[Cite as State v. Espinoza-Soriano , 2020-Ohio-139.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-18-067 Appellee Trial Court No. CRB 1800489

v. Jamie Espinoza-Soriano DECISION AND JUDGMENT Appellant Decided: January 17, 2020

* * * * * Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee. Emil G. Gravelle III, for appellant.

* * * * * OSOWIK, J. Facts and Procedural History {¶ 1} On August 31, 2018, Trooper Brian Dale of the Ohio State Highwa y Patrol was conducting “air speed detail” while flying over the Ohio Tu rnpike in Erie County. Trooper Dale identified a silver GMC passenger car that was dri ving over the posted speed limit. He notified Trooper Joshua Smith, who was patroll ing the turnpike in his2. patrol car. Trooper Smith initiated the traffic stop of the ve hicle, which was being driven by the defendant-appellant, Jamie Espinoza-Soriano (hereinafter “the defendant”). An unidentified female was in the passenger seat. {¶ 2} Trooper Smith approached the passenger side window and “immedia tely * * * noticed the odor of burnt marijuana coming from the vehic le.” A second trooper arrived, and each trooper questioned an occupant in his respect ive patrol car. Trooper Smith questioned the defendant. After being Mirandized and que stioned, the defendant, appellant Jamie Espinoza-Soriano, “admitted to there being a ma rijuana joint located in the center console of the vehicle.” Trooper Smith searched th e vehicle and located the marijuana joint. No other drugs were found. Trooper Smith tes tified that the defendant did not appear to be impaired and that he “didn’t believe [the defendant had] smoked marijuana.” The defendant was charged with knowingly possessin g marijuana in a quantity less than 100 grams, in violation of R.C. 2925.11(C)(3 )(a), a minor

misdemeanor. The citation included a summons that directed the defendant to appear in the Erie County Municipal Court on September 17, 2018. {¶ 3} The defendant retained counsel who entered a “not guilty” plea on his behalf and requested that the case be set for a pretrial. The court s et a pretrial date of September 26, 2018. Prior to that date, the defendant requeste d that he be excused from personally attending the hearing, based upon the fact that he l ived in Michigan, making his attendance burdensome. The trial court granted the request . The defendant also propounded discovery requests on the state.3. {¶ 4} No record was created of the September 26, 2018 pretrial hearin g, but afterwards, the court set a status hearing for November 28, 201 8, according to its “Notice of Assignment” and the clerk’s docket. {¶ 5} On October 10, 2018, the state filed a motion to amend complain t, in which it requested that the court “correct’ the complaint to reflect that the defendant had knowingly possessed “marijuana in a quantity less than 30 grams (One (1) marijuana cigarette),” rather than the “less than 100 grams,” as was orig inally charged. No reason for the amendment was given, and the particular statutory provi sion that the defendant was alleged to have violated did not change, i.e., R.C. 2925.11 (C)(3)(a) which provides, “[e]xcept as otherwise provided in division (C)(3)(b) [through] (g) of this section, possession of marihuana is a minor misdemeanor.” That section applies to a person charged with possessing marijuana in any amount less than 100 g rams. The court granted

the state’s motion to amend. {¶ 6} On November 1, 2018, the defendant filed a motion to dismiss th e case, and a hearing on the motion was held on November 16, 2018. At that time, the defendant argued that the state had failed to try him within 30 days of s ervice of the summons, in violation of his right to a speedy trial under R.C. 2945.71(A) and that the docket failed to “affirmatively” establish that he had waived that right. {¶ 7} The state objected. It argued that the speedy-trial clock had been tolled since the September 26, 2018 hearing, when the parties agreed t o resolve the case. According to the state, it agreed “to offer [the defendant] div ersion in this case in order to4. dismiss the possession of marijuana case” and that it further a greed to “amend the marijuana possession [from] less than [one] hundred grams to le ss than 30 grams.” The

