[Cite as State v. Torres, 2014-Ohio-3683.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NOS. 12 JE 30 

) 12 JE 31 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

HELEN TORRES ) 

LAWRENCE L. YATOR, JR., ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Criminal Appeals from the Jefferson 

County Court No. 2 of Jefferson County, 

Ohio 

Case Nos. 12 CRB 32; 12 CRB 29 

JUDGMENT: Vacated. 

Reversed and Dismissed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Jane M. Hanlin 

Prosecuting Attorney 

Atty. Cerryn Marshall 

Assistant Prosecuting Attorney 

Jefferson County Justice Center 

16001 State Route 7 

Steubenville, Ohio 43952 

For Defendant-Appellant: Atty. R. Paul Cushion, II 

75 Public Square, Suite 1111 

Cleveland, Ohio 44113 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: August 21, 2014
[Cite as State v. Torres, 2014-Ohio-3683.]

WAITE, J. 

{¶1} In this consolidated appeal, Appellants Helen L. Torres and Lawrence 

L. Yator, Jr. contest the decisions of Jefferson County Court No. 2 finding each of 

them guilty of disorderly conduct. Appellants both allege that their 2012 bench trial 

commenced in violation of their statutory speedy trial rights. Appellants’ first 

assignment of error has merit and their second assignment is made moot by the 

resolution of the first. The judgment of the trial court is reversed and vacated. 

Factual and Procedural History

{¶2} An altercation occurred on September 10, 2011 involving Appellants. 

Appellants were both charged with causing “inconvenience, annoyance, or alarm to 

another by making unreasonable noise or an offensively coarse utterance, gesture, 

or display, or communicating unwarranted and grossly abusive language to any 

person, in violation of Section 2917.11(A)(2) of the Ohio Revised Code.” (Emphasis 

sic.) (2/7/12 Complaint.) Appellants both appeared in court on March 12, 2012 and 

entered not guilty pleas. 

{¶3} On March 16, 2012, the state filed a motion for continuance in both 

cases on the grounds that Christine Stewart, the Chief of Bergholz Police Department 

who swore to the complaints in this matter, was recovering from back and leg surgery 

and was scheduled for her next doctor’s appointment on March 27, 2012. The 

motion notes that “the attorney for defendant, R. Paul Cushion, II has indicated that 

he has no objection to a continuance of the trial in this case.” (3/16/12 Motion.) The 

motion does not specify the duration of the continuance requested or provide any 

basis for the motion other than the witness’s appointment with a physician. This is 
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the only motion seeking to continue the trial that appears on the dockets and case 

files for each matter. The trial court never journalized a ruling on the motion for either 

Appellant. Both dockets reflect that there was no action taken in either case after the 

filing of the March motion for continuance until July 17, 2012, when hearing notices 

were issued for an August 9, 2012 bench trial. 

{¶4} Counsel for Appellants made a verbal motion for dismissal on speedy 

trial grounds prior to the commencement of trial on August 9, 2012. The state 

opposed the motion, stating that the prosecution was initiated within the statutory 

period and that Appellants had waived speedy trial time and agreed to a continuance. 

The trial court verbally overruled the defense motion and the joint bench trial of 

Appellants occurred on that date. 

{¶5} The trial court found Appellants guilty and fined each of them $100.00. 

Appellants filed a timely appeal of the entry of sentence. 

ASSIGNMENT OF ERROR NO. 1

When the State of Ohio files charges for Disorderly Conduct, a minor 

misdemeanor, when the alleged act occurred on September 10, 2011, 

and the Appellants are brought to trial on August 9, 2012, through no 

fault of their own, and after the State of Ohio sought a continuance the 

Appellants must be discharged as these charges are barred by the 

requisite statute of limitations, as the State of Ohio had only six (6) 

months in which to bring the Appellants to trial, and the prosecution was 

not commenced within six (6) months. 
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{¶6} Appellants contend that the state failed to comply with R.C. 

