[Cite as State v. James, 2011-Ohio-5792.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : v. : Case No. 10CA27 : : ROBERT E. JAMES : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Cambridge Municipal Court Case Nos. 09CRB03160 A, B, and C
JUDGMENT: Reversed; Final Judgment Entered
DATE OF JUDGMENT ENTRY: November 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM H. FERGUSON WILLIAM T. WHITAKER Cambridge Law Director 54 East Mill Street, Suite 301 150 Highland Ave., Suite 2 Akron, Ohio 44308 Cambridge, Ohio 43725
james [Cite as State v. James, 2011-Ohio-5792.]
Edwards, J.
{¶ 1} Appellant, Robert E. James, appeals a judgment of the Cambridge
Municipal Court convicting him of resisting arrest (R.C. 2921.33) and disorderly conduct
(R.C. 2917.11(A)(2)) upon pleas of no contest and sentencing him to three days
incarceration and 51 days of house arrest. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶ 2} At 1:20 a.m. on September 30, 2009, the Southeastern Ohio Regional
Medical Center called the police to check on a patient causing problems at the hospital.
Ptl. David Long and Lt. Kevin Love responded to the call. Upon arriving at the hospital,
Ptl. Long approached appellant. A nurse indicated to Lt. Love that appellant had been
in an automobile accident and voluntarily appeared at the hospital for treatment. She
told Lt. Love that appellant had been causing problems and had gone outside naked
before officers arrived.
{¶ 3} Appellant attempted to leave, shoving Patrolman Long. The officers
decided to detain appellant. Appellant proceeded out the door with the officers in
pursuit. Lt. Love grabbed appellant’s arm and asked him to hold on until the officers
figured out what was going on. Lieutenant Love told appellant they were going to place
him in the patrol car and detain him until they could ascertain what happened at the
hospital. Appellant tried to pull away, yelled, cursed and asked what he was being
arrested for. Appellant was advised that he was not under arrest, he was merely being
detained. Appellant yelled “you motherfuckers” at the officers. At this point appellant
was arrested for disorderly conduct. Guernsey County App. Case No. 10CA27 3
{¶ 4} Appellant struggled with the officers on the hood of the vehicle. He
continued to threaten the officers and was ultimately tasered. Appellant was charged
with one count of resisting arrest and two counts of disorderly conduct.
{¶ 5} On October 6, 2009, appellant entered pleas of not guilty to all charges.
The court scheduled trial to the bench for December 7, 2009.
{¶ 6} On November 13, 2009, appellant filed a motion for discovery. The State
filed a response to the motion, providing the requested discovery on November 18,
2009.
{¶ 7} Appellant filed a jury demand on November 24, 2009. On November 25,
2009, the court filed an entry recognizing appellant’s jury demand and stating:
{¶ 8} “It is the Court’s local procedure to require the counsel for Defendant to
schedule a pretrial conference directly with the Law Director’s office prior to setting the
date for jury trial.
{¶ 9} “Counsel for the Defendant is ordered to notify the Court in writing when
the pre-trial has been conducted, so that the jury trial date may be set, or in the event of
a negotiated resolution, a date for hearing on other terms.
{¶ 10} “So that the case may be brought to trial within the speedy trial limits, the
parties are ordered to complete their reciprocal discovery as soon as time permits, and
to timely schedule the pre-trial conference between respective counsel.”
{¶ 11} On December 3, 2009, a pretrial memo was filed with the court reflecting
that a plea offer had been made by the State which would expire December 4, 2009 at
4:00 p.m.
{¶ 12} On December 7, 2009, the court filed an entry which provided: Guernsey County App. Case No. 10CA27 4
{¶ 13} “Case called for a trial to the Court this day.
{¶ 14} “A jury demand had been filed by the Defendant and subsequently on
December 3, 2009, a pretrial had been conducted.
{¶ 15} “No one appeared for the trial scheduled for this day. Counsel for the
Defendant did not notify the Court that the pretrial had generated no negotiated
resolution.
{¶ 16} “The Court notes that the pretrial had been conducted at (sic) late as
December 3, 2009.
