State v. John Daft

• Decision Date: 30 December 1994
• Docket Number: 94CA493,94-LW-1239
• Parties: STATE OF OHIO, Plaintiff-Appellee v. JOHN DAFT, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. JOHN DAFT, Defendant-Appellant

No. 94CA493.

94-LW-1239 (4th)

Court of Appeals of Ohio, Fourth District Vinton

December 30, 1994

Johnston & Gleeson, Lorene G. Johnston, Wellston, Ohio, for Appellant.

David L. Kessler, Vinton County Prosecuting Attorney, McArthur Ohio, for Appellee.

DECISION

Stephenson J.

This is an appeal from a judgment of conviction and sentence entered by the Common Pleas Court of Vinton County, upon a no contest plea, finding John H. Daft, defendant below and appellant herein, guilty of importuning in violation of R.C 2907.07(A). The following errors are assigned for our review.

I. "THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A CONTINUANCE WITHOUT ADMISSIBLE SUPPORTING EVIDENCE AND SETTING, WITHOUT A HEARING OR SUPPORTING EVIDENCE, AN ARBITRARY TRIAL DATE NOT TO 'EXCEED 60 DAYS BEYOND THE BIRTH OF THE CHIL [sic] OF THE ALLEGED VICTIM' FOR DEFENDANT-APPELLANT, VIOLATING HIS STATUTORY SPEEDY TRIAL RIGHTS."

II. "THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT HIS STATUTORY RIGHT TO A SPEEDY TRIAL PURSUANT TO O.R.C. SECTION 2945.71 AS EXTENDED BY 2945.72."

The record reveals the following facts pertinent to this appeal. On February 18, 1993, a criminal complaint was filed in Vinton County Court accusing appellant of engaging in sexual conduct with one Shannon Daft, back in 1987, at a time when the alleged victim was less than thirteen (13) years of age. An arrest warrant was executed that day, appellant was brought before county court and then released on bond. A preliminary hearing was later held and on March 8, 1993, the court ordered appellant bound over to the Vinton County Court of Common Pleas.

On April 23, 1993, a grand jury handed down a three (3) count indictment charging appellant (in courts one and two) with rape in violation of R.C. 2907.02 and gross sexual imposition in violation of R.C. 2907.05, with respect to Shannon Daft and one count of attempted rape in violation of R.C. 2923.02 with respect to one, Darlene Nixon. Appellant was arraigned, pled not guilty on all three (3) counts and was released on bond. A trial date was initially set for October 6, 1993, and was then rescheduled by the assignment commissioner to November 10, 1993.

Two weeks prior to that scheduled trial date, the state filed a motion for continuance on the grounds that one of the complaining witnesses, Shannon Daft, was approaching childbirth and experiencing "complications" with her pregnancy. A letter attesting to that fact, signed by a physician's assistant with Family Healthcare Inc., was attached in support of that motion. It was recommended that the criminal case be delayed until after the witness had her baby. On November 8, 1993, the lower court filed an entry continuing the matter "to a date not to exceed 60 days beyond the birth of the child ..."

The trial was eventually rescheduled for January 31, 1994. A week before the trial was to begin, appellant filed a motion to dismiss the charges against him for violation of his right to a speedy trial under R.C. 2945.71. Appellant also requested that the matter be continued to resolve this and other pretrial matters. The lower court continued the matter again and on February 4, 1994, overruled the motion to dismiss.

Appellant filed a second motion to dismiss charges against him the following month. It was argued that, even if the court had correctly overruled the first motion and even affording the state every extension possible, a sufficient amount of time had elapsed that the time limit for bringing him to trial under R.C. 2945.71(C)(2) had run. The matter came on for trial on March 14, 1994, at which time the lower court overruled said motion from the bench. Court three of the indictment was then dismissed because the complaining witness, Darlene Nixon, had not appeared for trial. Pursuant to a plea agreement, count two of the indictment was also dismissed, count one was amended to a charge of importuning in violation of R.C. 2907.07(A) and appellant changed his plea to "no contest." The parties then stipulated that there was a solicitation of a person to engage in sexual activity and that such person, Shannon Daft, was under thirteen (13) years of age at the time. The lower court found appellant guilty and on March 24, 1994, entered judgment imposing a six (6) month suspended jail sentence and two (2) years probation. This appeal followed.