state told the court that it did so to “take into consideration [the defendant’s] issues that he was having with the Immigration Board and becoming a U.S. Ci tizen.” The state told the court that it followed through on its end of the bargain (b y moving to amend the complaint) but that the defendant had failed to complete and re turn the diversion agreement (provided to defense counsel on September 26, 2018). {¶ 8} Defense counsel agreed that the parties had engaged in “settlem ent negotiations” during the September 26, 2018 hearing, but she di sputed that she had agreed (or could have agreed) to diversion on behalf of her cli ent. Defense counsel further asserted that she had learned, after the hearing, that merely “rewording” the complaint was “not enough” to protect the defendant’s immigrati on status. {¶ 9} The following is an excerpt between the court and the parties’ respective counsel from that hearing: THE COURT: [W]as this case where the charge was rewritten * * * as an accommodation and then there was diversion on top of that ? [THE STATE]: Correct, Your Honor, this is that case. * * * THE COURT: Well, what happened with the diversion? [THE STATE]: The State never received a completed diversion form signed by the Defendant. THE COURT: Was an agreement with diversion reached?5. [THE STATE]: There would be no reason to set it for a status hearing [on November 28, 2018] if the diversion agreement was n ot reached on [September 26, 2018]. * * * That’s why the State has argued in its motion that time has been tolled since September 26 th because of the fact that the Defendant was, through counsel, agreeing to the divers ion at that point, agreeing to the amendment that we made in order to assis t him with the immigration court issues. * * *. The status hearing wouldn ’t have been

set out to November 28 th if we didn’t have an agreement as to what Defendant’s planning to do with diversion. The Defendant failed then to sign and send back to the Court a n agreed upon diversion agreement. * * * THE COURT: I remember you, [defense counsel], you represented to the Court that you had all these immigration issues and, and you needed the citation rewritten and you needed diversion and you needed these accommodations to assist your client, and I remember the prosec ution agreeing to rewrite the case, and agreeing to diversion. * * * When the parties left the courtroom there was an agreement that had been reached. [DEFENSE COUNSEL]: No, Your Honor, my client never wanted diversion. I’ve always asserted to the Court that his immigrat ion attorney said diversion would not work for immigration, and I’ve always left the Court stating that I will talk to him and I’ll see what I can g et. I thank the6. Prosecutor kindly for rewriting it * * *. [W]e’ve always left the courtroom with me saying I will go talk to him. He has never once agreed to it. THE COURT: [T]hat is not my memory of what happened here. My memory of the case was that an agreement was reached and par t and parcel of that agreement was the rewriting of the citation to a ssist in the wording on it and how critical that was. [DEFENSE COUNSEL]: Yes, Your Honor, I believe the rewording [of] it was critical [but] it turned out * * * it was not enoug h to just have it

reworded. We understand that the Prosecutor has done a lot to get this t o this point, but at the same time, I also understand my client has a right to agree or not agree to the diversion agreement, and he did not agree t o it and we’ve not submitted any time waivers. * * * {¶ 10} At the conclusion of the hearing, the court ruled against the d efendant “on

the time issue” and denied his motion to dismiss. A trial was held one week later, on November 21, 2018, at which Trooper Smith testified about the c ircumstances of the stop. The court found the defendant guilty, as charged, and se ntenced him to a fine of $100, plus court costs. {¶ 11} The defendant appealed and assigns a single assignment of error for our

review:7. Assignment of Error 1 – The trial court erred when it failed t o dismiss the case as the Defendant was not afforded his right to a speedy trial as guaranteed by Section 2945.71 of the Ohio Revised Code , Article 1, Section 10 of the Ohio Constitution, and the 6th and 14th Amend ments to

the United States Constitution. Law and Analysis {¶ 12} The right to a speedy trial is guaranteed by the Sixth and Four teenth Amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution.

State v. Adams , 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The Ohio legis lature adopted the provisions of R.C. 2945.71-.73 to implement these c onstitutional guarantees.

Id. “Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial wi thin the time required by

sections 2945.71 and 2945.72 of the Revised Code.” R.C. 2945.7 3(B). The provisions are mandatory, and strict compliance is required by the state. State v. Hohenberger , 189 Ohio App.3d 346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 35 (6th Dist .). We apply a de novo standard of review when reviewing the denial of a motion t o dismiss on speedy-trial grounds. Toledo v. Murray , 6th Dist. Lucas No. L-12-1325, 2013-Ohio-4747, ¶ 8, citing

State v. Browand , 9th Dist. Lorain No. 06CA009053, 2007-Ohio-4342, 2007 WL 2409752, ¶ 10. {¶ 13} R.C. 2945.71(A) provides, “[s]ubject to division (D) of this se ction, a person * * * against whom a charge of minor misdemeanor is pend ing in a court of8. record shall be brought to trial within thirty days after the p erson’s arrest or the service of

summons. See, e.g., City of Cleveland v. Collins , 8th Dist. Cuyahoga No. 105804, 2018- Ohio-958, ¶ 58 (“If the defendant is not arrested for the offen se, speedy trial time begins on the day he is served with the indictment.”). The actual dat e of service, however, does not count against the state for purposes of determining whether a defendant’s right to a speedy trial has been violated. State v. Kist , 173 Ohio App.3d 158, 2007-Ohio-4773, 877 N.E.2d 747, ¶ 24 (11th Dist.). Therefore, in this case, the sp eedy-trial count began to run on September 1, 2018, the day after the defendant was served wi th the summons. Under the 30-day time limit set forth in R.C. 2945.71(A), the state w as required to try the defendant by September 30, 2018. The defendant’s trial took p lace on November 21,