2901.13(A)(1)(c), which mandates that the prosecution of a minor misdemeanor 

offense be commenced within six months of the offense. Appellants are correct that 

R.C. 2901.13 requires that “[e]xcept as provided in division (A)(2) or (3) of this 

section or as otherwise provided in this section, a prosecution shall be barred unless 

it is commenced within the following periods after an offense is committed: * * * (c) 

For a minor misdemeanor, six months.” However, Appellants have omitted section 

(E) of the statute, which explains: 

A prosecution is commenced on the date an indictment is returned or 

an information filed, or on the date a lawful arrest without a warrant is 

made, or on the date a warrant, summons, citation, or other process is 

issued, whichever occurs first. A prosecution is not commenced by the 

return of an indictment or the filing of an information unless reasonable 

diligence is exercised to issue and execute process on the same. A 

prosecution is not commenced upon issuance of a warrant, summons, 

citation, or other process, unless reasonable diligence is exercised to 

execute the same. 

R.C. 2901.13(E). 

{¶7} Although Appellants seem to suggest that there were additional or 

different prior charges which may have been filed and dismissed, a single charge is 

reflected in each of the criminal complaints that initiated the prosecutions now on 
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appeal. To the extent it may exist, any information pertaining to prior or additional 

charges does not appear in this record and cannot be used in this appeal. 

{¶8} Both of the complaints were filed on February 7, 2012 and address 

conduct that allegedly occurred on September 10, 2011. The criminal complaints 

charge both Appellants with disorderly conduct in violation of R.C. 2917.11(A)(2), a 

minor misdemeanor. Certified mail receipts attached to each summons and 

complaint indicate that they were issued on February 10, 2012, three days after 

copies of each were filed with the court. The returns of service included on the mail 

receipts show that service was attained on February 13, 2012. Thus, for purposes of 

R.C. 2901.13(A) and (E), the prosecutions of Appellants were commenced on 

February 10, 2012 when the summonses were issued. These were based on 

incidents that occurred on September 10, 2011, five months before. Hence, pursuant 

to R.C. 2901.13, the prosecution was “commenced” within the required six month 

period. 

{¶9} Although Appellants’ first assignment of error mainly addresses the time 

limitation for commencement of a criminal prosecution, Appellants conclude their 

argument by reasserting their speedy trial rights and state that their August 9, 2012 

trial was held eleven months too late. According to Appellants, trial should have 

commenced on or about March 9, 2012 in connection with charges brought for an 

offense that occurred on September 10, 2011 in order to satisfy the six month statute 

of limitations on their offenses. Appellants did not waive their speedy trial rights and 

it is clear from the record that they never sought a continuance of trial. 
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{¶10} Appellants are mistaken that the six month limitation on the 

commencement of prosecution requires a March 9, 2012 trial date, as the only six 

month limitation applicable to their minor misdemeanor offenses is contained in R.C. 

2901.13, regarding commence of prosecution. As earlier stated, this was satisfied by 

the service of a criminal summons within the statutory period. Although Appellants 

cite to the wrong statute as the basis of their speedy trial argument, they are correct 

in concluding that they should have been brought to trial in March of 2012. Despite 

their confusion, Appellants preserved this error for review in the trial court by seeking 

dismissal of the charges prior to trial, explicitly stating that dismissal was sought on 

speedy trial grounds. This record reflects that Appellants’ August 2012 trial was held 

in violation of their speedy trial rights. 

{¶11} The right to a speedy trial is a fundamental right of a criminal defendant 

guaranteed by the United States and Ohio Constitutions. (Sixth Amendment to the 

U.S. Constitution; Ohio Constitution, Article I, Section 10.) States have the authority 

to prescribe reasonable periods in which a trial must be held, consistent with 

constitutional requirements. Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 

L.Ed.2d 101 (1972). “In response to this authority, Ohio enacted R.C. 2945.71, 

which designates specific time requirements for the state to bring an accused to trial.” 

