[Cite as State v. Michailides , 2018-Ohio-2399.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105966

STATE OF OHIO

PLAINTIFF-APPELLANT

vs. JOHN MICHAILIDES

DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED AS MODIFIED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615203-A

BEFORE: Keough, J., McCormack, P.J., and Jones, J.

RELEASED AND JOURNALIZED: June 21, 2018ATTORNEYS FOR APPELLANT Michael C. O’Malley Cuyahoga County Prosecutor By: Gregory J. Ochocki Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mark Stanton Cuyahoga County Public Defender By: Frank Cavallo Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113KATHLEEN ANN KEOUGH, J.: {¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision dismissing the indictment against defenda nt-appellee, John Michailides, for a vi olation of speedy trial. For the reasons that follow, we affirm, but modify the court’s judgment entry to reflect that the case is dismissed with prejudice. {¶2} In August 2016, Michailides was named in a one-count indictment charging him with aggravated arson, in violation of R.C. 2929.02(A)(1), as a result of setting fire to a

McDonald’s restaurant in Clev eland. He pleaded not guilty, a nd the case was set for trial. {¶3} On the March 8, 2017 trial date, the state re quested a brief conti nuance to re-indict Michailides to include additional charges pertaining to individual victims inside the restaurant when the fire was started. Michailides objected, and the trial court denied the request. Thereafter, the state moved to amend the indictment to change the “victim” of the offense from the McDonald’s restaurant, to the specific individuals inside the restaurant. Michailides objected to amending the indictme nt because it would change the identity of the crime charged. The trial court agreed with the defense and denied the state’s motion to amend the indictment. {¶4} Following these roadblocks, the state m oved to dismiss the indictment without prejudice against Michailides. De fense counsel objected stating that any dismissal should be with prejudice because it was the second time the stat e was not prepared to go forward with trial. The trial court granted the state’s motion and ordered Michailides released from custody. {¶5} The following day, on March 9, 2017, the state reindicted Michailides under Cuyahoga C.P. No. CR-17-615203, charging him with two counts of aggravated arson, one count of arson, three counts of vandalis m, and one count of inducing pa nic. The state requested andobtained a warrant for his arrest, and a summons was also sent to Michailides to appear for arraignment. {¶6} On March 23, 2017, Michailides appeared fo r arraignment and wa s detained. On May 1, 2017, the day of trial, de fense counsel filed a motion to dismiss based on speedy trial grounds. Michailides waived his right to a speedy trial between Ma y 1, 2017, and June 1, 2017, for the limited purposes of arguing his motion to dismiss. Trial was continued, and the motion to dismiss was set for a hearing. Following a hearing, the trial court granted Michailides’s motion to dismiss, finding that 272 days were c ounted against the state, exceeding the statutory requirement in R.C. 2945.71 of 270 days. The c ourt noted that the dismissal was without prejudice. {¶7} The state now appeals, raising as its sole assignment of error that the trial court erred in granting Michailides’s motion to dismiss.

I. Standard of Review {¶8} Whether a trial court’s ruling on a speedy trial question was correct presents a mixed question of law and fact. State v. Borrero , 8th Dist. Cuyahoga No. 82595, 2004-Ohio-4488, ¶ 10, citing State v. Barnette , 12th Dist. Fayette No. CA2002- 06-011, 2003-Ohio-2014. Appellate courts apply a de novo standard of review to the legal issues but afford great deference to any findings of fact made by the tr ial court, if supported by comp etent and credible evidence. State

v. Barnes , 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 17. This court must construe the statutes strictly against the state when reviewing the legal issues in a speedy trial claim.

Brecksville v. Cook , 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). Moreover, in analyzing the procedural time-line record of the case, this court is required to strictly construe any ambiguity inthe record in favor of the accused. State v. Johnson , 8th Dist. Cuyahoga Nos. 78097, 78098, and 78099, 2001 Ohio App. LEXIS 999, 6 (Mar. 8, 2001).

II. Defendant’s Burden {¶9} R.C. 2945.71 requires the state to bring a fel ony defendant to tr ial within 270 days of arrest. Each day a defendant is held in jail in lieu of bail solely on the pending charge is counted as three days. R.C. 2945.71(E). If a defenda nt is not brought to trial within the speedy trial limits, the court, upon motion, must disc harge the defendant. R.C. 2945.73(B). A defendant establishes a prima facie case for disc harge based on a speedy trial violation when he

or she demonstrates that more than 270 days elapsed before trial. See State v. Butcher , 27 Ohio St.3d 28, 500 N.E.2d 1368 (1986). The burden then shifts to the state to show that R.C. 2945.72

extended the time limit. Cook at 55-56. {¶10} The Supreme Court of Ohio has determined that where new and additional charges

arise from the same set of facts as those found in the original charge, and the state knew of those facts at the time of the initial indictment, the time frame within which any new charge is to be tried is subject to the same statutory limitations period as that applied to the original charge.