{¶ 17} “Counsel for the Defendant should have notified the Court to schedule the
case to be a trial to a jury.
{¶ 18} “The case is ordered scheduled for trial to a jury on the 14th day of
January, 2010 at 9:00 a.m. which is the next available date for a trial to a jury.”
{¶ 19} On January 11, 2010, appellant filed a motion to continue, a motion to
dismiss for violation of speedy trial requirements, a motion for leave to file a motion to
suppress evidence, and a motion to suppress. The court continued jury trial until March
25, 2010.
{¶ 20} A hearing on appellant’s motions was conducted on March 2, 2010. An
agreed entry was filed on March 18, 2010, continuing jury trial to April 8, 2010.
Appellant filed a motion to continue on April 7, 2010, based on the illness of counsel.
Trial was then continued until May 20, 2010.
{¶ 21} The court overruled appellant’s motions on April 6, 2010. The court found
that the speedy trial time was tolled by appellant’s failure to appear on December 7,
2009 and the subsequent motions to continue. Guernsey County App. Case No. 10CA27 5
{¶ 22} Appellant then entered a plea of no contest to resisting arrest and one
count of disorderly conduct. The State dismissed the remaining count of disorderly
conduct.
{¶ 23} Appellant assigns two errors on appeal:
{¶ 24} “I. MR. JAMES WAS NOT TRIED WITHIN THE TIME LIMITS OF O.R.C.
§2945.71 AND, THEREFORE, HIS MOTION TO DISMISS BASED ON THIS GROUND
SHOULD HAVE BEEN GRANTED.
{¶ 25} “II. MR. JAMES’ DETENTION AND ARREST WERE MADE WITHOUT
PROBABLE CAUSE.”
I
{¶ 26} Appellant argues that because he was arrested on September 30, 2009,
the court was required to try him by December 29, 2009. Appellant argues that
because the trial was scheduled for January 14, 2010, and the clock had not been tolled
before that time, he should have been discharged on December 29, 2009.
{¶ 27} The parties agree that pursuant to R.C. 2945.71(B)(2), the State had 90
days within which to bring appellant to trial. Pursuant to R.C. 2945.72, the time within
which a defendant must be brought to trial may be extended under certain
circumstances:
{¶ 28} “The time within which an accused must be brought to trial, or, in the case
of felony, to preliminary hearing and trial, may be extended only by the following . . .
{¶ 29} “(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 . . . Guernsey County App. Case No. 10CA27 6
{¶ 30} “(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 . . . “
{¶ 31} The speedy trial time was tolled from November 13, 2009, by appellant’s
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[Cite as State v. James, 2011-Ohio-5792.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : v. : Case No. 10CA27 : : ROBERT E. JAMES : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Cambridge Municipal Court Case Nos. 09CRB03160 A, B, and C
JUDGMENT: Reversed; Final Judgment Entered
DATE OF JUDGMENT ENTRY: November 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM H. FERGUSON WILLIAM T. WHITAKER Cambridge Law Director 54 East Mill Street, Suite 301 150 Highland Ave., Suite 2 Akron, Ohio 44308 Cambridge, Ohio 43725
james [Cite as State v. James, 2011-Ohio-5792.]
Edwards, J.
{¶ 1} Appellant, Robert E. James, appeals a judgment of the Cambridge
Municipal Court convicting him of resisting arrest (R.C. 2921.33) and disorderly conduct
(R.C. 2917.11(A)(2)) upon pleas of no contest and sentencing him to three days
incarceration and 51 days of house arrest. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶ 2} At 1:20 a.m. on September 30, 2009, the Southeastern Ohio Regional
Medical Center called the police to check on a patient causing problems at the hospital.
Ptl. David Long and Lt. Kevin Love responded to the call. Upon arriving at the hospital,
Ptl. Long approached appellant. A nurse indicated to Lt. Love that appellant had been
in an automobile accident and voluntarily appeared at the hospital for treatment. She
told Lt. Love that appellant had been causing problems and had gone outside naked
before officers arrived.
