[Cite as State v. Beal,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 21CA3 : MICHAEL BEAL : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2020CR0326

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 25, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP RANDALL E. FRY RICHLAND CO. PROSECUTOR 10 West Newlon Place VICTORIA MUNSON Shelby, OH 44875 38 South Park St. Mansfield, OH 44902 Richland County, Case No. 21CA3 2

Delaney, J.

{¶1} Appellant Michael Beal appeals from the Sentencing Entry dated December

11, 2020 of the Richland County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} At the time of these events, Jane Doe was 16 years old and worked at a

fast-food restaurant in Mansfield, Ohio. Jane alleged that for approximately a year and a

half, appellant bothered her at work. Appellant came into her workplace, sometimes twice

a day, and asked for her by name. Jane would go to the back of the restaurant to avoid

him.

{¶3} On May 17, 2020, appellant watched Jane as they both exited the

restaurant. Appellant followed Jane in his vehicle as she drove toward Ontario. Jane

called her father (“Father”) and he came to the scene at a Kohl’s department store. Father

confronted appellant, who was sitting in his vehicle outside the store. Appellant fled at

high speeds and Father was unable to follow him.

{¶4} Jane and Father reported the matter to the Mansfield Police Department.

An investigation determined appellant has three prior convictions of menacing by stalking.

Officer Korey Kaufman of the Mansfield Police Department requested a felony arrest

warrant for menacing by stalking.

{¶5} On July 23, 2020, a secret indictment was filed charging appellant with one

count of menacing by stalking pursuant to R.C. 2903.211(A)(1) and R.C.

2903.211(B)(2)(a), a felony of the fourth degree.

{¶6} On August 4, 2020, the trial court journalized a Judgment Entry stating that

due to limitations arising from the Covid-19 pandemic and jury trials already on the Court’s Richland County, Case No. 21CA3 3

calendar, appellant’s jury trial could not be scheduled within 270 days. The trial court

therefore found that the earliest possible date for a jury trial was September 14, 2020,

and time was therefore tolled for speedy-trial purposes pursuant to R.C. 2945.72 and the

Ohio Supreme Court entry of March 27, 2020.

{¶7} On September 4, 2020, appellant filed a motion to dismiss on the basis of

a violation of his right to a speedy trial. Appellee responded with a memorandum contra

on September 14, 2020.

{¶8} Also on September 14, 2020, the trial court journalized an Order of Trial

Continuance stating the Court had a number of jury trials scheduled on that date which

were older than the instant case and appellant filed a pending motion to dismiss.

Therefore, time was tolled for speedy-trial purposes pursuant to R.C. 2945.72 and the

Ohio Supreme Court Entry of March 27, 2020.

{¶9} On September 15, 2020, an evidentiary hearing was held on appellant’s

motion to dismiss.

{¶10} On September 18, 2020, the trial court overruled appellant’s motion to

dismiss via judgment entry.

{¶11} On October 9, 2020, appellant filed another motion to dismiss for violation

of his right to a speedy trial.

{¶12} On October 29, 2020, the trial court overruled the second motion to dismiss

and noted jury trial was scheduled for November 30, 2020.

{¶13} On October 30, 2020, appellant withdrew his plea of not guilty and entered

a plea of no contest. Richland County, Case No. 21CA3 4

{¶14} On December 9, 2020, appellant came before the trial court for sentencing.

The trial court imposed a 5-year term of community control.

{¶15} Appellant now appeals from the judgment entries of conviction and

sentence.

{¶16} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶17} “THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO DISMISS BASED UPON A VIOLATION OF THE APPELLANT’S SPEEDY

TRIAL RIGHTS.”

ANALYSIS

{¶18} In his sole assignment of error, appellant argues the trial court should have

granted his motion to dismiss for violation of speedy trial time limitations. We disagree.

{¶19} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a

person accused of a crime is a fundamental right made obligatory on the states through

the Fourteenth Amendment. State v. Ladd,

,

(1978). “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), syllabus.

{¶20} Our review of a trial court's decision regarding a motion to dismiss based

upon a violation of the speedy trial provisions involves a mixed question of law and fact.