State v. Adams , 43 Ohio St.3d 67, 538 N.E.2d 1025 (1989); see also State v. Parker , 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032. In this circumstance, any time period that has elapsed under the original indic tment is tacked on to the time period that commences with the

second indictment. State v. Bonarrigo , 62 Ohio St.2d 7, 11, 402 N.E.2d 530 (1980). {¶11} In this case, the state has not made any argument that the new and additional charges brought under the subsequent indictment do not arise out of the same set of facts as those found in the original indictment, or that the stat e did not know of those facts at the time of theinitial indictment. Therefore, th e time under the original indictme nt is included in calculating whether the state violated Michailides’s right to a speedy trial. {¶12} Applying the triple-count provisions at all relevant times, over 700 days elapsed

between the date of Michailides’s arre st on August 8, 2016, in Cuyahoga C.P. No. CR-16-608742 and the motion to dismiss hearing on May 1, 2017, under Cuyahoga C.P. No CR-17-615203. He, therefore, estab lished a prima facie case of a speedy trial violation. The

burden thus shifts to the state.

III. State’s Burden {¶13} Under R.C. 2945.72, the time within which an accused must be brought to trial is extended for various reasons, including motions f iled and continuances requested by the accused, the time required to secure counsel for the accu sed, and reasonable conti nuances granted other than upon the accused’s motion. See, e.g., State v. Byrd , 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283; State v. Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283. A. August 2016 {¶14} The state argued in the trial court and now on appeal that Michailides’s speedy trial time began running August 9, 2016, th e day following his arrest. See State v. Wells , 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 4 (arrest date not counted). It continued to run for 12 days, until August 20, 2016, when he filed his demand for discovery. Time was tolled until August 25, 2016, when the state provided its discove ry responses. Time then ran for six days until August 31, 2016, when a pretrial was held and the case was continued fo r another pretrial at the defendant’s request. 1 We agree with the state’s calculation. Accordingly, 54 speedy-trial days (18 days subject to the trip le-count provision) ran in August 2016.

1 The state argued in the trial court that Michailides neve r responded to the state’s request for discovery and, thus, the time should toll from August 20, 2016, until January 31, 2017. However, as the state concedes on appeal,B. September 2016 — January 2017 {¶15} The state maintains on appeal that Michailides’s speedy trial time was tolled from September 1, 2016, through January 31, 2017. The r ecord shows that starting on September 1, 2016, Michailides was granted continuances of pretrials at his reque st. On December 19, 2016,

the trial court scheduled trial for February 7, 2017, but also continued the matter for another pretrial “at the defenda nt’s request” until January 5, 2017. On January 5, the trial court again

noted that trial remained set for February 7, but also continued the matter for a final pretrial at the defendant’s request until January 24, 2017. On Janua ry 24, the trial court again noted that the trial remained set for February 7, 2017, but also continued the matte r for another final pretrial on January 30, 2017. On January 30, the court noted th at the trial remained for February 7, 2017. On February 7, the state requested a continuance of trial. {¶16} This case history and date sequence is significant because an argument could be

made that when the trial court schedules an a dvance trial date and the defendant does not take any action to delay or continue th at trial date — even though pret rials occur up and until that trial date — the time is not tolled. While this situation occurred here, the time was nevertheless tolled during this period because reci procal discovery was not provided. {¶17} The state served its demand for discove ry on Michailides on August 25, 2016, but he did not respond to this request until January 31, 2017. The failure of a criminal defendant to respond within a reasonable time to the state’s request for reciprocal discovery constitutes neglect that tolls the running of speed y-trial time pursuant to R.C. 2945.72(D). State v. Palmer , 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, pa ragraph one of the syllabus. Under most circumstances, 30 days is generally cons idered to be a reasonable time to respond. State v.