{¶ 3} Appellant attempted to leave, shoving Patrolman Long. The officers
decided to detain appellant. Appellant proceeded out the door with the officers in
pursuit. Lt. Love grabbed appellant’s arm and asked him to hold on until the officers
figured out what was going on. Lieutenant Love told appellant they were going to place
him in the patrol car and detain him until they could ascertain what happened at the
hospital. Appellant tried to pull away, yelled, cursed and asked what he was being
arrested for. Appellant was advised that he was not under arrest, he was merely being
detained. Appellant yelled “you motherfuckers” at the officers. At this point appellant
was arrested for disorderly conduct. Guernsey County App. Case No. 10CA27 3
{¶ 4} Appellant struggled with the officers on the hood of the vehicle. He
continued to threaten the officers and was ultimately tasered. Appellant was charged
with one count of resisting arrest and two counts of disorderly conduct.
{¶ 5} On October 6, 2009, appellant entered pleas of not guilty to all charges.
The court scheduled trial to the bench for December 7, 2009.
{¶ 6} On November 13, 2009, appellant filed a motion for discovery. The State
filed a response to the motion, providing the requested discovery on November 18,
2009.
{¶ 7} Appellant filed a jury demand on November 24, 2009. On November 25,
2009, the court filed an entry recognizing appellant’s jury demand and stating:
{¶ 8} “It is the Court’s local procedure to require the counsel for Defendant to
schedule a pretrial conference directly with the Law Director’s office prior to setting the
date for jury trial.
{¶ 9} “Counsel for the Defendant is ordered to notify the Court in writing when
the pre-trial has been conducted, so that the jury trial date may be set, or in the event of
a negotiated resolution, a date for hearing on other terms.
{¶ 10} “So that the case may be brought to trial within the speedy trial limits, the
parties are ordered to complete their reciprocal discovery as soon as time permits, and
to timely schedule the pre-trial conference between respective counsel.”
{¶ 11} On December 3, 2009, a pretrial memo was filed with the court reflecting
that a plea offer had been made by the State which would expire December 4, 2009 at
4:00 p.m.
{¶ 12} On December 7, 2009, the court filed an entry which provided: Guernsey County App. Case No. 10CA27 4
{¶ 13} “Case called for a trial to the Court this day.
{¶ 14} “A jury demand had been filed by the Defendant and subsequently on
December 3, 2009, a pretrial had been conducted.
{¶ 15} “No one appeared for the trial scheduled for this day. Counsel for the
Defendant did not notify the Court that the pretrial had generated no negotiated
resolution.
{¶ 16} “The Court notes that the pretrial had been conducted at (sic) late as
December 3, 2009.
{¶ 17} “Counsel for the Defendant should have notified the Court to schedule the
case to be a trial to a jury.
{¶ 18} “The case is ordered scheduled for trial to a jury on the 14th day of
January, 2010 at 9:00 a.m. which is the next available date for a trial to a jury.”
{¶ 19} On January 11, 2010, appellant filed a motion to continue, a motion to
dismiss for violation of speedy trial requirements, a motion for leave to file a motion to
suppress evidence, and a motion to suppress. The court continued jury trial until March
25, 2010.
{¶ 20} A hearing on appellant’s motions was conducted on March 2, 2010. An
agreed entry was filed on March 18, 2010, continuing jury trial to April 8, 2010.
Appellant filed a motion to continue on April 7, 2010, based on the illness of counsel.
Trial was then continued until May 20, 2010.
{¶ 21} The court overruled appellant’s motions on April 6, 2010. The court found
that the speedy trial time was tolled by appellant’s failure to appear on December 7,
2009 and the subsequent motions to continue. Guernsey County App. Case No. 10CA27 5
{¶ 22} Appellant then entered a plea of no contest to resisting arrest and one
count of disorderly conduct. The State dismissed the remaining count of disorderly
conduct.
{¶ 23} Appellant assigns two errors on appeal:
{¶ 24} “I. MR. JAMES WAS NOT TRIED WITHIN THE TIME LIMITS OF O.R.C.