State v. Larkin, 5th Dist. Richland No. 2004–CA–103,

. As an Richland County, Case No. 21CA3 5

appellate court, we must accept as true any facts found by the trial court and supported

by competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17, 2016-

Ohio-5912,

, ¶ 43, citing

With regard to the legal issues,

however, we apply a de novo standard of review and thus freely review the trial court's

application of the law to the facts.

{¶21} When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against appellee. Brecksville v. Cook,

,

(1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-

Ohio-2326,

, ¶ 12.

{¶22} Appellant was charged with a felony of the fourth degree. A person charged

with a felony must be brought to trial within 270 days unless the right to a speedy trial is

waived. R.C. 2945.71(C)(2). Appellant did not waive time. If a person is held in jail in lieu

of bond, then each day that the suspect is in custody counts as 3 days. R.C. 2945.71(E).

Appellant remained incarcerated throughout the proceedings. Pursuant to R.C. 2945.73,

a person who is not brought to trial within the proscribed time periods found in R.C.

2945.71 and R.C. 2945.72 “shall be discharged” and further criminal proceedings based

on the same conduct are barred.

{¶23} A defendant establishes a prima facie case for discharge once he

demonstrates that he has not been brought for trial within the time limits set forth in R.C.

State v. Ashbrook, 5th Dist. Licking No. 06 CA 158,

,

,

¶ 49, citing State v. Butcher,

, 30–31,

(1986).

{¶24} When an appellant has established he was tried outside speedy-trial time

limits, the burden shifts to the state to show that the time limit was extended under R.C. Richland County, Case No. 21CA3 6

Id. at ¶ 31. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then

discharge pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy- trial

issue, an appellate court must calculate the number of days chargeable to either party and

determine whether the appellant was properly brought to trial within the time limits set

forth in R.C. 2945.71.” State v. Riley,

,

,

(12th Dist.).

{¶25} Pursuant to R.C. 2945.71(C)(2), appellee had 270 days to try appellant,

subject to the triple-count provision of 2945.71(E) and barring any tolling events [90 days].

{¶26} Appellant was arrested on May 18, 2020. The right to a speedy trial time

starts to run the day after arrest. State v. Neal, 5th Dist. Delaware No. 2005CAA02006,

,

, ¶ 44; R.C. 2945.71. The speedy-trial time clock

therefore began to run on May 19, 2020. Barring any tolling events, appellant should

have been brought to trial on or before August 17, 2020 [90 days].

{¶27} Certain events toll the accumulation of speedy-trial time. Relevant to the

instant case, R.C. 2945.72(E) and (H) state:

The time within which an accused must be brought to trial, or,

in the case of felony, to preliminary hearing and trial, 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;

* * * *. Richland County, Case No. 21CA3 7

(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;

* * * *.

{¶28} The parties agree time was tolled upon appellant’s demand for discovery

on August 4, 2020. Time was tolled until appellee responded on August 11, 2020 [7 days,

creating try-by date of August 24, 2020].

{¶29} Appellee argues that its reciprocal discovery demand also tolled time.

Appellee filed a reciprocal discovery demand on August 4, 2020, and appellant responded

on August 27, 2020. In State v. Palmer, the Ohio Supreme Court held that “the failure of

a criminal defendant to respond within a reasonable time to a prosecution request for

reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant

to R.C. 2945.72(D).”

,

,

, paragraph

one of syllabus. The Supreme Court held it was the role of the trial court to determine the

date by which the defendant should have reasonably responded to a reciprocal discovery

request based on the totality of the facts and circumstances of the case, including the

time established for response by local rule, if applicable. Id. at ¶ 24. We find appellant

responded to appellee’s discovery demand within a reasonable time and therefore

conclude appellant’s discovery response does not affect the speedy-trial clock. See,

State v. Mathias, 5th Dist. Morrow No. 2020CA0001,

.

{¶30} Appellant’s try-by date remained August 24, 2020. The issue posed by this

case, however, is whether speedy-trial time is tolled by the trial court’s sua sponte

continuances on August 4, 2020 and September 14, 2020, i.e. whether those are Richland County, Case No. 21CA3 8

“reasonable continuance[s] granted other than upon the accused's own motion” pursuant

to R.C. 2945.72(H).

