[Cite as State v. McDonald, 2023-Ohio-197.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, CITY OF : JUDGES:

ZANESVILLE : Hon. Earle E. Wise, Jr., P.J.

: Hon. W. Scott Gwin, J.

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J.

:

-vs- :

:

CHASE MCDONALD : Case No. CT2022-0014

:

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, 

Case No. 21TRC00628

JUDGMENT: Reversed and Vacated

DATE OF JUDGMENT: January 24, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID J. TARBERT BRIAN W. BENBOW

EMILY STRANG TARBERT 265 Sunrise Center Drive

401 Market Street Zanesville, OH 43701

Suite 209

Zanesville, OH 43701
Muskingum County, Case No. CT2022-0014 2

Wise, Earle, P.J.

{¶ 1} Defendant-Appellant Chase McDonald appeals the decisions of the 

Zanesville Municipal Court denying his motion to dismiss on speedy trial grounds and his 

motion to suppress. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} This matter arose from a traffic stop conducted by Zanesville Police 

Department Patrolman Cody Dent on Friday April 2, 2021. At approximately 11:59 p.m.

that day, Dent observed Appellant traveling on Maple Avenue, driving off the right side of 

the roadway and onto the sidewalk. Thereafter, Dent observed Appellant traveling left of 

center on two occasions. On one occasion a vehicle traveling in the opposite direction 

was forced to brake heavily to avoid colliding with Appellant's vehicle. After making these 

observations, Dent activated the overhead lights on his cruiser and initiated a traffic stop.

{¶ 3} Patrolman Dent approached Appellant's vehicle and found Appellant was 

traveling alone. He additionally observed an empty alcoholic beverage can on the 

passenger side floorboard of the car. Appellant originally stated he was going to his aunt's 

house, but later stated he was going somewhere else. Dent noted Appellant's pupils were 

dilatated, his speech was slurred, and his movements and demeanor were lethargic. 

Appellant admitted to consuming alcohol several hours earlier. When asked for his 

driver's license Appellant first removed cash from his wallet, replaced it, then extracted 

his driver's license. 

{¶ 4} When Patrolman Dent asked for Appellant's insurance and registration

Appellant requested permission to exit his vehicle to retrieve the documents from the 

passenger side glovebox. Dent permitted Appellant to do so and noted Appellant had 
Muskingum County, Case No. CT2022-0014 3

difficulty with balance, at one point stumbling on the sidewalk. Dent asked Appellant to 

perform field sobriety testing and breath or blood testing, but Appellant refused. He also 

initially refused to get into Patrolman Dent's cruiser after being placed under arrest. 

Appellant was subsequently charged with operating a vehicle under the influence of 

alcohol or drugs and resisting arrest by complaint filed in the Zanesville Municipal court 

on April 5, 2021.

{¶ 5} On June 11, 2021 Appellant filed a motion to suppress. A hearing was 

originally scheduled for August 10, 2021 but then continued at the request of the state to 

September 9, 2021 and then again to September 30, 2021. The hearing was not held 

until October 26, 2021. On December 9, 2021, the trial court denied Appellant's motion to 

suppress.

{¶ 6} On January 13, 2022, Appellant filed a motion to dismiss on speedy trial 

grounds. On January 31, 2022, the trial court denied the motion.

{¶ 7} On February 2, 2022, following discussions with the state, Appellant pled 

no contest to operating under the influence and the state dismissed the charge of resisting 

arrest. The trial court ordered Appellant to pay a fine and costs, serve 30 days local 

incarceration with 27 days suspended, and a one-year license suspension. 

{¶ 8} Appellant filed a motion to stay sentence pending appeal and the trial court 

granted the same.

{¶ 9} Appellant timely filed an appeal and the matter is now before this court for 

consideration. He raises two assignments of error as follow:

I
Muskingum County, Case No. CT2022-0014 4

{¶ 10} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING 

TO DISMISS THE CHARGES AGAINST DEFENDANT/APPELLANT FOR FAILING TO 

FOLLOW THE STATUTORY SPEEDY TRIAL TIME CONSTRAINTS AND FOR FAILING 

TO AFFORD DUE PROCESS UNDER THE OHIO AND UNITED STATES 

CONSTITUTIONS. THE TRIAL COURT ACCORDINGLY ERRED AS A MATTER OF 

LAW BY DENYING APPELLANT’S MOTION TO DISMISS AS THE STATE FAILED TO 

PROSECUTE THIS CASE WITHIN THE SPEEDY TRIAL TIME LIMITS MANDATED BY 

R.C. §2945.71 ET SEQ."

