[Cite as State v. Savors , 2022-Ohio-894.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT COLUMBIANA COUNT Y

STATE OF OHIO,
Plaintiff-Appellee,

v. RANDY A. SAVORS, JR.,
Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 21 CO 0007

Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2020 CR 160

BEFORE: David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Jud g es.

JUDGMENT: Affirmed.

Atty. Vito Abruzzino , Columbiana County Prosecutor and Atty. Tammie M. Jones
, Assistant Prosecuting Attorney105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee and Atty. Donald K. Pond, 5140 North High Street, Suite 101, Columbus, Ohio 43214, for Defendant-Appellant.– 2 –

Case No. 21 CO 0007 Dated: March 21, 2022

D’APOLITO, J.
{¶1} Appellant, Randy A. Savors, Jr., appeals the judgment entry of the Columbiana County Court of Common Pleas overruling his Motion f or Discharge/Speedy Trial based on an alleged constitutional violation by the state of his right to a speedy trial. Appellant later entered pleas of no contest to one count of Fai lure to Verify Address, in violation of R.C. 2950.06(F), a felony of the third degree, and one count of Failure to Provide Notice of Change of Address, in violation of R.C. 2950. 05(F)(1), a felony of the third degree. Following the entry of his pleas of no contest, Appellant was sentenced to a mandatory prison sentence of three years on each count to be served concurrently. For the following reasons, the judgment entry of the trial court on the alleged constitutional speedy trial violation is affirmed.

PROCEDURAL HISTORY

{¶2} On March 17, 2020, the state charged Appellant with one count o f Failure to Verify Address and one count of Failure to Provide Notice of Change of Address in the municipal court. Ten days later, on March 27, 2020, in respons e to the COVID-19 pandemic, the Governor of Ohio signed into law Am.Sub.H.B. No. 197, which immediately tolled all statutes of limitation, time limitations, and deadli nes in the Ohio Revised Code and the Ohio Administrative Code until the expiration of Execut ive Order 2020-01D or July 30, 2020, whichever was came first. In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme Court & Use of Technology , 158 Ohio St.3d 1447, 2020-
Ohio-1166. {¶3} Appellant was arrested on April 2, 2020. The following day, Ap pellant appeared in the municipal court and entered a technical no plea to the charges. {¶4} Appellant appeared again in the municipal court on April 9, 202 0 and waived a preliminary hearing. Bond was set at $25,000.00 cash or sure ty. On April 23, 2020, the common pleas court issued a continuation order on the origi nal bond. {¶5} On June 10, 2020, the grand jury indicted Appellant for the two charges to which Appellant ultimately entered his pleas of no contest. App ellant was served with the– 3 –

Case No. 21 CO 0007 indictment at the county jail on June 16, 2020. He was arraign ed on the same day. The
bond was ordered to remain in effect. {¶6} On July 23, 2020, Appellant filed motions for a bill of particu lars and for access to discovery and applicable Brady material. {¶7} On August 10, 2020, the matter was set for a status conference on August 13, 2020, and a trial by jury was scheduled for August 17, 2020

. {¶8} On August 11, 2020, Appellant filed the Motion for Discharge/Sp eedy Trial currently on appeal. Appellant alleged both statutory and cons titutional speedy trial violations, predicated upon the fact that he had been incarcera ted for 133 days as of August 11, 2020. On August 13, 2020, the trial court modified Appellant’s bond order to a $50,000.00 recognizance bond. Appellant was released from ja il that same day. {¶9} On August 27, 2020, the state filed its response brief. The st ate asserted that Am.Sub.H.B. No. 197 tolled all of the time up to July 30, 2020. The state further asserted that the time period between August 1, 2020 to August 5, 2020 was tolled due to Appellant’s pending motions for a bill of particulars and fo r Brady material. In so arguing, the state appears to argue that it had fourteen days t o respond to Appellant’s motions. Therefore, according to the state’s calculation, only six days had elapsed (August 6 to August 11). {¶10} The state’s brief reads, “TIME COUNTED AT TRIPLE COUNT (6 days) .” However, applying the triple count provision, as Appellant was incarcerated, eighteen of the 270 days would have elapsed on August 11, 2020. Nonetheles s, based on the state’s calculation, no statutory speedy trial violation had occurred. {¶11} On September 23, 2020, the trial court overruled Appellant’s mo tion. With respect to the alleged constitutional violation, the trial cour t opined that “[u]nder these extraordinary circumstances, dismissing the indictment would be an unsatisfactorily severe remedy, penalizing the State of Ohio for a delay not of its own doing and over which it had no control.” (9/23/20 J.E., p. 2.) The trial cou rt further opined that “even factoring in the delay in this case caused by the COVID pandemi c, there is no evidence of an overly long prosecution.” ( Id. ) {¶12} Two days later, on September 25, 2020, Appellant failed to appe ar for a scheduled court hearing. According to his trial counsel, who w as present at the hearing,– 4 –