2018. {¶ 14} “[W]hen a criminal defendant shows that he was not brought to t rial within the proper period, the burden shifts to the State to demonstrat e that sufficient time was

tolled or extended under the statute.” Hohenberger at ¶ 35. If the state fails to do so, the trial court is required to dismiss the charges against the defe ndant. R.C. 2945.73(B). {¶ 15} The reasons for charging days to the defendant (i.e., tolling s peedy-trial time) are outlined in R.C. 2945.72. The statute provides, in r elevant part, The time within which an accused must be brought to trial * * * may

be extended only by the following : (E) Any period of delay necessitated by reason of a plea in ba r or abatement, motion, proceeding, or action made or instituted by the accused;9. (H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted ot her than upon the accused’s own motion. (Emphasis added.) {¶ 16} Under R.C. 2945.72(E), delay caused by a defendant’s entry and subsequent withdrawal of a plea tolls the speedy-trial time lim its. State v. Berry , 8 Ohio App.3d 379, 380-81, 457 N.E.2d 371 (12th Dist.1983). Likewise, when the defendant

files a motion or demand for discovery, time is tolled for a “reasonable time unt il the motion is responded to and ruled upon.” State v. Sanchez , 110 Ohio St.3d 274, 2006- Ohio-4478, 853 N.E.2d 283, ¶ 26; R.C. 2945.72(E); State v. Brown , 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus. {¶ 17} Under R.C. 2945.72(H), time is tolled during any continuance re quested by the defendant and any reasonable continuance required by the st ate or the court. In addition to being “reasonable,” a continuance for the benefit o f the state or the court must also be “necessary.” State v. Willis , 6th Dist. Wood Nos. WD-15-006 and WD-15-007, 2016-Ohio-616, ¶ 17, citing State v. Saffell , 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988). Whether such a continuance is reasonable and necessary depends on the facts and

circumstances of the case. Saffell at 91. To support the reasonableness of and necessity for a continuance granted other than upon the defendant’s motio n, “a trial court must journalize the continuance before the expiration of the time li mit set forth in R.C.

2945.71 and must state the reason for the continuance.” State v. Stamps , 127 Ohio App.3d 219, 224, 712 N.E.2d 762 (1st Dist.1998); State v. Hohenberger , 189 Ohio10. App.3d 346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 47 (6th Dist.). If the journal entry does not contain the reason for the continuance, the reviewing court can look to other evidence

in the record to determine whether the continuance was reasonab le and necessary. State v. Myers , 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 62; State v. Conkright , 6th Dist. Lucas No. L-06-1107, 2007-Ohio-5315, ¶ 29. Time is c hargeable to the defendant as long as the record affirmatively demonstrates the reasonableness of and the necessity for the continuance. Myers at ¶ 62. {¶ 18} The exceptions set forth in R.C. 2945.72 are the only reasons t hat speedytrial time may be extended, and any extension must be strictly construed against the state. City of Toledo v. Skarlov , 6th Dist. Lucas Nos. L-15-1303 and L-15-1304, 2017-Ohio137, ¶ 7. {¶ 19} The state argues that the defendant’s case was subject to numer ous tolling events that brought his trial date within the statutory limit. {¶ 20} The following events are relevant to our speedy-trial determina tion:

Date Event Aug. 31, 2018 Defendant served with summons. Sept. 20, 2018 Pretrial conference requested by defendant. Sept. 21, 2018 Trial court grants defendant’s request for pretr ial conference and schedules same for Sept. 26, 2 018. Sept. 24, 2018 Defendant serves discovery requests upon the sta te.11. Sept. 26, 2018 Pretrial held; Trial court sets “status conferen ce” for Nov. 28, 2 018. State provides discovery responses to defendant. Nov. 1, 2018 Defendant files motion to dismiss case. Nov. 16, 2018 Pretrial conference held on defendant’s motion to dismiss. Court denies motion and sets trial date of November 21, 2018. Nov. 21, 2018 Trial held. Defendant found guilty. {¶ 21} First, the state argues, and the defendant agrees, that under R .C. 2945.72(H), time was tolled when (1) the defendant requested a pretrial conference on September 20, 2019 and (2) the defendant demanded discovery fro m the state on September 24, 2018. As set forth in the table below, those two events account for three days of tolling, one for the trial court to rule on the defenda nt’s request for a pretrial conference and two days for the state to provide discovery resp onses. {¶ 22} Second, the state argues that time was tolled beginning on Sept ember 26, 2018 when the defendant, through his counsel, “initiated” the p rocess of being “consider[ed] [for] diversion.” 1 The defendant, who did not attend the hearing, insists that “the diversion agreement” was tentative in nature and that he never agreed to it.

