[Cite as State v. Beal , 2021-Ohio-3812.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 21CA3 : MICHAEL BEAL : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2020CR0326

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: October 25, 2021

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP RANDALL E. FRY RICHLAND CO. PROSECUTOR 10 West Newlon Place VICTORIA MUNSON Shelby, OH 44875 38 South Park St. Mansfield, OH 44902Richland County, Case No. 21CA3 2

Delaney, J. {¶1} Appellant Michael Beal appeals from the Sentencing Entry d ated December 11, 2020 of the Richland County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROC EDURAL HISTORY {¶2} At the time of these events, Jane Doe was 16 years old and worked at a fast-food restaurant in Mansfield, Ohio. Jane alleged that for approximately a year and a half, appellant bothered her at work. Appellant came into her w orkplace, sometimes twice a day, and asked for her by name. Jane would go to the back of the restaurant to avoid

him. {¶3} On May 17, 2020, appellant watched Jane as they both exite d the restaurant. Appellant followed Jane in his vehicle as she drove toward Ontario. Jane called her father (“Father”) and he came to the scene at a Kohl ’s department store. Father confronted appellant, who was sitting in his vehicle outside th e store. Appellant fled at high speeds and Father was unable to follow him. {¶4} Jane and Father reported the matter to the Mansfield Polic e Department. An investigation determined appellant has three prior convictio ns of menacing by stalking. Officer Korey Kaufman of the Mansfield Police Department reques ted a felony arrest warrant for menacing by stalking. {¶5} On July 23, 2020, a secret indictment was filed charging a ppellant with one count of menacing by stalking pu rsuant to R.C. 2903.211(A)(1) a nd R.C. 2903.211(B)(2)(a), a felony of the fourth degree. {¶6} On August 4, 2020, the trial court journalized a Judgment Entry stating that due to limitations arising from the Covid-19 pandemic and jury trials already on the Court’sRichland County, Case No. 21CA3 3

calendar, appellant’s jury trial could not be scheduled within 270 days. The trial court therefore found that the earliest possible date for a jury tria l was September 14, 2020, and time was therefore tolled for speedy-trial purposes pursuan t to R.C. 2945.72 and the Ohio Supreme Court entry of March 27, 2020. {¶7} On September 4, 2020, appellant filed a motion to dismiss on the basis of a violation of his right to a speedy trial. Appellee responded with a memorandum contra on September 14, 2020. {¶8} Also on September 14, 2020, the trial court journalized an Order of Trial Continuance stating the Court had a number of jury trials sched uled on that date which were older than the instant case and appellant filed a pending motion to dismiss. Therefore, time was tolled for speedy-trial purposes pursuant t o R.C. 2945.72 and the Ohio Supreme Court Entry of March 27, 2020. {¶9} On September 15, 2020, an evidentiary hearing was held on appellant’s

motion to dismiss. {¶10} On September 18, 2020, the trial court overruled appellan t’s motion to dismiss via judgment entry. {¶11} On October 9, 2020, appellant filed another motion to dis miss for violation of his right to a speedy trial. {¶12} On October 29, 2020, the trial court overruled the second motion to dismiss and noted jury trial was scheduled for November 30, 2020. {¶13} On October 30, 2020, appellant withdrew his plea of not g uilty and entered a plea of no contest.Richland County, Case No. 21CA3 4

{¶14} On December 9, 2020, appellant came before the trial cour t for sentencing. The trial court imposed a 5-year term of community control. {¶15} Appellant now appeals from the judgment entries of convic tion and

sentence. {¶16} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR {¶17} “THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO DISMISS BASED UPON A VIOLATION OF THE APPELLANT’S SPE EDY

TRIAL RIGHTS.”

ANALYSIS {¶18} In his sole assignment of error, appellant argues the tri al court should have granted his motion to dismiss for violation of speedy trial tim e limitations. We disagree. {¶19} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availabi lity of a speedy trial to a person accused of a crime is a fundamental right made obligator y on the states through

the Fourteenth Amendment. State v. Ladd , 56 Ohio St.2d 197, 200, 383 N.E.2d 579 (1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational effort to enforce the constitutional right to a public speedy t rial of an accused charged with the commission of a felony or a misdemeanor and shall be strict ly enforced by the courts

of this state.” State v. Pachay , 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus. {¶20} Our review of a trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixe d question of law and fact.

