State v. Singer

• Decision Date: 18 May 1977
• Docket Number: No. 76-788,76-788
• Citation: 4 O.O.3d 237,50 Ohio St.2d 103,362 N.E.2d 1216
• Parties: , 4 O.O.3d 237 The STATE of Ohio, Appellee, v. SINGER, Appellant.
• Court: Ohio Supreme Court

Page 103

50 Ohio St.2d 103

362 N.E.2d 1216, 4 O.O.3d 237

The STATE of Ohio, Appellee, v. SINGER, Appellant.

No. 76-788.

Supreme Court of Ohio.

May 18, 1977.

Syllabus by the Court

A defendant's failure to object to a trial date scheduled outside the 90-day limitation period of R.C. 2945.71(C)(2) and (D), before the expiration of that period, does not amount to acquiescence in the trial date.

Sherril Edward Singer, appellant, was arrested on Several felony charges on December 20, 1974, and was subsequently held in jail in lieu of bail at all times pertinent to this case. A preliminary hearing was held on December 27, 1974, at which appellant was represented by retained counsel. On January 6, 1975, appellant was indicted along with ten others by the grand jury.

Arraignment for these individuals was held January 10, 1975. Although appellant was present, his counsel was not. Upon receiving the indictment on January 8, appellant mailed a copy of it to his attorney. However, the attorney received neither the indictment in time to be present at the arraignment, nor, evidently, notice of the arraignment from the clerk of courts. Appellant was excused by the trial court without entering a formal plea at arraignment, since his counsel was not present.

Sometime between January 10 and January 15, the court scheduled a pretrial conference for January 27. The clerk of courts mailed notice to appellant's counsel on January 15, and counsel was present at the scheduled pretrial. On January 29, written pleas of not guilty and not guilty by reason of insanity were filed. During the latter part of February, the trial date was set for April 1, 1975.

On March 24, prior to his trial, appellant filed a motion for discharge, pursuant to R.C. 2945.73(B), alleging that the time failed to bring him to trial within the time required by R.C. 2945.71. The motion was denied on March 26. Appellant renewed the motion on April 1, his scheduled trial date, and the motion was again denied. Appellant appealed to the Court of Appeals for Muskingum County, but that court denied the appeal as being interlocutory.

Appellant was then re-scheduled for trial on May 9, 1975, but, prior to this date, he filed for a writ of habeas corpus in the Court of Appeals. The writ was denied on May 28, and motions for reconsideration and new trial were overruled on June 6.

Appellant appealed the denial of the writ to this court, which affirmed because habeas corpus was not proper remedy (45 Ohio St.2d 130, 341 N.E.2d 849); direct appeal is the proper remedy to test the validity of a denial of a motion for discharge.

Appellant, meanwhile, was tried as scheduled on May 9 and was convicted of all charges in the indictment. He then appealed to the Court of Appeals, which continued the appeal pending the decision by this court on the habeas corpus action. Subsequently, on May 27, 1976, the Court of Appeals affirmed the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Richard E. Bridwell, Pros. Atty., Joseph A. Gormley and Warren B. Richardson, Zanesville, for appellee.

Schwartz, Fisher, Spater, McNamara & Marshall and Leonard J. Schwartz, Columbus, for appellant.

PAUL W. BROWN, Justice.

The issue here is whether appellant is entitled to a discharge pursuant to R.C. 2945.73(B).

R.C. 2945.71(C)(2) and (D) provide that a person charged with a felony and held in jail on the pending charge in lieu of bail shall be brought to trial within 90 days after his arrest, unless such time limitation is extended by R.C. 2945.72. R.C. 2945.73(B) provides that upon motion at or prior to trial, an accused shall be discharged if not brought to trial within the required time period. ¹

Appellant was arrested and jailed on December 20, 1974, and was originally scheduled for trial on April 1, 1975, 102 days after his arrest. Appellant concedes that no time periods subsequent to April 1, 1975, are relevant since they constitute extensions pursuant to R.C. 2945.72.

The Court of Appeals affirmed the denial of the motion for discharge stating, 'where, within the required period pursuant to R.C. 2945.71, the case is set for trial for a date after the expiration of the required period, and the defendant is given ample notice thereof, he may not sit idly by and let the time within which he is to be brought to trial expire and then take advantage of the provisions of R.C. 2945.73(D) (sic 2945.73(B)).'