Case No. 21 CO 0007 Appellant had been taken into federal custody. As a consequenc e, the trial court revoked Appellant’s bond and issued a bench warrant for his arrest on S eptember 28, 2020. {¶13} On October 19, 2020, the trial court scheduled a pretrial heari ng for October 29, 2020. That same day, the trial court issued a “Notice of C ourt Order” directing the Columbiana County Sheriff’s Office to retrieve Appellant from t he Mahoning County Jail no later than October 26, 2020 for the October 29, 2020 hearing

. {¶14} On October 30, 2020, the trial court issued a judgment entry me morializing the fact that Appellant was not transported to attend the pretr ial hearing. The return, filed on October 27, 2020, indicates that the trial court was require d to issue a writ in order to authorize the Columbiana County Sheriff’s Office to remove Appe llant from federal custody. {¶15} On January 15, 2021, the trial court rescheduled the pretrial h earing for February 5, 2021, but the matter was continued for fourteen day s by motion of the state, which requested the additional time to file the required paperw ork to obtain temporary custody of Appellant from the federal authorities. At the Febru ary 19, 2021 hearing, counsel for Appellant waived Appellant’s appearance and the mat ter was continued to March 29, 2021. {¶16} At the March 29, 2021 pretrial hearing, Appellant was present a nd entered his pleas of no contest to both counts in the indictment. That same day, the trial court imposed mandatory three-year sentences for each count to be ser ved concurrently. {¶17} On April 19, 2021, the trial court issued a judgment entry gran ting Appellant 133 days of jail time credit. On June 1, 2021, a letter dated May 25, 2021 from the Ohio Department of Rehabilitation and Correction was filed. The let ter establishes that the ODRC was unable to apply the jail time credit, and offers the e xplanation that its failure “may be due to time served/expired, federal custody, county jai l, probation/community control, offender is not incarcerated, or the entry has been he ld for over 30 days and [Appellant] has not been transported to the [ODRC.]” {¶18} This timely appeal followed.

ASSIGNMENT OF ERROR– 5 –

Case No. 21 CO 0007 THE TRIAL COURT ERRED BY FAILING TO DISCHARGE APPELLANT
FROM PROSECUTION BECAUSE THE STATE VIOLATED
APPELLANT’S CONSTITUTIONAL R IGHT TO A SPEEDY TRIAL.

{¶19} The right to a speedy trial is a fundamental right guaranteed b y the Sixth Amendment to the United States Constitution, made obligatory on the states by the Fourteenth Amendment. Article I, Section 10 of the Ohio Constit ution guarantees an accused this same right. State v. MacDonald , 48 Ohio St.2d 66, 68, 357 N.E.2d 40 (1976). Although the United States Supreme Court declined to establish the exact number of days within which a trial must be held, it recognized that states ma y prescribe a reasonable period of time 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 t he state to bring an
accused to trial. {¶20} Pursuant to R.C. 2945.71(C)(2), the state must bring a defendan t to trial on felony charges within 270 days of arrest. The statutory speedy- trial period begins to run on the date the defendant is arrested, although the date of arr est is not counted when calculating speedy-trial time. State v. Wells , 8th Dist. Cuyahoga No. 98388, 2013-Ohio3722, ¶ 44, citing State v. Tatum , 3d Dist. Seneca No. 13-10-18, 2011-Ohio-3005. Once the statutory limit has expired, the defendant has established a prima facie case for
dismissal. State v. Butcher , 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). At that point, the burden shifts to the state to demonstrate that suffi cient time was tolled pursuant
to R.C. 2945.72. Brecksville v. Cook , 75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). If the state has violated a defendant's right to a speedy trial, t hen the court must dismiss the charges against the defendant. R.C. 2945.73(B). {¶21} Speedy-trial time is tolled by certain events listed in R.C. 29 45.72. Such tolling events include “[a]ny period of delay occasioned by the neglect or improper act of the accused,” any period of delay “necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused , and any continuances granted upon the accused’s own motion,” and a “period of any re asonable continuance granted” upon any other party's motion. R.C. 2945.72(D), (E), a nd (H).– 6 –