State v. Hughes, 86 Ohio St.3d 424, 425, 715 N.E.2d 540 (1999). The statutory 

speedy trial provisions, R.C. 2945.71 et seq., were enacted to enforce the 

constitutional right to a public speedy trial of an accused charged with the 

commission of a felony or a misdemeanor and are to be strictly enforced. State v. 

Pachay, 64 Ohio St. 2d 218, 416 N.E.2d 589 (1980). The prosecution and the trial 
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court both have a mandatory duty to try an accused within the time frame provided by 

the statute. State v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977); see 

also State v. Cutcher, 56 Ohio St.2d 383, 384, 384 N.E.2d 275 (1978). 

{¶12} Because the general assembly recognized that some degree of 

flexibility is necessary, it allowed for extensions of the time limits for bringing an 

accused to trial in certain circumstances. State v. Lee, 48 Ohio St.2d 208, 209, 357 

N.E.2d 1095 (1976). Accordingly, R.C. 2945.72 contains an exhaustive list 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 General Assembly 

jealously guarded its judgment as to the reasonableness of delay by providing that 

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).” State v. Ramey, 132 Ohio St. 3d 309, 

313, 2012-Ohio-2904, 971 N.E.2d 937, 942, ¶24. These extensions are to be strictly 

construed, and not liberalized in favor of the state. Id. 

{¶13} R.C. 2945.71(A) is the section that actually governs the time frame in 

which a defendant must be brought to trial for a minor misdemeanor. The statute 

requires: “[s]ubject to division (D) of this section, a person against whom a charge is 

pending in a court not of record, or against whom a charge of minor misdemeanor is 

pending in a court of record, shall be brought to trial within thirty days after the 

person’s arrest or the service of summons.” R.C. 2945.71(A). Section (D) of R.C. 

2945.71 governs the time frame applicable to individuals against whom multiple 

charges are pending, and does not apply to Appellants. This record reflects service 
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of the summons on February 13, 2012 in both matters. Pursuant to R.C. 2945.71(A), 

then, trial was required to commence by March 14, 2012. 

{¶14} Although R.C. 2945.71 requires that trial commence thirty days after the 

service of a summons for a minor misdemeanor, the trial timeline may be extended 

by tolling events, as indicated by R.C. 2945.72, which provides: 

The time within which an accused must be brought to trial * * * may be 

extended only by the following: 

(A) Any period during which the accused is unavailable for hearing or 

trial, by reason of other criminal proceedings against him, within or 

outside the state, by reason of his confinement in another state, or by 

reason of the pendency of extradition proceedings, provided that the 

prosecution exercises reasonable diligence to secure his availability; 

(B) Any period during which the accused is mentally incompetent to 

stand trial or during which his mental competence to stand trial is being 

determined, or any period during which the accused is physically 

incapable of standing trial; 

(C) Any period of delay necessitated by the accused’s lack of counsel, 

provided that such delay is not occasioned by any lack of diligence in 

providing counsel to an indigent accused upon his request as required 

by law; 
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(D) Any period of delay occasioned by the neglect or improper act of 

the accused; 

(E) Any period of delay necessitated by reason of a plea in bar or 

abatement, motion, proceeding, or action made or instituted by the 

accused; 

(F) Any period of delay necessitated by a removal or change of venue 

pursuant to law; 

(G) Any period during which trial is stayed pursuant to an express 

statutory requirement, or pursuant to an order of another court 

competent to issue such order; 

(H) The period 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; 

(I) Any period during which an appeal filed pursuant to section 2945.67 

of the Revised Code is pending. 

The statute is clear that “[u]pon 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 

within the time required by sections 2945.71 and 2945.72 of the Revised Code.” 

R.C. 2945.73(B). 

{¶15} When a trial court exercises its discretion to continue the period for trial 

beyond the statutory limit, the second clause of subsection (H) applies. Therefore, 
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the period of continuance must be reasonable. Ramey, supra, at ¶24. “When 

defense counsel merely acquiesces in a trial date but does not affirmatively lodge a 

motion for a continuance, the continuance is entered ‘other than upon the accused's 

own motion’ and, under the second clause of R.C. 2945.72(H), must be reasonable.” 

