[Cite as State v. Smith , 2020-Ohio-2921.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. JOHN HARRISON SMITH Appellant C.A. No. 29498

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 18-06-2035

DECISION AND JOURNAL ENTRY Dated: May 13, 2020

CARR, Presiding Judge. {¶1} Defendant-Appellant John Smith app eals from the judgment of the Summit County

Court of Common Pleas. This Cour t affirms, but remands the mat ter for the issuance of a nunc pro tunc entry to correct t he sentencing entry.

I. {¶2} On February 13, 2018, shots were fired into a car in which the victim was a passenger. One of those shots hit the victim and proved fatal. Both Smith and Tyler Morgan were ultimately charged in relation to the events. As Smith was 16 years old at the time, proceedings began in juvenile court. On June 21, 2018, the juvenile court filed an entry transferring the matter to the court of common p leas pursuant to R.C. 2152.10. {¶3} An indictment was filed August 14, 2018, charging Smith with th ree counts of murder, one count of aggravated robbery, and four counts of fel onious assault. Firearm2

specifications accompanied each of the charges. On August 27, 2018, an order consolidating Smith’s and Morgan’s cases was entered. {¶4} At the October 2, 2018 status conference, trial was set for Dec ember 10, 2018. On November 30, 2018, the State file d a motion to continue the tri al due to “a conflict in scheduling for the lead detective in th[e] case.” The lead detective was “scheduled to be out-of-state during the week of trial for required training.” On December 5, 2018, the trial court issued an order granting the State’s motion, noting that Smith’s counsel had no t objected. The trial court found the continuance to be reasonable in light of the necessity of t he lead detective’s testimony and

vacated the trial date due to the lead detective’s unavailabili ty. The trial court indicated that the

trial would be reset for the e arliest available date and that a status conference would be held December 10, 2018. {¶5} At the December 10, 2018 status c onference, the State indicated that the lead detective was in mandatory, out -of-state training all week and would be on vacation the following week. The State pointed out tha t, under the circumstances, the re were certain matters to which only the lead detective could testify. The State then noted th at “the next available date that works for everyone’s calendar is February 4th. We did suggest some d ates earlier than that; however, with counsels’ schedule, unders tandably so, we just couldn’t ge t it in any sooner than that.” {¶6} Smith’s counsel then noted his objection to the State’s motion for a continuance and asserted that the trial court granted the motion before his time to respond expired. Smith’s counsel questioned whether the lead detective knew about the tr aining when the trial date was set and also whether the training c ould be done at some other time. The trial court expressed its frustration with having to conti nue the trial but also indicate d that it found the lead detective to be a professional and was sure th at he would have been there if he could have been.3

{¶7} On December 12, 2018, the trial court issued an entry indicatin g that the trial was continued until February 4, 2019, over Smith’s objection, due t o witness unavailability. {¶8} On February 2, 2019, Smith filed a motion to dismiss based upon an alleged violation of his statutory and constitutional right to a speedy trial. The State opposed the motion. On February 4, 2019, Smith entered a no contest plea to one cou nt of murder (count two). The written plea agreement indicated that Smith preserved challenge s related to speedy trial for appeal. The remaining charges and specifications were dismissed. {¶9} On June 28, 2019, the trial court denied Smith’s motion to dism iss. On July 10, 2019, Smith was sentenced to 15 years to life in prison. On Ju ly 17, 2019, the trial court issued a nunc pro tunc entry reflecting corrections to some of the charg es. It issued a second nunc pro tunc entry July 25, 2019, indicating that Smith pleaded no contest a s opposed to guilty. {¶10} Smith has appealed, raising a sin gle assignment of error for ou r review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN REFUSING TO DISMISS THIS MATTER BASED UPON THE FAILURE TO BRING THE CASE TO TRIAL WITHIN THE TIME PERIOD PRESCRIBED BY R.C. []2945.71. {¶11} Smith argues in his assignment of error that the trial court er red in failing to dismiss his case based upon a violation of his statutory right to a spe edy trial. Preliminary Issue {¶12} Prior to addressing the merits of Smith’s appeal, we note that the State has pointed out that the trial court’s judgment entry appears to still cont ain a clerical error. The plea hearing transcript and entry reflecting the plea provide that Smith ple aded no contest to count two; however, the judgment of convic tion reflects that Smith pleaded no contest to, and was found4

