[Cite as State v. Hill , 2020-Ohio-2958.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee

v. RAYMONE E. HILL Defendant-Appellant : : : : : : : : : : Appellate Case No. 28411

Trial Court Case No. 2018-TRD-9576 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 15th day of May, 2020.

. . . . . . . . . . . MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant City of Day ton Prosecuting Attorney, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee RAYMONE E. HILL, 1141 Tennyson Avenue, Dayton, Ohio 45406 Defendant-Appellant, Pro Se

. . . . . . . . . . . . .

TUCKER, P.J.-2-

{¶ 1} Appellant Raymone E. Hill was convicted of driving a vehicle wi th expired plates after the trial court overruled his motion to dismiss fo r a speedy trial violation. Hill’s oral motion established a prima facie case that he had not been brought to trial within the statutory speedy trial period. Thus, the trial court erred by summarily overruling Hill’s motion. The judgment will be reversed and remanded for proceed ings consistent with this opinion. Facts and Procedural History {¶ 2} On November 18, 2018, Hill was issued a traffic citation chargi ng him with driving a vehicle with expired plates in violation of R.C. 4503 .21, a minor misdemeanor, and driving a vehicle with license plates from another vehicle in violation of R.C. 4549.08, a fourth-degree misdemeanor. The citation included Hill’s addr ess, but it is unclear whether the address reads 1141 Tennyson Avenue, Dayton, Ohio or 1441 Tennyson Avenue, Dayton, Ohio. {¶ 3} On November 28, 2018, as required by the citation, Hill appeare d at an arraignment and pleaded not guilty. The trial court then sent Hill a notice by ordinary mail to 1441 Tennyson Avenue requiring him to appear at a pretr ial conference on December 13, 2018. Hill did not appear for the conference, and , as a result, an arrest warrant was issued. For reasons that are unclear, 1 on December 20, 2018, the trial court withdrew the warrant. The record contains a notice, time -stamped on December

1 Hill’s brief states that upon his discovery of the arrest warra nt, he “met with [a] Deputy Clerk” and, as a result, the warrant was withdrawn. The brief further asserts that another clerk acknowledged that the notice for the December 13 pretrial conference was mailed to an incorrect address. This all may be true, but these asser tions are not part of the record and, as such, cannot be considered.-3- 20, ordering Hill to attend a pretrial conference on January 8, 2019. This notice identified

Hill’s address as 1141 Tennyson Avenue. {¶ 4} Hill appeared at the pretrial conf erence. During the conferenc e, Hill made an oral motion to dismiss the pending charges, asserting that h e had not been brought to trial within the statutory s peedy trial period. Hill’s motion and the trial court’s decision overruling the motion are set forth as follows: THE DEFENDANT: Ok, on the record and for the record and let the record show on this date, January 8, 2019, in the Dayton Municipal Cou rt, I, the Defendant, Raymone Hill, I was served with a summons on Novembe r 19, 2018 pertaining to these minor misdemeanor charges that are pen ding for

this court case. If a trial date does not materialize it will be scheduled outside the permissable [sic] time perimeters [sic] set forth i n ORC 2945.71 invoking my speedy trial rights. Now comes the Defendant, Raym one Hill, without counsel, and I hereby move the Dayton Municipal Court t o dismiss all charges pending on speedy trial grounds and nothing further

. THE COURT: Well you would be right except for the fact that the re was a capias put out on you. When the capias was put out on you for not showing up to court that started the clock all over again. THE DEFEANDANT: May I speak to the court? THE COURT: Sure. THE DEFENDANT: That capias that was put out on me it was sent t o the wrong address. That address wasn’t mine. I had no knowledge t hat the correspondence was sent to my residence or anything to that nat ure – so.-4- THE COURT: Well that was the last address we had for you. So w e will get it set for trial. THE DEFENDANT: Ok, thank you. The trial court then set a January 15, 2019 trial date. The ma tter proceeded to trial at which Hill was found guilty of driving a vehicle with expired p lates but not guilty of driving a vehicle with license plates from another vehicle. No fine wa s imposed, but Hill was assessed court costs which remain unpaid. This appeal followed

. Analysis {¶ 5} R.C. 2945.71(B)(1) states that “a person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a co urt of record, shall be brought to trial * * * [w]ithin forty-five days after the perso n’s arrest or service of summons, if the offense charged is a misdemeanor of the third or fourth degree * * *.” R.C. 2945.71(D) provides that when multiple charges arise from the s ame “act or transaction,” the time requirement for the “highest degree of offense” is use d to determine the speedy trial requirement. Thus, absent an event which extended the 45 -day mandate, Hill had to be brought to trial on or before January 2, 2019. {¶ 6} A defendant establishes a prima facie speedy trial violation w hen his motion reveals that a trial did not occur within the time period presc ribed by R.C. 2945.71. State

v. Butcher , 27 Ohio St.3d 28, 31, 500 N.E.2d 1368 (1986). “Once ‘a defen dant establishes a prima facie * * * violation of his right to a spe edy trial, the burden shifts to the State to demonstrate [that] the statutory limit was not exc eeded by [showing] the time was properly extended pursuant to R.C. 2945.72.’ ” State v. Tope , 2d Dist. Greene No. 2019-CA-11, 2020-Ohio-953, ¶ 28, quoting State v. Nichols , 5th Dist. Richland No. 04--5- CA-56, 2005-Ohio-1771, ¶ 11, citing Butcher at 30-31. {¶ 7} R.C. 2945.72 sets forth a number of events and circumstances wh ich allow an extension of the applicable R.C. 2945.71 time period. This list includes “[a]ny period of delay occasioned by the neglect or improper act of the accus ed[.]” R.C. 2945.72(D). A defendant’s at-fault failure to appear for a hearing constitu tes such neglect or improper act; thus, the delay caused by an at-fault failure to appear is counted against the defendant. State v. Clark , 11th Dist. Ashtabula No. 2014-A-58, 2015-Ohio-1209, ¶ 30. See also State v. Weimer , 2d Dist. Darke No. 1586, 2002-Ohio-7099. But, assuming the defendant has provided a correct address, sending a hearing not ice to an incorrect address which results in a failure to appear would not be at-fa ult conduct counted against the defendant. {¶ 8} The State suggests that the time between December 13, 2018 (the date Hill failed to appear) until January 8, 2019 (the date of the pretri al conference) was appropriately counted against Hill, making the January 15, 2019 trial timely. This may be so, but the trial court, by summarily overruling Hill’s moti on with the comment (made without evidentiary support) that the December 13, 2018 pretria l notice was sent to “the last address we had for you[,]” acted to relieve the State from its burden to establish that the speedy trial time had been extended under R.C. 2945.72. {¶ 9} The remedy for this misstep is to remand the case for an eviden tiary hearing to determine the fault for Hill’s failure to attend the Decembe r 13 pretrial conference.

Conclusion {¶ 10} For the indicated reasons, the trial court’s judgment is revers ed and the case is remanded for proceedings consistent with this opinion.-6-

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FROELICH, J. and HALL, J., concur.

Copies sent to: Matthew Kortjohn Raymone E. Hill Hon. Daniel G. Gehres