{¶31} “When sua sponte granting a continuance under R.C. 2945.72(H), the trial

court must enter the order of continuance and the reasons therefor by journal entry prior

to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to

trial.” State v. Mincy,

,

(1982). The Ohio Supreme Court

provided guidance for the analysis of sua sponte continuances in State v. Lee

,

(1976):

The record of the trial court must in some manner affirmatively

demonstrate that a sua sponte continuance by the court was

reasonable in light of its necessity or purpose. Mere entries by the

trial court will ordinarily not suffice, except when the reasonableness

of the continuance cannot be seriously questioned. Although this

burden is contrary to the presumption of regularity generally

accorded to trial proceedings, it appears necessary to carry out the

purpose of the speedy-trial statutes.

{¶32} On August 4, 2020, prior to the expiration of the time limit prescribed in R.C.

2945.71 for bringing appellant to trial, the trial court journalized an entry setting forth its

reasons for the first sua sponte continuance:

* * * *.

In light of the worldwide pandemic known as COVID-19 (the

coronavirus), the Ohio Governor’s recent restrictions on public

gatherings, and the Center for Disease Control’s nationwide Richland County, Case No. 21CA3 9

guidance, Attorney General Yost’s Opinion 2020-002 and the

Supreme Court Entry of March 27, 2020 limiting the Court’s ability to

preside over jury trials, it is not possible to set the trial in this matter

within 270 days. The Court has multiple jury trials on every available

trial date prior to the 270 date. The trials scheduled on those dates

consist of cases in which the defendants have been incarcerated,

arraigned prior to this matter and those which have been set multiple

times.

Therefore, the Court finds that the earliest possible trial date

is September 14, 2020 at 9:00 a.m., and that time is hereby tolled for

speedy-trial purposes pursuant to O.R.C. 2945.72 and the Supreme

Court Entry of March 27, 2020.

Judgment Entry, August 4, 2020.

{¶33} The trial court’s schedule reflected the impact of the Covid-19 pandemic.

On March 27, 2020, the Ohio legislature tolled all statutory time limitations in criminal

cases set to expire between March 9, 2020 and July 30, 2020. See 2020 Am. Sub. H.B.

197, Section 22(A)(3),(10),(B),(C) (tolling retroactive to March 9, 2020, which shall last

until the sooner of July 30, 2020 or the expiration of the declaration of emergency in the

Executive Order 2020-01D). The emergency declared by the governor lasted longer than

the longest end date in the act, thus the expiration date for tolling under the emergency

act was July 30, 2020. The emergency act was enacted as “an emergency measure

necessary for the immediate preservation of the public peace, health, and safety” to Richland County, Case No. 21CA3 10

“respond to the declared pandemic and global health emergency related to COVID-19.”

at Section 40. See also Ohio Constitution, Article II, Section 1d.

{¶34} The Ohio Supreme Court has addressed the reasonableness of continuing

cases due to the pandemic:

And as all Ohio judges have been advised, trial judges have

the authority to continue trials for defendants on a case-by-case

basis without violating speedy-trial requirements. The Ohio Attorney

General has opined that courts may suspend jury trials to prevent the

spread of the coronavirus and they may do so consistent with state

and federal speedy-trial obligations. 2020 Ohio Atty. Gen. Ops. No.

2020-002. Specifically, R.C. 2945.72(H) provides that speedy-trial

time may be extended by “the period of any reasonable continuance

granted other than upon the accused's own motion”; continuing a trial

because of a pandemic state of emergency is “reasonable.”

In re Disqualification of Fleegle,

, 2020-

Ohio-5636,

. ¶ 7.

{¶35} Appellant points out that both continuances occurred after the expiration of

the tolling deadline of July 30, 2020. However, even after the tolling period ended, “trial

judges have the authority to continue trials for defendants on a case-by-case basis

without violating speedy-trial requirements * * * courts may suspend jury trials to prevent

the spread of the coronavirus and they may do so consistent with state and federal

speedy-trial obligations.” Morant, supra,

, citing

Richland County, Case No. 21CA3 11

; 2020 Ohio Atty.Gen.Ops. No. 2020-002; Ohio Supreme Court

Coronavirus Resources.

