 which permit the court to order compliance are

triggered when a party fails to comply completely with a request or there is some

confusion or disagreement as to what is discoverable.” (Emphasis added.) Id. at ¶ 19.

{¶26} Here, D.S. never responded to the state’s discovery request, a distinguishing

fact from Palmer, where the defendant responded, but did so untimely. The record in

this case includes the transcripts of four hearings held by the trial court after the state’s

January 13, 2010, discovery request.

{¶27} At the first hearing, held on January 21, 2010, the court stated at the

beginning of the hearing, “we’re here for a probable cause [hearing] and no discretionary

motions are filed. It’s hard to figure out. But [the] bottom line is apparently the State

never filed such a motion, and [D.S.’s] been locked [up] now for * * * 87 days, and we’re

here today and we don’t even have an arraignment set yet for a Rule 30 discretionary?

So what are we going to do about this?” The assistant prosecuting attorney responded,

“[w]e’re going to file ASAP * * * I don’t have an explanation of the whys as to why it

wasn’t filed.” Several times during the hearing, the state acknowledged that there were

“procedural problems” with the case.3

{¶28} The court took a recess so that the state could file a motion to try D.S. as an

adult and reconvened after the motion was filed to explain the motion to D.S. At that

January 21, 2010, tr. p. 6, 7, 8. 3 hearing, counsel for D.S. informed the court that there was some outstanding discovery

that the defense was still trying to obtain from the state. The state said that it would

complete discovery by the end of the week and the court told the defense, “if you believe

* * * you still haven’t received everything that you think is discoverable, then file a

written motion immediately and then we’ll go from there.” The state never made

mention of D.S.’s outstanding discovery.

{¶29} The next hearing, a probable cause hearing on the state’s motion to try D.S.

as an adult, was held on March 15, 2010. At the beginning of the hearing, the court

questioned counsel about “preliminary matters,” and after a brief discussion of some

matters, the court inquired, “[a]nything further before we get started?” The state

responded, “[n]ot on behalf of the government, your Honor.”

{¶30} At the third hearing, an amenability hearing, held on April 28, 2010, the

court noted at its conclusion that D.S. had been “locked up for six months now, so at this

point I would like to move this case as quickly as possible.” The parties agreed to a May

4, 2010 pretrial; on that date, the state filed its notice of intent to seek a SYO dispositional

sentence.

{¶31} At the final hearing, held on May 4, D.S. was arraigned on the SYO

indictment. The court informed him as follows of his speedy trial rights: “Now, with

this Indictment you do have the right to a speedy trial. So you have to be brought to trial

within 270 days. Now, if you’re locked up while this case is pending, every day that

you’re locked up counts as three days toward your speedy trial right.” When asked at the conclusion of the arraignment if there were any other issues, the state responded, “just

the issue of bail.”4

{¶32} Thus, from the time D.S.’s speedy trial right began to run in May 2010, until

the time of trial in August 2010, the state was presented with four on-the-record

opportunities to seek the court’s intervention in compelling D.S. to respond to its

discovery requests, but never did. It also never filed any request seeking the court’s

intervention. In Palmer, the defendant responded, but untimely, whereas here, D.S.

never responded at all. We find this to be an important distinguishing factor.

{¶33} Crim.R. 16(A) explains the overarching purposes of the discovery rules:

Purpose, Scope and Reciprocity. This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.

{¶34} It has been held that the purpose of the discovery rules is to prevent surprise

and the secreting of evidence favorable to the other party. Lakewood v. Papadelis,

,

(1987); see also State v. Warren, 8th Dist. No. 83823,

. To that end, speedy trial rights are tolled when a defendant

makes a discovery request because:

Discovery requests by a defendant divert the attention of prosecutors from preparing their case for trial, thus necessitating delay. If no tolling is permitted, a defendant could attempt to cause a speedy-trial violation by filing discovery requests just before trial. * * * Further, prosecutors could be forced to make hurried responses to discovery requests to avoid violating

4 D.S. was remanded without bail. the speedy-trial statute.

State v. Brown,

,

,

; see also

Palmer at ¶ 18 (the overreaching purpose of the discovery rules is to produce a fair trial).