Michailides did respond to discovery.Geraci , 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 26; see also Palmer at paragraph three of the syllabus (determination of reasonable res ponse time is based on the totality of the circumstances). {¶18} Accordingly, Michailides’s requests for c ontinuances and his failure to respond to the state’s discovery demand until January 31, 2017, provided an uninterrupted tolling of the speedy trial clock from September 1, 2017, through January 31, 2017. We agree with the state’s calculation that only 54 days had run thus far. C. February 2017 — March 8, 2017 {¶19} The state conceded in the trial court and on appeal that all of February 2017 counts against Michailides’s speedy-trial time. We agr ee with the state’s calcu lation because following Michailides’s response to the stat e’s request for discovery, the tr ial that was initially scheduled for February 7, 2017, was continued at the stat e’s request until March 8, 2017. On March 8, the

state dismissed the case wit hout prejudice against Michailid es and he was released. {¶20} Accordingly, after applying the triple count provision, 108 a dditional days accrued during the month of February until the case wa s dismissed on March 8, 2017, for a total of 162 days against Michailides’s speedy trial time. D. March 9, 2017 — March 23, 2017 {¶21} This period of time is the crux of the appeal. The trial court’s written decision noted that the parties agreed to some of th e non-tolling timeframes. Based on those agreements,

the trial court calculated that 86 days, or 258 days after appl ying the triple-count provision, counted against Michailides’s speedy trial time. The trial court found that the only period of time at issue between the parties was from Ma rch 9, 2017, when Michailides was reindictedunder Cuyahoga C.P. No. CR-17-615203, to March 23, 2017, when he was arraigned on those new charges. {¶22} The state argued that the time frame was tolled because Michailides had not been arrested, jailed, or held on bond, which would allow the speedy trial clock to start. The state also maintained that because a capias was issu ed immediately following the reindictment, the time was tolled. The defense, on the other hand, claimed that a capias should not have been issued and the state’s use of a capias to toll the time was improper and unfair considering that a summons was also issued for Michailides to appear at arraignment, and the indictment was obtained the day after he was released. {¶23} The trial court was troubled by the fact that a capias would be issued immediately following reindictment without a llowing Michailides to appear voluntarily at the arraignment by

virtue of the summons that was also issued fo llowing the reindictment. The court found that no exigent circumstances existed to justify the issuance of the capias. Accordingly, the trial court found that the speedy trial clock began on the date of the reindic tment — March 9, 2017. Adding those additional 14 days to its calculati on, the trial court found th at 272 days had passed, and thus, the state violated Michailides’s right to a speedy trial. {¶24} However, the time period between the dis missal without prejudice of an original indictment and the filing of a s ubsequent indictment, premised upon the same facts as alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on

bail. State v. Broughton , 62 Ohio St.3d 253, 581, N.E.2d 541 ( 1991), paragraph one of the syllabus. The speedy trial time cloc k restarts when the defendant is arrested under a subsequent indictment that is premised on the same underlying facts allege d in a previous indictment. Id . at paragraph two of the syllabus. However, any time period that has elapsed under the originalindictment should be tacked on to the time pe riod commencing with the second indictment. Id

. at 261; Bonarrigo , 62 Ohio St.2d at 11, 402 N.E.2d 530; see also State v. Fitzgerald , 8th Dist. Cuyahoga No. 65435, 1994 Ohio App. LEXIS 813 (Mar. 3, 1994) (clock starts on day defendant was arraigned and notifie d of pending charges). {¶25} Accordingly, in this case, the time period between the dismissal of the indictment on March 8, 2017, and Michailides’s appearance and subsequent detention at arraignment on the reindictment on March 23, 2017, is to lled. The trial cour t’s determination th at it was not tolled and counted against Michailides’s sp eedy trial time was in error. {¶26} Accordingly, we agree with the stat e’s calculation. The speedy trial clock

restarted when Michailides wa s taken into custody following arraignment on March 23, 2017. Accordingly, 162 days counted against Mich ailides’s speedy trial time thus far. E. March 23, 2017 — May 1, 2017 {¶27} The time between March 23, 2017, thr ough May 1, 2017, was not tolled. Michailides was arrested on March 23 after appearing for arraignment; thus the speedy trial clock restarted on March 24, 2017. The first pretrial was set for April 6, 2017, but was continued at the state’s request until April 10. On April 10, trial was scheduled fo r May 1, 2017. On May 1,

Michailides moved to dismiss th e case for a speedy trial violati on. Accordingly, an additional 114 days is counted against Mich ailides’s speedy trial time. {¶28} The state argues for the first time on appeal that two events occurred during this time period that tolled the speedy trial time — (1) Michailides’s pro se “motion (to dismiss) for speedy trial” filed on March 28, 2017; and (2) Michailides’s reque st for trial on April 10, 2017. Because these arguments were not made to the tr ial court for its consider ation, they effectively are waived and will not be considered on appeal. Moreover, because the state agreed in the trialcourt that these timeframes counted against Micha ilides’s speedy trial time, any error by the trial

court could be viewed as invite d error. However, even considering the arguments, we disagree

with the state.