guilty of, count one. In add ition, upon review, this Court obs erves that the entry still includes a reference to a guilty plea: “The Court then accepted Defendant ’s guilty plea and convicted Defendant of the charged offense to which Defendant pleaded no contest.” (Emphasis added.) Upon remand, the trial court can remedy these issues via a nunc pro tunc entry. See State v. IbnFord , 9th Dist. Summit No. 27380, 2015-Ohio-753, ¶ 8. Speedy Trial {¶13} “When a trial court denies a mo tion to dismiss on speedy trial grounds, this Court reviews questions of law de novo, but considers whether the tri al court’s factual determinations are clearly erroneous.” (Intern al quotations and citations omi tted.) State v. Gall , 9th Dist. Lorain No. 18CA011445, 2019-Ohio-4907, ¶ 5. “The Supreme Court of Ohi o has found that the statutory speedy trial provisions set forth in R.C. 2945.71 are coextensi ve with Ohio and federal constitutional speedy trial provisions.” State v. Purefoy , 9th Dist. Summit No. 27992, 2017-Ohio79 ¶ 8, quoting State v. Gaines , 9th Dist. Lorain No. 00CA008298, 2004-Ohio-3407, ¶ 9, citing

State v. O’Brien , 34 Ohio St.3d 7 (1987), paragrap h one of the syllabus. {¶14} Under Section 2945.71(C)(2) of the Ohio Revised Code, a person charged with a felony must be brought to trial within 270 days of his arrest. R.C. 2945.71(E) provides that “each day during which the accused is h eld in jail in lieu of bail on the pending charge shall be counted as three days.” The parties do not dispute that the triple-cou nt provision applied to Smith. “Thus, subject to certain tolling even ts, a jailed defe ndant must be t ried within 90 days.” State v. Ramey , 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 15. “A juvenile only beco mes a person against whom a felony charge is pending, and thus falls within the speedy tria l protections of R.C. 2945.71, if and when the Juvenile Court relinquish es jurisdiction over the case and transfers it to the appropriate adult court.” (Internal quotations and citation omitted.) State v. Childs , 9th Dist. Summit No.5

17653, 1996 WL 525631, *1 (Sept. 18, 1996); see also State v. Bickerstaff , 10 Ohio St.3d 62, 67 (1984). Here, the juvenile court journalized its entry transfe rring Smith’s case to the court of common pleas on June 21, 2018. Thus, the speedy trial clock be gan to run on June 22, 2018. See

State v. Evans , 1st Dist. Hamilton No. C-170240, 2018-Ohio-3129, ¶ 3, 13; see also State v. Moore , 7th Dist. Mahoning No. 06-MA-15, 2008-Ohio-1190, ¶ 14, 133. {¶15} “Because the General Assembly recognized that some degree of fl exibility is necessary, it allowed for extensions of the time limits for bri nging an accused to trial in certain

circumstances.” Ramey at ¶ 24. “Accordingly, R.C. 2945.72 contains an exhaustive li st of events

and circumstances that extend the time within which a defendant must be brought to trial. In addition to meticulously delineating the tolling events, the Ge neral Assembly jealously guarded its judgment as to the reasonableness of delay by providing tha t time in which to bring an accused to trial “may be extended only by” the events enumerated in R.C . 2945.72(A) through (I).” Id.

