[Cite as State v. Shaffer , 2022-Ohio-421.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 11-21-05

v. JEREMY E. SHAFFER, O P I N I O N
DEFENDANT-APPELLANT.

Appeal from Paulding County Common Pleas Court Trial Court No. CR-19-641 Judgment Affirmed Date of Decision: February 14, 2022

APPEARANCES: 

### Timothy C. Holtsberry for Appellant 

### Joseph R. Burkard for AppelleeCase No. 11-21-05

-2- ZIMMERMAN, P.J. {¶1} Defendant-appellant, Jeremy E. Shaffer (“Shaffer”), appeals the September 9, 2021 judgment entry of sentence of the Paulding Co unty Court of Common Pleas. For the reasons that follow, we affirm. {¶2} On December 12, 2019, the Paulding County Grand Jury indicted Shaffer on a single count of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony. 1 (Doc. No. 1). On December 20, 2019, Shaffer appeared for arraignment and entered a plea of not guilty. (Doc. No. 10). {¶3} On February 18, 2020, Shaffer filed a motion to suppress eviden ce, which the trial court denied on August 5, 2020. (Doc. Nos. 15, 25). {¶4} On March 22, 2021, the State filed a motion to join this case w ith another case involving Shaffer. (Doc. No. 44). The trial cour t granted the State’s motion on April 1, 2021 and joined the cases for trial. (Doc. No. 48). On April 23, 2021, Shaffer filed a motion to sever the indictments along wit h a motion to dismiss this case. (Doc. No. 49). On May 5, 2021, the State filed a m emorandum in opposition to Shaffer’s motions to sever and dismiss. (Doc. No . 50). On May 11, 2021, Shaffer filed his reply to the State’s memorandum in oppo sition to his motions to sever and dismiss. (Doc. No. 51). The trial court denied S haffer’s motions on May 25, 2021. (Doc. No. 52).

1 On July 14, 2020, the indictme nt was amended to correct a typo graphical error. (Doc. Nos. 23, 24).Case No. 11-21-05

-3- {¶5} On July 28, 2021, Shaffer filed a motion to dismiss the indictm ent alleging a violation of his speedy-trial rights, which the tria l court denied. (Doc. Nos. 64, 66). {¶6} The case proceeded to a jury trial on August 3-4, 2021. (Doc. No. 68). On August 4, 2021, the jury found Shaffer not guilty of felonio us assault but guilty of the lesser included offense of assault. 2 (Doc. Nos. 68, 69). {¶7} On September 8, 2021, the trial court sentenced Shaffer to two years of community-control sanctions, including 180 days in jail, with 9 0 days suspended conditioned on his compliance with his community-control sancti ons. . 3 (Doc. No. 71). {¶8} Shaffer filed his notice of appeal on October 5, 2021 and raise s one assignment of error. Assignment of Error Trial Court Violated the Constitutional and Statutory Speedy Trial Rights of the Appellant. {¶9} In his sole assignment of error, Shaffer argues that the trial court erred by denying his motion to dismiss the indictment alleging that h is speedy-trial rights were violated.

2 The jury found Shaffer not guilty of the charge in the other c ase joined for trial with this case. (Doc. Nos. 68, 69). 3 The trial court filed its judgment entry of sentence on Septem ber 9, 2021. (Doc. No. 71).Case No. 11-21-05

-4- Standard of Review {¶10} “Appellate review of a trial court’s decision on a motion to di smiss for a speedy-trial violation involves a mixed question of law and f act.” State v. Westerfield , 3d Dist. Crawford No. 3-17-15, 2018-Ohio-2139, ¶ 17, citing State v.
James , 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, ¶ 23. “‘Accordi ngly, a reviewing court must give due deference to the trial court’s fi ndings of fact if they are supported by competent, credible evidence but will independ ently review whether the trial court correctly applied the law to the facts of the case.’” State v. Gartrell , 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 104, quoting State v.
Hansen , 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 20, citing State v.
Masters , 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 11 (3d Dist.). See also Westerfield at ¶ 17. Analysis {¶11} “An accused is guaranteed the constitutional right to a speedy trial pursuant to the Sixth and Fourteenth Amendments of the United S tates Constitution and Ohio Constitution, Article I, Section 10.” State v. Ferguson , 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 12, citing State v. Taylor , 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32. “Ohio’s speedy trial statutes, found in R.C. 2945.71 et seq., were implemented to enforce those constitutional guarantees.” Id. , citing
Brecksville v. Cook , 75 Ohio St.3d 53, 55 (1996) and State v. Blackburn, 118 OhioCase No. 11-21-05