State v. Larkin , 5th Dist. Richland No. 2004–CA–103, 2005-Ohio-3122, ¶ 11. As anRichland County, Case No. 21CA3 5

appellate court, we must accept as true any facts found by the trial court and supported by competent, credible evidence. State v. Taylor , 5th Dist. Richland No. 16 CA 17, 2016- Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin , supra. With regard to the legal issues, however, we apply a de novo standard of review and thus freely review the trial court's application of the law to the facts. Id. {¶21} When reviewing the legal issues presented in a speedy-tri al claim, we must strictly construe the relevant statutes against appellee. Brecksville v. Cook , 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon , 5th Dist. Stark No. 09-CA-232, 2010- Ohio-2326, 2010 WL 2060900, ¶ 12. {¶22} Appellant was charged with a felony of the fourth degree. A person charged with a felony must be brought to trial within 270 days unless t he right to a speedy trial is waived. R.C. 2945.71(C)(2). Appellant did not waive time. If a person is held in jail in lieu of bond, then each day that the suspect is in custody counts as 3 days. R.C. 2945.71(E). Appellant remained incarcerated throughout the proceedings. Pur suant to R.C. 2945.73, a person who is not brought to trial within the proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged” and further crim inal proceedings based

on the same conduct are barred. {¶23} A defendant establishes a prima facie case for discharge once he demonstrates that he has not been brought for trial within the time limits set forth in R.C.

State v. Ashbrook , 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL 2582 869, ¶ 49, citing State v. Butcher , 27 Ohio St.3d 28, 30–31, 500 N.E.2d 1368 (1986). {¶24} When an appellant has established he was tried outside sp eedy-trial time limits, the burden shifts to the state to show that the time li mit was extended under R.C.Richland County, Case No. 21CA3 6

Id. at ¶ 31. If the state fails to produce evidence in rebuttal und er R.C. 2945.72, then discharge pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy- trial issue, an appellate court must calculate the number of days cha rgeable to either party and determine whether the appellant was properly brought to trial w ithin the time limits set

forth in R.C. 2945.71.” State v. Riley , 162 Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19 (12th Dist.). {¶25} Pursuant to R.C. 2945.71(C)(2), appellee had 270 days to try appellant, subject to the triple-count provision of 2945.71(E) and barring any tolling events [90 days]. {¶26} Appellant was arrested on May 18, 2020. The right to a sp eedy trial time starts to run the day after arrest. State v. Neal , 5th Dist. Delaware No. 2005CAA02006, 2005-Ohio-6699, 2005 WL 3475738, ¶ 44; R.C. 2945.71. The speedy -trial time clock therefore began to run on May 19, 2020. Barring any tolling eve nts, appellant should have been brought to trial on or before August 17, 2020 [90 day s]. {¶27} Certain events toll the accumulation of speedy-trial time . Relevant to the instant case, R.C. 2945.72(E) and (H) state: 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:

* * * *. (E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or institu ted by the accused;

* * * *.Richland County, Case No. 21CA3 7

(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance grante d other than upon the accused's own motion;

* * * *. {¶28} The parties agree time was tolled upon appellant’s demand for discovery on August 4, 2020. Time was tolled until appellee responded on August 11, 2020 [7 days, creating try-by date of August 24, 2020]. {¶29} Appellee argues that its reciprocal discovery demand also tolled time. Appellee filed a reciprocal discovery demand on August 4, 2020, and appellant responded on August 27, 2020. In State v. Palmer , the Ohio Supreme Court held that “the failure of a criminal defendant to respond within a reasonable time to a p rosecution request for reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant to R.C. 2945.72(D).” 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E .2d 1011, paragraph one of syllabus. The Supreme Court held it was the role of the trial court to determine the date by which the defendant should have reasonably responded to a reciprocal discovery request based on the totality of the facts and circumstances of the case, including the time established for response by local rule, if applicable. Id. at ¶ 24. We find appellant responded to appellee’s discovery demand within a reasonable ti me and therefore conclude appellant’s discovery response does not affect the spe edy-trial clock. See,

State v. Mathias , 5th Dist. Morrow No. 2020CA0001, 2021-Ohio-423. {¶30} Appellant’s try-by date remained August 24, 2020. The iss ue posed by this case, however, is whether speedy-trial time is tolled by the tr ial court’s sua sponte continuances on August 4, 2020 and September 14, 2020, i.e. whe ther those areRichland County, Case No. 21CA3 8