“These extensions are to be str ictly construed, and not liberal ized in favor of the state.” (Internal quotations and c itation omitted.) Id. {¶16} R.C. 2945.72(H) provides that “[t]he time within which an accus ed must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended [by] * * * [t]he period of any continuance grante d on the accused’s own motion, and the period of any reasonable continuance granted other tha n upon the accused’s own motion[.] ” {¶17} On appeal, Smith asserts two specific periods of time were char geable to the State and not him. First, he points to the period from October 2, 20 18 to December 10, 2018. At the October 2, 2018 status conference, trial was set for December 1 0, 2018. Smith maintains that trial was therefore set outside the timeframe for speedy trial. He d oes not dispute that time was tolled from September 4, 2018 to Oct ober 2, 2018, due to his own reque sts for continuances.6

{¶18} At the status conference on Oc tober 2, 2018, Smith’s counsel in dicated that there did not appear to be an issue w ith time. While M organ’s counse l and the prosecutor suggested December 3, 2018, as a trial dat e, Smith’s counsel indicated th at he was not available. Smith’s counsel then sought a later date. When the bailiff offered Dec ember 10, 2018, Smith’s counsel stated he was available, as did the other attorneys. Trial was accordingly set for December 10, 2018. On October 5, 2018, the tria l court journalized an entry reflecting that “[u]pon the request of [Smith’s counsel],” trial was set for December 10, 2018. {¶19} Given that Smith’s Counsel sought out a trial date later than t he December 3, 2018 date that the other pa rties had agreed to, there is an argument that the December 10, 2018 trial date

was set at Smith’s behest. See R.C. 2945.72(H); but see State v. McRae, 55 Ohio St.2d 149, 152, fn.3 (1978). Yet, even if that were not the case, the second h alf of R.C. 2945.72(H) also authorized

the trial court to f ind that the speedy tr ial time was extended . “When a trial date is set beyond the time limits of R.C. 2945.71 and the accused does not acquiesce in that date but merely fails to object to that date, the trial court’s action does not constitu te a continuance pursuant to R.C. 2945.72(H).” McRae at 152. “However, the trial court has the discretion to exten d the time limits of R.C. 2945.71 where counsel for the accused voluntarily agree s to a trial date beyond the statutory time limits.” Id. “Moreover, the trial court’s exercise of that discretion cons titutes a continuance granted other than upon the accused’s own motion un der the second clause of R.C. 2945.72(H), and, as long as that c ontinuance is reasonable, it extends the time limits of R.C. 2945.71 and does not deny an accused the right to a speedy tria l.” (Internal quotations and citations omitted.) Id. at 153. “Whether such a continuance is reasonable must be aff irmatively

demonstrated in some manner in the trial court.” Id. Notably, at oral argument, Smith’s counsel indicated that it would be futile to argue that this continuanc e was unreasonable. In light of that7

concession, and the record befor e us, we conclude that the tria l court properly concluded that the speedy trial time was extended. See id. at 152-153. {¶20} The second period of time concerns December 10, 2018 until Febr uary 4, 2019. On November 30, 2018, the State file d a motion to continue the Dec ember 10, 2018 trial date due to “a conflict in scheduling for the lead detective in th[e] case. ” The lead detective was “scheduled to be out-of-state during the week of trial for required traini ng.” On December 5, 2018, the trial court issued an order granting the State’s motion, noting that Smith’s counsel had not objected.

The trial court determined that the continuance was reasonable in light of the necessity of the lead detective’s testimony and vacated the trial date due to the lea d detective’s unavailability. The trial

court indicated that the trial w ould be reset for the earliest available date and that a status conference would be held December 10, 2018. {¶21} At the December 10, 2018 status c onference, the State reiterate d that the lead detective was in mandatory, out-of-state training all week and also informed the court that the lead

detective would be on vacation the following week. The State p ointed out the importance of the lead detective’s testimony, noting there were certain matters o nly he could testify concerning. The

State then notified the trial court that “the next available da te that works for everyone’s calendar is February 4th. We did suggest some dates earlier than that; however, with counsels’ schedule, understandably so, we just couldn’ t get it in any sooner than t hat.” {¶22} Smith’s counsel then noted his objection to the State’s motion for a continuance and asserted that the trial court granted the motion before his time to respond expired. Smith’s counsel questioned whether the lead detective knew about the tr aining when the trial date was set and also whether the training could be done at another time. T he trial court indicated that it was not happy to need to continue the trial but also stated that it found the lead detective to be a8

