State v. Kemper

2025 Ohio 4481

• Court: Ohio Court of Appeals
• Decided: September 26, 2025
• Docket: 2025-CA-10
• Status: Published

Opinion

[Cite as State v. Kemper, 2025-Ohio-4481.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO : : C.A. No. 2025-CA-10 Appellee : : Trial Court Case No. 2024 CRB 2605 v. : : (Criminal Appeal from Municipal Court) BRYAN KEMPER : : FINAL JUDGMENT ENTRY & Appellant : OPINION :

...........

Pursuant to the opinion of this court rendered on September 26, 2025, the judgment

of the trial court is vacated.

Costs to be paid by appellee.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

MICHAEL L. TUCKER, JUDGE

EPLEY, P.J., and LEWIS, J., concur. -2- OPINION MIAMI C.A. No. 2025-CA-10

CURT C. HARTMAN and CHRISTOPHER J. GALIARDO, pro hac vice, Attorneys for Appellant JONATHAN B. FREEMAN, Attorney for Appellee

TUCKER, J.

{¶ 1} Bryan Kemper appeals from his conviction on a misdemeanor trespassing

charge. He contends the trial court should have dismissed the charge based on a statutory

speedy-trial violation.

{¶ 2} We agree that speedy-trial time expired before Kemper was brought to trial.

Accordingly, the trial court’s judgment is vacated.

I. Background

{¶ 3} On November 5, 2024, Kemper received a citation and summons for criminal

trespassing, a fourth-degree misdemeanor. The charge arose from him holding a sign on

church property on election day. He refused to leave the premises and claimed he could not

be trespassed because the church was a voting location open to the public. After Kemper

refused to move to a sidewalk, a police sergeant issued the trespassing citation.

{¶ 4} Kemper appeared by himself for his arraignment on November 26, 2024. He

engaged in the following exchange with the trial court:

DEFENDANT KEMPER: The summons that was sent, just in the

regular mail, not registered mail, and it was actually altered with white-out to

cover the officer’s mistake. She wrote the wrong charges on the ticket and

instead of updating, they just covered it with white-out. I have a picture of both

tickets so I just wanted to challenge the insufficiency of the summons. If it’s -3- still required to enter a plea today, I’ll enter the plea of not guilty as long as

that’s on the record.

TRIAL COURT: Okay, enter a not guilty plea, set the matter for a pretrial

conference, release you on your own recognizance. Those are matters that

you’re going to have to take up with the prosecutor and then it will come before

me.

DEFENDANT KEMPER: Yes, Your Honor, I apologize. I just, my

lawyer,

TRIAL COURT: No, no, no need for apology,

DEFENDANT KEMPER: (Laughter).

TRIAL COURT: None of that. You just have to step out in the hallway

and get your OR bond taken care of.

DEFENDANT KEMPER: Your Honor, may I make a request of any date

being after December 20th as my son is graduating from Navy basic training?

TRIAL COURT: Yeah, just make sure,

DEFENDANT KEMPER: Thank you, thank you, Your Honor.

TRIAL COURT: Yeah, thank you.

{¶ 5} Following Kemper’s arraignment, the trial court set a pretrial conference for

January 2, 2025. The case then proceeded to a bench trial on January 16, 2025. At the

outset of that proceeding, Kemper, who appeared pro se, moved to dismiss the charge

based on a statutory speedy-trial violation. He noted that he received the complaint and

summons on November 5, 2024. He argued that speedy-trial time expired 45 days later on

December 20, 2024. Alternatively, he noted that he had been arraigned on November 26,

2024 and that 45 days later was January 10, 2025. Using either his receipt of the complaint -4- and summons or his arraignment as the speedy-trial starting point, Kemper maintained that

the time to try him had expired.

{¶ 6} In response, the State argued only that Kemper had requested a pretrial

conference at his arraignment. The State asserted that this request tolled all time until the

pretrial conference occurred, resulting in no speedy-trial violation. After hearing the State’s

explanation, the trial court responded, “That’s accurate.” Kemper interjected that he had not

requested a pretrial conference. He recalled simply pleading not guilty and being told by the

trial court that there would be a pretrial conference. The trial court disagreed with Kemper’s

recollection, and the following exchange occurred:

TRIAL COURT: I heard you, and I heard you, and I knew this was an

issue so we did calculate it and we are within the speedy trial time. Because

there are certain things that toll the time that stop it, it stops running. When you

ask for a pretrial conference, it stops and that’s dead time. So when you take

all that into consideration, you’re still within the speedy trial time.

DEFENDANT KEMPER: May I ask a question, Your Honor?

TRIAL COURT: Sure.

DEFENDANT KEMPER: When did I ask for, I don’t remember asking I

was just told that that’s what would happen when I pled not guilty.

TRIAL COURT: Defendants are always asked if they want a pretrial

conference or if they want to,

DEFENDANT KEMPER: I misunderstood. I apologize, Your Honor.

