[Cite as State v. Adams , 2020-Ohio-6886.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-20-16

v. ERIC V. ADAMS, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2019 0363 Judgment Affirmed Date of Decision: December 28, 2020

APPEARANCES:

William T. Cramer for Appellant

Jana E. Emerick for AppelleeCase No. 1-20-16

-2- WILLAMOWSKI, J. {¶1} Defendant-appellant Eric V. Adams (“Adams”) appeals the judgmen t of the Allen County Court of Common Pleas, alleging that his ri ght to a speedy trial was violated. For the reasons set forth below, the judgment of the trial court is

affirmed. Facts and Procedural History {¶2} On March 2, 2018, a complaint was filed that accused Adams of r ape. Doc. 1. Adams was arrested on August 26, 2019. Doc. 2. On Oc tober 17, 2019, Adams was charged with two counts of rape in violation of R.C. 2907.02(A)(2). Doc. 4. On October 24, 2019, he entered a plea of not guilty t o both of these charges. Doc. 14. A jury trial on these charges was scheduled for Novem ber 19, 2019. Doc.

21. {¶3} However, on November 6, 2019, defense counsel filed a motion fo r a continuance. Doc. 26. Defense counsel requested that the jury trial be rescheduled for a later date because he had to appear in three other courts for various proceedings on November 19, 2019. Doc. 26. The trial court granted this c ontinuance and rescheduled the jury trial for December 17, 2019. Doc. 27, 28. {¶4} On December 10, 2019, defense counsel filed a second motion for a continuance. Doc. 48. The motion requested that the jury tria l be rescheduled for a later date because the parties were still engaged in plea neg otiations. Doc. 48. The trial court granted this continuance and rescheduled the ju ry trial for JanuaryCase No. 1-20-16

-3- 14, 2020. Doc. 49, 57, 58. On January 7, 2020, defense counse l filed a third motion for a continuance. Doc. 75. Defense counsel requested the jur y trial be rescheduled for a later date to give the Defense more time to prepare for t he trial. Doc. 75. The trial court then rescheduled the jury trial for February 18, 20 20. Doc. 80. {¶5} On January 14, 2020, defense counsel filed a fourth motion for a continuance. Doc. 81. This motion requested that the jury tri al be rescheduled for a later date because defense counsel had a medical procedure sc heduled for the same date as the trial. Doc. 81. The trial court granted this cont inuance and rescheduled the jury trial for March 3, 2020. Doc. 86. In this judgment e ntry, the trial court noted that Adams had never waived his speedy trial rights; that defense counsel’s motions for continuances have been for good cause; and that the trial court had a “very crowded” docket at that time. Doc. 86, 87. {¶6} On March 3, 2020, Adams pled no contest to both of the charges against him. Doc. 114. The trial court found Adams guilty of both cha rges of rape and sentenced him on March 3, 2020. Doc. 115. The appellant filed his notice of appeal on March 12, 2020. Do c. 123. On a ppeal, Ad ams raises the foll owing assignment

of error: Appellant’s statutory right to a speedy trial was violated by a continuance granted on counsel’s motion but over appellant’s objection.Case No. 1-20-16

-4- Adams argues that the four continuances filed by defense counse l represented an “institutional problem or system breakdown” and that the result ing delay should, therefore, be charged against the State’s speedy trial time. A ppellant’s Brief, 8. Legal Standard {¶7} “The Sixth Amendment to the United States Constitution guarante es a speedy trial to a person who has been accused of a crime.” State v. Hines , 3d Dist. Marion No. 9-19-07, 2019-Ohio-5039, ¶ 11. “Ohio has addressed a defendant’s right to a speedy trial in several provisions in the Revised Co de.” State v. Cartlidge , 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615, ¶ 51, citing R.C. 2945.71, et seq

