[Cite as State v. Sexton , 2014-Ohio-2314.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25862 Plaintiff-Appellee : : Trial Court Ca se No. 13-TRD-5998 v. : : DANNY R. SEXTON : (Criminal Appeal from Kettering : ( Municipal Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of May, 2014.

. . . . . . . . . . . GREGORY P. SPEARS, Atty. Reg. #0009002, City of Moraine Prosecutor’s Office, 30 Wyoming Street, Dayton, Ohio 45409 Attorney for Plaintiff-Appellee R. PAUL CUSHION, II, Atty. Reg. #0037116, 75 Public Square, Suite 940, Cleveland, Ohio 44113 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J., {¶ 1} Danny R. Sexton appeals from his c onviction and sentence on one count of failure to yield to a public-safety vehicle in violation of Moraine M unicipal Code §331.21(A), afourth-degree misdemeanor. {¶ 2} Sexton advances three assignments of erro r. First, he contends the trial court violated his right to a jury trial. Second, he claims the trial court erred in denying his request for a continuance to identify and locate a potential witn ess. Third, he alleges a speedy-trial violation. {¶ 3} On May 29, 2013, Sexton was cited for a failure-to-yield violation and summoned to Moraine Mayor’s Court. The case wa s transferred to Ketteri ng Municipal Court on June 5, 2013. Arraignment origina lly was scheduled for June 17, 2013, but it was continued at Sexton’s request. He subs equently entered a not-guilty plea on June 26, 2013. The tr ial court filed a July 2, 2013 entry setting the case for trial on July 10, 2013. At the State’s request, the trial court granted a continuance. On July 5, 2013, tr ial was rescheduled for July 17, 2013. Thereafter, on July 9, 2013, the trial court file d an entry making note of th e July 17, 2013 rescheduled trial date. On July 15, 2013, Sexton moved for a conti nuance of the “pretrial” set for July 17, 2013. 1 The following day, the trial court granted hi s request and rescheduled trial for July 24, 2013.

1 Sexton apparently was refe rring to the trial scheduled for July 17, 2013. {¶ 4} The case proceeded to trial as scheduled on July 24, 2013. At the outset of trial, Sexton requested a continuance to identify and locate a potential witness. The trial court denied the request. (Tr. at 5-8, 11). Sexton then orally requested a jury trial. The trial court denied that request as well. ( Id . at 8-9). Finally, he raised a speedy-tr ial issue, which the trial court found to be without merit. ( Id . at 9-11).The State then presented ev idence establishing that Sexton failed to pull his vehicle to the right when a police cruiser approached from behind with lights and sirens activated. Instead, he sla mmed on his brakes in the left-ha nd lane and stoppe d directly in front of the cruiser, forcing th e cruiser to pass on the right. ( Id . at 17-25). The trial court found Sexton guilty. ( Id . at 64). It imposed a partially-suspe nded fine and a par tially-suspended jail 3

 sentence. ( Id . at 67-67; Doc. #18). Sexton moved for a stay pending appeal. The trial court granted the motion subject to posting bond, which appears to have occurred. {¶ 5} In his first assignment of error, Sexton challenges the trial court’s denial of his request for a jury trial. In support, he argues that Kettering Municipal Court Local Rule 1.13 obligated him to file a written jury demand at leas t ten days before trial. According to Sexton, the trial court made compliance w ith the local rule impossible because its July 16, 2013 entry rescheduled his trial for July 24, 2013, only eight days later. Therefor e, he asserts that the trial court unlawfully deprived him of a jury trial. {¶ 6} We reject Sexton’s argument for at least two reasons. First, the record reflects that the trial court or iginally filed a July 2, 2013 entry se tting trial for July 10, 2013. A copy of that notice was sent to Sexton’s attorney. Alt hough that notice did not give Sexton ten days’ notice, the trial date was con tinued twice. He was not tried until July 24, 2013, twenty-two days after the original entry setting a trial date. Therefore, Sexton had ample time to comply with Local Rule 1.13, which simply requires a jury dema nd to be filed no less th an ten days before trial. Second, under Crim.R. 23, wh ich was made applicable he re by Traf.R. 9, Sexton was required to demand a jury trial in writing “not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later .” (Emphasis added). Courts may onl y adopt “rules concerning local practice in their respective courts which are not inconsistent with rules pr omulgated by the Supreme Court.” Section 5(B), Article IV of the Ohio Constitution. Therefore th e three-day requirement of Crim.R. 23 applies. On Tuesday, July 16, 2013, the trial court sent de fense counsel notice that trial had been reset for July 24, 2013. (Doc. #13). Sexton admits his attorn ey received notice of the rescheduled trial 4

 date on July 18, 2013. (Appellant’s brief at 6-7). Therefore, under the more lenient time requirement provided by Crim.R. 23, he could have demanded a jury tr ial as late as Tuesday, July 23, 2013, which, assuming for the sake of argument that the intervening weekend days do not count, was the “third day following receipt of noti ce of the date set for trial[.]” Sexton failed to do so. In fact, he never made a written jury demand. Therefore, the trial court did not err in overruling his oral motion on the day of trial. The first assignment of error is overruled. {¶ 7} In his second assignment of error, Sext on claims the trial c ourt erred in denying his request for a continuance to identify and locate a potential witness. He argues that the ruling violated his constitutional right to compulsory process. 2

