State v. Howard

• Decision Date: 01 May 1992
• Docket Number: No. 59855,59855
• Citation: 79 Ohio App.3d 705,607 N.E.2d 1121
• Parties: The STATE of Ohio, Appellee, v. HOWARD, Appellant. *
• Court: Ohio Court of Appeals

Page 705

79 Ohio App.3d 705

607 N.E.2d 1121

The STATE of Ohio, Appellee, v. HOWARD, Appellant. ^*

No. 59855.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided May 1, 1992.

Stephanie Tubbs Jones, Pros. Atty., and Edward Feran, Asst. Pros. Atty., Cleveland, for appellee.

Warren L. McClelland, Asst. Public Defender, Cleveland, for appellant.

SPELLACY, Judge.

On September 30, 1987, defendant-appellant Berdee R. Howard ("appellant") was indicted by the Cuyahoga County Grand Jury for three counts of passing bad checks, in violation of R.C. 2913.11. At her arraignment on October 15, 1987, appellant pleaded not guilty. Immediately, thereafter, appellant was taken into custody by United States marshals on a federal warrant.

On November 4, 1987, appellant's case was called for a pretrial. Appellant failed to appear because she was being held in the Ottawa County Jail. Thus, the trial court ordered the sheriff's department to place a detainer on her. On May 4, 1988, a detainer was sent to the Federal Correctional Institution in Lexington, Kentucky. Apparently, appellant was serving a sentence for a federal parole violation. She remained there until June 14, 1989.

On June 29, 1989, a capias was returned and appellant was placed in custody in Cuyahoga County. Appellant had just been released from federal custody. On July 18, 1989, appellant was released on $1,000 personal bond. On October 25, 1989, appellant filed a motion to dismiss for lack of a speedy trial.

On November 9, 1989 and December 5, 1989, the trial court conducted a hearing on appellant's motion to dismiss. ¹ Appellant filed a timely notice of appeal and subsequently raised the following assignment of error:

"The trial court erred by overruling appellant's motion to dismiss for failure to provide a speedy trial as required by the United States and Ohio Constitutions and the Ohio Revised Code."

In her motion to dismiss, appellant only argued that the state failed to bring her to trial within the statutorily mandated two hundred seventy days.

R.C. 2945.71(C)(2) and (E) require the state to bring a felony defendant to trial within two hundred seventy days of arrest, or within ninety days if the accused is held in jail in lieu of bail on the pending charges.

Once a defendant has demonstrated that two hundred seventy speedy-trial days have expired under R.C. 2945.71(C)(2), she has established a prima facie case for dismissal under R.C. 2945.73(B). State v. Geraldo (1983), 13 Ohio App.3d 27, 13 OBR 29, 468 N.E.2d 328. The state then bears the burden of demonstrating any tolling or extension of time under R.C. 2945.72. State v. Bowman (1987), 41 Ohio App.3d 318, 535 N.E.2d 730.

The two-hundred-seventy-day period set forth in R.C. 2945.71, within which a criminal defendant must be tried, is tolled pursuant to R.C. 2945.72. R.C. 2945.72 provides in relevant part:

"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:

"(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;

" * * *

"(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;

" * * *

"(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[.]"

In the instant case, appellant was incarcerated in several other facilities, including Ottawa County, Ohio, West Virginia, and Kentucky. Her incarceration in other locations lasted from October 15, 1987 until June 14, 1989.

There is no doubt that appellant was unavailable for trial from the time she was taken into custody by the United States marshals, immediately after her arraignment, until her release from the federal correctional institute in Lexington, Kentucky, on June 14, 1989.

Further, appellant failed to provide this court with a transcript, or any other evidence, that would have demonstrated that the state failed to exercise reasonable diligence to secure her availability. It is the appellant's responsibility to include such evidence in the appellate record so that the claimed error is demonstrated to this court. Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 10 O.O.3d 227, 382 N.E.2d 1179.

Therefore, we find that from the time appellant was taken into custody by the United States marshals on October 15, 1987 until the time of her release from federal prison on June 14, 1989, the time was tolled under R.C. 2945.72(A), due to her unavailability.