. R.C. 2941.401. Under R.C. 2945.71(C)(2), “[a] person against wh om a charge of felony is pending * * * [s]hall be brought to trial within two hundred seventy days after the person's arrest.” R.C. 2945.71(C)(2). Further, unde r R.C. 2945.71(E), “each day during which the accused is held in jail in lieu of b ail on the pending charge shall be counted as three days.” R.C. 2945.71(E). {¶8} However, R.C. 2945.72 lists a number of events that toll the ac crual of speedy trial time allotted to the State. R.C. 2945.72. Under R.C. 2945.72(H), speedy trial time does not accrue during “[t]he period of any c ontinuance granted on the accused’s own motion, and the period of any reasonable c ontinuance granted other than upon the accused’s own motion.” R.C. 2945.72(H). F urther, the Supreme Court of Ohio has held thatCase No. 1-20-16

-5- [a] defendant’s right to be brought to trial within the time li mits expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial preparation and the defendant is bound by the waiver even though the waiver is executed without his consent.

State v. McBreen , 54 Ohio St.2d 315, 376 N.E.2d 593, at the syllabus (1978). T hus, “[i]t is well-established that a defendant is bound by the acti ons of counsel in waiving speedy trial rights by seeking or agreeing to a continu ance, even over the defendant’s objections.” State v. Glass , 10th Dist. Franklin No. 10AP-558, 2011- Ohio-6287, ¶ 17, citing McBreen

. {¶9} On appeal, a speedy trial issue presents a mixed question of fa ct and

law. State v. Gartrell , 2014-Ohio-5203, 24 N.E.3d 680, ¶ 104 (3d Dist.). ‘We accept the facts as found by the trial court on some competent, credible evidence, but freely review the application of the law to the facts.’ State v. Kist , 173 Ohio App.3d 158, 2007- Ohio-4773, 877 N.E.2d 747, ¶ 18 (11th Dist.). “The computation of time for criminal statutes is governed by Crim.R. 45, which provides, ‘[i]n computing any period of time prescribed * * * b y any applicable statute, the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included * * *.’” State v. Shafer , 3d Dist. Logan No. 8-14-28, 2015-Ohio-2469, ¶ 12, quoting Crim.R. 45. ‘If any ambiguity exists, we construe the record in favor of the accused.’ Id

. State v. Flynn , 3d Dist. Paulding No. 11-16-06, 2017-Ohio-1484, ¶ 10. Legal Analysis {¶10} We will apply the statutory speedy trial provisions to the fact s of this case to determine whether Adams was tried within the prescribed timeframe. In this case, Adams was arrested on August 26, 2019 and remained in cus tody pendingCase No. 1-20-16

-6- trial. Doc. 2. For this reason, the triple count provision of R.C. 2945.71(E) is applicable. Initially, Adams’s jury trial was scheduled for No vember 19, 2019. Doc. 21. This original trial date was within the ninety-day ti meframe prescribed by R.C. 2945.71(C) and R.C. 2945.71(E). {¶11} However, on November 7, 2019, defense counsel filed a motion fo r a continuance. Doc. 26. Defense counsel requested this continua nce because he had several other proceedings in three other courts in three separa te counties that had been scheduled on the same day. Doc. 26. The trial court gran ted defense counsel’s requested continuance and moved the jury trial from November 19 , 2019 to December 17, 2019. Doc. 27, 28. {¶12} The continuance requested by defense counsel tolled the speedy trial time for this period of time. See State v. Kozic , 7th Dist. Mahoning No. 11 MA 160, 2014-Ohio-3788, ¶ 32, 91; State v. Gibson , 8th Dist. Cuyahoga No. 100727, 2014- Ohio-3421, ¶ 19; State v. Eager , 10th Dist. Franklin No. 95APA09-1165, 1996 WL 221520, *2 (May 2, 1996) (stating that “[a] defendant’s right t o be brought to trial within the limits of R.C. 2945.71 may be waived by defense coun sel for extensions to prepare for trial as well as for conflicts in defense counse l’s schedule.”). See also McBreen, supra , at 319. {¶13} On December 10, 2019, defense counsel filed a second continuanc e to give the parties more time to engage in plea negotiations. Doc . 48. In this motion, defense counsel further requested that the continuance not dela y the jury trial forCase No. 1-20-16

