Brecksville v. Cook

• Citation: 75 Ohio St.3d 53,661 N.E.2d 706
• Decision Date: 04 March 1996
• Docket Number: No. 94-1897,94-1897
• Parties: CITY OF BRECKSVILLE, Appellant, v. COOK, Appellee.
• Court: Ohio Supreme Court

Page 53

75 Ohio St.3d 53

661 N.E.2d 706

CITY OF BRECKSVILLE, Appellant, v. COOK, Appellee.

No. 94-1897.

Supreme Court of Ohio.

Submitted Nov. 8, 1995.

Decided March 4, 1996.

SYLLABUS BY THE COURT

The transfer of a case pursuant to R.C. 1905.032 from the mayor's court to the municipal court is a "removal" within the meaning of R.C. 2945.72(F), and the period of delay necessary to the removal is the time from arrest or summons to the date the mayor's court certifies the case to the municipal court.

The facts of this case are simple and undisputed. On May 22, 1993, appellee, Eric Cook, was cited for an automobile exhaust equipment defect, a minor misdemeanor violation of Section 337.20 of the Codified Ordinances of the city of Brecksville. The citing officer issued Cook a ticket and instructed him to appear in Brecksville Mayor's Court on June 3, 1993.

Cook appeared as directed, entered a plea of not guilty, and did not waive his right to a speedy trial. On June 4, 1993, the mayor certified the case to the Garfield Heights Municipal Court for trial. On June 9, 1993, the municipal court received the matter, placed it on the docket, and notified Cook of his arraignment set for June 22, 1993.

On June 22, Cook appeared before the municipal court, again entered a plea of not guilty, and informed the court that thirty-one days had passed since the date of his citation, suggesting that the speedy trial statute had run without the state's bringing him to trial. The judge explained that Cook was mistaken, that a new thirty-day period had begun when the mayor certified the case to the municipal court, and that the statute had consequently not run. The judge set the trial for June 28, 1993, at which time Cook was convicted and fined. Cook then appealed to the Eighth District Court of Appeals.

The court of appeals held, over a dissent, that Cook had not been brought to trial within the time required by R.C. 2945.71(A), and that his statutory right to a speedy trial had therefore been violated. The court reversed Cook's conviction, and sua sponte certified that its decision was in conflict with Gahanna v. Partlow (1985), 27 Ohio App.3d 267, 27 OBR 311, 501 N.E.2d 51. On October 19, 1994, we determined that a conflict existed and allowed the appeal to resolve the speedy trial question raised by Cook in the court of appeals.

Roger A. Wadsworth, Brecksville City Prosecutor, for appellant.

Augustin F. O'Neil, Akron, for appellee.

MOYER, Chief Justice.

This appeal presents two related issues: (1) whether the delay produced by the transfer pursuant to R.C. 1905.032 ¹ of a minor misdemeanor case from the mayor's court to the municipal court for trial upon a plea of not guilty constitutes a removal such that the speedy trial statute is tolled under R.C. 2945.72(F); and (2) if the statute is tolled, which events mark the beginning and the end of the tolled period?

Ohio's speedy trial statute was implemented to incorporate the constitutional protection of the right to a speedy trial provided for in the Sixth Amendment to the United States Constitution and in Section 10, Article I of the Ohio Constitution. State v. Broughton (1991), 62 Ohio St.3d 253, 256, 581 N.E.2d 541, 544; see Columbus v. Bonner (1981), 2 Ohio App.3d 34, 36, 2 OBR 37, 39, 440 N.E.2d 606, 608. The constitutional guarantee of a speedy trial was originally considered necessary to prevent oppressive pretrial incarceration, to minimize the anxiety of the accused, and to limit the possibility that the defense will be impaired. State ex rel. Jones v. Cuyahoga Cty. Ct. of Common Pleas (1978), 55 Ohio St.2d 130, 131, 9 O.O.3d 108, 109, 378 N.E.2d 471, 472.

Section 10, Article I of the Ohio Constitution guarantees to the party accused in any court "a speedy public trial by an impartial jury." "Throughout the long history of litigation involving application of the speedy trial statutes, this court has repeatedly announced that the trial courts are to strictly enforce the legislative mandates evident in these statutes. This court's announced position of strict enforcement has been grounded in the conclusion that the speedy trial statutes implement the constitutional guarantee of a public speedy trial." (Citations omitted.) State v. Pachay (1980), 64 Ohio St.2d 218, 221, 18 O.O.3d 427, 429, 416 N.E.2d 589, 591. We are acutely conscious of the magnitude of the rights we interpret today. We have also previously explained, however, that "the prescribed times for trial set forth in R.C. 2945.71 are not absolute in all circumstances, but a certain measure of flexibility was intended by the General Assembly by the enactment of R.C. 2945.72, wherein discretionary authority is granted to extend the trial date beyond the R.C. 2945.71 time prescriptions." State v. Wentworth (1978), 54 Ohio St.2d 171, 173, 8 O.O.3d 162, 163-164, 375 N.E.2d 424, 426. It is against these principles that we analyze the issues now before us.