TRIAL COURT: Okay. So your motion is overruled. -5- {¶ 7} The trial court proceeded to hear evidence and found Kemper guilty of criminal

trespassing. It imposed a $25 fine and ordered him to pay court costs. Miami County

Municipal Court records reflect that the financial obligation remains unpaid.

II. Analysis

{¶ 8} Kemper’s sole assignment of error states:

The trial court erred as a matter of law by not dismissing the Defendant’s

charge based upon a speedy trial violation.

{¶ 9} Kemper contends the trial court erred in finding speedy-trial time tolled due to a

pretrial conference he did not request. Without tolling the time between his arraignment and

the pretrial conference, Kemper notes that he established a speedy-trial violation.

{¶ 10} Apparently recognizing that Kemper in fact did not request the pretrial

conference, the State pursues a different argument on appeal. It contends his request at the

arraignment for “any date” the trial court might set to be “after December 20th” tolled speedy-

trial time from the arraignment until his January 16, 2025 trial. In reply, Kemper claims the

State cannot invoke his request for a date after December 20th to toll speedy-trial time

because it did not raise that issue in the trial court.

{¶ 11} When a court considers a challenge based on an alleged statutory speedy-

trial violation, the review initially entails little more than a count of days pursuant to

R.C. 2945.71. State v. Wagner, 2021-Ohio-1671, ¶ 12 (2d Dist.). “If a defendant ‘establishes

a prima facie case of a violation of his right to a speedy trial, the burden then shifts to the

State’ to demonstrate either that the statutory limit was not exceeded, or that the State’s

time to bring the defendant to trial was properly extended.” Id., quoting State v. Nichols,

2005-Ohio-1771, ¶ 11 (5th Dist.). If the State fails to make such a showing, the prima facie

case remains unrebutted, entitling the defendant to discharge. State v. Butcher, 27 Ohio -6- St.3d 28, 31 (1986); see also State v. Kendall, 2025-Ohio-10, ¶ 11 (2d Dist.) (recognizing

that the defendant must be discharged if the State does not meet its burden to show a tolling

event).

{¶ 12} Appellate “[r]eview of a speedy-trial claim involves a mixed question of law and

fact. Therefore, we defer to the trial court’s factual findings if they are supported by

competent, credible evidence, but we review the application of the law to those facts de

novo.” (Citation omitted.) State v. Long, 2020-Ohio-5363, ¶ 15; accord State v. Knott, 2024-

Ohio-2289, ¶ 15 (2d Dist.). “De novo review requires an ‘independent review of the trial

court’s decision without any deference to the trial court’s determination.’” State v. Clay, 2016-

Ohio-424, ¶ 5 (2d Dist.).

{¶ 13} A defendant charged with a fourth-degree misdemeanor must be tried within

45 days after service of a summons. R.C. 2945.71(B)(1). Kemper received his citation and

summons on November 5, 2024. The parties agree that 45 days later was December 20,

2024. Kemper was not tried until January 16, 2025. Therefore, he made a prima facie

showing of a speedy-trial violation when he appeared for trial and sought dismissal of the

trespassing charge. The burden then shifted to the State to show that no violation occurred.

To meet its burden, the State argued only that Kemper had requested a pretrial conference

at his arraignment, thereby tolling all time until the pretrial conference. The trial court made

a factual finding that Kemper indeed had requested a pretrial conference. It found that the

request tolled the time between November 5, 2024, and January 2, 2025, the date of the

pretrial conference, and thus concluded that no speedy-trial violation occurred.

{¶ 14} We reject the trial court’s factual finding that Kemper requested a pretrial

conference because it is contrary to the record. The arraignment transcript reflects that the

trial court ordered a pretrial conference sua sponte. “[T]he time between a request and -7- pretrial conference will be tolled where the record shows that the pretrial was granted at the

defendant’s own request and there is nothing facially unreasonable about the time taken to

provide the pretrial.” State v. Cruea, 2005-Ohio-4731, ¶ 10 (2d Dist.). Here the time between

Kemper’s arraignment and the pretrial conference was not tolled because he did not request

the conference. Given the State’s failure to cite any other tolling event, it did not rebut

Kemper’s prima facie showing of a speedy-trial violation. That being so, the trial court erred

in failing to dismiss the charge.

{¶ 15} We decline to address the State’s new argument on appeal that during

Kemper’s arraignment, he had requested “any date” after December 20th. A basic principle

of appellate practice is that “[p]arties may not raise any new issues or legal theories for the

first time on appeal that were not raised in the lower court.” Edwards v. Galluzzo, 2024-Ohio-

2005, ¶ 22 (2d Dist.). This applies to the State’s attempt to raise a new tolling theory on

appeal that it did not mention below. State v. Michailides, 2018-Ohio-2399, ¶ 28 (8th Dist.)