2 In connection with this argument, Sexton claims he never received “actual notice” of the July 24, 2013 trial date. (Appellant’s brief at 12). The record reflects, ho wever, that notice of the new trial date was sen t to Sexton’s counsel. (Doc. #13). Moreover, Sex ton admits his attorney became aware of the new trial date on July 18, 2013. (Appellant’s brief at 6-7). {¶ 8} The record reflects that on the day of trial, defense counsel requested a continuance to identify and locate a potential eyewitn ess to the incident in question. (Tr. at 5). Counsel explained that less than a week earlier Sexton had men tioned another driver possibly having seen the incident. The only informa tion Sexton apparently possessed, however, was a general description of the unidentified driver’s car. ( Id . at 6). Defense counsel claimed Sexton had driven around town trying to spot the car. ( Id .). The trial court denied a continuance, noting that it was unknown who the other driver was, what if anything the other driver had seen, or where the other car was located. ( Id . at 6-8). We review the trial court’s ruling for an abuse of discretion. State v. Pigg , 2d Dist. Montgomery No. 25549, 2013-Ohio-4722, ¶ 18. {¶ 9} Sexton argues that the trial court erroneously deprived him of his ability to subpoena the unidentified witness to provide exculpatory te stimony. We disagree. Sexton admits 5

 he knew neither the identity of the other driver nor the whereabouts of the other driver’s car. (Appellant’s brief at 13). Defense counsel conceded below that it could have been an out-of-town car. (Tr. at 6). Sexton also had no way of knowing what the unidentified driver saw. In our view, the trial court did not abuse its discretion in denying a last-mi nute motion for a continuance to identify and locate a phantom witness whose testimony was of unknown value. The second assignment of error is overruled. {¶ 10} In his third assignment of error, Sexton alleges a speed y-trial violation. Specifically, he claims he was not tried within forty-five days as required by R.C. 2945.71(B)(1). Sexton argues that he was cited on May 29, 2013 and tried fifty-six da ys later in violation of the

statute. {¶ 11} Upon review, we see no speedy-trial viol ation. Speedy-trial time did not begin to run when Sexton was issued a citation a nd summons on May 29, 2013. Pursuant to R.C. 2945.72(F) and Brecksville v. Cook , 75 Ohio St.3d 53, 661 N.E.2d 706 (1996), the transfer of his case from Moraine Mayor’s Court to Kettering Municipal Court constituted a “removal” that tolled speedy-trial time from the date of his summons until the date of certification to municipal

court. 3 Brecksville at 57-58. Here Sexton received a summ ons with his citation on May 29, 2013. The Moraine Mayor’s Court certified his case to Kettering Municipal Court on June 5, 2013 by filing a “judgment entry of transfer.” Therefore, speedy-trial time did not begin to run until June 5, 2013. 4 Sexton was tried forty-nine days later on July 24, 2013. At least two additional tolling

3 Pursuant to R.C. 2945.72(F), speedy-trial time is tolled “[f]or any period of delay necessitated by a removal[.]” In Brecksville , the Ohio Supreme Court reasoned that the transfer of a case from m ayor’s court to municipal court co nstitutes a “removal” under the statute.

4 The State claims the case was not transferred until June 12, 2013. We disagree. The record plainly reflects a transfer from Mor aine Mayor’s Court on June 5, 2013. 6

 events occurred, however, that were chargeable to Sexton. First, his arraignment in Kettering Municipal Court was continue d at his request from June 17, 2013 until June 27, 2013. (Doc. #4). Second, the trial date was c ontinued from July 17, 2013 to July 24, 2013 at his request. 5 (Doc. #13-14). This court has recognized that “R.C . 2945.72(H) tolls the statutory speedy trial time during ‘[t]he period of any continuance granted on the accused’s own motion[.]’” State v. Ramey , 2012-Ohio-6187, 986 N.E.2d 462, ¶ 11 (2d Dist.).Taking the foregoing tolling events into account, Sexton was tried well w ithin the time required by R.C. 2945.71(B)(1). The third assignment of error is overruled. {¶ 12} The judgment of the Kettering Municipal Court is affirmed.

. . . . . . . . . . . . .

FROELICH, P.J., and WELBAUM, J., concur.

Copies mailed to: Gregory P. Spears R. Paul Cushion, II Hon. Thomas M. Hanna

5 Sexton suggests on appeal that the State also requested this co ntinuance. (Appellant’s brief at 6 fn.1). We see nothing in the record to support his claim.