R.C. 2945.71(A) provides:

"A person against whom a charge is pending in a court not of record, or against whom a charge of minor misdemeanor is pending in a court of record, shall be brought to trial within thirty days after his arrest or the service of summons."

Circumstances justifying extension of the statutory period are contained in R.C. 2945.72, which provides:

"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:

" * * *

"(F) Any period of delay necessitated by a removal or change of venue pursuant to law[.]"

The Cuyahoga County Court of Appeals held that the transfer of the case from the mayor's court to the municipal court was not a "removal" within the meaning of R.C. 2945.72(F). The dissent countered that the intent of the legislature, logistical imperatives, and the efficient administration of justice require that the transfer of a case from the mayor's court to the municipal court be considered a removal under the provisions of R.C. 2945.72(F). Further, the dissenting judge argued that the correct rule was set out in Gahanna v. Partlow (1985), 27 Ohio App.3d 267, 27 OBR 311, 501 N.E.2d 51, providing for tolling of the speedy trial period from the date of arrest or issuance of the summons up to the date of certification from the mayor's court to the municipal court. For the reasons that follow, we agree.

In determining whether a transfer from the mayor's court to the municipal court for trial constitutes a removal under R.C. 2945.72(F), we note first that the statute does not specifically define the word "removal." In the absence of a statutory definition we look to the usual and ordinary definition of the word for guidance. Coventry Towers, Inc. v. Strongsville (1985), 18 Ohio St.3d 120, 122, 18 OBR 151, 152, 480 N.E.2d 412, 414. Webster's Third New International Dictionary (1986) 1921, defines "removal of causes" as "the taking of pending cases from a state court to a federal court * * *[;] the transfer of a case from one federal court to another[;] the transfer of a case from one to another court within the same state * * *." Black's Law Dictionary (6 Ed.1990) 1296, defines "removal of causes" as "[t]he transfer of a case from one court to another; e.g. from one state court to another, or from state court to federal court. * * * More particularly, the transfer of a cause of action, before trial or final hearing thereof, from a state court to the United States District Court, under 28 U.S.C.A. § 1441 et seq."

Though the term "removal" might be used most often in relation to the transfer from state court to a United States District Court under the Federal Rules of Civil Procedure, the General Assembly clearly was not referring to a removal to federal court when it enacted R.C. 2945.72(F). Such a removal is a device of civil rather than criminal procedure, and there is no counterpart provision in the criminal law authorizing removal from state to federal court. We conclude, therefore, that the General Assembly intended the word "removal" in R.C. 2945.72(F) to refer to the transfer of a case from one state court to another, including a transfer from the mayor's court to the municipal court.

This interpretation is supported by the case law. Of the Ohio appellate cases directly addressing the issue, two published cases predating the case at bar both conclude that the transfer at issue is precisely the "removal" referred to in R.C. 2945.72(F). See Gahanna v. Partlow, supra, 27 Ohio App.3d 267, 27 OBR 311, 501 N.E.2d 51, and Boston Hts. v. Weikle (1991), 81 Ohio App.3d 165, 610 N.E.2d 526. Only the Cuyahoga County Court of Appeals' own decision in Oakwood v. Ferrante (1975), 44 Ohio App.2d 318, 73 O.O.2d 374, 338 N.E.2d 767, and two other unreported cases even arguably suggest that the instant transfer is not a removal. In Ferrante, a sua sponte continuance was the central issue in the case and the court of appeals therefore did not directly address the removal issue.

The Tenth District Court of Appeals held in Gahanna v. Partlow that "a transfer of a case from a mayor's court to a municipal court for a jury trial pursuant to R.C. 2937.08 constitutes a removal within the contemplation of R.C. 2945.72(F), even though it does not constitute a change of venue." 27 Ohio App.3d at 270, 27 OBR at 314, 501 N.E.2d at 55. Since the Partlow decision, most of the courts in this state have followed its rule.

In view of our conclusion that the transfer from the mayor's court to the municipal court constitutes a removal under R.C. 2945.72(F), tolling the speedy trial statute, it becomes necessary to identify the period during which the statute is tolled. Ohio courts holding that the transfer constitutes a removal are divided in their approaches to defining the tolling period. In recognition of this court's admonition to strictly construe the speedy trial statutes against the state, one approach confines tolling to the period of...