State v. Huckaby

Decision Date05 August 1997
Docket NumberNos. C97TRC3682ABC,C97CRB2583,s. C97TRC3682ABC
Citation696 N.E.2d 1116,91 Ohio Misc.2d 16
PartiesThe STATE of Ohio v. HUCKABY. *
CourtOhio Court of Common Pleas

Melissa Landthorn, Hamilton County Assistant Prosecuting Attorney, Cincinnati, for plaintiff.

Lawrence Keller, Cincinnati, for defendant.

ROBERT TAYLOR, Judge.

Defendant Antonio Huckaby made his initial appearance in the arraignment courtroom on January 24, 1997 on three sets of cases, namely C97TRC3682 A/B/C/D (DUI/DUS/red light), C97CRB2571 (DV), and C97CRB2583 (drug abuse). A review of the transcript of arraignment reveals that the defendant, through counsel, entered a plea of not guilty, and the cases were referred to the municipal court assignment commissioner's office for case assignment and setting.

In the hearing on the defendant's motion to dismiss, filed in C97TRC3682, the only testimony elicited by the defendant was that of Theresa Lalley, an employee of the court, working in the office of the assignment commissioner. A review of the transcript of those proceedings and the exhibits offered reveal that the defendant, through counsel, executed two documents, each designated as an "Entry Extending Time Provisions." A review of these entries clearly shows that defense counsel printed the defendant's name on the entries, filled in the dates of January 24, 1997 and April 30, 1997, and signed them. The entries did not contain a case number when they were tendered to the assignment commissioner's office.

The problem which arose was that the defendant had three sets of charges, not two. In an effort to accommodate Lawrence Keller, defense counsel, Mrs. Lalley unsuccessfully attempted to contact Mr. Keller by telephone on at least three occasions regarding the time waivers. After discussing the matter with her supervisor, Mrs. Lalley followed past practice as it related to both the policy of her office and her past dealings with Mr. Keller. Since the traffic case, C97TRC3682, and the drug abuse case, C97CRB2583, were companion cases--they arose out of the same incident--Mrs. Lalley set them on the same date and time. This was done for the convenience of all persons involved and under the assumption that this is what Mr. Keller wanted for his client. In order for each case to have a complete set of documents, a copy of one of the case "stickers" for C97TRC3682 was placed over the "sticker" of one of the criminal cases. The within traffic case was, therefore, set for a pretrial on April 30, 1997, in Courtroom 280, along with its companion criminal case.

Exhibits 1, 4, 6, and 7 demonstrate that on April 30, 1997, the defendant requested that all cases be referred to the assignment commissioner's office to be set for trial. At Mr. Keller's request, all cases were set for trial on June 5, 1997. On June 5, 1997, Mr. Keller filed his motion to dismiss, and it was heard and argued in lieu of a trial on the merits.

I

In State v. Suspirata (1943), 71 Ohio App. 500, 26 O.O. 402, 50 N.E.2d 270, the Cuyahoga County Court of Appeals dealt with the issue of a defendant who had not demanded a trial and had acquiesced in a continuance, and who sought discharge on speedy trial grounds. The court of appeals, in affirming the denial of the speedy trial claim, quoted from the case of Hernandez v. State (1932), 40 Ariz. 200, 205, 11 P.2d 356, 357-358, as follows:

" 'The constitutional and statutory provisions involved herein were not meant to shield the guilty man who sits silently by and allows the officers of the state to assume that he acquiesces in delaying a trial, and then, when it is too late for the mistake to be remedied, claims his rights. They were meant rather to protect the man who seasonably makes it known to the proper officers that he claims an early trial, so that his innocence may be established.' "

In State v. Deckard (1972), 33 Ohio App.2d 240, 62 O.O.2d 352, 295 N.E.2d 205, the Franklin County Court of Appeals found that "[a]cquiescing in a continuance sought by the state constitutes delay by the accused within the contemplation of R.C. 2945.72. Where a continuance is sought by the state which would result in the accused not being brought to trial within the three-term rule of R.C. 2945.72, and the accused does not object to such continuance and demand a trial within such time, he has acquiesced in the continuance, and is not entitled to discharge pursuant to R.C. 2945.72." Id. at 245, 62 O.O.2d at 355, 295 N.E.2d at 208.