-5- St.3d 163, 2008-Ohio-1823, ¶ 10. “The proper standard of revie w in speedy trial cases is to simply count the number of days passed, while deter mining to which party the time is chargeable, as directed in R.C. 2945.71 and 2 945.72.” Id. , citing
State v. Jackson , 10th Dist. No. 02AP-468, 2003-Ohio-1653, ¶ 32, citing State v.
DePue , 96 Ohio App.3d 513, 516 (4th Dist.1994). {¶12} “R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy trial based on the level of offense.” State v. Matland , 7th Dist. Mahoning No. 09-MA-115, 2010-Ohio-6585, ¶ 19. “[A] person against whom a charge of felony is pending shall be brought to trial within two hundred seventy days after his arrest.” R.C. 2945.71(C)(2). “The date of the arrest is not i ncluded for the purpose of calculating time under the statutes for a speedy trial.” State v. Taylor , 3d Dist. Allen No. 1-13-46, 2014-Ohio-1793, ¶ 27, citing State v. Huston , 3d Dist. Wyandot Nos. 16-05-23 and 16-05-24, 2006-Ohio-6857, ¶ 7. “However, eac h day the defendant spends in jail solely on the pending criminal charge counts as three days.”
Matland at ¶ 19, citing R.C. 2945.71(E). {¶13} “R.C. 2945.72 allows for an extension of the time that the accu sed must be brought to trial under certain circumstances.” Taylor at ¶ 28. Excluded from the speedy trial calculation is “[a]ny period of delay nec essitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused.” R.C. 2945.72(E). This includes a motion by the defe ndant for discoveryCase No. 11-21-05

-6- or for a bill of particulars, which tolls the speedy-trial cloc k as long as the State responds to the motion within a reasonable amount of time. Gartrell , 2014-Ohio5203, at ¶ 107. See also State v. Brown , 98 Ohio St.3d 121, 2002-Ohio-7040, ¶ 26. “In addition, ‘[a]s long as the trial court’s disposition occur s within a reasonable time, a defendant’s motion to suppress tolls the speedy trial c lock from the time the defendant files the motion until the trial court disposes of th e motion.’” Id. , quoting
State v. Curtis , 3d Dist. Marion No. 9-02-11, 2002-Ohio-5409, ¶ 12. {¶14} Also excluded from the speedy-trial calculation is “[t]he perio d 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.” R.C. 2945.72(H). “‘[I]t is well-established that a defense motion to continue tr ial tolls the speedy trial clock until the rescheduled trial date.’” Gartrell at ¶ 108, quoting State v. Caulton , 7th Dist. Mahoning No. 09 MA 140, 2011-Ohio-6636, ¶ 33, citing R.C. 2945.72(H) and State v. Brown , 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 41, and citing State v. Quinnie , 10th Dist. Franklin No. 12AP-484, 2013-Ohio-1208, ¶ 8. “However, an accused’s motion to continue a trial does not ‘“un conditionally extend the time limit in which an accused must be brought to trial * * * .”’” Id. , quoting
State v. Johnson , 3d Dist. Marion No. 9-10-47, 2011-Ohio-994, ¶ 22, quoting State v. Arrizola , 79 Ohio App.3d 72, 75 (3d Dist.1992). “Rather, the speedy-tr ial timeCase No. 11-21-05

-7- limit ‘is “merely extended by the time necessary in light of th e reason for delay.”’”
Id. , quoiting Arrizola at 75, quoting Committee Comment to H.B. 511. {¶15} “‘Sua sponte continuances are continuances “granted other than on the accused’s own motion”’ and toll the speedy-trial time as long a s the record reflects ‘that the period of the continuance was “reasonable.”’” Id. at ¶ 109, quoting State
v. Kesler , 3d Dist. Seneca No. 13-13-15, 2014-Ohio-3376, ¶ 5, quoting State v. Ramey , 2d Dist. Clark No. 2010 CA 19, 2012-Ohio-6187, ¶ 12. “‘The reasonableness of the delay is determined based upon the specif ic facts and circumstances of each case.’” Id. , quoting Kesler at ¶ 5, citing State v. Daugherty , 110 Ohio App.3d 103, 104 (3d Dist.1996). {¶16} “If the State fails to meet the statutory time limits, then the trial court must discharge the defendant.” Matland , 2010-Ohio-6585, at ¶ 19, citing R.C. 2945.73. “The Supreme Court of Ohio has ‘imposed upon the pros ecution and the trial courts the mandatory duty of complying’ with the speedy-t rial statutes.” Id. , quoting State v. Singer , 50 Ohio St.2d 103, 105 (1977). Consequently, “the speedytrial provisions are strictly construed against the State.” Id. , citing Brecksville v.
Cook , 75 Ohio St.3d 53, 57 (1996) and Singer at 105. {¶17} In this case, (because the record is unclear) the speedy-trial clock began to run sometime between November 23, 2019 and November 26 , 2019. ( See Doc. No. 4). That is, the record does not reflect the date on which Shaffer wasCase No. 11-21-05