II

{¶ 11} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING 

APPELLANT’S MOTION TO SUPPRESS."

Initial Matters

{¶ 12} We first address the city's argument that Appellant waived his right to appeal

in his negotiated plea agreement.

{¶ 13} A plea agreement is contractual in nature and subject to contract law 

standards. State v. Butts, 112 Ohio App.3d 683, 685-686, 679 N.E.2d 1170 (1996). The 

elements of a contract include the following: an offer, an acceptance, contractual capacity, 

consideration (the bargained-for legal benefit or detriment), a manifestation of mutual 

assent, and legality of object and of consideration. Kostelnik v. Helper, 96 Ohio St.3d 1, 

2002-Ohio-2985, 770 N.E.2d 58, ¶ 16. A party asserting a contract must prove by a 

preponderance of the evidence the existence of the elements of the contract. Cooper & 

Pachell v. Haslage, 142 Ohio App.3d 704, 707, 756 N.E.2d 1248 (2001).
Muskingum County, Case No. CT2022-0014 5

{¶ 14} The intent of the parties to a contract presumptively resides in the ordinary 

meaning of the language employed in the agreement. Kelly v. Med. Life Ins. Co., 31 Ohio 

St.3d 130, 509 N.E.2d 411 (1987). Contractual language giving rise to doubt or ambiguity 

must be interpreted against the party who used it. Graham v. Drydock Coal Co., 76 Ohio 

St.3d 311, 667 N.E.2d 949 (1996).

{¶ 15} Crim.R. 11(F) provides: 

Negotiated Plea Cases. When a negotiated plea of guilty or no 

contest to one or more offenses charged or to one or more other or 

lesser offenses is offered, the underlying agreement upon which the 

plea is based shall be stated on the record in open court. To the 

extent required by Article I, Section 10a of the Ohio Constitution or 

by the Revised Code, before accepting the plea, the trial court shall 

allow an alleged victim of the crime to raise any objection to the terms 

of the plea agreement.

{¶ 16} In support of its argument, the city points to the boilerplate-language plea 

waiver form which outlines the rights Appellant gave up by entering a plea of no contest. 

Among those rights was listed "My right to appeal the decision in this case." Docket at 15. 

The plea waiver form also states "no person has promised me any reward or leniency for 

entering this plea * * *" Id. The document is signed by both Appellant and his counsel.

{¶ 17} During the plea hearing, the following exchange took place:
Muskingum County, Case No. CT2022-0014 6

The Court: * * * I know there's been a number of plea negotiations in 

this case. Can you bring me up to speed on what those are at this 

point?

[The City] Yes. The City moved to dismiss the resisting arrest charge, 

plead to the OVI; going to recommend 30 days; 27 suspended with 

the option for a driver's intervention program. Today $75, plus cost, 

a one-year license suspension, and then, plus $50 cost on the 

marked lanes and driving on the lawn charges.

The Court: On each?

[The City]: Yes.

The Court: All right. [Counsel for Appellant], is that your 

understanding of the plea negotiations?

[Counsel for Appellant]: It is. Thank you.

The Court: I'm looking at the last plea offer. There was an 

amendment. Is that not happening?

[Unknown Speaker]: No.

The Court: Okay. All Right. [Appellant], it's my understanding that 

upon a change of plea to operating a vehicle under the influence * * 

* a misdemeanor of the first degree, * * *, that the jointly 

recommended sentence is 30 days in jail; 27 would be suspended 

on the condition of no repeat offenses of a similar nature in the next 

two years; a $375 fine, plus costs, and a one-year drivers license 

suspension dated from the date of your arrest.
Muskingum County, Case No. CT2022-0014 7

On Count B, for your plea for a marked lanes violation, a minor 

misdemeanor, and on Count C to your plea of driving on a lawn, a 

minor misdemeanor, each of those punishable – or a recommended 

sentence of a $50 fine. Is that our understanding of the plea 

negotiations [Appellant]?