This holding of the Court of Appeals is clearly in error. In a series of cases, we have imposed upon the prosecution and the trial courts the mandatory duty of complying with R.C. 2945.71 through 2945.73. See, e. g., State v. Pudlock (1975), 44 Ohio St.2d 104, 338 N.E.2d 524; State v. Cross (1971) 26 Ohio St.2d 270, 271 N.E.2d 264; State v. Gray (1964), 1 Ohio St.2d 21, 203 N.E.2d 319. We do so pursuant to our conclusion that the General Assembly's definition of the trial court's obligation to guarantee a speedy trial is a rational one which we will enforce. See State v. MacDonald (1976), 48 Ohio St.2d 66, 71, 357 N.E.2d 40. This action implements the constitutional right to a speedy trial. ² State v. Pudlock, supra, 44 Ohio St.2d at page 105, 338 N.E.2d 524.

Under R.C. 2945.71 through 2945.73, an accused's statutory right to a speedy trial is not affected by his failure to demand a trial. State v. Cross, supra. A defendant's not objecting to a trial date outside the 90-day limit before the expiration of the period is not substantively different from failing to demand a trial, and such failure or election not to object does not result in his acquiescence in the trial date.

The burden is thus imposed on the state to bring an accused to trial within the statutory period. The Court of Appeals erroneously required appellant to object to the trial date prior to the expiration of the 90-day period, presumably so that the state could rectify the error. Such requirement effectively, and erroneously, shifted the burden imposed by law on the prosecutor to the accused, and must not be allowed to stand.

Appellant complied with the directive of R.C. 2945.73(B) which merely requires a defendant to file a motion for discharge at or prior to the commencement of trial. Appellant first made his motion on March 24, after the expiration of 90 days but certainly prior to trial. He renewed this motion on April 1, the scheduled trial date. Since a prior objection is not expressly required by the statute, we will not interpret that one is necessary to preserve the right to move for discharge.

We accept the legislative directive of R.C. 2945.71 through 2945.73, and will continue to do so, as long as thses statutes effectively deal with factual situations is a manner consistent with constitutional standards. See Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

As alternative propositions, appellee argues that the 90-day limit imposed by R.C. 2945.71 was extended in this case by at least three subdivisions of R.C. 2945.72.

In pertinent part, R.C. 2945.72 provided:

'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:

'* * *

'(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in assigning counsel to an indigent accused upon his request as required by law;

'(D) Any period of delay occasioned by the neglect or improper act of the accused;

'* * *

'(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.'

Since R.C. 2945.72 extends the 90-day limit only be the period of any delay or continuance therein described it is necessary to determine the length of any such delay or continuance.

Appellant argues that no delay was caused by the fact that his counsel was not present at the arraignment. Appellant points out that all 11 individuals, including himself, who were indicted on January 6, 1975, were brought to pretrial on January 27, 1975.

Appellant's point is well taken. Since the pretrial, which is the next step after arraignment, was held on schedule, no actual delay was caused by appellant's absence of counsel. Further, the record discloses that, with or without a formal plea, appellant was effectively arraigned. An accused has the right to waive arraignment and, when appellant proceeded to trial without objecting to the lack of a formal arraignment, he verified his waiver. His proceeding without objecting is treated in all respects as if he had pleaded not guilty and formally waived arraignment. See Goodin v. State (1865), 16 Ohio St. 344.

Because no actual delay occurred, R.C. 2945.72 cannot extend the 90-day limit of R.C. 2945.71. Further, the 90-day limit may be extended only by those periods specifically enumerated in the statute.

We have stated that we will look to the language of the statute itself in attempting to ascertain the legislative intent. See Stewart v. Trumbull County Bd. of Elections, (1973), 34 Ohio St.2d 129, 130, 296 N.E.2d 676. In examining the actual language of a statute, words should be given their common, ordinary and accepted meaning unless the legislature has clearly expressed a contrary intention. Youngstown Club v. Porterfield (1970), 21 Ohio St.2d 83, 86, 255 N.E.2d 262. A construction should be avoided which is contrary to the general spirit of the statute. Irwin v. Bank of Bellefontaine (1856), 6 Ohio St. 81, 87.

With these principles considered, Subdivision (C) of R.C. 2945.72 applies to those situations where the accused is without, and must procure, defense counsel. The record here demonstrates that appellant did not lack counsel but merely that his retained counsel was unaware of the arraignment. These extensions are to be strictly construed, and not liberalized in favor of the...