“reasonable continuance[s] granted other than upon the accused' s own motion” pursuant to R.C. 2945.72(H). {¶31} “When sua sponte granting a continuance under R.C. 2945.7 2(H), the trial

court must enter the order of continuance and the reasons there for by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to

trial.” State v. Mincy , 2 Ohio St.3d 6, 441 N.E.2d 571 (1982). The Ohio Supreme Court provided guidance for the analysis of sua sponte continuances i n State v. Lee 48 Ohio St.2d 208, 209, 357 N.E.2d 1095 (1976): 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 b y the trial court will ordinarily not suffice, except when the reason ableness of the continuance cannot be seriously questioned. Although thi s burden is contrary to the presumption of regularity generally accorded to trial proceedings, it appears necessary to carry ou t the purpose of the speedy-trial statutes. {¶32} On August 4, 2020, prior to the expiration of the time li mit prescribed in R.C. 2945.71 for bringing appellant to trial, the trial court journa lized an entry setting forth its reasons for the first sua sponte continuance:

* * * *. In light of the worldwide pandemic known as COVID-19 (the coronavirus), the Ohio Governor’s recent restrictions on public gatherings, and the Center for Disease Control’s nationw ideRichland County, Case No. 21CA3 9

guidance, Attorney General Yost’s Opinion 2020-002 and the Supreme Court Entry of March 27, 2020 limiting the Court’s abil ity to preside over jury trials, it is not possible to set the trial i n this matter within 270 days. The Court has multiple jury trials on every av ailable trial date prior to the 270 date. The trials scheduled on those dates

consist of cases in which the defendants have been incarcerated , arraigned prior to this matter and those which have been set mu ltiple

times. Therefore, the Court finds that the earliest possible trial dat e is September 14, 2020 at 9:00 a.m., and that time is hereby tol led for speedy-trial purposes pursuant to O.R.C. 2945.72 and the Suprem e Court Entry of March 27, 2020. Judgment Entry, August 4, 2020. {¶33} The trial court’s schedule reflected the impact of the Co vid-19 pandemic. On March 27, 2020, the Ohio legislature tolled all statutory ti me limitations in criminal cases set to expire between March 9, 2020 and July 30, 2020. See 2020 Am. Sub. H.B. 197, Section 22(A)(3),(10),(B),(C) (tolling retroactive to Marc h 9, 2020, which shall last until the sooner of July 30, 2020 or the expiration of the decl aration of emergency in the Executive Order 2020-01D). The emergency declared by the govern or lasted longer than the longest end date in the act, thus the expiration date for t olling under the emergency act was July 30, 2020. The emergency act was enacted as “an eme rgency measure necessary for the immediate preservation of the public peace, h ealth, and safety” toRichland County, Case No. 21CA3 10

“respond to the declared pandemic and global health emergency r elated to COVID-19.”

Id. at Section 40. See also Ohio Constitution, Article II, Section 1d. {¶34} The Ohio Supreme Court has addressed the reasonableness o f continuing cases due to the pandemic: And as all Ohio judges have been advised, trial judges have the authority to continue trials for defendants on a case-by-ca se basis without violating speedy-trial requirements. The Ohio Att orney General has opined that courts may suspend jury trials to preve nt the spread of the coronavirus and they may do so consistent with st ate and federal speedy-trial obligat ions. 2020 O hio Atty. Gen. Ops. No. 2020-002. Specifically, R.C. 2945.72(H) provides that speedy-tr ial time may be extended by “the period of any reasonable continuan ce granted other than upon the accused's own motion”; continuing a trial because of a pandemic state of emergency is “reasonable.” In re Disqualification of Fleegle , 161 Ohio St.3d 1263, 2020- Ohio-5636, 163 N.E.3d 609. ¶ 7. {¶35} Appellant points out that both continuances occurred afte r the expiration of the tolling deadline of July 30, 2020. However, even after the tolling period ended, “trial judges have the authority to continue trials for defendants on a case-by-case basis without violating speedy-trial requirements * * * courts may su spend jury trials to prevent the spread of the coronavirus and they may do so consistent wit h state and federal speedy-trial obligations.” Morant , supra, 2021-Ohio-3160 at ¶ 27, citing Fleegle , supra,Richland County, Case No. 21CA3 11