1 The record before us contains no evidence with respect to Erie County’s diversion program. Generally, however, the Ohio Revised Code authorizes prosecuting attorneys to “establish pre-trial diversion programs for adults who are a ccused of committing criminal offenses and whom the prosecuting attorney believes pr obably will not offend again.” R.C. 2935.36(A). An accused who enters a diversion p rogram “shall” do all of the following: “(1) [w]aive, in writing and contingent upon th e accused’s successful completion of the program, the accused’s right to a speedy tria l, * * * (2) [a]gree, in writing, to the tolling while in the program of all periods of limitation established by12. {¶ 23} In our view, the crux of the issue is not whether the parties r eached a firm agreement at that September 26, 2018 hearing but instead whethe r, under R.C. 2945.72(E), it may be said that the “period of delay” (that fol lowed the hearing) was “necessitated by reason of * * * motion, proceeding, or action made or instituted by the

accused.” We find that it was. {¶ 24} This case is similar to State v. Long , 70 Ohio App.3d 810, 592 N.E.2d 977 (2d Dist.1990), where the defendant moved for an extension of t ime so that she could be considered for diversion, following her arrest for driving unde r the influence of alcohol, pursuant to R.C. 4511.19(A)(1). That charge obligated the stat e to try her within 90 days of arrest, under R.C. 2945.71(B)(2). Six months after requesti ng diversion, the probation department denied it, on the basis that the defendant was not e ligible to participate in the program due to a prior conviction. The defendant then filed a motion to dismiss the case on speedy-trial grounds, which the trial court denied. Followi ng her conviction, the defendant appealed. The court of appeals found that “the sole basis * * * for [an] extension [of time] was appellant’s consideration for diversion , which ran [for six months].” It determined that, because the “term of considerat ion was brought about by [the appellant’s] own motion,” it qualified as a tolling event under R.C. 2945.72(E). Id. at 812. The court also found, however, that because the record failed to establish that a

statutes or rules of court, that are applicable to the offense with which the accused is charged and to the conditions of the diversion program establis hed by the prosecuting attorney * * *.” R.C. 2935.36(B)(1)-(2).13. six month delay was necessary, a remand was needed for a determ ination of whether some of that time might be chargeable to the state. Id. {¶ 25} Here too, the record establishes, and the defendant does not de ny, that the sole purpose for scheduling a status conference beyond the spee dy-trial timetable was to allow the parties time to position the case towards settlement, which the defendant’s trial counsel represented she needed for the purpose of conferring wi th her client to “see what she could get.” Trial counsel also acknowledged that the state amended the complaint at her request (“I thank the Prosecutor kindly for rewriting it * * * [but] it turned out [that] * * * it was not enough to just have it reworded.”). {¶ 26} Under R.C. 2945.72(E), the defendant need not have formally mov ed for an extension for tolling to occur, and we find that the “period of delay” in this case was “necessitated by * * * action made * * * by the accused.” Repr esentations made by trial counsel, which result in the delaying of the trial date, are bi nding on the defendant, even