professional and was sure that he would have been there if he c ould have been. On December 12, 2018, the trial court issued an en try indicating that the trial was continued until February 4, 2019, over Smith’s objection, due to w itness unavailability. {¶23} “Ideally, when granting a continuance under the second half of R.C. 2945.72(H),

the trial court must enter the o rder of continuance and the rea sons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.” (Internal quotations omitted.) State v. Roth , 9th Dist. Lorain No. 17CA011083, 2018-Ohio-2564, ¶ 13, quoting State v. Vanscoy , 9th Dist. Summit No. 26964, 2014-Ohio-3482, ¶ 13, quoting Ramey , 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 32, quoting State v. Mincy , 2 Ohio St.3d 6 (1982), syllabus. “Nonetheless, [i]f the trial court imperfectly handl es continuances under R.C. 2945.72(H), then the appellate cour t may affirm a conviction ch allenged on speedy-trial grounds even if the trial court did not expressly enumerate any reasons justifying the delay when the

reasonableness of the continuan ce is otherwise affirmatively de monstrated by the record.” (Internal quotations a nd citations omitted.) Roth at ¶ 13. {¶24} In light of our conclusion above with respect to the time perio d from October 2, 2018 to December 10, 2018, the State moved for the continuance within the time for speedy trial

and the trial court entered two orders granting the continuance also within the speedy trial time. In the first order, the trial c ourt found the continuance reaso nable in light of the necessity of the lead detective’s testimony and vacated the trial date due to wi tness unavailability. In the second order, the trial court reiterate d that the trial was continued because of witness unavailability. Further, the record discloses that the February 4, 2019 selecte d trial date was the first date that would accommodate all of the parties’ schedules. While Smith’s counsel objected to the State9

receiving a continuance, he did not contend that, if the contin uance was granted, the trial could have taken place any sooner than February 4, 2019. {¶25} The Supreme Court of Ohio has c oncluded that even a continuance requested by the State based upon the vacation of the arresting officer can be reasonable. State v. Saffell , 35 Ohio St.3d 90, 91-92 (1988). Based upon Saffell , this Court has determined that “[i]t is well settled that the availability of a key prosecution witness is a reasona ble ground for granting a continuance pursuant to R.C. 2945.72(H).” State v. Gregrich , 9th Dist. Wayne No. 98CA0029, 1999 WL 292547, *2 (Mar. 24, 1999); see also State v. Thorn , 9th Dist. Wayne No. 98CA0020, 1998 WL 892975, *2 (Dec. 23, 1998). It is true that Smith’s counsel ob jected to the continuance and questioned when the lead detective knew about the training and whether it could have been done at another time. However, nothing in the record supports the c onclusion that the lead detective knew about the training prior to setting the December 10, 2018 trial date or that he could have taken the training at another time. The State maintained that the training was mandatory, out-ofstate training that lasted all week. Given the record before u s, we conclude that the trial court did not err in concluding the conti nuance was reasonable. Nonethel ess, we note that the better practice

would have been for the State t o present documentation from the witness substantiating that the

continuance was warranted. See, e.g., State v. Najjar-Banks , 5th Dist. Delaware No. 18 CAC 11 0085, 2019-Ohio-3337, ¶ 31 (“On September 20, 2018, appellee fi led a motion for a continuance stating that the Trooper was in training on s uch date and that he was a necessary witness. Trooper Davis in a document in the trial court file, indicated that he was in training on September 25, 2018

and that the next date that he w ould be available was September 26, 2018.”). The right of the defendant to a speedy trial must be taken seriously by the Stat e. The mere fact that the unavailability of a key prosecution witness has been determined to be a reasonable ground for10

granting a continuance does not r equire the conclusion that a t rial court would always be required to grant such a continuance. See State v. Jones , 2d Dist. Clark No. 2013 CA 118, 2014-Ohio-4605, ¶ 14-15. {¶26} Given Smith’s arguments on appeal, and the record before us, we overrule his assignment of error.

III. {¶27} Smith’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirme d, but the matter is remanded f or the issuance of a nunc pro tunc entry to correct the sentencing entry. Judgment affirmed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.11

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES: ALAN M. MEDVICK, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.