State v. Martin

• Decision Date: 07 December 1978
• Docket Number: No. 77-1329,77-1329
• Parties: , 10 O.O.3d 415 The STATE of Ohio, Appellant, v. MARTIN, Appellee.
• Court: Ohio Supreme Court

Page 289

56 Ohio St.2d 289

384 N.E.2d 239, 10 O.O.3d 415

The STATE of Ohio, Appellant, v. MARTIN, Appellee.

No. 77-1329.

Supreme Court of Ohio.

Dec. 7, 1978.

Syllabus by the Court

1. Under Crim.R. 5(B)(1) when an incarcerated defendant has waived a preliminary hearing within the required five days, the judge may extend the time for a preliminary hearing upon a showing of good cause for a reasonable period of time.

2. When, at the request of defendant's counsel, a judge extends the time for a preliminary hearing pursuant to Crim.R. 5(B)(1), this continuance extends the time the defendant is required to be brought to both a preliminary hearing and trial pursuant to R.C. 2945.72(H).

3. The requirements of R.C. 2937.21 have no application in a Court of Common Pleas.

On August 16, 1976, the defendant was arrested and charged with the crime of robbery in violation of R.C. 2911.02. On August 18, 1976, he made his initial appearance in Youngstown Municipal Court. The defendant waived both his right to counsel at the initial hearing as well as the hearing period required for his preliminary hearing as outlined in Crim.R. 5(B)(1). Pursuant to that waiver the preliminary hearing was set for September 21, 1976.

On August 23, 1976, the hearing was reset for September 27th at the request of counsel for the defendant. The defendant appeared on that latter date but, due to the absence of certain witnesses, the hearing was again reset for September 30, 1976.

The preliminary hearing took place on that date, probable cause was ascertained, and the defendant held to await further action from the Mahoning County Grand Jury. On November 4, 1976, he was indicted for robbery pursuant to R.C. 2911.02. The defendant was arraigned and entered a plea of not guilty on November 12, 1976.

A motion to dismiss was filed on December 16, 1976, alleging the state's failure to bring defendant to trial within the appropriate time frame mandated by R.C. 2945.71(C)(2). The motion was overruled on January 7, 1977, and the case called for trial on January 12, 1977. At that time the defendant requested and was granted a continuance. A jury trial commenced on February 7, 1977, and ended with a guilty verdict on February 9, 1977.

The defendant was sentenced to a term of from five to fifteen years in the Ohio penitentiary and subsequently appealed to the Court of Appeals. The appellate court reversed the conviction on September 22, 1977, holding that the defendant was not brought to trial within the time period prescribed by R.C. 2945.71 and, therefore, was entitled to be discharged pursuant to R.C. 2945.73(B).

This cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Vincent E. Gilmartin, Pros. Atty., John A. Kicz and J. Christopher Varley, Youngstown, for appellant.

Gary L. Van Brocklin, Youngstown, for appellee.

CELEBREZZE, Justice.

I.

The appellant has raised a sole proposition of law alleging error in the Court of Appeals' determination that the trial court was bound by the time limitations of R.C. 2937.21 in ruling on the appellee's motion to dismiss. The appellee has argued conversely that this court need not reach that issue because the delay in bringing the defendant to a preliminary hearing and trial justified the defendant's discharge pursuant to R.C. 2945.73(B) regardless of whether the aforementioned statute is applicable. In order to clarify the relationship between R.C. 2937.21 and the speedy trial statutes, R.C. 2945.71 through 2945.73, and to examine appellee's criticism of the proceedings that took place in Municipal Court, both questions will be expounded upon.

The appellee was arrested on August 16, 1976. On August 18, 1976, he was brought to Youngstown Municipal Court where the record reflects the following entry:

"Case assigned to Judge Kryzan. Waives right to counsel at initial arraignment.

"Defendant waived the 5 and 14 statutory hearing period in Rule 5. Defendant given all his statutory rights as to procedural and initial appearance.

"Set for September 21, 1976 at 9:30 A.M. Defendant found to be indigent. Counsel to be appointed. $5,000.00 bond. * * * "

The record describes further the following activity between August 18, 1976, and the date the preliminary hearing actually took place:

"8-23-76. Reset 9-27-76. * * *

"9-27-76. Assigned to Judge Haynes for trial. * * *

"9-27-76. Defendant in court. Witnesses not present. Reset to 9-30-76 at 9:15. Bond continued.