[Appellant]: Yes.

The Court: Has there been anything else threatened or promised to 

you to make you want to change your plea here today?

[Appellant]: No.

The Court: And upon your plea to these charges, the charge of 

resisting arrest * * * would be dismissed.

You understand that those plea negotiations were had between your 

attorney and the law director's office. They are recommendations to 

me at the time of sentencing, which ultimately, I'm not required to 

follow. Do you understand that?

[Appellant]: Yes, sir.

{¶ 18} Transcript of plea, February 22, 2022, 3-5.

{¶ 19} The trial court then accepted Appellant's pleas of no contest, and sentenced 

Appellant as jointly recommended by the parties.

{¶ 20} The signed plea waiver does not accurately reflect what happened on the 

record. First, the record reflects that the bargain struck by the parties was for Appellant 

to plead to the most serious offense in exchange for the city dismissing one of the lesser 
Muskingum County, Case No. CT2022-0014 8

offenses. Contrary to the language of the plea waiver form, Appellant therefore did receive 

a "reward or leniency" in exchange for his plea. We further note that while the signed plea 

waiver form indicates Appellant would give up his right to appeal, no mention of the same 

is made by the city when asked to set forth the agreement on the record in compliance 

with Crim.R. 11(F).

{¶ 21} We find the state of the plea agreement was that which was placed on the 

record by the city during the plea hearing. Because there was no mention of Appellant 

waiving his right to appeal, we reject the city's argument that he did waive his right to 

appeal.

I

{¶ 22} In his first assignment of error, Appellant argues the trial court erred in 

denying his motion to dismiss on speedy trial grounds. Based on the state of the record 

in this matter, we agree. 

Applicable Law

{¶ 23} Speedy-trial provisions are mandatory and are encompassed within the 

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a 

person accused of a crime is a fundamental right made obligatory 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 trial of an accused charged with 

the commission of a felony or a misdemeanor and shall be strictly enforced by the courts 

of this state." State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589, syllabus (1980).
Muskingum County, Case No. CT2022-0014 9

{¶ 24} A speedy-trial claim involves a mixed question of law and fact. State v. 

Hickinbotham, 5th Dist. Stark No. 2018CA000142, 2019-Ohio-2978, ¶ 26. As an appellate 

court, we must accept as true any facts found by the trial court and supported by 

competent, credible evidence. Id. 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.

{¶ 25} In this matter the highest degree of offense charged is a misdemeanor of 

the first degree. When the highest degree of offense is a first or second-degree 

misdemeanor, R.C. 2945.71(B)(2) directs the offender must be brought to trial "[w]ithin 

ninety days after the person's arrest or the service of summons, if the offense charged is 

a misdemeanor of the first or second degree, or other misdemeanor for which the 

maximum penalty is imprisonment for more than sixty days."

{¶ 26} The statutory speedy-trial period begins to run on the date the defendant is 

arrested, although the date of arrest is not counted when calculating speedy-trial time. 

State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶44, citing State v. 

Tatum, 3d Dist. Seneca No. 13-10-18, 2011-Ohio-3005. Once the statutory time limit has 

expired, the defendant has established a prima facie case for dismissal. State v. Butcher, 

27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). The burden then shifts to the state to 

demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. Brecksville v. Cook, 

75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). If the state has violated a defendant's 

right to a speedy trial, then the court must dismiss the charges against the defendant. 

R.C. 2945.72(B).
Muskingum County, Case No. CT2022-0014 10

{¶ 27} Speedy trial time is tolled by those events listed in R.C. 2945.72. These 

events include "[a]ny period of delay necessitated by reason of a * * * motion * * * made 

or instituted by the accused," under R.C. 2945.72(E), or during "[t]he 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," under R.C. 2945.72(H).

{¶ 28} When reviewing a speedy trial question, an appellate court must count the 

number of delays chargeable to each appellant and appellee. Next, the appellate court 

must determine whether the number of days not tolled exceeded the time limits under 

R.C. 2945.71. State v. Ferrell, 8th Dist. Cuyahoga No. 93003, 2010-Ohio-2882, ¶20. 