-8- arrested; rather, the record reflects that a warrant for Shaffe r’s arrest was issued on November 22, 2019 and that Shaffer appeared in the Paulding Cou nty Court on November 25, 2019. ( Id. ). Resolving the ambiguity in Shaffer’s favor, we will assume that the speedy-trial clock began to run on the day afte r the arrest warrant was issued in this case. {¶18} Therefore, assuming that the speedy-trial clock began to run on November 23, 2019, and his trial commenced on August 3, 2021, w e look to whether the speedy-trial period was tolled by at least 349 days. Here, speedy-trial time ran for 13 days before it was tolled as a result of Shaffer’s Decem ber 6, 2019 motion to continue the preliminary hearing. ( Id. ). However, before the preliminary hearing could be conducted, Shaffer was indicted by the Paulding County Grand Jury on December 12, 2019. Shaffer was served on December 13, 2019 and he appeared for arraignment on December 20, 2019. Even if we consider the speedy-trial clock to have restarted on the day after the earlier of those two dat es, the State brought Shaffer to trial within the time limits set forth under R.C. 29 45.71. See State v. Kist , 173 Ohio App.3d 158, 2007-Ohio-4773, ¶ 24; State v. Michailides , 8th Dist. Cuyahoga No. 105966, 2018-Ohio-2399, ¶ 27; R.C. 2945.71(C)(2). {¶19} Nevertheless, Shaffer does not dispute that his various motions tolled the speedy-trial time for the 24-day period from December 20, 2 019 to January 13, 2020. Thereafter, the speedy-trial time ran for 36 days from J anuary 13, 2020 toCase No. 11-21-05

-9- February 18, 2020, on which day Shaffer filed a motion to suppr ess. Shaffer’s motion to suppress tolled the speedy trial time for the 169-day period from February 18, 2020 to August 5, 2020, on which day the trial court denied Shaffer’s motion to
suppress. 4 Furthermore, even though the speedy-trial time was tolled unt il August 5, 2020, the parties agreed on February 21, 2020 to continue th e April 14, 2020 trial until “a later time.” (Doc. No. 16). See State v. Christian , 7th Dist. Mahoning No. 12 MA 164, 2014-Ohio-2590, ¶ 13 (“Joint motions for continuance toll a defendant’s speedy trial time because they can be attributed to both parties.”). {¶20} After the trial court denied Shaffer’s motion to suppress, the speedytrial clock ran for 60 days from August 5, 2020 to October 4, 2 020, on which day Shaffer was arrested for violating the conditions of his recogn izance bond. ( See Doc. No. 33). Assuming without deciding that the triple-count provision provided under R.C. 2945.71(E) applies here, we will apply the triple-co unt provision to the day that Shaffer was (presumably) held in jail until the bond h earing on October 5, 2020 (a total of 3 days). See State v. Franz , 3d Dist. Logan No. 8-96-1, 1996 WL 310038, *4-6 (June 4, 1996). {¶21} Nevertheless, when the speedy-trial clock resumed its typical calculation on October 6, 2020, the State suggests that it ran for 14 days to October

4 The trial court sua sponte continued the April 14, 2020 suppre ssion hearing until June 10, 2020 due to concerns from the Covid-19 pandemic. (Doc. No. 17). The trial court again sua sponte continued the suppression hearing until July 6, 2020 without providing a reas on. (Doc. No. 18). See In re Disqualification of Fleegle , 161 Ohio St.3d 1263, 2020-Ohio-5636, ¶ 7.Case No. 11-21-05