We jointly consider both assignments of error as they raise interrelated arguments to the effect that the lower court should have sustained one, or the other, of appellant's motions below and dismissed the charges against him. Our analysis begins with R.C. 2945.73(B) which requires that, upon motion made at or prior to commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by law. Ohio law requires that a person charged with a felony shall be brought to trial within two hundred seventy (270) days of his arrest. R.C. 2945.71(C)(2). There is no dispute in the cause sub judice that appellant was not brought to trial below until after more than a year had elapsed from the time of his arrest. Thus, unless the 270 day time limit was tolled for one of the reasons specified in R.C. 2945.72, appellant is correct in his argument that the charges against him should have been dismissed. We now turn our attention to the procedural history of this case below to determine whether R.C. 2945.72 would have extended the time for bringing appellant to trial.

The parties are in agreement that the two hundred seventieth (270th) day from appellant's arrest would have been November 15, 1993.(fn1) The trial date had been scheduled for November 10, 1993. Two days before trial, and still within the statutory period, the court below granted the state's motion for a continuance on grounds that its complaining witness, Shannon Daft, was experiencing complications with her pregnancy. It was ordered that the trial be "continued to a date not to exceed 60 days beyond the birth of the child ..." The record indicates that the child was ultimately born on December 12, 1993, and a new trial date was then set for January 31, 1994. The provisions of R.C. 2945.72(H) extends the time for bringing an accused felon to trial for the period of any "reasonable continuance" granted upon the motion of the party other than the accused himself. Appellant argues that the continuance granted for the complaining witness' pregnancy was not reasonable, was an abuse of discretion and should not be counted for extending the period in which to bring him to trial. We disagree.

The underlying premise of appellant's argument is correct in that the decision to grant or deny a continuance is generally committed to the broad sound discretion of the trial court. State v. Grant (1993), 67 Ohio St.3d 465, 479; State v. Lorraine (1993), 66 Ohio St.3d 414, 423. This is true even when the court's decision is being reviewed for "speedy trial" purposes. See e.g. State v. Blair (1990), 70 Ohio App.3d 774, 783-784; also see State v. Jones (Aug. 31, 1994), Ross App. No. 93CA1989, unreported at 6. A trial court's decision to grant or deny a continuance is not going to be a basis for reversal absent a finding of an abuse of that discretion State v. Claytor (1991), 61 Ohio St.3d 234, 241. An abuse of discretion is more than a mistake of law or fact; it connotes an attitude which is arbitrary, unreasonable or unconscionable. State v. Lessin (1993), 67 Ohio St.3d 487, 494; State v. Xie (1992), 62 Ohio St.3d 521, 527; State v. Moreland (1993), 50 Ohio St.3d 58, 61.

Appellant contends that the time period of "60 days beyond the birth of the child" for continuing his trial is per se arbitrary. We note that, in the context of an abuse of discretion analysis, arbitrary means without any adequate determining principle and not governed by any fixed rule or standard. See Sandusky Properties v. Aveni (1984), 15 Ohio St.3d 273, 275. There is little in the record to indicate how the trial court settled upon a "60 day period beyond the birth of the child" for continuing this matter and that lends some credence to appellant's argument.(fn2) However, there is no statute or court rule to provide guidance in this sort of a situation. The time period selected for any continuance on this basis, be it one (1) day, one (1) month or one (1) year, is going to be inherently arbitrary. It is probably safe to say that childbirth is not an exact science and an appellate court is hardly the forum to attempt to gauge the medical and emotional needs of a mother and child going through that process. Thus, we decline to carve out some wooden and mechanistic rule for determining the time frame beyond which a continuance would not be permitted under these circumstances.

The better approach is to consider whether the 60 day time frame selected by the lower court was unduly arbitrary. We are not persuaded that it was. There are few examples on this particular point to be found in caselaw. However, it does not appear that continuances of roughly seven (7) weeks in duration for witness pregnancies is all that unusual. See e.g. State v. Alexander (Apr. 8, 1987), Hamilton App No. C-860365, unreported (Pregnancy of expert medical witness); State v. Apanovitch (May 18, 1978), Cuyahoga App. No. 37447, unreported (Pregnancy of complaining witness). The new trial date for appellant below was scheduled just over seven (7) weeks after Shannon Daft gave birth to her child. This, as well as evidence to the effect that the complaining witness was experiencing complications with her pregnancy prior to childbirth, leads us to the conclusion that the time frame of continuance selected by the trial court was not so...