-7- more than thirty days. Doc. 48. The trial court granted this continuance and moved the jury trial from December 17, 2019 to January 14, 2020. Doc . 58. Thus, the trial court was even able to accommodate the Defense’s request that t he jury trial not be delayed more than thirty days. Doc. 58. {¶14} As defense counsel requested this continuance, the speedy trial time was tolled during this timeframe. See State v. Furtwengler , 1st Dist. Hamilton No. C-860631, 1987 WL 13253, *2 (June 24, 1987); State v. Smith , 8th Dist. No. 100338, 2014-Ohio-2186, ¶ 25-26; State v. James , 8th Dist. Cuyahoga No. 102604, 2015-Ohio-4987, ¶ 9; State v. Meadows , 8th Dist. Cuyahoga No. 108452, 2020- Ohio-3888, ¶ 22-23. {¶15} On January 7, 2020, defense counsel requested a third continuan ce to allow the Defense more time to prepare for trial. Doc. 75. Th e trial court granted this continuance and moved the jury trial from January 14, 2020 to February 18, 2020. Doc. 80. The speedy trial time was tolled during the pe riod subject to this

continuance. McBreen, supra , at syllabus (holding that a continuance requested by defense counsel tolls speed trial time even if the defendant ob jects). See also State v. Herring , 2d Dist. Montgomery No. 13128, 1993 WL 10437, *7 (Jan. 21, 19 93);

State v. Machuca , 3d Dist. Allen No. 1-15-01, 2016-Ohio-254, ¶ 36. {¶16} On January 14, 2020, defense counsel requested a fourth continu ance because he had a medical procedure scheduled for the same date as the trial. Doc. 81. The trial court granted this continuance and moved the dat e of the jury trialCase No. 1-20-16

-8- from February 18, 2020 to March 3, 2020. Doc. 81, 86. During the period of this continuance, the speedy trial time was tolled. State v. Barrett , 8th Dist. Cuyahoga No. 81101, 2002-Ohio-6506, ¶ 27; State v. Hadden , 11th Dist. Trumbull No. 2008- T-0029, 2008-Ohio-6999, ¶ 40. See also State v. Jones , 8th Dist. Cuyahoga No. 107561, 2019-Ohio-2571, ¶ 4, 43; State v. McQueen , 10th Dist. Franklin No. 09AP195, 2009-Ohio-6272, ¶ 38. {¶17} Even though these four continuances were requested by defense counsel, Adams asserts that the period of time that elapsed und er these four continuances should count against the State because this delay represented an “institutional problem[] or systemic breakdown * * *.” Appella nt’s Brief, citing

Vermont v. Brillon , 556 U.S. 81, 83, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009). Beyond making this assertion, however, Adams has not advanced a n argument that explains how his defense counsel requesting four continuances w as an institutional problem. He similarly has not identified any facts in the reco rd that would establish any systemic breakdown in this case. See Brillon at 94. Thus, there is no reason to charge this delay to the State for speedy trial purposes. {¶18} After examining the record, we conclude that defense counsel fi led continuances for valid reasons and that the period of delay occ asioned by these continuances was not excessive. Thus, in this case, the speedy trial time was tolled by the four continuances that were requested by defense counsel . As a result of these continuances, no speedy trial time accrued in between the first continuanceCase No. 1-20-16

-9- and the date on which Adams pled no contest to the charges agai nst him. For this reason, we conclude that Adams’s statutory right to a speedy tr ial was not violated. His sole assignment of error is overruled.

Conclusion {¶19} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Allen County Court of Common Pleas is

affirmed. Judgment Affirmed SHAW, P.J. and PRESTON, J., concur.

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