State v. Broughton

Decision Date18 December 1991
Docket NumberNo. 91-742,91-742
PartiesThe STATE of Ohio, Appellant, v. BROUGHTON, Appellee.
CourtOhio Supreme Court

1. 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 bail pursuant to Crim.R. 12(I).

2. The arrest of a defendant, under a subsequent indictment which is premised on the same underlying facts alleged in a previous indictment, is the proper poi nt at which to resume the running of the speedy-trial period. (R.C. 2945.71 et seq., construed and applied.)

3. Where jeopardy has attached during the course of a criminal proceeding, a dismissal of the case may be treated in the same manner as a declaration of a mis trial and will not bar a subsequent trial when: (1) the dismissal is based on a defense motion, and (2) the court's decision in granting such motion is unrel ated to a finding of factual guilt or innocence. (United States v. Scott [1978], 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65, applied and followed.)

On November 17, 1988, defendant-appellee, Charles R. Broughton, was indicted by the Clermont County Grand Jury and arrested on a charge of corruption of a minor in violation of former R.C. 2907.04. 1 Broughton entered a not guilty plea and subsequently executed a waiver of his right to a jury trial. The case against Broughton proceeded to trial on July 18, 1989. After the state submitted its case in chief and rested, Broughton's defense counsel requested a dismissal due to a defect in the indictment. Specifically, Broughton's counsel asserted that the indictment failed to allege both that the defendant was eighteen years of age or older at the time of the offense and that the defendant was four or more years older than the alleged victim.

The trial court dismissed the case and indicated that "[t]he proper mode and manner to * * * [charge the defendant was] to take it back to the grand jury and have them render an indictment charging him with the actual offense."

On October 19, 1989, Broughton was again indicted by the grand jury on two counts of rape in violation of R.C. 2907.02(A)(2). Broughton was then arrested and released on October 26, 1989 after having waived the waiting period for his arraignment.

Broughton next filed a motion to dismiss on double-jeopardy grounds on November 13, 1989. On November 16, 1989, Broughton also filed a motion to compel transcripts of the grand jury proceedings as to both the prior indictment that had been dismissed and the indictment that was pending. On December 22, 1989, the trial court denied Broughton's motion to dismiss on double-jeopardy grounds. No further proceedings transpired until March 20, 1990.

On March 20, 1990, the trial court conducted a hearing to determine whether the parties were prepared to go to trial and to address the issue of the pending motion to compel grand jury testimony (filed previously on November 16, 1989) along with ancillary discovery matters. The parties agreed to expedited briefing on the grand jury issue and to comply with the other pending discovery demands. Following the hearing Broughton filed two motions to dismiss on March 22, 1990. First, Broughton filed a motion to dismiss due to prosecutorial vindictiveness, claiming the second indictment, which included greater offenses than the first indictment, was in retaliation for the trial court's earlier dismissal. Second, he filed a motion to dismiss based upon the running of the speedy-trial statute pursuant to R.C. 2945.71 et seq.

The trial court granted Broughton's motion to dismiss on speedy-trial grounds on April 4, 1990. The court of appeals affirmed and, finding its decision to be in conflict with the decision of the Court of Appeals for Medina County in State v. Lyons (1978), 61 Ohio App.2d 228, 15 O.O.3d 367, 401 N.E.2d 452, certified the record of the case to this court for review and final determination.

Donald W. White, Pros. Atty., Batavia, Daniel J. Breyer and David H. Hoffmann, Cincinnati, for appellant.

Walker, Bradford & Hill, and D. Vincent Faris, Batavia, for appellee.

HOLMES, Justice.

The primary issue before the court is whether the time in which to bring Broughton to trial on his second indictment had expired, pursuant to Ohio's speedy-trial statute. For the reasons that follow, we answer such query in the negative.

I Speedy-Trial Computation

The key fact we must discern from the record in this case is how much time had run against the state pursuant to R.C. 2945.71 et seq., in order to determine whether Broughton's speedy-trial rights were violated.