{¶35} The purpose of speedy trial rights, as set forth in R.C. 2945.71 and the

United States and Ohio Constitutions, is to protect both the state and defendants from

dilatory tactics by either side. R.C. 2945.72(D) provides that a defendant’s right to a

speedy trial may be extended by the defendant’s neglect that serves to delay the

proceedings. In State v. Owens, 2d Dist. No. 13054,

(June 26, 1992),

the Second Appellate District noted that “[w]hether a delay ‘results’ from a motion or

other action requires an analysis of cause and effect. Not every delay that follows a

motion results from it; the delay must be caused by it.”

{¶36} We are not persuaded by the state’s contention that D.S.’s failure to respond

to its discovery request kept the speedy trial clock from ticking. First, the request was

made in January 2010, well before May 2010, when D.S.’s right to a speedy trial was

effectuated. But more importantly, there is no indication whatsoever in this record that

the state was delayed in its preparation for trial by D.S.’s failure to respond to its request

for discovery. What is evident in the record, however, is that delay in this case was

attributed to the state. D.S. was held in detention for 87 days before he was even

arraigned. The state acknowledged what it called “procedural problems” with the case.

{¶37} To hold that 30 days count against D.S., for a motion he filed months before

he even had a right to a speedy trial, after the state delayed for almost three months, and where there is no indication in the record that the state was delayed in its trial

preparations by D.S.’s lack of response, would be an injustice and not in keeping with the

purposes of either speedy trial rights or discovery.

{¶38} At oral argument, counsel for the state stated that juvenile court is a

different animal than adult court. Counsel’s statement is true to a degree. But, rules

still apply in juvenile court and those rules must be followed, especially where the state is

attempting to hang an adult sentence over a juvenile’s head.

{¶39} In light of the above, D.S.’s first assignment of error is sustained. The

remaining assignments of error are moot. App.R. 12(A)(1)(c).

{¶40} Judgment reversed; case remanded; D.S. shall be discharged upon remand.

It is ordered that appellant recover of appellee 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 juvenile

division of the common pleas 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.

LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION SEAN C. GALLAGHER, J., DISSENTING:

{¶41} I respectfully dissent from the majority’s decision and would overrule D.S.’s

first assignment of error. D.S.’s right to a speedy trial was not violated because of his

failure to promptly respond to the state’s discovery request.

{¶42} D.S. attempted to distinguish his case from that of Palmer. In Palmer, the

Ohio Supreme Court simply held that the failure of a defendant to respond in a reasonable

time to the state’s request for reciprocal discovery constitutes neglect, tolling the running

of the speedy-trial time and is not dependant on a motion to compel or prejudice to the

state. State v. Palmer,

,

,

,

paragraphs one and two of the syllabus. More important to the current case, “[a] trial

court shall determine the date by which a defendant should reasonably have responded to

a reciprocal discovery request based on the totality of facts and circumstances of the case,

including the time established for response by local rule, if applicable.”

at paragraph

three of the syllabus.

{¶43} Thus, the majority’s concern that 30 days of tolling ran before the start of

the speedy-trial clock is misplaced. The 30 days discussed in Palmer was based on the

trial court’s determination that such a time period would have been the reasonable time to

respond to the state’s discovery request. No such determination occurred in the current

case, and tolling, for failure to respond to the state’s discovery, is not limited to 30 days.

Tolling could extend for the life of the pretrial stages of a case if the defendant fails to respond.

{¶44} In the current case, the speedy-trial time began running as of May 4, 2010,

and that must include any applicable tolling that could have applied but for the fact that

the speedy-trial clock does not apply to juvenile proceedings absent the SYO intercession.

The effect of R.C. 2152.13(C)(1)(c) starting the clock in the middle of a case does not

act to divorce the tolling provisions from the speedy-trial requirements of the applicable

portions of the Revised Code and require the state to refile outstanding discovery

motions. Accordingly, D.S.’s first assignment of error should be overruled and the rest

of his assignments of error addressed.