[Cite as State v. Daley, 2012-Ohio-796.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 11CA3240 

 : 

 vs. : Released: February 24, 2012 

 : 

JOHN R. DALEY, : DECISION AND JUDGMENT 

 : ENTRY

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Timothy Young, Ohio Public Defender, and Ben A. Rainsberger, Assistant 

State Public Defender, Chillicothe, Ohio, for Appellant. 

Toni L. Eddy, City of Chillicothe Law Director, and Michele Rout, Assistant 

City of Chillicothe Law Director, Chillicothe, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, J.: 

{¶1} Appellant, John R. Daley, appeals the Chillicothe Municipal 

Court’s judgment finding him guilty of operating a motor vehicle with a 

concentration of marihuana metabolite in his urine pursuant to R.C. 

4511.19(A)(1)(j)(viii)(II). On appeal, he contends that the trial court erred 

when it denied his motion to discharge based upon speedy trial grounds 

brought pursuant to R.C. 2945.71 et seq. In light of our conclusion that the 

State did not know of the facts necessary to charge Appellant with the R.C. 

4511.19(A)(1)(j)(viii)(II) violation at the time of his arrest, the later filed 
Ross App. No. 11CA3240 2

charge was not subject to the same speedy trial time table as the original 

charges. Accordingly, Appellant’s sole assignment of error is overruled and 

the judgment of the trial court is affirmed. 

FACTS 

{¶2} On July 12, 2010, Appellant was charged with driving outside of 

marked lanes, in violation of R.C. 4511.33, and driving under the influence 

of alcohol, in violation of R.C. 4511.19(A)(1)(a). Appellant waived his right 

to speedy trial as to these two charges on September 27, 2010. 

Subsequently, on January 12, 2011, while these charges were still pending, 

Appellant was charged with driving with a concentration of marihuana 

metabolite in his urine, in violation of R.C. 4511.19(A)(1)(j)(viii)(II). This 

later filed charge arose out of the same incident as the original (A)(1)(a) 

charge. Appellant pled not guilty and the matters were scheduled for trial on 

February 10, 2011. 

{¶3} On February 9, 2011, the State dismissed the original charges 

and decided to proceed only with the later filed specified limits charge. 

Additionally, the trial was continued to March 24, 2011. Due to the 

unavailability of one of the State’s key witnesses on that date, the trial court 

continued the trial to April 20, 2011, and expressly extended speedy trial 

time in the entry. On the day of the scheduled trial, Appellant made an oral 
Ross App. No. 11CA3240 3

motion to discharge pursuant to R.C. 2945.73, claiming a violation of his 

right to speedy trial as to the later filed charge. After the trial court denied 

the motion, Appellant pled no contest to the charge of violating R.C. 

4511.19(A)(1)(j)(viii)(II). Appellant was sentenced to five days in jail, a 

term of community control, as well as fines and costs. It is from the trial 

court’s April 20, 2011, entry of sentence that Appellant now brings his 

timely appeal, assigning a single assignment of error for our review. 

ASSIGNMENT OF ERROR 

“I. THE COURT BELOW ERRED WHEN IT DENIED 

DEFENDANT’S MOTION TO DISCHARGE FOR VIOLATION OF 

O.R.C. §2945.71 ET SEQ.” 

LEGAL ANALYSIS 

{¶4} In his sole assignment of error, Appellant contends that the trial 

court erred when it denied his motion for discharge based upon a violation of 

his right to speedy trial. He asserts that the State failed to bring him to trial 

for the later filed offense within ninety (90) days as required by R.C. 

2945.71, arguing that the 90 day period for the later filed offense started to 

run at the same time as the original offenses. 

{¶5} We initially note that appellate review of a trial court's decision 

regarding a motion to dismiss based upon a violation of the speedy trial 

provisions involves a mixed question of law and fact. See, e.g., State v. 
Ross App. No. 11CA3240 4

Horsley, Ross App. No. 10CA3152, 2011-Ohio-1355; State v. Skinner, Ross 

App. No. 06CA2931, 2007-Ohio-6320; State v. Pinson, Scioto App. No. 

00CA2713, 2001-Ohio-2423. We accord due deference to the trial court's 

findings of fact if supported by competent, credible evidence. However, we 

independently review whether the trial court properly applied the law to the 

facts of the case. See, e.g., Horsley, Skinner; State v. Woltz (Nov. 4, 1994), 

Ross App. No. 93CA1980, 1994 WL 655905. Furthermore, when reviewing 

the legal issues presented in a speedy trial claim, we must strictly construe 

the relevant statutes against the state. See Skinner; Brecksville v. Cook, 75 

Ohio St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706; State v. Miller (1996), 

113 Ohio App.3d 606, 608, 681 N.E.2d 970; State v. Cloud (1997), 122 

Ohio App.3d 626, 702 N.E.2d 500. 