After appellant was returned to the jurisdiction of Cuyahoga County and the instant criminal proceedings went forward, appellant requested and received numerous continuances. Appellant received continuances in order to file a motion to dismiss and because her attorney was ill. Eventually, appellant filed a motion to dismiss for lack of speedy trial.

We find that as a result of appellant's continuances and the filing of her motion to dismiss, the statutory period was tolled pursuant to R.C. 2945.72(E) and (H). Combining this period of time with the time tolled as a result of her unavailability, we conclude that appellant was properly brought to trial within the statutory period of two hundred seventy days. Thus, we determine that the state complied with R.C. 2945.71(C)(2).

In her appellate brief, appellant argues that the trial court should have granted her motion to dismiss pursuant to R.C. 2941.401 and/or 2963.30. However, we need not address this argument, since she is raising it on appeal for the first time. See State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. In her motion to dismiss, appellant argued only that she was denied her right to a speedy trial. There is nothing in the record to indicate that appellant requested the trial court to dismiss the charges against her pursuant to R.C. 2941.401 and/or 2963.30.

Finally, we must presume the validity of the trial court's order denying appellant's motion to dismiss, since appellant failed to provide this court with a transcript of the proceedings concerning said motion. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 15 O.O.3d 218, 400 N.E.2d 384. There is nothing in the record to support appellant's claim that she was denied her right to a speedy trial under R.C. 2945.71. There is also nothing in the record to demonstrate that the state failed to comply with either R.C. 2941.401 or 2963.30.

For the foregoing reasons, we conclude that the trial court did not err in denying appellant's motion to dismiss.

Appellant's assignment of error is without merit and is overruled.

The trial court's judgment is affirmed.

Judgment affirmed.

MATIA, C.J., concurs.

HARPER, J., dissents.

HARPER, Justice, dissenting.

I must respectfully dissent from the majority's arrival at an affirmance by sidestepping the issues presented by the parties. A careful review of the record cries out for a reversal of the trial court's decision and the vacation of appellant's sentence. Each time we sidestep issues to arrive at an expected decision, justice is sidestepped, and I am concerned.

The record shows that on October 15, 1987, Berdee Howard was arraigned on charges of passing bad checks, after being indicted on September 30, 1987. At the conclusion of Howard's arraignment, she was turned over to the United States marshal in connection with a federal warrant issued against her for parole violation. The U.S. marshal transported her to Port Clinton, Ohio, where she was held on the federal warrant.

On October 28, 1987, Howard failed to appear for a scheduled pretrial. The attorney for defendant notified the court that Howard was held in the Ottawa County Jail. The trial court issued a capias on Howard and ordered the sheriff's department to place a detainer on her.

On November 1, 1987, Howard was transported to the Lorain County Jail on a pending charge. While she was in the Lorain County Jail, a detainer was placed on her. On January 12, 1988, Howard was transported by the U.S. marshal to the Federal Correctional Institute ("FCI") in Alderson, West Virginia, to serve a jail sentence imposed on her for parole violation. At all times, Ohio authorities knew the whereabouts of Howard.

On March 17, 1988, Howard was transferred from FCI in Alderson to the FCI in Lexington, Kentucky. On June 16, 1989, Howard was transferred to Fayette County Jail in Fayette, Kentucky, where she was held on a warrant from Ohio.

On June 28, 1989, she was picked up by the Cuyahoga County Sheriff's Department and taken to the Cuyahoga County Jail where she remained until a bond was posted on July 18, 1989.

Appellant's sole proposition of law is as follows:

"The trial court erred by overruling appellant's motion to dismiss for failure to provide a speedy trial as required by the United States and Ohio Constitutions and the Ohio Revised Code."

Appellant, in her sole proposition of law, argues that she was entitled to a discharge because the state failed to bring her to trial within the statutory period. R.C. 2945.71(C) states as follows:

"(C) A person against whom a charge of felony is pending:

"(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge;

"(2) Shall be brought to trial within two hundred seventy days after his...