State v. O'Brien
| Decision Date | 09 December 1987 |
| Docket Number | No. 86-2005,86-2005 |
| Citation | 516 N.E.2d 218,34 Ohio St.3d 7 |
| Parties | The STATE of Ohio, Appellant, v. O'BRIEN, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. An accused's express written waiver of his statutory rights to a speedy trial as provided in R.C. 2945.71 et seq., if knowingly and voluntarily made, may also constitute a waiver of the coextensive speedy trial rights guaranteed by the United States and Ohio Constitutions.
2. Following an express, written waiver of unlimited duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time.
On April 29, 1985, defendant-appellee, John M. O'Brien, was charged with driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1). 1 On June 14, 1985, defendant filed an appearance of counsel, a waiver of appearance for arraignment, a plea of not guilty, a motion for continuance until a pre-trial conference to be held on June 17, 1985, and a waiver of his speedy trial rights in the Municipal Court of Port Clinton, Ohio. Defendant's written motion, prepared by defense counsel, stated in part as follows:
"Defendant acknowledges that allowance of this Motion for continuance constitutes a waiver of Defendant's right to be brought to trial within 90 days of the commencement of this action as provided by Revised Code Sections 2945.71(B)(2) and 2945.72(H) and does, hereby, expressly waive Compliance with Revised Code Section 2945.71(B)(2) in each of the above captioned actions."
At the June 17 pre-trial hearing, the court entered a pre-judgment suspension of defendant's driver's license, and assigned the case for a trial by jury on August 27, 1985. However, on August 22, upon the court's own motion, the trial was continued to October 22, 1985. The defendant did not formally object to this continuance.
Again on October 21, 1985, the state filed a motion for continuance due to the unavailability of the arresting officer for trial. The trial court granted the ex parte motion, and rescheduled the trial for January 7, 1986. Defense counsel immediately called the prosecutor's office to protest against this additional continuance, but again made no formal objection to the court.
During this second continuance, defendant's only corroborating witness as to his sobriety on the morning of his arrest left the state to pursue employment in the state of Louisiana, and thus became unavailable for trial. On January 7, 1986, defendant filed a motion to dismiss, alleging he had been deprived of his constitutional right to a speedy trial. The motion was denied. Defendant then entered a plea of no contest, waived his jury trial, and was found guilty. He was fined one hundred fifty dollars, and costs, and had his license suspended for ninety days, which time had already been served by the pre-trial license suspension.
The court of appeals reversed and vacated the sentence, finding that prejudicial delay had denied defendant his constitutional right to a speedy trial.
The cause is now before this court upon the allowance of a motion to certify the record.
Barbara B.H. Petersen, Asst. Pros. Atty., for appellant.
David H. Williams, for appellee.
The sole issue presented here is whether a written waiver by a criminal defendant of his right to a speedy trial as provided in R.C. 2945.71 may also amount to a waiver of his speedy trial rights as guaranteed by the United States and Ohio Constitutions. For the reasons which follow, we answer such query in the affirmative, provided the defendant is tried within a reasonable time under all of the attendant circumstances.
The defendant herein was charged with a violation of R.C. 4511.99(A), a first-degree misdemeanor. R.C. 4511.99(A). As we noted in State v. Ladd (1978), 56 Ohio St.2d 197, 200, 10 O.O.3d 363, 364, 383 N.E.2d 579, 581:
2
The General Assembly, in its attempt to prescribe reasonable speedy trial periods consistent with these constitutional provisions, see Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, enacted R.C. 2945.71 which provides, in part:
We have determined that " * * * R.C. 2945.71 et seq., 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; see, also, State v. Pudlock (1975), 44 Ohio St.2d 104, 73 O.O.2d 357, 338 N.E.2d 524. Thus, for purposes of bringing an accused to trial, the statutory speedy trial provisions of R.C. 2945.71 et seq. and the constitutional guarantees found in the United States and Ohio Constitutions are coextensive.
Of course, the accused may waive his constitutional right to a speedy trial, provided such waiver is knowingly and voluntarily made. Barker v. Wingo, supra, 407 U.S., at 529, 92 S.Ct. at 2191. Similarly, an accused, or his counsel, may validly waive the speedy trial provisions of R.C. 2945.71 et seq. State v. McBreen (1978), 54 Ohio St.2d 315, 8 O.O.3d 302, 376 N.E.2d 593; Westlake v. Cougill (1978), 56 Ohio St.2d 230, 10 O.O.3d 382, 383 N.E.2d 599. It follows, then, that a knowing, voluntary, express written waiver of an accused's statutory speedy trial rights may equate with a waiver of the coextensive constitutional rights, at least for the time period provided in the statute.
However, although the statutory and constitutional speedy trial provisions are coextensive, the constitutional guarantees may be found to be broader than speedy trial statutes in some circumstances. As we noted in State v. Ladd, supra, 56 Ohio St.2d at 201, 10 O.O.3d at 365, 383 N.E.2d at 582:
" * * * [I]t is clear that there may be situations wherein the statutes do not adequately afford the protection guaranteed by the federal and state constitutions, in which case it is our duty to see that an accused receives the protection of the higher authority * * *."
The question thus becomes whether, under the circumstances of this case, the defendant's express speedy trial waiver remained effective throughout the period of delays occasioned by the state. The waiver given by the defendant, was unlimited in duration. In addition, the record fails to show any formal objections being made by the defendant to the court's continuance on August 22, 1985 or the state's continuance on October 21, 1985. 3 We hold that, following an express written waiver of unlimited duration by an accused of his speedy trial rights the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection to any further continuances and makes a demand for trial, following which the state must bring him to trial within a reasonable time. Cf. State v. Butler (1969), 19 Ohio St.2d 55, 48 O.O.2d 77, 249 N.E.2d 818, paragraph one of the syllabus; State v. Cross (1971), 26 Ohio St.2d 270, 55 O.O.2d 495, 271 N.E.2d 264, paragraph two of the syllabus. 4
The trial court is charged with the duty of scheduling trials, and it would seem to be reasonable to require the defendant to formally inform the court of an objection to a further continuance, and a reassertion of the defendant's right to a speedy trial. Otherwise the trial court may reasonably rely upon the written waiver of speedy trial as filed within the case. Defendant here made no such objection or demand for trial, and his initial waiver thus remained effective.
Finally, even were we to decide that the defendant here renewed his speedy trial rights by objecting to the assistant prosecutor over the phone, it is clear he was brought to trial within a...
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