1. Pro Se Motion {¶29} Contrary to the state’s assertion, Mich ailides’s pro se mo tion filed on March 28, 2017, was not a motion to dismiss for speedy trial, but rather a motion for speedy trial, which essentially requested that the trial court set a trial date. Michailides did not request that the case against him be dismissed for a speedy trial viola tion. Rather, he conte nded that he was “ready for trial” and requested the trial court to “insure that this matter is set for trial at its earliest convenience so that his rights ar e not violated again.” Michailid es essentially put everyone on notice that the speedy trial clock was ticking. Despite his request, no trial date was set until after counsel was assigned and a nother request was made. {¶30} In addressing a constitutional speedy trial argument, the Ohio Supreme Court stated, “to constitute a denial of a speedy tria l [on constitutional grounds], [the defendant] must have made a request for trial. He cannot create this defens e by inaction on his part.” Cunningham v. Haskins , 3 Ohio St.2d 86, 209 N.E.2d 211 (1965), citing State v. Cunningham , 171 Ohio St. 54, 167 N.E.2d 897 (1960), and Everhart v. Maxwell, Warden , 175 Ohio St. 514, 196 N.E.2d 589 (1964). In this case, Michailides acted by requesting a trial, which should not be counted against him now for an alleged stat utory violation. Michailides’s request was a preservation of his right to cla im a constitutional violation of speed y trial because failure to do so would arguably create grounds for the state to obj ect to any subsequent constitutional speedy trial challenge. Accordingly this time does not toll his speedy trial time. 2. Trial Set “at Defendant’s Request”{¶31} The state also contends that the time period from when the demand for trial is made until trial occurs tolls the speedy trial time. Specifically, in this case, the state maintains that

because the trial date was set “at the defendant’s request,” the fact that the time exceeded the speedy trial clock should be counted against Micha ilides or should be deemed a waiver to speedy trial. We disagree. {¶32} The Ohio Supreme Court has stated that there is no statutory provision requiring a defendant to make any fo rmal written demand for tr ial upon his indictment. State v. Cross , 26 Ohio St.2d 270, 275, 271 N.E.2d 264 (1971). Moreover, any request for an in itial trial date will always be “at the defendant’s re quest” because the defendant has a constitutional right to a trial,

not the state. {¶33} The record provided to this court does not indicate under what circumstances the May 1, 2017 trial date was set — the journal entr y only provides that the tr ial date was set “at the defendant’s request.” Does this mean that the defendant merely requested a trial date? Or did the defendant request that specific date? Nothing in the record indicates that the state objected to that specific trial date or requested a different date, and the state does not argue on appeal that

the actual trial date was set over the state’s objection. Strictly construing the ambiguity against the state, we find that the date was an arbitrary date set by the trial court. {¶34} Moreover, a defendant has no duty to object to the setting of a tr ial date beyond the speedy trial deadline. State v. Penwell , 4th Dist. Scioto No. 831, 1994 Ohio App. LEXIS 834, 11 (Feb. 14, 1994). It is the state’s duty to ensure that a defendant is broug ht to trial within the

timeframe under R.C. 2945.71. See State v. Singer , 50 Ohio St.2d 103, 105-106, 362 N.E.2d 1216 (1977) (the mandatory duty of comply ing with R.C. 2945.71 through 2945.73 is upon the prosecution and the trial court).{¶35} Accordingly, absent any evidence in the record that would indicate that Michailides purposefully chose this specific trial date to circumvent speedy trial, the time between when Michailides requested the trial and the date when the motion to dismiss was filed is not tolled.

IV. Conclusion {¶36} Therefore, after applying the triple-c ount provision, 114 days is added to the 162 days that passed under the original indictment. Our calculation re veals that the total amount of days is 278, which is beyond the 270 days re quired under R.C. 2945.71; the state violated Michailides’s right to a speedy trial. {¶37} Accordingly, the trial court did not err in granting Michailides’s motion to dismiss. The assignment of error is overruled. However, we modify the trial court’s decision to reflect that a dismissal for a speedy trial violation is a dismissal with prejudice. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE TIM McCORMACK, P.J., and LARRY A. JONES, SR., J., CONCUR