When reviewing legal issues presented in a speedy trial claim, we must strictly construe 

the relevant statutes against the state. 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, 

¶12.

Speedy Trial Principles as Applied to the Instant Matter

{¶ 29} The parties agree that the state had 90 days in which to bring Appellant to 

trial. While the parties and the trial court appear to begin their speedy calculations on April 

5, 2021, the statutory speedy trial period begins to run on the date the defendant is 

arrested, although the date of arrest is not counted when calculating speedy trial time. In 

this matter April 3, 2021 is the day after Appellant's arrest.

{¶ 30} On April 16, 2021, counsel for Appellant filed a notice of appearance, a 

demand for discovery, and a request for a pretrial for Friday May 14, 2021. Neither the 

record nor the docket contains any indication the City responded to Appellant's request 

for discovery, or that the pretrial took place on the requested date.
Muskingum County, Case No. CT2022-0014 11

{¶ 31} On June 11, 2021, counsel for Appellant filed a motion to suppress. The 

docket indicates a hearing was set for August 5, 2021.

{¶ 32} On July 28, 2021, the docket indicates the August 5, 2021 suppression 

hearing was cancelled and continued to August 10, 2021. There is no judgment entry 

reflecting this continuance contained in the record, nor who the continuance was charged 

to. 

{¶ 33} On August 6, 2021, the docket indicates the August 10, 2021 suppression 

hearing was cancelled and continued to September 9, 2021. Again, there is no judgment 

entry reflecting this continuance contained in the record, nor who the continuance was 

charged to. At this point, more than 90 days had elapsed and Appellant established a 

prima facie case for dismissal.

{¶ 34} On August 31, 2021, counsel for Appellant filed a motion to continue the 

suppression hearing. The trial court granted the motion the same day and continued the 

hearing to September 9, 2021.

{¶ 35} On September 7, 2021 the trial court issued a judgment entry indicating the 

suppression hearing was continued to September 30, 2021 at the request of Appellant.

{¶ 36} According to the transcript of the suppression hearing, the hearing took 

place on October 26, 2021. However, there is no indication in the record or on the docket 

as to any request for a continuance from the September 30, 2021 date, or which party 

requested the continuance.

{¶ 37} On December 9, 2021, the trial court denied Appellant's motion to suppress. 

On the same day, Appellant, represented by new counsel, filed a motion for discovery
Muskingum County, Case No. CT2022-0014 12

and a motion for specific discovery. Again, there is no indication in the record to indicate 

the state ever responded with Appellant's request for discovery. 

{¶ 38} On January 13, 2022, counsel for Appellant filed a motion to dismiss on 

speedy trial grounds. 

{¶ 39} As noted above, when reviewing legal issues presented in a speedy trial 

claim, we must strictly construe the relevant statutes against the state. 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, ¶12. Further, while we must accept as true any facts 

found by the trial court, those facts must be supported by competent credible evidence.

State v. Hickinbotham, 5th Dist. Stark No. 2018CA000142, 2019-Ohio-2978, ¶ 26.

{¶ 40} On the face of the record, speedy trial time had expired before Appellant's 

suppression hearing was ever heard. And as the foregoing demonstrates, the record is 

missing information important to determine otherwise. This includes the lack of any 

response by the state to Appellant's two requests for discovery and any judgment entry 

stating which party requested the July, 28, 2021, August 6, 2021, and October 2021 

continuances. While the parties briefs and the judgments appealed from provide some 

clues pertaining to the missing documents, there are no judgment entries or discovery 

receipts in the record to support those alleged facts. It is the state's burden to demonstrate 

Appellant was timely brought to trial. The state cannot do so based on the record before 

this court.

{¶ 41} Appellant's first assignment of error is sustained. 

II
Muskingum County, Case No. CT2022-0014 13

{¶ 42} Given our resolution of Appellant's first assignment of error, his second 

assignment of error is moot.

{¶ 43} The judgment of the Zanesville Municipal Court is reversed and Appellant's 

convictions are vacated.

By Wise, Earle, P.J.

Gwin, J. and

Baldwin, J. concur.

EEW/rw