Case No. 21 CO 0007 {¶22} A defendant’s demand for discovery tolls the speedy-trial time until the state responds to the discovery, or for a reasonable time. State v. Shabazz , 8th Dist. Cuyahoga No. 95021, 2011-Ohio-2260, ¶ 26, 31; R.C. 2945.72(E). Thus, the tolling period for a motion filed by the accused provides a “reasonable time” for th e state to respond to
motions and the court to rule on them. Courts have held that “3 0 days” is a “reasonable
time.” State v. Crawford , 6th Dist. Lucas No. L-17-1297, 2019-Ohio-2660, ¶ 30; State v. Shelby , 4th Dist. Lawrence No. 15CA20, 2016-Ohio-5721, ¶ 53; State v. Walker , 8th Dist. Cuyahoga No. 99239, 2013-Ohio-3522, ¶ 15, citing State v. Byrd , 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283. {¶23} Under the “triple-count provision” contained in R.C. 2945.71(E) , each day a defendant is held in jail in lieu of bail counts as three days in the speedy-trial time calculation. However, in MacDonald , 48 Ohio St.2d 66, 357 N.E.2d 40, the Ohio Supreme Court held the triple-count provision applies “only to those de fendants held in jail in lieu of bail solely on the pending charge.” Id. at paragraph one of the syllabus. Accordingly, when an accused is also being held in jail on another charge, t he triple-count provision does not apply. {¶24} Additionally, “[t]he Ohio Attorney General has opined that cour ts may suspend jury trials to prevent the spread of the coronavirus an d they may do so consistent with state and federal speedy-trial obligations.” In re Disqualification of Paris , 161 Ohio St.3d 1285, 2020-Ohio-6875, 164 N.E.3d 509, ¶ 5, quoting In re Disqualification of Fleegle , 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 7, cit ing 2020 Ohio Atty.Gen.Ops. No. 2020-002. In Fleegle , the Ohio Supreme Court held that trial judges have the authority to continue trials for defendants on a case- by-case basis without violating speedy-trial requirements and continuing a trial beca use of a pandemic state of emergency is reasonable under R.C. 2945.72(H). Id. {¶25} When reviewing a statutory speedy-trial question, an appellate court must count the number of delays chargeable to each side and then det ermine whether the number of days not tolled exceeded the time limits under R.C. 2 945.71. State v. Ferrell
, 8th Dist. Cuyahoga No. 93003, 2010-Ohio-2882, ¶ 20. Furthermore , the reviewing court must construe the statutes strictly against the state when revi ewing the legal issues in a speedy-trial claim. Cook , 75 Ohio St.3d at 57, 661 N.E.2d 70.– 7 –

Case No. 21 CO 0007 {¶26} In determining whether a constitutional speedy-trial violation exists, the reviewing court must balance four factors: “the length of the d elay, the reason for the delay, the accused’s assertion of his or her right to a speedy trial, and the prejudice to the accused as a result of the delay.” Barker , 407 U.S. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101. “[T]he length of delay that will provoke such an inquiry is nec essarily dependent upon the peculiar circumstances of the case.” Id. at 530-531, 92 S.Ct. 2182 (e.g., the tolerable delay for an ordinary street crime is considerably less than fo r a serious, complex charge). {¶27} The accused must make a threshold showing of a “presumptively prejudicial” delay to trigger an analysis of the other Barker factors. Doggett v. United States , 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Po st-accusation delay approaching one year is generally found to be presumptive ly prejudicial. Doggett at
fn. 1. {¶28} The prejudice factor must be analyzed in light of the following interests that the speedy trial right was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accu sed; and (iii) to limit the possibility that the defense will be impaired.” State v. Long , 163 Ohio St.3d 179, 2020- Ohio-5363, 168 N.E.3d 1163, ¶ 22, quoting Barker
, supra, at 532. The third interest, that is, the impact of the delay on the ability of the defendant to prepare his or her defense, is the greatest concern because it “skews the fairness of the enti re system.” Id. {¶29} Review of a speedy-trial claim involves a mixed question of law and fact. Therefore, a reviewing court must defer to the trial court’s fa ctual findings if they are supported by competent, credible evidence, but review the appli cation of the law to those
facts de novo. State v. Long , 163 Ohio St.3d 179, 2020-Ohio-5363, ¶ 15, 168 N.E.3d
1163. {¶30} Appellant was arrested on April 2, 2020. Accordingly, his spee dy trial clock began to run on April 3, 2020. Trial was scheduled for August 17, 2020. Appellant argues that trials by jury were being conducted in Ohio despite the to lling order, and as a consequence, his constitutional right to a speedy trial was vio lated. {¶31} However, only four months and fourteen days separate Appellant’ s arrest and his scheduled trial. Therefore, we find that Appellant has failed to demonstrate the threshold “presumptive prejudice” necessary to trigger analysis under the remaining– 8 –

