State v. Azbell, 2005-1788.

• Decision Date: 20 December 2006
• Docket Number: No. 2005-1788.,2005-1788.
• Citation: 859 N.E.2d 532,2006 Ohio 6552,112 Ohio St.3d 300
• Parties: The STATE of Ohio, Appellant, v. AZBELL, Appellee.
• Court: Ohio Supreme Court

859 N.E.2d 532

112 Ohio St.3d 300

2006-Ohio-6552

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

No. 2005-1788.

Supreme Court of Ohio.

Submitted June 7, 2006.

Decided December 20, 2006.

James J. Mayer Jr., Richland County Prosecuting Attorney, and Kirsten L. Pscholka-Gartner, Assistant Prosecuting Attorney, for appellant.

David H. Bodiker, Ohio Public Defender, and J. Banning Jasiunas, Assistant State Public Defender, for appellee.

LUNDBERG STRATTON, J.

{¶ 1} Today this court must determine when a charge is considered "pending" for purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C). For the reasons that follow, we hold that a charge is not pending for purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C) until the accused has been formally charged by a criminal complaint or indictment, is held pending the filing of charges, or is released on bail or recognizance. We therefore reverse the judgment of the court of appeals.

{¶ 2} Defendant-appellee, Sandra Azbell, was arrested at a pharmacy on May 30, 2003 for deception to obtain dangerous drugs. Officers took Azbell to the police station, where police provided her with Miranda warnings, gave her an opportunity to make a statement, and then photographed, fingerprinted, and released her. No charges were filed at that time, and Azbell was later indicted in April 2004. Azbell was arrested on April 16, 2004, and was served with an indictment charging her with illegal possession of drug documents in violation of R.C. 2925.23(B)(1) and deception to obtain a dangerous drug in violation of R.C. 2925.22(A), both felonies of the fifth degree.

{¶ 3} Azbell filed a motion to discharge, claiming that she had not been brought to trial in accordance with the speedy-trial dictates of R.C. 2945.71. The trial court held a hearing, at which Azbell claimed that the time began to run, for speedy-trial purposes, when she was arrested in 2003, and the state argued that the time began when charges were filed against her in 2004. The trial court, from the bench, denied the motion to discharge based on speedy-trial grounds.

{¶ 4} Azbell pleaded no contest to both charges and was found guilty. She appealed from the trial court's decision on the motion to discharge, and the Richland County Court of Appeals reversed the judgment of the trial court.

{¶ 5} The cause is before this court upon the acceptance of a discretionary appeal.

{¶ 6} The right to a speedy public trial is established in the Ohio Constitution, Article I, Section 10. "In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *." (Emphasis added.)

{¶ 7} R.C. 2945.71 codifies a defendant's right to a speedy trial and provides the time within which a hearing or trial must be held for specific offenses. In general subsection (A) addresses minor misdemeanors, subsection (B) addresses misdemeanors other than minor misdemeanors, subsection (C) addresses felonies, and subsection (D) addresses cases involving both misdemeanors and felonies.

{¶ 8} Applicable to this case, subsection (C) provides: "A person against whom a charge of felony is pending * * * [s]hall be brought to trial within two hundred seventy days after the person's arrest." (Emphasis added.)

{¶ 9} The crux of the issue in this case is when a charge is considered "pending" for purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C). The defendant argues that the time begins to run on the date of a person's arrest. The state argues that a charge is not pending for speedy-trial purposes when a defendant is merely detained and released by law enforcement without being subject to the conditions of bond or being charged in a complaint.¹

{¶ 10} Although Ohio is free to offer more protections in our Constitution and statutes than the federal Constitution offers, we turn first to the United States Supreme Court for guidance on this issue. In United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, the defendants moved to dismiss an indictment, claiming that their speedy-trial rights were violated because approximately three years had passed between the end of the criminal scheme charged and the return of the indictment. In holding that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an `accused,'" the court held that "[t]hese provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time." Id. at 313, 92 S.Ct. 455, 30 L.Ed.2d 468.