§2945.71 AND, THEREFORE, HIS MOTION TO DISMISS BASED ON THIS GROUND
SHOULD HAVE BEEN GRANTED.
{¶ 25} “II. MR. JAMES’ DETENTION AND ARREST WERE MADE WITHOUT
PROBABLE CAUSE.”
I
{¶ 26} Appellant argues that because he was arrested on September 30, 2009,
the court was required to try him by December 29, 2009. Appellant argues that
because the trial was scheduled for January 14, 2010, and the clock had not been tolled
before that time, he should have been discharged on December 29, 2009.
{¶ 27} The parties agree that pursuant to R.C. 2945.71(B)(2), the State had 90
days within which to bring appellant to trial. Pursuant to R.C. 2945.72, the time within
which a defendant must be brought to trial may be extended under certain
circumstances:
{¶ 28} “The time within which an accused must be brought to trial, or, in the case
of felony, to preliminary hearing and trial, may be extended only by the following . . .
{¶ 29} “(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 . . . Guernsey County App. Case No. 10CA27 6
{¶ 30} “(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 . . . “
{¶ 31} The speedy trial time was tolled from November 13, 2009, by appellant’s
motion for discovery, and began to run again on November 18, 2009, when the state
filed a response. Therefore, the time within which appellant should have been tried was
extended to January 3, 2010.
{¶ 32} In its entry overruling appellant’s motion to dismiss, the court finds the
time was tolled by appellant’s failure to appear for trial on December 7, 2009. However,
it is clear from the record that the court was aware that a jury demand had been filed
and that bench trial would not proceed on December 7, 2009.
{¶ 33} A jury demand which provides ample time to schedule a jury trial within
the guidelines of R.C. 2945.71, in the absence of an “in rule” entry justifying extension
by the trial court, does not automatically extend the applicable speedy trial rights
established by the legislature. State v. Nichols, Richland App. No. 04CA56, 2005-Ohio-
1771, ¶14, citing State v. Dove (June 20, 1991), Coshocton App. No. 90-CA-16; State v.
Morse (October 30, 1998), Guernsey App. No. 98-CA-08.
{¶ 34} The State argues that the jury demand was not filed in ample time to
schedule a jury trial by December 29, 2009, due to the intervening holidays of
Thanksgiving and Christmas. While the State may be correct that it was not possible to
schedule a jury trial within the time constraints of R.C. 2945.71, the trial court did not
timely file an entry justifying extension based on the time limitations imposed on the
court due to closure for the holidays. Guernsey County App. Case No. 10CA27 7
{¶ 35} In effect, the court’s entry of December 7, 2009, constitutes a sua sponte
continuance of trial from December 7, 2009, to January 14, 2010, based on appellant’s
jury demand. When sua sponte granting a continuance under R.C. 2945.72(H), the trial
court must enter the order of continuance and the reasons explaining why the trial date
was extended beyond the statutory time period prior to the expiration of the time limits
prescribed in R.C. 2945.71 for bringing a defendant to trial. State v. Mincy (1982), 2
Ohio St.3d 6, 8-9, 441 N.E.2d 571. The court failed to timely file an entry explaining
why appellant’s case was set for jury trial outside the expiration of the time limits
provided by R.C. 2945.71. Appellant was not brought to trial within 90 days as required
by R.C. 2945.71.
{¶ 36} The first assignment of error is sustained. Guernsey County App. Case No. 10CA27 8
II
{¶ 37} The second assignment of error is rendered moot by our disposition of
assignment of error one.
{¶ 38} The judgment of the Cambridge Municipal Court is reversed, and this
Court enters judgment for appellant.
By: Edwards, J.
Gwin, P.J. and Farmer, J. concur
______________________________
JUDGES [Cite as State v. James, 2011-Ohio-5792.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : v. : JUDGMENT ENTRY : ROBERT E. JAMES : : Defendant-Appellant : CASE NO. 10CA27
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Cambridge Municipal Court is reversed and judgment is entered for
appellant. Costs assessed to appellee.
_________________________________
JUDGES