Case No. 21 CO 0007 Barker factors. Appellant argues that the “presumptive prejudice” re lating to two nonviolent third-degree felonies should be markedly less than one year. Even assuming arguendo that one-half of that time was the appropriate benchma rk by which to presume that a defendant suffers prejudice due to the delay, the delay in this case lies at the median point between the three-month speedy trial deadline and the proposed six-month
deadline. {¶32} Next, Appellant argues that the post-motion delay of six months between September 25, 2020 (the day that the state learned he was in fe deral custody) and his pretrial hearing on March 26, 2020 (when he entered his plea) l ikewise violated his constitutional right to a speedy trial. Appellant attributes t he six-month delay to “inaction by the prosecution.” (Appellant’s Brf., p. 8.) {¶33} Prior to the entry of Appellant’s no-contest plea, Appellant di d not assert a second speedy-trial violation based on the post-motion delay by written motion, or raise the issue at the plea/sentencing hearing. In other words, Appel lant challenges the postmotion delay for the first time on appeal. The failure to file an appropriately timed motion on speedy trial grounds constitutes a waiver of the issue on ap peal. State v. Paige , 7th Dist. Mahoning No. 17 MA 0033, 2019-Ohio-1088, ¶ 68. Failure to assert a second motion to dismiss on speedy trial grounds predicated upon events occur ring after the original motion to dismiss was filed waives the issue on appeal. State v. McGee , 7th Dist. Mahoning No. 07 MA 137, 2013-Ohio-1853, ¶ 12. However, even as suming arguendo that the issue is properly before us, we find no constitutional violation. {¶34} The speedy trial period is tolled by R.C. 2945.72(A) for any ti me that the accused is unavailable for hearing or trial by reason of other criminal proceedings against him “provided that the prosecution exercises reasonable diligen ce to secure his availability.” R.C. 2945.72(A). If the defendant is incarcerate d in the county jail of another Ohio county, and the prosecution is aware of the defendant’s wh ereabouts, the record must show that the prosecutor exercised reasonable diligence to have the defendant appear before the court. State v. Gage , 1st Dist. No. C-160824A, 2018-Ohio-480, ¶ 21, citing State v. Gibson , 8th Dist. No. 76148 (Nov. 9, 2000). {¶35} Even assuming that the six-month delay constitutes a failure to exercise reasonable diligence in securing Appellant for the pretrial hea ring, Appellant has not– 9 –

Case No. 21 CO 0007 demonstrated any actual prejudice resulting from the delay. Th e public policies underlying the prejudice analysis are the prevention of oppress ive pretrial incarceration, the minimization of anxiety and concern of the accused, and lim iting the possibility that the defense will be impaired. Long
, supra . There is no evidence in the record that Appellant’s defense was impaired by the delay, and he was incar cerated for a pending federal charge at the time, which allays any concern regarding oppressive pretrial incarceration or anxiety and concern of the accused. {¶36} In summary, we find that the delay between Appellant’s arrest a nd his scheduled trial, roughly four month and fourteen days, was insu fficient to demonstrate the presumptive prejudice to trigger the remainder of the Barker factors. Further, even assuming arguendo that the state failed to exercise reasonable diligence to secure Appellant’s availability for the pretrial hearing, we find that Appellant suffered no actual prejudice due to the delay. For the foregoing reasons, the jud gment entry of the trial court overruling Appellant’s Motion for Discharge/Speedy Trial based on an alleged constitutional violation by the state of his right to a speedy trial is affirmed.

Donofrio, P.J., concurs.

Robb, J., concurs.– 10 –

Case No. 21 CO 0007 For the reasons stated in the Opinion rendered herein, the assi gnment of error is overruled and it is the final judgment and order of this Cou rt that the judgment of the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.