if done without the defendant’s consent. State v. Taylor , 98 Ohio St.3d 27, 2002-Ohio7017, 781 N.E.2d 72 (“Counsel may validly waive defendant’s rig ht to a speedy trial without his consent.”). Moreover, unlike the situation in Long , there was no “unnecessary delay” in this case, and it was the defendant, not the state, who opted out of the proposed settlement. For these reasons, we find that the e xtension of time granted by the trial court, by order dated September 26, 2018, tolled the speedy-trial clock under R.C. 2945.72(E).14. {¶ 27} The state argues that tolling after the September 26, 2018 pret rial was also appropriate under R.C. 2945.72(H). When a defendant “merely ac quiesces” to the setting of a trial date that is beyond the statutory time period but do es not affirmatively join in that motion, the continuance is entered “other than upon the ac cused’s own motion” under R.C. 2945.29(H) and therefore must be also be “reasonable ” and “necessary.” State v. Ramey , 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 30; Saffell at 91. In this case, because there is no record that the defendan t requested or joined in the setting of the status conference outside the speedy-trial timet able, time will be tolled under R.C. 2945.72(H) only if the record establishes that it wa s reasonable and necessary. {¶ 28} For reasons already expressed, we find that it was. Again, tho se reasons are that the parties expressed a desire to resolve the case and defense counsel needed additional time to review the diversion agreement with her clie nt (who did not attend the hearing); for defense counsel to confer with the defendant’s im migration lawyer as to the effect, if any, that diversion would have on defendant’s immigr ation status; and for the state to prepare and file a motion to amend the complaint. The refore, under R.C. 2945.72(H), we find that the time to bring the defendant to tri al was tolled, beginning on September 26, 2018, when the trial court scheduled a status con ference outside the speedy-trial timetable. {¶ 29} Before that status conference occurred, the defendant filed a m otion to dismiss the case—on November 1, 2018, which the trial court hea rd, and denied, on November 16, 2018. The state argues that time was tolled durin g that period of time, and15. we agree. See, e.g., State v. Bickerstaff , 10 Ohio St.3d 62, 67, 461 N.E.2d 892 (1984) (“A motion to dismiss acts to toll the time in which a defendan t must be brought to trial.”). {¶ 30} In sum, we calculate the defendant’s speedy-trial time as follo ws: Date Event Days Chargeable to State Sept. 1-20 20 Sept. 20-21 A reasonable time for the court to grant defendant’ s request to hold a pretrial conference. 1 day of tolling. Sept. 22-24 3 Sept. 24-26 A reasonable time for the state to respond to defendant’s discovery demand. 2 days of tolling. Sept. 26 - Nov. 1 A reasonable time for the parties to act in furtherance of tentative agreement to resolve the case. 36 days of tolling

Nov. 1-16 A reasonable time for the trial court to hold a heari ng following the filing of the defendant’s motion to dismiss the case. 15 days of tolling

Nov. 17-21 5 Total days chargeable to the state 28 {¶ 31} The defendant filed his motion to dismiss on November 1, 2018. As of that date, 62 days had elapsed from the time he was served with the summons. During that period of time, we calculate 39 days of tolling. When we subtr act 39 from 62, the total is16. 23. Therefore, we find no speedy-trial violation as of the tim e the defendant filed his motion, and the trial court did not err in denying it. {¶ 32} Likewise, we find no statutory violation with respect to his ac tual trial. Following the denial of the defendant’s motion to dismiss, on N ovember 16, 2018, the state tried the defendant five days later, on November 21, 2018 . All of those days are chargeable to the state. Taken together, 23 days (that accumul ated prior to the filing of the motion) plus 5 days (following the denial of the motion) eq uals a total of 28 days that are chargeable to the state. As that number is less than the 3 0 days within which the state was required to bring the defendant to trial under R.C. 2945.71 (A), we conclude that the defendant’s statutory speedy-trial right was not violated. Acc ordingly, we find that the trial court did not violate the defendant’s statutory trial rig hts under Ohio law. 1. Constitutional Speedy-Trial Rights {¶ 33} Although the defendant did not make any arguments related to th e violation of his constitutional speedy-trial rights, he assigned violatio n of his constitutional rights

as error. We find no error. {¶ 34} To determine whether a defendant was deprived of these constitu tional rights, we must balance four factors: (1) the length of the de lay, (2) the reason for the delay, (3) the defendant’s assertion of his speedy-trial rights , and (4) the prejudice to the

defendant. State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 88, citing State v. Selvage , 80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997), and Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). But we must first17. make a threshold determination that the delay in bringing the d efendant to trial was “presumptively prejudicial”; if it was not, we need not inquire into the other factors.

State v. Hull , 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 23. Th e Supreme Court of Ohio has recognized that a delay becomes presumptively prejudicial as it approaches one year. Adams at ¶ 90, citing Doggett v. United States , 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1. Regardless, whe ther the length of a delay is presumptively prejudicial is dependent upon the facts and ci rcumstances of each case.

Hull at ¶ 23. {¶ 35} At no time did the defendant object to any of the dates set by the trial court, including to the status conference which was set 60 days out. Therefore, we conclude that the defendant’s rights to a speedy trial were not violated , since any delays in the proceedings were essentially of the defendant’s own making and tolled his statutory and constitutional time for a speedy trial. {¶ 36} Appellant’s assignment of error is not well-taken, and the Nove mber 21, 2018 judgment of the Erie County Municipal Court is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.

Judgment affirmed.18. State v. Es pinoza-Soriano C .A. No. E-18-067

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.