{¶6} An accused must first show a prima facie case for discharge by 

demonstrating that the time limit imposed by R.C. 2945.71 has been 

exceeded. Skinner at ¶ 8; State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 

500 N.E.2d; State v. Howard (1992), 79 Ohio App.3d 705, 707, 607 N.E.2d 

1121. At that point, the burden shifts to the state to demonstrate any tolling 

or extension of the time limit. Id. If the state fails to comply with the 

mandates of the speedy trial statute, the defendant must be discharged 

pursuant to R.C. 2945.73. 
Ross App. No. 11CA3240 5

{¶7} The Sixth Amendment to the United States Constitution, made 

binding on the states by the Fourteenth Amendment, and Section 10, Article 

I of the Ohio Constitution guarantee a defendant the right to a speedy trial. 

See, e.g., State v. Parker, 113 Ohio St.3d 207, 209, 2007-Ohio-1534, 863 

N.E.2d 1032. The United States Supreme Court declined to establish the 

exact number of days the state has to bring a defendant to trial. Instead, it 

recognized that individual states may establish reasonable times that are 

consistent with the constitution. Barker v. Wingo (1972), 407 U.S. 514, 523, 

92 S.Ct. 2182. The Ohio Legislature responded by enacting R.C. 2945.71, 

which sets forth specific time requirements for the state to bring a defendant 

to trial. State v. Hughes (1999), 86 Ohio St.3d 424, 425, 1999-Ohio-118, 715 

N.E.2d 540. 

{¶8} R.C. 2945.71(B)(2) provides that a person charged with a 

misdemeanor of the first degree shall be brought to trial within 90 days after 

his arrest or service of summons. The burden is on the state to bring the 

accused to trial within this statutory period. State v. Singer (1977), 50 Ohio 

St.2d 103, 106, 362 N.E .2d 1216. These speedy trial statutes are strictly 

enforced because they implement the constitutional guarantee of a speedy 

trial. State v. Montgomery (1980), 61 Ohio St.2d 78, 80, 399 N.E.2d 552; 

State v. Pudlock (1975), 44 Ohio St.2d 104, 105, 338 N.E.2d 524. 
Ross App. No. 11CA3240 6

{¶9} In the case sub judice, Appellant contends that his right to a 

speedy trial for his third offense (OVI based upon R.C. 

4511.19(A)(1)(j)(viii)(II) began to run at the same time as that of his first 

and second offenses (OVI based upon R.C. 4511.19(A)(1)(a) and marked 

lanes based upon R.C. 4511.33). Appellant was charged for the first and 

second offenses on July 12, 2010. Therefore, unless extended, the State had 

until October 10, 2010, to bring Appellant to trial, i.e., 90 days. The State 

did not bring Appellant to trial until April 20, 2011. Thus, Appellant 

presented a prima facie case for discharge of the first and second offenses, 

and essentially argues he did so for the later filed offense, the time for which 

he argues began to run on July 12, 2010. 

{¶10} The time within which an accused must be brought to trial may 

be extended for the reasons listed in R.C. 2945.72. These reasons include 

“any period of delay necessitated by reason of a * * * motion * * * instituted 

by the accused, * * * [t]he period of any continuance granted upon the 

accused's own motion, and the period of any reasonable continuance granted 

other than upon the accused's own motion[.]” R.C. 2945.72(E), (H). 

{¶11} Here, Appellant waived his right to a speedy trial as to the first 

and second offenses on September 27, 2010. As the State eventually 

dismissed the first and second offenses on February 9, 2011, we need not 
Ross App. No. 11CA3240 7

consider them any further. However, while these offenses were still 

pending, on January 12, 2011, Appellee issued and served Appellant with a 

summons for a third offense. Appellant did not waive his right to a speedy 

trial as to this offense. As such, we must calculate how long Appellee had to 

bring Appellant to trial for this third offense. 

{¶12} In State v. Skinner, supra, at ¶ 15, based upon facts very similar 

to the case sub judice in that both appellants were initially charged with an 

under the influence violation and then later charged with a specified limits 

violation, we noted as follows: 

“In State v. Baker (1997), 78 Ohio St.3d 108, 676 N.E.2d 883, the Supreme 

Court of Ohio held, ‘[i]n issuing a subsequent indictment, the state is not 

subject to the speedy-trial timetable of the initial indictment, when additional 

criminal charges arise from facts different from the original charges, or the 

state did not know of these facts at the time of the initial indictment.’ Id. at 

syllabus. The Court's decision in Baker was closely followed by the Second 

District Court of Appeals in the following cases: State v. Cantrell (Sept. 7, 

2001), Clark App. No. 00CA95, 2001 WL 1018234 (additional R.C. 

4511.19(A) charge based on results of blood test); State v. Lekan (June 27, 

1997), Montgomery App. No. 16108, 1997 WL 351287 (additional R.C. 