{¶36} On September 14, 2020, the date of the jury trial, the trial court journalized

the following Order of Trial Continuance:

* * * *.

The Court had multiple jury trials scheduled to begin on

September 14, 2020, consisting of cases in which the defendants

were arraigned prior to this matter, are or have been incarcerated

longer and/or those which have been set more times than the

defendant’s case. Specifically, the case of State of Ohio v. Samuel

Davis, Case No. 20 CR 48 and State of Ohio v. Edward Locke, Case

No. 20 CR 275 had priority over [appellant’s] case. However, in Mr.

Locke’s case Assistant Prosecuting Attorney Olivia Boyer and

defense counsel R. Joshua Brown, approached the Court at

approximately 2:30 p.m. on Friday, September 11, 2020 asking for a

pretrial wherein they requested a continuance of Mr. Locke’s case.

Having found good cause shown, Mr. Locke’s case was continued.

Furthermore in Defendant Davis’ case, Defendant’s Counsel James

J. Mayer, III requested a pretrial the morning of September 11th

wherein he indicated that his client wished to enter a plea the

afternoon of Friday, September 11, 2020. Defendant Davis’

admission hearing began at 3:30 p.m. on Friday, September 11,

2020 and did not conclude until 3:45 p.m. Richland County, Case No. 21CA3 12

Finally, [appellant] filed a Motion to Dismiss, by and through

his counsel, Sean Boone on September 4, 2020 that due to the

Court’s crowded docket the Court was unable to schedule before

Monday, September 14, 2020.

Therefore, due to the lateness of the resolution of the cases

with priority over [appellant’s] case and the pending Motion to

Dismiss, the Court determined that as a matter of fairness and to

best serve justice this case should be bumped. Finally, the Court

finds that time is hereby tolled for speedy-trial purposes pursuant to

O.R.C. 2945.72 and the Supreme Court Entry of March 27, 2020 to

the first available trial date will be issued under separate order. (sic)

* * * *.

{¶37} A continuance based on a crowded docket may be a reasonable

continuance within the meaning of R.C. 2945.72(H). State v. Young, 5th Dist. Stark No.

2020CA00155,

, citing State v. Lee,

,

(1976); State v. Davis, 5th Dist. Richland No. 2019 CA 0112, 2020-Ohio-

3617, ¶ 28.

{¶38} We find the trial court set forth detailed reasons for the continuances due to

its crowded docket and the unavailability of a courtroom based on the challenges facing

the judicial system in coping with the ongoing global pandemic.

5th Dist.

Stark No. 2020CA00155,

; see also, State v. Jones, 8th Dist.

Cuyahoga No. 110081,

, ¶¶ 11-12 [Ohio Attorney General opined courts

may suspend jury trials to prevent spread of coronavirus consistent with state and federal Richland County, Case No. 21CA3 13

speedy-trial obligations, and Ohio Supreme Court held trial judges have authority to

continue trials on case-by-case basis without violating speedy-trial requirements;

continuing trial because of pandemic state of emergency is reasonable under R.C.

2945.72(H)]; State v. Morant, 7th Dist. Belmont No. 20 BE 0020,

[sua sponte continuance reasonable under the circumstances of the Covid-19 pandemic].

We find the record establishes the reasonableness of the continuance.

{¶39} We find the judgment entries sufficiently detailed and the length of the

extensions to be facially reasonable after reviewing the facts in the record. We find that

the continuances tolled the speedy trial time because the continuances were reasonable

in both purpose and length. State v. Davis, 5th Dist. Richland No. 2019 CA 0112, 2020-

Ohio-3617, ¶ 28, citing State v. Martin,

,

(1978),

internal citation omitted.

{¶40} Appellant’s speedy-trial rights were not violated and his sole assignment of

error is overruled. Richland County, Case No. 21CA3 14

CONCLUSION

{¶41} Appellant’s sole assignment of error is overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.