State v. Walker, 75-416
| Decision Date | 05 May 1976 |
| Docket Number | No. 75-416,75-416 |
| Citation | 75 O.O.2d 201,46 Ohio St.2d 157,346 N.E.2d 687 |
| Parties | , 75 O.O.2d 201 The STATE of Ohio, Appellee, v. WALKER, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. R.C. 2945.71 through 2945.73, effective on and after January 1, 1974, do not have retroactive application.
2. The time elapsing between the tendering of a plea of 'not guilty by reason of insanity' and a finding of mental competency to stand trial directly resulting from such plea shall not be included in computing days under R.C. 2945.71.
James E. Walker, defendant-appellant, was arrested in Wadsworth, Ohio, on November 11, 1973, in connection with the death of his ex-wife, Barbara Ann Walker. On November 12, 1973, the Medina County Court, Wadsworth District, bound him over to the Court of Common Pleas for the offense of murder in the first degree, under then existing R.C. 2901.01, and set bond at $10,000. On November 19, 1973, the Medina County grand jury returned a true bill charging the defendant with the crime of murder in the first degree. He was arraigned on November 26, 1973, at which time he entered pleas in writing of 'not guilty' and 'not guilty by reason of insanity.' His bond having been increased to $50,000, he was remanded to county jail in lieu of bail. He has been represented by the same attorney from November 11, 1973, until this date.
The case was assigned to another judge of the Court of Common Pleas of Medina County, who ordered the defendant committed to Lima State Hospital for observation as to his mental condition, under R.C. 2945.40. The warrant to convey the defendant to Lima State Hospital was received by the sheriff on November 30, 1973. However, it was not executed until January 3, 1974, for the reason that the hospital presumably was unable to accommodate him until that date. Subsequent to his examination he was returned to Medina County jail by the sheriff on March 15, 1974. A pretrial was held May 6, 1974, at which time counsel for defendant requested a hearing under R.C. 2945.37. The court, on June 5, 1974, granted the request, ordering '* * * that a trial date shall be set forthwith, to the court on the question of sanity of the defendant.'
On July 15, 1974, the case was set for trial on August 26, 1974. On August 13, 1974, a motion to dismiss was filed by defendant's counsel on the ground 'that the defendant was not brought to trial within 90 days while incarcerated.' The motion to dismiss was heard by a visiting judge on August 26, 1974, overruled, and the case set for trial August 29, 1974, with instructions that the question of sanity shall be heard first. On August 29, 1974, before another visiting judge, the report from Lima State Hospital was marked as a 'joint exhibit' and accepted by the defense counsel who stated: 'We have seen the report, we are not prepared to challenge it.' The defendant was declared 'legally sane,' thus finally disposing of the question of sanity. At this time the prosecutor, without objection, amended the indictment 'to read Section 2901.05 of the Ohio Revised Code, or second degree murder,' whereupon the defendant, through counsel, promptly withdrew his former pleas of 'not guilty' and 'not guilty by reason of insanity,' and offered a plea of 'no contest.' The court examined the defendant at length concerning the plea and defense counsel thereupon waived 'the presentence investigation and asked that sentence be imposed at this time.' The court thereupon sentenced the defendant to life imprisonment.
On August 30, 1974, a notice of appeal was filed by defendant's counsel 'from the final judgment and sentence entered in this action but specifically on questions of law of the order of the court denying defendant-appellant's motion to dismiss * * *.'
The Court of Appeals for Medina County affirmed that judgment on March 8, 1975, and, on April 23, 1975, finding their pronounced judgment in conflict with a judgment on the same question by the Court of Appeals for Cuyahoga County, certified the record of this cause to this court for review and final determination, pursuant to Section 3(B)(4) of Article IV of the Ohio Constitution.
Roger R. Ingraham, Pros. Atty., Medina, and Kenneth McArtor, Cleveland, for appellee.
James R. McIlvaine, Wadsworth, for appellant.
This cause was certified to this court as being in conflict with the case of State v. Perkins (1974), 40 Ohio App.2d 406, 320 N.E.2d 698, in which it was held that persons who committed offenses prior to January 1, 1974, and who were indicted and held in jail in lieu of bail on a felony charge after that date must be tried within two terms after the term of indictment, or within 90 days of January 1, 1974, whichever is earlier, per R.C. 2945.71 as amended January 1, 1974.
The trial court in the instant case took the position that R.C. 2945.71 through 2945.73, as amended, took effect January 1, 1974, and were not applicable to offenses committed prior to that date.
Prior to January 1, 1974, R.C. 2945.71 read as follows:
(Emphasis added.)
The pertinent parts of the post-January 1, 1974, R.C. 2945.71, upon which defendant relies, read:
'(C) A person against whom a charge of felony is pending:
'(1) Shall be accorded a preliminary hearing within fifteen days after his arrest;
'(2) Shall be brought to trial within two hundred seventy 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.'
It would appear that in accepting the contention of the defendant that the act in question has prospective application from the date of enactment most necessarily allows that the court is also to apply R.C. 2945.72, as amended. (Clearly the facts in this case would require the application of that part of old R.C. 2945.71 emp...
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