State v. McBreen

• Decision Date: 31 May 1978
• Docket Number: No. 77-709,77-709
• Citation: 54 Ohio St.2d 315,8 O.O.3d 302,376 N.E.2d 593
• Parties: , 8 O.O.3d 302 The STATE of Ohio, Appellee, v. McBREEN, Appellant.
• Court: Ohio Supreme Court

Page 315

54 Ohio St.2d 315

376 N.E.2d 593, 8 O.O.3d 302

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

No. 77-709.

Supreme Court of Ohio.

May 31, 1978.

Syllabus by the Court

A defendant's right to be brought to trial within the time limits expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial preparation and the defendant is bound by the waiver even though the waiver is executed without his consent.

Defendant-appellant, Daniel R. McBreen, was charged on August 22, 1975, in Hamilton County Municipal Court with violations of R.C. 2911.21 (criminal trespass), R.C. 2921.33 (resisting arrest), and R.C. 2903.13 (assault).

Counsel was appointed for defendant by the court. That counsel conferred with defendant once, on August 23, 1975, the day of defendant's initial appearance in court, at which time not guilty pleas were entered by defendant. The date of October 21, 1975, was selected by the court for trial. Thereafter, a jury demand was filed, and at a pretrial hearing on October 7, 1975, the trial date was set at March 9, 1976.

On the date of the pre-trial hearing, defendant's appointed counsel signed two forms entitled "Waiver of Time Provisions." The forms provided space identified as being for the signature of the defendant. Defendant did not sign the forms; in fact, he did not see the forms. The reason specified on each form for the filing of the waivers was that the "Defense needs time for further case preparation."

During the period of time between the initial appearance in court and the date of trial, defendant was free on his own recognizance. On March 3, 1976, defendant, through new counsel, filed a motion to dismiss the charges on the basis of the provisions of R.C. 2945.71, and the fact that the trial was set 200 days after date of arrest. That motion was overruled; the prosecution, however, had the criminal trespass charge dismissed. The jury found defendant guilty of the two remaining charges.

Defendant appealed the judgments of conviction to the Court of Appeals. That court affirmed the judgments and the consolidated cause is now before this court pursuant to the allowance of a motion to certify the record.

Thomas A. Luebbers, City Sol., Paul J. Gorman and Dennis S. Helmick, Cincinnati, for appellee.

Richard C. Gasen, Cincinnati, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

The issue presented in this appeal is whether the constitutional right to a speedy trial, as implemented in this state by R.C. 2945.71 through 2945.73, can be waived by the attorney for the accused where the accused is not aware of or informed of the waiver.

R.C. 2945.71(B)(2) specifies that a person charged with a misdemeanor, other than a minor misdemeanor, shall be brought to trial "(w)ithin ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree * * *." The offenses of which appellant was convicted were misdemeanors of the first degree and the second degree and, thus, the 90-day provision of R.C. 2945.71(B)(2) applies.

R.C. 2945.72 provides that the time within which an accused must be brought to trial may be extended for "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." (R.C. 2945.72(H).)

R.C. 2945.73 provides, in part:

"(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.

" * * *n m

"(D) * * * When an accused is discharged pursuant to division (B) * * * of this section, such discharge is a bar to any further criminal proceedings against him based on the same conduct."

Under the provisions of the foregoing statutes, appellant is entitled to be discharged unless it is determined that appellant is bound by the waiver of his statutory speedy trial rights executed by his counsel. It is the conclusion of this court that he is so bound.

It has been recognized by this court that R.C. 2945.71 and 2945.73 implement the constitutional guarantee of a speedy trial (Section 10, Article I, Ohio Constitution), and must be complied with by the state. State v. Pudlock (1975), 44 Ohio St.2d 104, 338 N.E.2d 524; State v. Davis (1976), 46 Ohio St.2d 444, 349 N.E.2d 315; State v. Singer (1977), 50 Ohio St.2d 103, 362 N.E.2d 1216.

Recognition has also been given to R.C. 2945.72 which, in the instances therein set forth, extends the time within which an accused must be brought to trial. State v. Davis, supra; State v. Lee (1976), 48 Ohio St.2d 208, 357 N.E.2d 1095.

In Davis the defendant was charged with aggravated robbery. Under R.C. 2945.71, a defendant charged with such an offense is required to be brought to trial within 90 days. The trial there occurred within 105 days of the arrest. The circumstances of the delay in Davis are described in the opinion, 46 Ohio St.2d at page 447, 349 N.E.2d at page 317, as follows:

" * * * The record indicates that the trial court assigned the May 30th trial date as a matter of convenience, because it understood that both the prosecution and the defense counsel were available on that date, and defense counsel agreed to it. The record also indicates that, if the appellant's (defendant's) motion to dismiss were overruled, the appellant's counsel desired an additional delay to locate alibi witnesses. This fact clearly indicates the lack of prejudice to the appellant from the delay in trial."

The court, in Davis, concluded that the extended trial date constituted " ' * * * the period of any reasonable continuance granted other than upon accused's own motion,' under the second clause of R.C. 2945.72(H)."

The record in the instant cause shows that the waivers were executed for an extension of time in order for defense counsel to have further time for case preparation, and that the trial date was set on the same day that the waivers were executed.

It is appellant's position that this appeal "does not involve a continuance based on the 'accused's own motion,' pursuant to the first clause of R.C. 2945.72(H)" and that, as in Davis, the issue is whether "the extended trial date constitutes * * * 'the period of any reasonable continuance granted other than upon the accused's own motion,' under the second clause of R.C. 2945.72(H)." Following the foregoing reference to State v. Davis, appellant points to the fact that the delay in Davis, was only 15 days, while here the delay was 110 days.

It is evident from a reading of R.C. 2945.72(H) that the statute contemplates extensions of the statutory time limits for trial in two situations, i. e., extensions on "the accused's own motion" and extensions granted "other than upon the accused's own motion." The statutory language permits extensions for a period of any continuance on the accused's own motion, while it requires extensions granted other than upon the accused's own motion to be reasonable.

In D...