State v. Anne C. Pierson

• Decision Date: 04 September 2002
• Docket Number: 2001-P-0077,02-LW-3633
• Citation: 2002 Ohio 4515
• Parties: STATE OF OHIO, Plaintiff-Appellee v. ANNE C. PIERSON, Defendant-Appellant CASE
• Court: Ohio Court of Appeals

2002-Ohio-4515

STATE OF OHIO, Plaintiff-Appellee v. ANNE C. PIERSON, Defendant-Appellant

No. 2001-P-0077

02-LW-3633 (11th)

Court of Appeals of Ohio, Eleventh District, Portage County.

September 4, 2002

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 01 TRC 2429 S.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J Holder, Assistant Prosecutor, 466 South Chestnut Street Ravenna, OH 44266 (For Plaintiff-Appellee).

Carter R. Dodge, 2010 Huntington Building, 925 Euclid Avenue Cleveland, OH 44115, (For Defendant-Appellant).

OPINION

JUDITH A. CHRISTLEY, J.

{¶1} This is an accelerated calendar appeal taken from the final judgment of the Portage County Municipal Court, Ravenna Division, wherein appellant, Anne C. Pierson, pled no contest to operating a motor vehicle while under the influence of alcohol after her motion to dismiss and motion to suppress were denied.^[1]

{¶2} The following procedural history is relevant to this appeal. On February 5, 2001, appellant was cited for operating a vehicle while under the influence of alcohol and/or drugs, in violation of R.C. 4511.19(A)(1), and failure to control the vehicle, in violation of R.C. 4511.202.

{¶3} After entering a plea of not guilty to the charges, a pre-trial was scheduled for March 20, 2001, and a jury trial was scheduled for April 10, 2001. But, on March 26, 2001 appellant filed a motion to continue the March 20, 2001 pre-trial. In a judgment entry dated March 26, 2001, the trial court granted the continuance requested by appellant.

{¶4} As a result, the pre-trial was rescheduled for May 1, 2001. Then, on May 21, 2001, appellant filed a motion to dismiss and/or motion to suppress. Following a hearing, on June 7 2001, the trial court denied appellant's motion to dismiss the charges and motion to suppress the evidence.

{¶5} On June 12, 2001, a sentencing hearing was held wherein appellant entered a plea of no contest and was found guilty of operating a vehicle while under the influence of alcohol, in violation of R.C. 4511.19(A)(1), while the remaining charge was dismissed. Appellant was sentenced accordingly, and this is reflected in a judgment entry dated June 15, 2001. The sentence was stayed pending the outcome of this appeal.

{¶6} It is the denial of her motion to dismiss and motion to suppress from which appellant appeals, submitting two assignments of error for our consideration:

{¶7}

'[1.] The trial court erred in denying defendant's motion to dismiss for the state's failure to try defendant in accordance with statutory and constitutional speedy trial limits[.]

{¶8}

'[2.] The trial court erred in denying defendant's motion to suppress for the reason that the warrantless arrest of defendant was unlawful and the evidence thereafter seized should have been suppressed and this matter dismissed[.]'

{¶9} In assignment of error one, appellant presents two separate issues concerning her right to a speedy trial. We will address each one in turn.

{¶10} First, appellant contends that the charges should have been dismissed because she was not tried within the statutorily prescribed time limit of ninety days. According to appellant, there is no evidence that she submitted a waiver of her right to a speedy trial. Furthermore, appellant believes that there is nothing in the trial court's docket that would qualify as an exception or extension of the ninety-day period.

{¶11} For instance, appellant suggests that while the trial court's docket reflects that on March 26, 2001, a motion for continuance was filed, it fails to indicate who filed this motion or for what reason. According to appellant, the next docket entry indicates only that a motion was granted and fails to specify the type of motion granted or whether the granted motion was one for a continuance.

{¶12}

'The standard of review of a speedy trial issue is to count the days of delay chargeable to either side and determine whether the case was tried within the time limits set by R.C. 2945.71.' State v. Blumensaadt, 11th Dist. No. 2000-L-107, 2001 Ohio 4317, at ¶6. R.C. 2945.71(B)(2) requires that a defendant charged on a first degree misdemeanor be brought to trial within ninety days after arrest or services of summons. State v. Burdick (May 26, 2000), 11th Dist. No. 98-G-2209, 2000 WL 688729, at 7; State v. Lewis (June 26, 1998), 11th Dist. No. 97-P-0092, 1998 WL 553483, at 2. Under R.C. 2945.71(D), misdemeanor offenses of varying degrees which arise out of the same act or transaction 'shall be brought to trial *** within the time period required for the highest degree of offense charged ***.'