161 Ohio St.3d 1263 at ¶ 7; 2020 Ohio Atty.Gen.Ops. No. 2020-00 2; Ohio Supreme Court

Coronavirus Resources. {¶36} On September 14, 2020, the date of the jury trial, the tr ial court journalized the following Order of Trial Continuance:

* * * *. The Court had multiple jury trials scheduled to begin on September 14, 2020, consisting of cases in which the defendants were arraigned prior to this matter, are or have been incarcera ted longer and/or those which have been set more times than the defendant’s case. Specifically, the case of State of Ohio v. Samuel Davis, Case No. 20 CR 48 and State of Ohio v. Edward Locke, Case

No. 20 CR 275 had priority over [appellant’s] case. However, in Mr. Locke’s case Assistant Prosecuting Attorney Olivia Boyer and defense counsel R. Joshua Brown, approached the Court at approximately 2:30 p.m. on Friday, September 11, 2020 asking fo r a pretrial wherein they requested a continuance of Mr. Locke’s ca se. Having found good cause shown, Mr. Locke’s case was continued. Furthermore in Defendant Davis’ case, Defendant’s Counsel James J. Mayer, III requested a pretrial the morning of September 11 th wherein he indicated that his client wished to enter a plea the afternoon of Friday, September 11, 2020. Defendant Davis’ admission hearing began at 3:30 p.m. on Friday, September 11, 2020 and did not conclude until 3:45 p.m.Richland County, Case No. 21CA3 12

Finally, [appellant] filed a Motion to Dismiss, by and through his counsel, Sean Boone on September 4, 2020 that due to the

Court’s crowded docket the Court was unable to schedule before Monday, September 14, 2020. Therefore, due to the lateness of the resolution of the cases with priority over [appellant’s] case and the pending Motion to Dismiss, the Court determined that as a matter of fairness and to best serve justice this case should be bumped. Finally, the Cou rt finds that time is hereby tolled for speedy-trial purposes purs uant to O.R.C. 2945.72 and the Supreme Court Entry of March 27, 2020 to the first available trial date will be issued under separate or der. ( sic)

* * * *. {¶37} A continuance based on a crowded docket may be a reasonab le continuance within the meaning of R.C. 2945.72(H). State v. Young , 5th Dist. Stark No. 2020CA00155, 2021-Ohio-1999, ¶ 19, citing State v. Lee, 48 Ohio St.2d 208, 210, 357 N.E.2d 1095 (1976); State v. Davis, 5th Dist. Richland No. 2019 CA 0112, 2020-Ohio3617, ¶ 28. {¶38} We find the trial court set forth detailed reasons for th e continuances due to its crowded docket and the unavailability of a courtroom based on the challenges facing the judicial system in coping with the ongoing global pandemic. Young , supra, 5th Dist. Stark No. 2020CA00155, 2021-Ohio-1999, ¶ 22; see also, State v. Jones , 8th Dist. Cuyahoga No. 110081, 2021-Ohio-3359, ¶¶ 11-12 [Ohio Attorney Ge neral opined courts may suspend jury trials to prevent spread of coronavirus consis tent with state and federalRichland County, Case No. 21CA3 13

speedy-trial obligations, and Ohio Supreme Court held trial jud ges have authority to continue trials on case-by-case basis without violating speedy- trial requirements; continuing trial because of pandemic state of emergency is reas onable under R.C. 2945.72(H)]; State v. Morant , 7th Dist. Belmont No. 20 BE 0020, 2021-Ohio-3160, ¶ 25 [sua sponte continuance reasonable under the circumstances of t he Covid-19 pandemic].

We find the record establishes the reasonableness of the contin uance. Id. {¶39} We find the judgment entries sufficiently detailed and th e length of the extensions to be facially reasonable after reviewing the facts in the record. We find that the continuances tolled the speedy trial time because the conti nuances were reasonable in both purpose and length. State v. Davis , 5th Dist. Richland No. 2019 CA 0112, 2020- Ohio-3617, ¶ 28, citing State v. Martin, 56 Ohio St.2d 289, 293, 384 N.E.2d 239 (1978),

internal citation omitted. {¶40} Appellant’s speedy-trial rights were not violated and his sole assignment of

error is overruled.Richland County, Case No. 21CA3 14

CONCLUSION {¶41} Appellant’s sole assignment of error is overruled and the judgment of the Richland County Court of Common Pleas is affirmed. By: Delaney, J., Wise, John, P.J. and Wise, Earle, J., concur.