Id. at ¶30. The Supreme Court has also “recognized that an appellate court may 

affirm a conviction challenged on speedy-trial grounds even if the trial court did not 

expressly enumerate any reasons justifying the delay when the reasonableness of 

the continuance is otherwise affirmatively demonstrated by the record.” Id. at ¶33. 

An appellate court’s “determination of reasonableness must be made on the existing 

record.” Id. at ¶34 referencing State v. McRae, 55 Ohio St.2d 149, 153, 378 N.E.2d 

476, 479 (1978) (the existing record must affirmatively demonstrate the 

reasonableness of the delay); State v. Mincy, 2 Ohio St.3d 6, 8, 441 N.E.2d 571 

(1982) (condemning after-the-fact justifications of continuances). 

{¶16} The record in this matter for both Appellants reflects that they were 

served on February 13, 2012 with a minor misdemeanor indictment and that trial 

commenced, following a speedy trial objection, approximately six months later. 

There was never any ruling made on the single motion for continuance filed in March, 

2012 by the state. While the length of time between indictment and trial can vary 

widely despite the timeframes contained in the statute, a period of more than five 

times the stated statutory timeframe, in the absence of a single tolling event, is 

clearly suspect. 

{¶17} Although Appellants’ pre-trial motion for dismissal on speedy trial 

grounds was inartful, and trial counsel was mistaken in his reference to the six month 
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requirement for the commencement of prosecution rather than the thirty day trial 

deadline, the provisions of R.C. 2945.71 and 2945.73 “relating to the guarantee of an 

accused’s right to a speedy public trial, are mandatory and must be strictly complied 

with by the state.” Davis, supra, at 448. Appellants did state they were seeking 

dismissal on speedy trial grounds. The state responded by making reference to 

multiple (allegedly) agreed continuances in this matter. However, no continuances 

appear of record. The only motion for continuance that appears in the record was 

made by the state in the absence of any objection by either Appellant. Under 

Ramey, supra, this would, if properly granted, still be subject to review as to its 

reasonableness, since it was initiated on the state’s motion, and not by Appellants. 

But this motion was never properly ruled on by the trial court. Thus, this record does 

not reflect any tolling event or discovery request that would explain even a portion of 

the delay prior to trial. 

{¶18} Pursuant to R.C. 2945.73(B), when a defendant is not brought to trial 

within the relevant time constraint, he or she “shall be discharged,” and further 

criminal proceedings based on the same conduct are barred. In the absence of a 

single tolling event in the record before us, this five month delay is facially 

unreasonable and rises to the level of plain error even if Appellant had not raised the 

issue prior to trial. Appellants’ first assignment of error is sustained. 

ASSIGNMENT OF ERROR NO.2

The trial court erred when it determined that the statements made by 

the Appellants to the police were not protected speech, under the First 

Amendment, as verbal criticism that fails to satisfy even the basic 
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standards of courtesy and decorum, when made to police, even though 

provocative and even when it challenges police action, is protected 

speech under the First Amendment, and may never form the basis for 

any criminal conduct. 

{¶19} Because Appellants’ first assignment of error has merit, we need not 

address any error that may have arisen during trial. Dismissal of this matter renders 

Appellants’ second assignment moot. 

Conclusion

{¶20} Appellants’ first assignment of error has merit. Appellants were brought 

to trial in violation of the speedy trial requirements of R.C. 2945.71 et seq. 

Appellants’ second assignment of error is moot because of the resolution of the first 

assignment of error. Appellants’ convictions are reversed, the judgments of the trial 

court vacated, and the matters are dismissed with prejudice. Any further prosecution 

for the same conduct is barred. 

Vukovich, J., concurs. 

DeGenaro, P.J., concurs.