City of Brecksville v. Eric Cook

Decision Date11 August 1994
Docket Number94-LW-4118,65766
PartiesCITY OF BRECKSVILLE, Plaintiff-Appellee v. ERIC COOK, Defendant-Appellant
CourtOhio Court of Appeals

Criminal appeal from Garfield Heights Municipal Court Case No. 93 TRD-4399

FOR PLAINTIFF-APPELLEE: ROGER A. WADSWORTH, ESQ., Prosecutor 8927 Brecksville Road, Brecksville, Ohio 44141.

FOR DEFENDANT-APPELLANT: AUGUSTIN F. O'NEIL, ESQ., P.O.Box 5844, Akron, Ohio 44372-5844.

OPINION

WEAVER J.

Defendant Eric Cook appeals from his conviction for having an automobile exhaust equipment defect. For the reasons set forth below, we reverse.

I.

The record reveals that on May 22, 1993, defendant was issued a traffic citation for having an automobile exhaust equipment defect in violation of Section 337.20 of the Codified Ordinances of the City of Brecksville, a minor misdemeanor. On this same date, defendant was issued a summons to appear before the Brecksville Mayor's Court on June 3, 1993. Defendant appeared as ordered and entered a plea of not guilty, but at no time did he waive his statutory right to a speedy trial.

On June 4, 1993, the Brecksville Mayor's Court transferred the matter to the Garfield Heights Municipal Court for hearing. On June 9, 1993, the Garfield Heights Municipal Court received the matter and placed it on its docket. Also on June 9, 1993, the Garfield Heights Municipal Court notified defendant that the matter was set for arraignment on June 22, 1993.

At his appearance on June 22, 1993, defendant informed the court that thirty-one days had elapsed since the issuance of his citation. In response, the court stated, "See, when it's transferred then that stays the time. We start a new thirty days then." Defendant subsequently entered a plea of not guilty and the matter was set for trial on June 28, 1993.

Following trial on June 28, 1993, defendant was found guilty. He now appeals, asserting, inter alia, that he was not brought to trial within the statutory time limit. The city contends, however, in motion 47852, that defendant's appeal is moot and must therefore be dismissed because he has served his sentence and has offered no evidence of collateral disability or loss of civil rights resulting from his conviction.

II. Motion 47852

In State v. Wilson (1975), 41 Ohio St.2d 236, syllabus, the Supreme Court stated:

Where a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction.

Similarly, in State v. Benson (1986), 29 Ohio App.3d 109, 109, the court stated in relevant part as follows:

To retain his stake in a controversy and to preserve the right to appeal, a defendant convicted of a criminal offense must, where practicable, seek a stay of the fine or sentence in either the trial court or the appellate court. *** If the defendant fails to seek a stay, and he voluntarily proceeds to pay his fine or serve out his sentence, then, pursuant to State v. Wilson, supra, any appeal from his conviction is moot unless the defendant can offer evidence "from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction." (Citation omitted).

In this instance, the record reveals that after the court found defendant guilty of violating Section 337.20, it entered an order which provided in relevant part as follows:

I therefore fine the defendant the sum of $100 and costs, to stand committed to city jail at $30.00 per day until fine and costs are paid.
Defendant having requested a stay of execution the court sets bond at $300.00 cash only.
On further consideration this 30th day of June, 1993, defendant having served two (2) days in jail, for reason of judicial economy and due to limited jail space, balance of sentence herein suspended.

On June 29, 1993, defendant filed a motion with this court for bail and suspension of execution of sentence pending appeal. This motion was denied as moot on July 23, 1993.

In accordance with the foregoing, defendant did not voluntarily pay his fine and sought a stay of execution both with the trial court and with this court. Defendant has therefore fully retained his stake in this controversy and was not required to present evidence from which an inference could be drawn that he will suffer some collateral disability or loss of civil rights as the result of the conviction. The city's motion to dismiss defendant's appeal as moot is denied.

III. Defendant's Assignment of Error

Defendant's assignment of error states:

THE TRIAL COURT COMMITTED ERROR AND DENIED APPELLANT HIS RIGHT TO A SPEEDY TRIAL UNDER R.C.2945.71, DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY DENYING APPELLANT'S PRO SE REQUEST TO DISMISS HIS CASE FOR FAILING TO BRING HIM TO TRIAL WITHIN THE TIME LIMITATION REQUIREMENT OF R.C. 2945.71.