{¶ 11} Thus, "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." Id. at 320, 92 S.Ct. 455, 30 L.Ed.2d 468. Moreover, "[a] literal reading of the [Sixth] Amendment suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins." United States v. MacDonald (1982), 456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696.

{¶ 12} The defendant states that dicta in Doggett v. United States (1992), 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520, suggests that mere arrest triggers the speedy-trial clock for purposes of the Sixth Amendment. We quote with approval the resolution offered by the Tenth District Court of Appeals in State v. Weiser, Franklin App. No. 03AP-95, 2003-Ohio-7034, 2003 WL 22999457, ¶ 25-26:

{¶ 13} "[U]pon careful reading of Doggett and the forerunning cases of MacDonald and Marion, supra, it is clear the use of the term `arrest' connotes more than an arrest without the filing of charges or posting of bond. Instead, it intimates an arrest that `is the beginning of continuing restraints on defendant's liberty imposed in connection with the formal charge on which defendant is eventually tried.' United State v. Stead ([C.A.8] 1984), 745 F.2d 1170, 1172.

{¶ 14} "The policy reasons espoused by the Doggett court when it stated `arrest' were the same as those discussed in MacDonald and Marion when the Supreme Court held speedy trial rights did not arise `until charges are pending,' MacDonald, supra [456 U.S.] at 7 [102 S.Ct. 1497, 71 L.E.2d 696], or by `either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge * * *' Marion, supra [404 U.S.] at 321 [92 S.Ct. 455, 30 L.Ed.2d 468]. Specifically, the Doggett court stated, `We have observed in prior cases that unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including "oppressive pretrial incarceration," "anxiety and concern of the accused," and "the possibility that the [accused's] defense will be impaired" by dimming memories and loss of exculpatory evidence.' Doggett [505 U.S.] at 654 [112 S.Ct. 2686, 120 L.Ed.2d 520] [quoting Barker v. Wingo (1972), 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101]. As such, the Doggett court, as with previous decisions, continued to focus on the restraints upon an individual's liberty which accompan[y] a formal accusation. Therefore, while the Doggett court failed to explicitly state `and held to answer,' the analysis makes clear this is the situation which must be present, and not mere arrest, to trigger speedy trial rights." (Footnote omitted.)

{¶ 15} Several prior cases from this court are relevant. In Westlake v. Cougill (1978), 56 Ohio St.2d 230, 234, 10 O.O.3d 382, 383 N.E.2d 599, we held that the speedy-trial statute was tolled during the time between a nolle prosequi of a misdemeanor charge and the service of summons of the second filing of a misdemeanor charge arising out of the same conduct, since no charge was pending against the defendant during that period.

{¶ 16} Further, in State v. Bonarrigo (1980), 62 Ohio St.2d 7, 16 O.O.3d 4, 402 N.E.2d 530, we held that the speedy-trial statute was tolled after a misdemeanor charge was nolled until the felony indictment, based upon the same conduct, was issued. Quoting from United States v. Hillegas (C.A.2, 1978), 578 F.2d 453, 458, we noted, "`After the Government's dismissal of the complaint against him appellant * * * was no longer under any of the restraints associated with arrest and the pendency of criminal charges against him. He was free to come and go as he pleased. He was not subject to public obloquy, disruption of his employment or more stress than any citizen who might be under investigation but not charged with a crime. Unless and until a formal criminal charge was filed against him, neither he nor the public generally could have any legitimate interest in the prompt processing of a nonexistent case against him.' [Footnote omitted.]" Bonarrigo, 62 Ohio St.2d at 11, 16 O.O.3d 4, 402 N.E.2d 530, fn. 5.

{¶ 17} In addition, in State v. Broughton (1991), 62 Ohio St.3d 253, 581 N.E.2d 541, we considered a case in which a defendant was indicted on November 17, 1988, the indictment was dismissed as defective on July 18, 1989, and the defendant was later indicted on October 18, 1989. Id. at 254, 581 N.E.2d 541. This court held, "For purposes of computing how much time has run against the state under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same facts as alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on...