"9-30-76. Defendant in court represented by Attorney Stroble. Preliminary hearing held. Probable cause found. Defendant held to await action of Mahoning County Grand Jury. Bond $5,000.00. * * * "

In addition to the foregoing entries, a supplemental journal entry was filed on July 20, 1977, while the cause was pending in the Court of Appeals. The entry was filed pursuant to App.R. 9(E) and properly certified by the Clerk of the Youngstown Municipal Court. ¹ The supplemental entry was accepted by the Court of Appeals and read as follows:

"This entry supplements prior entries made pertaining to the above captioned.

"Defendant was arraigned before Judge Kryzan on August 18, 1976, the defendant at that time waived the 5 and 14 day statutory hearing period in Rule 5. Due to crowded docket in the Municipal Court and due to the expected length of the preliminary hearing the case was set September 21, 1976, at 9:30 a. m. On August 23, 1976, upon request of Defendant's counsel, Attorney Robert Lisotto, the case was re-set for preliminary hearing on September 27, 1976.

"The Court further notes that it was physically impossible to have heard the case earlier."

In order to fully comprehend the ramifications of the delay between August 18 and September 30, 1976, two key provisions come to light. Unless waived, both R.C. 2945.71(C)(1) and Crim.R. 5(B)(1) entitle a criminal defendant, in felony cases, to a preliminary hearing. R.C. 2945.71 states, in pertinent part:

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

"(1) Shall be accorded a preliminary hearing within fifteen days after his arrest * * *.

"(D) For purposes of computing time under divisions (A), (B), and (C) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days."

Furthermore, R.C. 2945.72 deals with a series of circumstances whereby an incarcerated defendant's right to a trial within 90 days, And a preliminary hearing within 5 days, can be justifiably extended. Specifically, R.C. 2945.72(H) allows a trial court to extend the statutory time periods on its own motion and reads in pertinent 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:

"* * *me

"(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." (Emphasis added.)

This court has recently held that when a trial court itself initiates action pursuant to this section, the resulting extension of time will be upheld where the "necessity and reasonableness of the continuance" are exhibited in the record. State v. Wentworth (1978), 54 Ohio St.2d 171, 176, 375 N.E.2d 424, 427; State v. McRae (1978), 55 Ohio St.2d 149, 153, 378 N.E.2d 476. In addition, in State v. Lee (1976), 48 Ohio St.2d 208, 209, 357 N.E.2d 1095, this court held that "(m)ere entries by the trial court" would satisfy the statutory requirement "when the reasonableness of the continuance cannot be seriously questioned." The record must reflect that the continuance was "reasonable in both purpose and length." Lee, supra, 48 Ohio St.2d at page 210, 357 N.E.2d at page 1096.

Crim.R. 5(B)(1) also deals with an incarcerated defendant's right to a preliminary hearing within five days of his arrest as well as providing grounds for a permissible extension of that time frame. The rule describes the circumstances that must be present in order to prolong the five-day period, as follows:

"(1) In felony cases a defendant is entitled to a preliminary hearing unless waived in writing. * * * If the defendant does not waive the preliminary hearing, the judge shall schedule a preliminary hearing within a Reasonable time, but in any event No later than five days following arrest or service of summons if the defendant is in custody * * *. With the Consent of the defendant and upon a Showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subsection may be extended. * * * " (Emphasis added.)

Applying the aforementioned standards to the record in Municipal Court, as supplemented pursuant to App.R. 9(E), the extension of the preliminary hearing to September 30, 1976, satisfies both the "good cause" requirement of Crim.R. 5(B)(1), as well as the "reasonableness" mandated by R.C. 2945.72(H). On August 18, 1976, the appellee consented to an extension of the five-day time period and the court set the date for hearing as September 21, 1976, due to the crowded state of its docket and the expected length of the hearing. ²

On August 23, 1976, At the request of appellee's counsel, the date was reset for September 27, 1976. Furthermore, the date was again extended to September 30, 1976, when certain witnesses failed to appear on the 27th.

The totality of these circumstances reflects a reasonable and conscientious effort by the Municipal Court judge to comply with the Criminal Rules and the request of the defendant's counsel to afford defendant his statutory right to a preliminary hearing. Therefore, the continuance to September 30, 1976, is a permissible exercise by the court of its authority under R.C. 2945.72(H) and not "facially unreasonable and seriously open to question" in conformity with the guidelines in Lee and Wentworth, supra. The reasonableness of the...