-10- 20, 2020, when it moved on September 24, 2020 for a continuance . “Continuances granted on the State’s motion will toll the running of speedy t rial time if the continuance is reasonable and necessary under the circumstances of the case.” State v. Williamson , 5th Dist. Licking No. 2005 CA 00046, 2005-Ohio-6198. ¶ 32, ci ting State v. Saffell , 35 Ohio St.3d 90, 91 (1988). “The reasonableness of a contin uance is determined by examining the purpose and length of the contin uance as specified in the record.” State v. Hayman , 3d Dist. Seneca No. 13-09-22, 2010-Ohio-1264, ¶ 22. Here, the State asserted that a continuance was necessary because another case in which the defendant was “incarcerated at the Paulding County Jail” “must take priority over this case.” (Doc. No. 30). The trial court gran ted the State’s motion and continued trial until December 1, 2020. Acco rdingly, the S tate alleges that the time between October 20, 2020 and the new trial date, December 1, 2020, was tolled for speedy-trial purposes. However, even if we assume without deciding that the State’s continuance request did not toll the speedy-trial time, Shaffer was still brought to trial within the time limits set forth in R.C. 2945. 71. See State v. Knight , 2d Dist. Greene No. 03-CA-014, 2005-Ohio-3179, ¶ 31. {¶22} Therefore, proceeding under that assumption, the speedy-trial c lock ran for 37 days to from October 6, 2020 to November 12, 2020, o n which day the trial court sua sponte continued trial date until April 6, 2021 due to concerns from the Covid-19 pandemic. The parties do not dispute that the tri al court’s sua sponteCase No. 11-21-05

-11- continuance tolled the speedy-trial time for 145 days. See In re Disqualification of Fleegle , 161 Ohio St.3d 1263, 2020-Ohio-5636, ¶ 7. Furthermore, even if the speedy-trial time had not been tolled as a result of the trial court’s sua sponte continuance, Shaffer’s motions to continue trial independently tolled the speedytrial time an additional 77 days until June 22, 2021—the new tr ial date set by the trial court. Accord Gartrell , 2014-Ohio-5203, at ¶ 112. {¶23} Thereafter, the trial court sua sponte (filed on July 8, 2021) continued trial until August 3, 2021 “due to illness of counsel.” (Doc. No. 56). It is reasonable for this court to conclude that the speedy-trial time was tolle d by the trial court’s sua sponte continuance until August 3, 2021—the new trial date set by the trial

court. See State v. Camp , 5th Dist. Licking No. 93-CA-11, 1993 WL 364955, *1 (Aug. 18, 1993) (“The trial court’s order of continuance was en tered prior to the expiration of the speedy trial time limit and was necessitated by the prosecutor’s illness.”); S. Euclid v. Schutt , 8th Dist. Cuyahoga No. 108510, 2020-Ohio-3661, ¶
26-28. See also State v. Madden , 10th Dist. Franklin No. 04AP-1228, 2005-Ohio4281, ¶ 46. Nevertheless, even if we conclude that the trial c ourt’s sua sponte continuance was unreasonable since under the circumstances (whi ch we do not), Shaffer was nevertheless brought to trial within the time limit s under R.C. 2945.71. {¶24} That is, even assuming (without deciding) that the trial court’ s continuance was unreasonable, the speedy-trial clock ran for 34 days from June 22,Case No. 11-21-05

-12- 2021 to July 26, 2021, on which day Shaffer was arrested for vi olating the conditions of his recognizance bond. ( See Doc. No. 62). Again, assuming without deciding that the triple-count provision provided under R.C. 2945.71(E) applies here, we will apply the triple-count provision to the day that Shaffer (presu mably) was held in jail until the bond hearing on July 27, 2021 (a total of 3 days). T he speedy-trial clock resumed for 1 day until it was again tolled as a result of July 28, 2021 Shaffer’s motion to dismiss. Shaffer’s motion to dismiss tolled the spee dy-trial time for the 6-day period from July 28, 2021 to August 3, 2021, on which day the trial court denied Shaffer’s motion to dismiss. {¶25} The total number of days during which the speedy-trial time was tolled between Shaffer’s (assumed) November 23, 2019 arrest and August 3, 2021 is 421 days, well over the 349 days needed to avoid a speedy-trial vio lation. Accord
Gartrell , 2014-Ohio-5203, at ¶ 115. Consequently, Shaffer’s speedy-tri al rights were not violated. {¶26} Shaffer’s assignment of error is overruled. {¶27} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed MILLER and WILLAMOWSKI, J.J., concur. /jlr