{¶13} As previously mentioned, appellant was charged with driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1), a misdemeanor of the first degree, and failure to control the vehicle, in violation of R.C. 4511.202, a minor misdemeanor. Therefore, the state was required to bring appellant to trial within ninety days of her arrest once formal charges were actually pending against her. Burdick at 7.

{¶14} Here, formal charges were filed against appellant when she was issued the citation on the evening of her arrest. As such, the statutory time for bringing appellant to trial commenced on the date of her arrest, which was February 5, 2001. State v. Stamps (1998), 127 Ohio App.3d 219, 223; Burdick at 7. Given that the day of the arrest does not count against the state, the speedy trial clock began to run on February 6, 2001. Stamps at 223.

{¶15} Hence, under the ninety-day time period set forth in R.C. 2945.71(B)(2), the state had to try appellant by May 6, 2001. However, May 6, 2001 was a Sunday. When the last day for speedy trial is a Sunday, Crim.R. 45 extends the time period until the end of the following day. State v. McCornell (1993), 91 Ohio App.3d 141, 145.^[2] Thus, appellant's speedy trial date was automatically extended to Monday, May 7, 2001. Id. However, the trial court did not find appellant guilty until June 15, 2001.

{¶16} Once the defendant demonstrates that she was not brought to trial within the applicable speedy trial limits, she has set forth a prima facie case for dismissal. State v. Baker (1993), 92 Ohio App.3d 516, 525; State v. Smith (Aug. 10, 2001), 11th Dist. No. 2000-A-0052, 2001 WL 901016, at 5. As such, the burden then shifts to the state to provide evidence indicating that the defendant's right to a speedy trial was not violated. Baker at 525-526; Smith at 6.

{¶17} Extensions of the time for calculating the speedy trial date are permissible for any of the reason set forth in R.C. 2945.72. Among the categories set forth in R.C. 2945.72 is the following:

{¶18}

'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:

{¶19}

' ***

{¶20}

'(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;

{¶21}

'***

{¶22}

'(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[.]' (Emphasis added.)

{¶23} For the reasons that follow, we determine that the time for bringing appellant to trial was extended by the operation of R.C. 2945.72(E) and (H).

{¶24} As mentioned earlier in this opinion, appellant was arrested on February 5, 2001. Subsequently, a pre-trial was scheduled for March 20, 2001. However, on March 26, 2001, appellant filed a motion to continue the March 20, 2001 pre-trial 'to a future date and time convenient for the [trial] Court.' According to appellant's motion, the continuance was sought:

{¶25}

'*** for reason that in the course of traveling from [defense counsel's] office with Ms. Pierson, the defendant herein, to the pre-trial in the early afternoon of March 20th the automobile driven by [defense] counsel broke down and had to be towed ***. [Defense] counsel for defendant Pierson telephoned the Court at 12:30 p.m. and thereafter from time to time until he reached the Court and was advised to file this motion for a continuance of the pre-trial.'

{¶26} In a judgment entry dated March 26, 2001, the trial court granted appellant's motion for continuance. However, appellant maintains that the trial court's docket does not contain an entry granting a continuance, who requested the continuance, the reasons for the continuance, or the party to whom the continuance is chargeable.

{¶27} Contrary to appellant's assertion, the instant trial court did not speak through the docket. Rather, 'it is axiomatic that a trial court only speaks through its judgment entries.' (Emphasis sic.) State v. Blankenship, 11th Dist. No. 2000-P-0097, 2001-Ohio- 4345, at ¶7. See, also, Hairston v. Seidner, 88 Ohio St.3d 57, 58, 2000-Ohio-271; Gaskins v. Shiplevy, 76 Ohio St.3d 380, 382, 1996-Ohio-387; State v. Mincy (1982), 2 Ohio St.3d 6, 8; State v. Reuschling (1986), 30 Ohio App.3d 81, 82. As such, we will consider the trial court's judgment entry, rather than the docket, as controlling.

{¶28} In State v. Geraldo (1983), 13 Ohio App.3d 27, 30-31, the court held:

{¶29}

'For purposes of R.C. 2945.72, the unequivocal and repeated holding of the Ohio Supreme Court (and of this court) has been: (1) that the granting of a continuance must be recorded by the trial court in its journal entry; (2) that the journal entry must identify the party to whom the continuance is chargeable; and (3) that if the trial court is acting sua sponte, the journal entry must so indicate and must set forth the reasons justifying the continuance. See, e.g., State v. Mincy (1983), 2 Ohio St.3d 6, 8, 441

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