(“The state argues for the first time on appeal that two events occurred during this time

period that tolled the speedy trial time—(1) Michailides’s pro se ‘motion (to dismiss) for

speedy trial’ filed on March 28, 2017; and (2) Michailides’s request for trial on April 10, 2017.

Because these arguments were not made to the trial court for its consideration, they

effectively are waived and will not be considered on appeal.”).

{¶ 16} As noted above, Kemper’s prima facie showing of a speedy-trial violation

imposed a burden on the State to establish the existence of one or more tolling events. The

State’s failure to satisfy its burden meant he was entitled to discharge by the trial court.

Permitting the State to raise new tolling events on appeal would violate principles of

appellate review and would relieve the State of the burden placed on it in the trial court. -8- {¶ 17} Contrary to the Eighth District’s approach in Michailides, which we find to be

correct, we recognize that the Fourth, Seventh, and Tenth Districts have allowed the State

to raise new tolling arguments on appeal. See State v. Toler, 2009-Ohio-6669 (4th Dist.);

State v. Hart, 2007-Ohio-3404 (7th Dist.); State v. Pritchard, 2013-Ohio-1255 (10th Dist.). In

Toler, the Fourth District opined that it had a duty “to independently review the record and

to calculate the speedy trial time” regardless of whether the State raised a particular tolling

event in the trial court. Toler at ¶ 24. In Hart, the Seventh District stated that it was required

“to count the delays chargeable to either side and determine whether speedy trial time had

run” even if the State did not argue below that a particular time period was tolled. Hart at

¶ 18. Finally, in Pritchard, the Tenth District remarked that it was required “to review a

speedy trial case by independently calculating when the time to bring a defendant to trial

expires” regardless of whether the State addressed certain tolling events in the trial court.

Pritchard at ¶ 12.

{¶ 18} Upon review, we find the foregoing cases to be unpersuasive. In Toler, the

Fourth District cited case law for the proposition that an appellate court must “independently

determine whether the trial court properly applied the law to the facts of the case” when

reviewing a speedy-trial challenge. Toler at ¶ 15. We agree. We followed that approach in

the present case by correcting the trial court’s factual mistake regarding the request for a

pretrial conference and then independently applying the law to the facts. Nothing cited in

Toler supports allowing the State to raise new tolling arguments on appeal. For the reasons

set forth above, we believe an appellate court’s independent calculation of speedy-trial time

must be performed in the context of the issues raised below.

{¶ 19} In Hart, the Seventh District relied on State v. Sanchez, 2006-Ohio-4478, for

the proposition that an appellate court “must count the delays chargeable to either side” -9- regardless of whether the State cited them in the trial court. Hart at ¶ 18. In the cited portion

of Sanchez, the Ohio Supreme Court stated: “Upon review of a speedy-trial issue, a court is

required to count the days of delay chargeable to either side.” Sanchez at ¶ 8. The appeal

did not involve the State’s ability to raise new tolling events on appeal, and the Ohio Supreme

Court did not say counting the days of delay included counting delays that the State did not

mention in the trial court. Sanchez involved two issues: (1) whether the existence of an ICE

detainer precluded application of Ohio’s statutory speedy-trial triple-count provision and (2)

whether the defendant’s motion in limine tolled speedy-trial time. Id. at ¶ 1. Notably, the

State raised both issues in the trial court. See State v. Sanchez, Lucas C.P. No. CR 04-

1286, 2004 WL 5388153 (June 11, 2004), reversed by State v. Sanchez, 2005-Ohio-2093

(6th Dist.), reversed by State v. Sanchez, 2006-Ohio-4478. Once again, we believe a

reviewing court must count the days of delay addressed by the parties in the trial court.

Sanchez says nothing to the contrary.

{¶ 20} Finally, in Pritchard, the Tenth District cited Hart for the proposition that it must

“independently calculate” speedy-trial time without being limited to tolling events raised in

the trial court. As noted above, however, we believe the required independent calculation

involves applying the law to the facts de novo, i.e., without deference to the trial court’s legal

analysis. It does not involve relying on new facts—such as potential tolling events not raised

below—to rule out a speedy-trial violation. Allowing the State to withhold or omit tolling

arguments in the trial court and introduce them on appeal would relieve the State of its

obligation below to rebut a defendant’s prima-facie showing of a speedy-trial violation. It also

would deprive a defendant the opportunity to respond in the trial court.

{¶ 21} For the reasons set forth above, the trial court erred in tolling speedy-trial time

based on the incorrect factual finding that Kemper requested a pretrial conference. The State -10- made no other tolling argument to rebut his prima facie showing of a speedy-trial violation.

Therefore, Kemper was entitled to dismissal of the charge against him. Kemper’s

assignment of error is sustained.

III. Conclusion

{¶ 22} The judgment of the Miami County Municipal Court is vacated, and Kemper is

discharged from any criminal liability.

.............

EPLEY, P.J., and LEWIS, J., concur.