Within this assignment of error, defendant maintains that the trial court erred and violated his statutory rights by failing to bring him to trial within thirty days as required by R.C. 2945.71(A).

R.C. 2945.71(A) mandates that:

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 service of summons. (Emphasis added).

R.C. 2945.72(F) provides for the following extension of this time limitation:

Any period of delay necessitated by a removal or change of venue pursuant to law ***. (Emphasis added).

The city asserts that pursuant to Gahanna v. Partlow (1985), 27 Ohio App.3d 267, 270; and Boston Hts. v. Weikle (1991), 81 Ohio App.3d 165, the transfer of a case from mayor's court to a municipal court constitutes a "removal" pursuant to the extension provision of R.C. 2945.72(F).

In Oakwood v. Ferrante (1975), 44 Ohio App.2d 318, and Westlake v. Smith (Oct. 3, 1985), Cuyahoga App. Nos. 49343, 49344, this court held that the transfer of a case from mayor's court to a municipal court was not a "change of venue" within the meaning of R.C. 2945.72(F). Although the question of whether such transfer constituted a "removal" is not addressed by either opinion, it is nonetheless clear that this court has refused to allow any tolling during the transfer process. Indeed, other courts have so interpreted this court's prior holdings. See Milan v. Egle (Aug. 30, 1985), Erie App. No. E-84-55, unreported; Perry v. Dallman (March 30, 1984), Lake App. No. 10-025, unreported.

Further, even if the transfer process is deemed to be a "removal" within the meaning of R.C. 2945.72(F), there is no basis for the trial court's determination that the thirty-day period within which the accused must be tried begins to run anew upon certification by the mayor to the municipal court. Such holding is contrary to the express provisions of the speedy trial statutes since R.C. 2945.71(A) mandates that time is to be calculated from the date of the accused's arrest, see, also, State v. Sauers (1977), 52 Ohio App.2d 113, 115, and since R.C. 2945.72(F) authorizes tolling only during the "period of delay necessitated by the removal ***." Such holding is also contrary to the Supreme Court's mandate that the speedy trial statutes are to be strictly enforced. See State v. Pachay (1980), 64 Ohio St.2d 218, 221:

Throughout the long history of litigation involving application of the speedy trial statutes, this court has repeatedly announced that the trial courts are to enforce the legislative mandates evident in these statues. [Citations omitted.] 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 speedy public trial. ***

Therefore, if tolling is to occur during the transfer process, then only that window of time from certification by the mayor's court to docketing in the municipal court is excluded. See, generally, Milan v. Egle, supra.

In this instance, defendant was issued a citation and summons on May 22, 1993 which ordered him to appear in the Brecksville Mayor's Court. On June 4, 1993, the mayor's court referred the matter to Garfield Heights Municipal Court. On June 9, 1993, the Garfield Heights Municipal Court received the citation from mayor's court and entered the matter on its docket. Trial was held on June 28, 1993.

In accordance with the foregoing, defendant was not brought to trial within the thirty-day time limit set forth in R.C. 2945.71(A). Following the approach adopted by this court in Oakwood v. Ferrante, supra, and Westlake v. Smith, supra, defendant was tried thirty-seven days after service of summons upon defendant. Following the modified approach set forth in Milan v. Egle, supra, defendant was tried thirty-two days after service of summons.

Accordingly, defendant's statutory right to a speedy trial was violated and his conviction is hereby reversed.

Defendant further maintains that he was denied due process of law since he was initially summoned to appear before the mayor, who is responsible for the city's finances and law enforcement. Because we have reversed defendant's conviction pursuant to defendant's first argument, this claim is moot and we will not address it. App. R. 12(A)(1)(c).

SWEENEY, P.J. CONCURS.

BLANCHE KRUPANSKY J., DISSENTS.

KRUPANSKY, J., DISSENTING:

I respectfully dissent from the majority opinion although I agree Cook retained his rights in the within controversy and preserved his right to appeal. See State v....

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