4511.19(A) charge based on results of urine test). The facts herein closely 

resemble the facts of Cantrell and Lekan, supra.” 

{¶13} More specifically, relying on State v. Baker, supra, the Cantrell

court reasoned that the facts supporting the later filed specified limits charge 

were not available to the state when the initial charges were filed and 

therefore that charge was not subject to the speedy trial timetable applicable 

to the original R.C. 4511.19(A)(1) charge. Cantrell, supra. Instead, the 
Ross App. No. 11CA3240 8

Cantrell court held that the speedy trial clock for the later filed charge began 

to run when the new charge was filed and the defendant was served with the 

summons. Id. 

{¶14} Further, in State v. Lekan, supra, despite observing that the later 

filed specified limits charge arose out of the same incident as the originally 

filed “(A)(1)” or under the influence charge, the court noted that the 

specified limits charge was dependent upon laboratory analysis of the urine 

sample, the results of which were not available to the police when the initial 

charges were filed. As such, the Lekan court reasoned that State v. Baker

was applicable, rather than State v. Adams (1989), 43 Ohio St.3d 67, 538 

N.E.2d 1025, which is especially pertinent herein as Appellant relies upon 

Adams in support of his argument. The Adams court reasoned that the 

speedy trial timetable on a later filed under the influence charge began to run 

when the specified limits charge was initially filed. Adams at 68. 

{¶15} As the court pointed out in Lekan, and as with the case sub 

judice, the specified limits charge was the subsequent charge, which is the 

reverse order of Adams, where the under the influence charge was the 

subsequent charge. Lekan, supra. We believe, as did the Lekan court, that 

the order in which the charges are filed makes a difference. Id. Had 

Appellant been charged with the specified limits case first, and then later 
Ross App. No. 11CA3240 9

charged with an under the influence violation, the speedy trial timetable for 

the later offense would have begun to run when the first offense was filed 

because it arose out of the same incident and police had all the information 

necessary to file the charge at that time. However, that is the not the 

situation sub judice and we believe the difference is key to our 

determination. 

{¶16} Applying the reasoning of Skinner, Baker, Cantrell, and Lekan, 

supra, to the case sub judice, the later filed offense stemming from 

Appellant’s urine test results was not subject to the same speedy trial time 

table as the original offenses. Rather, it began on January 12, 2011, when 

Appellant was served on the R.C. 4511.19(A)(1)(j)(viii)(II) violation. Thus, 

the State had 90 days from that date to bring Appellant to trial, which would 

have been April 12, 2011. 

{¶17} The record reflects that the trial on the original charges was 

scheduled for February 10, 2011, but that the State dismissed those charges 

on February 9, 2011, and decided to proceed upon the later filed charge 

only. As such, a new trial date was scheduled for March 24, 2011. 

However, the record reflects that due to the unavailability of one of the 

State’s key witnesses on that date, the trial court rescheduled the jury trial 

for April 20, 2011, eight days after the speedy trial limit, not counting any 
Ross App. No. 11CA3240 10

tolling periods. The record further reveals that in the March 8, 2011, entry 

continuing the trial, the trial court extended the speedy trial limits as a result 

of the continuance. As set forth above, the time within which an accused 

must be brought to trial may be extended for “the period of any reasonable 

continuance granted other than upon the accused's own motion[.]” R.C. 

2945.72(H). Thus, Appellant’s speedy trial rights were not violated. 

{¶18} In reaching this result, we are mindful of Appellant’s argument 

that we should depart from our prior reasoning in Skinner, based upon our 

more recent decision in State v. Horsley, supra, where at ¶ 21 we 

acknowledged the reasoning of State v. Cooney (1997), 124 Ohio App.3d 

570, 573, 706 N.E.2d 854, which held that the state need not know exact 

results of a blood test in order to charge a specified limits violation. 

However, based upon the foregoing analysis of the relevant case law, we 

decline to do so and instead adhere to the reasoning of State v. Skinner on 

this particular issue. Despite our acknowledgment in Horsley of the holding 

in Cooney, we believe Skinner sets forth the proper speedy trial analysis 

when an under the influence charge is followed by a later filed specified 

limits charge. 
Ross App. No. 11CA3240 11

{¶19} Thus, Appellant’s sole assignment of error is without merit and 

the judgment of trial court is affirmed. 

JUDGMENT AFFIRMED. 

Harsha, J., concurring. 

{¶20} I agree that our reasoning in State v. Skinner, supra, provides 

the proper analysis and reached the right result on the issue before us. 

Furthermore, our reference to Cooney, supra, in our subsequent decision in 

Horsley, was merely obiter dictum, and should not be considered as 

persuasive authority. 
Ross App. No. 11CA3240 12

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Chillicothe Municipal Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

 Abele, P.J.: Concurs in Judgment and Opinion. 

 Harsha, J.: Concurs with Concurring Opinion. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.