State v. Wentworth

• Decision Date: 03 May 1978
• Docket Number: No. 77-788,77-788
• Citation: 375 N.E.2d 424,8 O.O.3d 162,54 Ohio St.2d 171
• Parties: , 8 O.O.3d 162 The STATE of Ohio, Appellee, v. WENTWORTH, Appellant.
• Court: Ohio Supreme Court

Page 171

54 Ohio St.2d 171

375 N.E.2d 424, 8 O.O.3d 162

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

No. 77-788.

Supreme Court of Ohio.

May 3, 1978.

Syllabus by the Court

An order, although entered within the 90-day time period prescribed for trial by R.C. 2945.71(B)(2), continuing a case for trial to a date more than double such 90-day period and stating the continuance was necessary for the reason of a crowded docket, without further explication of such reason appearing in the record, is insufficient to extend the R.C. 2945.71(B)(2) time limitation for trial as a "reasonable continuance granted other than upon the accused's own motion" pursuant to R.C. 2945.72(H).

On September 20, 1975, Timothy Wentworth, appellant, was arrested and charged in the Hamilton County Municipal Court with attempted petty theft, an offense which is proscribed by R.C. 2923.02. On September 30, 1975, he was arraigned and entered a plea of not guilty; trial was set for October 7, 1975. He was released from custody upon his recognizance and has not been confined during the pendency of these proceedings. A request for trial by jury was also filed. The court, on October 1, 1975, entered an order continuing the case from October 7, until October 14, 1975, for pre-trial.

At the pre-trial on October 14, appellant refused to waive the statutory time limitations for trial. At the conclusion of the pre-trial, the court, utilizing a form entry wherein it was stated, "The crowded condition of the courts docket does not permit an earlier setting," and without additional supplementation or documentation in the record, continued the case, pursuant to R.C. 2945.72(H), until April 12, 1976. ¹ Prior to the commencement of trial on April 12, a motion by appellant, pursuant to R.C. 2945.73, for discharge for failure to timely try him was overruled and upon trial to a jury he was convicted and sentenced. Upon appeal to the Court of Appeals, the judgment was affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Thomas A. Luebbers, Pros. Atty., Paul J. Gorman and Frank T. Prouty, Jr., Cincinnati, for appellee.

Everett E. Landen, Cincinnati, for appellant.

STEPHENSON, Judge.

Appellant asserts he was entitled to discharge upon his motion made at commencement of trial by reason of the failure of the state to try him within the 90-day period set forth in R.C. 2945.71(B)(2). ² The pivotal issue thus presented is whether the trial court's order, although entered within the 90-day period prescribed in R.C. 2945.71(B), continuing the case for trial to a date six months after the pre-trial, and 196 days after arrest, and doing so by utilizing a form entry giving the reason for continuance as a crowded docket, without further explication in the record, was permissible as a "reasonable continuance granted other than upon the accused's own motion" pursuant to R.C. 2945.72(H). We hold it was not and reverse the Court of Appeals.

"[ ] The assigned Judge will be unavailable

                     due to
                "[X] The crowded condition of the courts
                     docket does not permit an earlier setting
                "[ ] Other
                     
                "Therefore, the time provisions are extended
                pursuant to 2945.72(H) O.R.C. and the case is
                set for trial  4-12-76 at         9:00  in Room D."
                               -------            ----          ---
                                date              time
                

In summary, this court has held that R.C. 2945.71 through 2945.73 implement the constitutional right of speedy trial and set forth mandates to which strict adherence is required, that the burden to timely try a defendant rests upon the prosecution and trial courts and that a defendant is not required to either demand a timely trial or object to a trial setting outside the periods set forth in R.C. 2945.71 and is to be accorded the benefits of time limitations prescribed therein. State v. Singer (1977), 50 Ohio St.2d 103, 362 N.E.2d 1216; State v. MacDonald (1976), 48 Ohio St.2d 66, 35 N.E.2d 40; State v. Pudlock (1975), 44 Ohio St.2d 104, 338 N.E.2d 524; State v. Cross (1971), 26 Ohio St.2d 270, 271 N.E.2d 264.

This court has held further, however, that the prescribed times for trial set forth in R.C. 2945.71 are not absolute in all circumstances, but a certain measure of flexibility was intended by the General Assembly by the enactment of R.C. 2945.72, wherein discretionary authority is granted to extend the trial date beyond the R.C. 2945.71 time prescriptions. State v. Lee (1976), 48 Ohio St.2d 208, 357 N.E.2d 1095; State v. Davis (1976), 46 Ohio St.2d 444, 349 N.E.2d 315.

Specifically, with respect to R.C. 2945.72(H), this court has held that the time limitation is not properly extended as a "reasonable continuance granted other than upon the accused's own motion" where the court failed to set a date for trial within the 90-day period established by R.C. 2945.71(B)(2), allowed the 90 days to expire and thereafter, sua sponte, ruled that the presence of a crowded docket warranted a continuance. State v. Pudlock, supra. In Pudlock, 44 Ohio St.2d at page 106, 338 N.E.2d at page 525, the court stated the following:

"Although court congestion may be a valid ground under subsection (H) for extending an accused's trial date beyond the time periods provided for by R.C. 2945.71, which we do not now decide, practices which undercut the implementation of the 'speedy trial' provisions within R.C. 2945.71 and 2945.73 must not be employed to extend the requisite time periods." (Emphasis added.)

Subsequently, in State v. Lee, supra, this court upheld a continuance by the trial court pursuant to R.C. 2945.72(H), where the court, by order entered within the 90-day time limit prescribed in R.C. 2945.71, continued the case for trial to a date two days in excess of the prescribed 90-day period and stated the reason in the continuance order as a "crowded docket and judge's conference."

In so holding, the court, however, stated the following 48 Ohio St.2d at page 209, 357 N.E.2d at page 1096:

"The record of the trial court must in some manner affirmatively demonstrate that a sua sponte continuance by the court was reasonable in light of its necessity or purpose. Mere entries by the trial court will ordinarily not suffice, except when the reasonableness of the continuance cannot be seriously questioned. Although this burden is contrary to the presumption of regularity generally accorded to trial proceedings, it appears necessary to carry out the purpose of the speedy-trial statutes." (Emphasis added.)

The lengthy continuance herein considered stands in marked contrast to the facial reasonableness of the continuance approved in Lee. Indeed, the above statement from Lee was directed against a continuance of the nature granted in this cause, i. e., one entered upon the barebones declaration of a crowded docket to a trial date more than double the period prescribed in R.C. 2945.71(B)(2).

Nevertheless, we are not prepared to hold that any continuance of the length granted here, based upon docket congestion, is unreasonable regardless of attendant circumstances and conditions. We do conclude, however, that where the continuance is of such length that it is facially unreasonable and seriously open to question, and thus outside the rationale upon which Lee is based, the attendant...