The right to a speedy trial is encompassed within the Sixth Amendment to the United States Constitution, which provides that an "accused shall enjoy the right to a speedy and public trial * * *." See, also, Section 10, Article I of the Ohio Constitution. Moreover, the availability of a speedy trial to a person accused of a crime is a fundamental right made obligatory on the states through the Fourteenth Amendment. See Klopfer v. North Carolina (1967), 386 U.S. 213, 222-223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 8; 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.

In State v. Pachay (1980), 64 Ohio St.2d 218, 18 O.O.3d 427, 416 N.E.2d 589, syllabus, we observed 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." Moreover, as was emphasized in State v. Pudlock (1975), 44 Ohio St.2d 104, 106, 73 O.O.2d 357, 358, 338 N.E.2d 524, 525, we will not permit the state to engage in " * * * practices which undercut the implementation of the 'speedy trial' provisions within R.C. 2945.71 and 2945.73 * * *." In reviewing whether a particular practice has undercut the implementation of the speedy-trial provisions, we approve of the language in United States v. Turner (C.A.9, 1991), 926 F.2d 883, 889, which stated:

"To determine whether the government has violated a defendant's right to a speedy trial, we weigh the length of the delay, the reasons for it, the defendant's timeliness and manner of asserting this right, and whether the defendant has suffered cognizable prejudice. * * * Recognized prejudices are oppressive pretrial punishment, protracted anxiety and impairment of defense. * * * No single factor is either necessary or sufficient to establish a violation." (Citations omitted.) See, also, United States v. Taylor (1988), 487 U.S. 326, 340-341, 108 S.Ct. 2413, 2421, 101 L.Ed.2d 297, 313; Barker v. Wingo (1972), 407 U.S. 514, 537, 92 S.Ct. 2182, 2195, 33 L.Ed.2d 101, 121 (White, J., concurring).

Further, as applicable in this case, R.C. 2945.71(C)(2) provides that a person against whom a charge of felony is pending "[s]hall be brought to trial within two hundred seventy days after his arrest." Consequently, the speedy-trial statute required Broughton to be brought to trial within 270 days of his original indictment dated November 17, 1988, unless tolled for reasons permitted under the statute. In order to determine the exact number of days that should have been tallied against the state it is necessary to separate and examine certain relevant periods in order to ensure they were properly characterized as either tolling the speedy-trial statute or allowing it to run. 2


The first period we shall examine is the time between the return of the original indictment on November 17, 1988 and the trial court's dismissal (because of the defective indictment) on July 18, 1989. This period equals 243 days. However, since it is undisputed that Broughton spent one day in jail in lieu of bail on the pending charge, an additional two days must be tacked on to the first day already counted against the state pursuant to R.C. 2945.71(E). 3 Thus, the total number of days counted against the state until the dismissal of the original indictment was 245.


The next time period we construe is from the day after the trial court's dismissal of the first indictment (charging corruption of a minor), July 19, 1989, until October 18, 1989, the day preceding Broughton's subsequent indictment on two counts of rape. This period is the time between indictments where Broughton was not under any stigma associated with a criminal proceeding.

In reviewing the dictates of R.C. 2945.71, we are cognizant that the speedy-trial statute shall run against the state only during the time in which an indictment or charge of felony is pending. See R.C. 2945.71(C). However, this does not directly address the situation where a person has previously been charged under an indictment which was dismissed and the same underlying facts provide the basis for a new indictment. In Westlake v. Cougill (1978), 56 Ohio St.2d 230, 233, 10 O.O.3d 382, 383, 383 N.E.2d 599, 601, we tolled the speedy-trial statute during the time period between a nolle prosequi of a misdemeanor charge and the service of summons of a second filing of a misdemeanor charge arising out of the same conduct, since no charge was pending against the defendant during that period. See, also, State v. Spratz (1979), 58 Ohio St.2d 61, 62, 12 O.O.3d 77, 388 N.E.2d 751, 752, fn. 2 (the speedy-trial statute was tolled following a nolled indictment until the date of reindictment); State v. Stephens (1977), 52 Ohio App.2d 361, 371, 6 O.O.3d 404, 409-410, 370 N.E.2d 759, 766 (where dismissal is premised on prosecutorial fault and the defendant is subsequently reindicted, speedy-trial time runs during the time of incarceration pending trial under the...

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