Strongsville v. Wheeler

2013 Ohio 1554

• Court: Ohio Court of Appeals
• Decided: April 18, 2013
• Docket: 98757
• Status: Published

Opinion

[Cite as Strongsville v. Wheeler, 2013-Ohio-1554.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98757

CITY OF STRONGSVILLE PLAINTIFF-APPELLEE

vs.

EUGENE W. WHEELER, JR. DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Berea Municipal Court Case No. 12 TRD 02913

BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J.

RELEASED AND JOURNALIZED: April 18, 2013 APPELLANT

Eugene W. Wheeler, Jr., pro se 1296 Riverwoods Drive Hinckley, Ohio 44233

ATTORNEY FOR APPELLEE

George F. Lonjak City of Strongsville Prosecutor 614 Superior Avenue Suite 1310 Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Eugene W. Wheeler, Jr. (“Wheeler”), pro se, appeals his

speeding conviction following a bench trial in Berea Municipal Court. For the reasons

set forth below, we affirm.

{¶2} On May 25, 2012, Wheeler was issued a citation for traveling at a speed of 73

m.p.h. in a 60 m.p.h. zone. Wheeler pled not guilty at his arraignment. The matter

proceeded to a bench trial on June 22, 2012, at which the trial court found Wheeler guilty

of speeding. The trial court fined him $50, plus court costs, and stayed the imposition of

his sentence pending appeal.

{¶3} Wheeler now appeals, raising the following three assignments of error for

review.

Assignment of Error One

The trial court erred and case should have been dismissed due to 5th amendment due process of law rights, 6th amendment right to a speedy trial, and O.R.C. 2945.71(A).

Assignment of Error Two

Trial court erred in proceeding with an errand trial against an objection and

judicial notice to dismiss due to violation of right to speedy trial which was

compromised as evidenced by the Berea Municipal Court Rule 8 governing

time frame requests for all motions and continuances.

Assignment of Error Three The trial court erred by not dismissing this case immediately upon the violation of appellant’s 5th amendment due process of law rights. For which an argument can also be made that not only was the availability to use the judicial procedures according to the time constraints imposed by an appearance date so close to the ending date for a speedy trial were compromised, it appears the electronic posting of the Administrative Order Rules of Berea Municipal Court although “It is so ordered” neither Judge Mark A. Comstock nor the Clerk of Court Raymond J. Wohl have officially signed the electronically posted Berea’s Court Rules, which is in accordance with Berea Rule 14 A, B, and O.R.C. 1306.06 Electronic record or signature satisfies legal requirements. So we can assume all records electronically must have an electronic signature to be valid and enforceable.

{¶4} Within these assigned errors, Wheeler essentially argues his due process

rights and speedy trial rights were violated. Wheeler first argues his due process rights

were violated because the citing officer, as opposed to someone “in the judiciary or a

clerk of court,” signed the summons in his citation. Wheeler’s argument is misguided.

{¶5} In Ohio traffic cases, “the complaint and summons shall be the ‘Ohio

Uniform Traffic Ticket.”’ Traf.R. 3(A). The issuing authority for tickets may be the

law enforcement agency of the municipality. Id. at 3(D). “If the issuing officer

personally serves a copy of the completed ticket on the defendant, the issuing officer shall

note the date of personal service on the ticket in the space provided.” Id. at (E)(1).

{¶6} In the instant case, the issuing officer cited Wheeler for traveling in excess of

the posted speed limit. The officer personally served a copy of the completed ticket on

Wheeler, and noted the date of personal service (May 25, 2012) and the summons date

(June 20, 2012) in the spaces provided on the ticket. Based on the foregoing, the

summons was properly served on Wheeler. {¶7} Wheeler next argues that his right to speedy trial was violated because his

trial was set two days after his arraignment, which “gave him no time for discovery.”

{¶8} Wheeler was charged with a minor misdemeanor under R.C. 4511.21.

According to R.C. 2945.71(A), “a person against whom a charge * * * of minor

misdemeanor is pending in a court of record, shall be brought to trial within thirty days

after the person’s arrest or the service of summons.”

{¶9} Here, Wheeler did not waive his right to speedy trial, but he claims that

under R.C. 2945.72(H), the trial court should have continued his trial to allow him more

than two days to prepare for trial.1 Based on the record before us, Wheeler’s speedy trial

rights would have been violated if his trial was held outside the 30-day time frame

commencing on May 25, 2012 (the date of personal service).2 Here, Wheeler proceeded

to trial on June 22, 2012, which was within the 30-day time frame. As a result, his right

to speedy trial was not violated.

{¶10} Accordingly the first, second, and third assignments of error are overruled.

{¶11} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

1R.C.2945.72(H) provides that: “[t]he time within which an accused must be brought to trial * * * may be extended only by * * * [t]he 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[.]” 2Wenote that Wheeler failed to include the transcript of the proceedings as required by App.R. 9(A), or an acceptable alternative as required by App.R. 9. “Without such evidence, we must presume the regularity of the proceedings.” Bambeck v. Catholic Dioceses of Cleveland, 8th Dist. No. 86894, 2006-Ohio-4883. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Berea

Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR