State v. Adams

• Decision Date: 17 May 1989
• Docket Number: No. 88-373,88-373
• Citation: 43 Ohio St.3d 67,538 N.E.2d 1025
• Parties: The STATE of Ohio, Appellee, v. ADAMS, Appellant.
• Court: Ohio Supreme Court

Page 67

43 Ohio St.3d 67

538 N.E.2d 1025

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

No. 88-373.

Supreme Court of Ohio.

Submitted March 15, 1989.

Decided May 17, 1989.

Syllabus by the Court

When an accused waives the right to a speedy trial as to an initial charge, this waiver is not applicable to additional charges arising from the same set of circumstances that are brought subsequent to the execution of the waiver.

The record and findings of the trial court herein indicate that on July 12, 1986, defendant-appellant, Robert E. Adams, was arrested on Air Terminal Parkway at Toledo Express Airport and charged with operating a vehicle while having a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath in violation of R.C. 4511.19(A)(3). At his arraignment on July 18, 1986, appellant requested and was granted a continuance until August 1, 1986. Appellant also executed a waiver of the time-limitation period for trial from July 18 to August 1, 1986, a total of fourteen days. At appellant's counsel's request, a pretrial conference was set for August 14, 1986. At this pretrial conference, appellant again waived the time limitation for trial from August 14 to September 17, 1986, a total of thirty-four days. On September 17, 1986, an additional pretrial conference was held, wherein appellant entered a plea of not guilty. On that date, appellant waived the time-limitation period for trial from September 17 to October 22, 1986, a total of thirty-five days.

On October 22, 1986, appellee, state of Ohio, submitted a recommendation to the trial court that a nolle prosequi be entered as to the original charge brought against appellant. This recommendation was accepted by the trial court.

On October 23, 1986, a subsequent complaint was filed against appellant, charging him with operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1). The basis for this complaint arose out of the same set of facts and circumstances as found in the original July 12, 1986 complaint. Appellant filed a motion to dismiss on December 31, 1986, wherein he alleged that appellee had failed to comply with the speedy-trial provisions of R.C. 2945.71. The court overruled this motion. On April 15, 1987, appellant withdrew his plea of not guilty and entered a plea of no contest. Appellant was found guilty of violating R.C. 4511.19(A)(1) and was sentenced pursuant to law.

Appellant appealed this decision to the court of appeals contending that he had been denied the right to a speedy trial as to the second charge. The court of appeals affirmed the trial court. The appellate court, finding its decision to be in conflict with the decision of the Court of Appeals for Scioto County in State v. Puckett (June 14, 1985), No. 1516, 1985 WL 11119 unreported, certified the record of this case to this court for review and final determination.

Sheilah McAdams, Toledo, and Kathryn Reckley, for appellee.

Fritz Byers; Wittenberg & Phillips and Jerome Phillips, Toledo, for appellant.

ALICE ROBIE RESNICK, Justice.

The sole issue before us in this case is: When an accused waives the right to a speedy trial as to an initial charge, can this waiver apply to a subsequently filed charge which arises out of the same facts as the former charge, when the later charge is brought after a nolle prosequi is entered as to the first charge?

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, wherein it states that an "accused shall enjoy the right to a speedy and public trial." A similar provision is found in Section 10, Article I of the Ohio Constitution. The availability of a speedy trial to a person accused of a crime is a fundamental right made obligatory on the states by the Fourteenth Amendment. See Klopfer v. North Carolina (1967), 386 U.S. 213, 222-223, 87 S.Ct. 988, 993-994, 18 L.Ed.2d 1; State v. Singer (1977), 50 Ohio St.2d 103, 106, 4 O.O.3d 237, 238, 362 N.E.2d 1216, 1218, at fn. 2. The speedy-trial provision is " 'an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.' United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, (1966) * * *." United States v. Marion (1971), 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468. Although the United States Supreme Court declined to enunciate mandatory time periods within which the state must bring an accused to trial, "[t]he States, of course, are free to prescribe a reasonable period consistent with constitutional standards * * *." Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101.

Our General Assembly has enacted R.C. 2945.71 et seq., which sections " * * * 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), 64 Ohio St.2d 218, 18 O.O.3d 427, 416 N.E.2d 589, syllabus. In the instant case, appellant was charged with a misdemeanor of the first degree. Thus, the speedy-trial statute required appellee to bring appellant to trial within ninety days of the original charge of July 12, 1986:

"(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:

" * * *

"(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days." R.C. 2945.71(B)(2).

Because the second charge brought against appellant on October 23, 1986 stemmed from the original set of facts which gave rise to the charge issued on July 12, 1986, the same ninety-day time period also applied to the second charge. " * * * [W]hen new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge." State v. Clay (1983), 9 Ohio App.3d 216, 218, 9 OBR 366, 367, 459 N.E.2d 609, 610. See, also, State v. Bonarrigo (1980), 62 Ohio St.2d 7, 11, 16 O.O.3d 4, 7, 402 N.E.2d 530, 534.

As with other fundamental rights, a defendant can waive the right to a speedy trial. "No reason has been suggested to us and we know of none why a defendant cannot waive his right under R.C. 2945.71 as he might waive any other right accorded him by statute, so long as such waiver is made knowingly and voluntarily." State v. Kidd (1978), 60 Ohio App.2d 374, 376, 14 O.O.3d 326, 328, 397 N.E.2d 768, 770. See, also, State v. O'Brien (1987), 34 Ohio St.3d 7, 9, 516 N.E.2d 218, 220. Additionally, R.C. 2945.72 provides for several ways in which the statutory time periods can be extended.

If a criminal defendant does waive the right to a speedy trial, however, the waiver must be done knowingly, voluntarily and intelligently. " * * * It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. See, also, State v. Singer, supra; State v. Tope (1978), 53 Ohio St.2d 250, 7 O.O.3d 408, 374 N.E.2d 152. This court has said that the provisions of R.C. 2945.71 implement the constitutional guarantee of a speedy trial found in the Constitution of Ohio, and thus "are mandatory and must be strictly complied with by the state. * * * " State v. Pudlock (1975), 44 Ohio St.2d 104, 105, 73 O.O.2d 357, 358, 338 N.E.2d 524, 525.

For a waiver to be entered into knowingly, it is elementary that the defendant understand the nature of the charges against him, as well as know exactly what is being waived and the extent of the waiver. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States (1970), 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747. See, also, State v. Ruppert (1978), 54 Ohio St.2d 263, 8 O.O.3d 232, 375 N.E.2d 1250.

In the case before us, we do not find that appellant's waiver of his right to a speedy trial as to the original charge can be construed as a knowing and intelligent waiver of such a right as to the second charge. Although it is uncontested that the waiver was valid as to the first charge, appellant was neither advised nor knew that such waiver would apply to subsequent charges arising out of the same facts. Unaware that his original waivers could affect the course of a subsequent charge, appellant did not have sufficient knowledge of the consequences of his actions at the time he executed the waivers so that such actions could constitute valid waivers as to the right to a speedy trial of the second charge.

Appellee admits that in certain situations a waiver of the right to a speedy trial should not apply to subsequently brought charges. For example, if one waives the right to a speedy trial for a misdemeanor, it would be unfair to apply this waiver to a subsequently filed felony charge which arose from the same facts and circumstances. However, appellee argues that it is appropriate here to apply the original waivers to the subsequent charge because the two charges at issue are derived from the same statute and generally involve the same conduct.

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