In State v. Wentz (1975), 49 Ohio App.2d 96, 3 O.O.3d 157, 359 N.E.2d 446, the Stark County Court of Appeals had to decide what constituted a period of delay under R.C. 2945.72(E) and a continuance under R.C. 2945.72(H). The defendant, on March 10, 1974, was arrested for a charge of driving under the influence of alcohol. On March 11, 1974, the defendant, through counsel, entered a plea of not guilty and filed a demand for a jury trial. The case was pretried on May 9, 1974. On May 21, 1974, defendant's counsel was notified that the case was set for trial on June 18, 1974. On June 13, 1974, the state subpoenaed its witnesses for trial, and defense counsel filed a motion for discharge. The defendant contended that since he was not brought to trial within ninety days, he was entitled to a discharge under R.C. 2945.73(B). The court calculated that the time chargeable to the state was ninety-four days.

"We find that four days after rule is not an unreasonable length of time on this record. Further, we find that in the entry of the trial court overruling the motion for discharge the court recites that the 'record shows that on May 21, 1974, following the pre-trial hearing, defendant's counsel was notified that the case was set for jury trial for June 18, 1974' and that therefore he had acquiesced in that date and quietly permitted the various court and prosecution functionaries to proceed with their trial preparation and calendar scheduling on that basis.

"We find, therefore, that to permit the accused to prevail on this record would be to condone a practice of 'sandbagging' the entire scheduling process. This is not a high school debate but a serious business which challenges the best efforts of all officers of the court. At stake is public respect for the law in general and the criminal justice system in particular. Defense counsel is more than a mere 'hireling' of a partisan, but is, rather, an officer of the court. Where counsel for an accused knows within rule that his scheduled hearing is out of rule and fails promptly to call this fact to the attention of the court he cannot, with respect to a subsequent delay, be heard to claim prejudice." Id. at 99-100, 3 O.O.3d at 158-159, 359 N.E.2d at 449.

In State v. Davis (1975), 44 Ohio App.2d 95, 73 O.O.2d 89, 335 N.E.2d 874, the Hamilton County Court of Appeals, in reference to a continuance granted pursuant to R.C. 2945.72(H), held that a motion to fix or to continue a trial date beyond the ninety-day period may become the accused's own motion by adoption or agreement as well as by initiation. The statute ought not to be read so literally that it is held to require a motion to be drafted, initiated, and/or presented by the defendant himself before it may be said to be his "own motion." However, the same court, in Cincinnati v. Williams (1975), 44 Ohio App.2d 143, 73 O.O.2d 137, 336 N.E.2d 464, one month before, held that it is not necessary for a defendant to object to the setting of a trial beyond time before requesting a discharge pursuant to R.C. 2945.73. "At no place in the statute is the demand of the accused made a pre-requisite to the operation of the statute. The language is pre-emptory [sic] and mandatory." Id. at 145, 73 O.O.2d at 137, 336 N.E.2d at 465.

The Ohio Supreme Court, in the late 1970s, decided several cases that construed the requirements of R.C. 2945.71 et seq. In State v. Singer (1977), 50 Ohio St.2d 103, 4 O.O.3d 237, 362 N.E.2d 1216, the Supreme Court held that a defendant's failure to object to a trial date scheduled outside the ninety-day limitation period of R.C. 2945.71(C)(2) and (D) before the expiration of that period does not amount to acquiescence in the trial date.

In State v. Tope (1978), 53 Ohio St.2d 250, 7 O.O.3d 408, 374 N.E.2d 152, the defendant was arrested on felony charges on June 28, 1976, and held in jail at all times. He was indicted on July 6, 1976, and arraigned on July 16, 1976; on July 23, 1976, the trial date was scheduled for September 29, 1976, or ninety-three days after the defendant's arrest. The state attempted to distinguish Singer, supra, on the grounds that the trial date was scheduled after time due to clerical error. The Singer court stated:

"The Court of Appeals below attempted to extend the time limitation by means of R.C. 2945.72(D) and (H). R.C. 2945.72 provides that:

" 'The time with which an accused must be brought to trial * * * may be extended only by the following:

" ' * * *

" '(D) Any period of delay occasioned by the neglect or improper act of 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.'

"The record discloses no delay occasioned by the neglect or improper act of appellant; therefore, Subdivision (D) cannot extend the 90-day limit. Subdivision (H) cannot extend the time limit because no continuance was ever granted by the trial court. Singer, supra, at page 109 [4 O.O.3d at 240, 362 N.E.2d at 1220]. Thus, the Court of Appeals' use of these subdivisions constituted error.

" * * *

"This court imposes upon the prosecution and trial courts the mandatory duty of complying with R.C. 2945.71 through 2945.73. We do so pursuant to our conclusion that the General Assembly has attempted a rational definition of the statutory guarantee of a speedy trail.

"A defendant in Ohio has both a constitutional right to speedy trial, based upon the Sixth...

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