Brecksville v. Cook
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1 City of Brecksville, Appellant, v. Cook, Appellee. 2 [Cite as Brecksville v. Cook (1996), 3 Criminal law -- Speedy trial -- Mayor s courts -- Transfer to municipal 4 court is removal within meaning of R.C. 2945.72(F) -- Period of 5 delay necessary to the removal is the time from arrest or 6 summons to the date the mayor s court certifies the case to the 7 municipal court. Ohio St.3d .] 8 9 ------------- 10 The transfer of a case pursuant to R.C. 1905.032 from the mayor s court 11 to the municipal court is a removal within the meaning of 12 R.C. 2945.72(F), and the period of delay necessary to the 13 removal is the time from arrest or summons to the date 14 the mayor s court certifies the case to the municipal court. 15 ------------- 16 (No. 94-1897 -- Submitted November 8, 1995 -- Decided March 4,1996.) 17 CERTIFIED by the Court of Appeals for Cuyahoga County, No. 18 65766. 1 The facts of this case are simple and undisputed. On May 22, 2 1993, appellee, Eric Cook, was cited for an automobile exhaust 3 equipment defect, a minor misdemeanor violation of Section 337.20 of 4 the Codified Ordinances of the city of Brecksville. The citing officer 5 issued Cook a ticket and instructed him to appear in Brecksville Mayor s 6 Court on June 3, 1993. 7 On June 3, 1993, Cook appeared as directed, entered a plea of 8 not guilty, and did not waive his right to a speedy trial. On June 4, 1993, 9 the mayor certified the case to the Garfield Heights Municipal Court for 10 trial. On June 9, 1993, the municipal court received the matter, placed it 11 on the docket, and notified Cook of his arraignment set for June 22. 12 Cook appeared before the municipal court on June 22, again 13 entered a plea of not guilty, and informed the court that thirty-one days 14 had passed since the date of his citation, suggesting that the speedy 15 trial statute had run without the state bringing him to trial. The judge 16 explained that Cook was mistaken, that a new thirty-day period had 2 1 begun when the mayor certified the case to the municipal court, and that 2 the statute had consequently not run. The judge set the trial for June 3 28, 1993, at which time Cook was convicted and fined. Cook then 4 appealed to the Eighth District Court of Appeals. 5 The court of appeals held, over a dissent, that Cook had not been 6 brought to trial within the time required by R.C. 2945.71(A), and that his 7 statutory right to a speedy trial had therefore been violated. The court 8 reversed Cook s conviction, and sua sponte certified that its decision 9 was in conflict with Gahanna v. Partlow (1985), 27 Ohio App. 3d 267, 27 10 OBR 311, 501 N.E.2d 51. On October 19, 1994, we determined that a 11 conflict existed and allowed the appeal to resolve the speedy trial 12 question raised by Cook in the court of appeals. 13 ----------- 14 Roger A. Wadsworth, Brecksville City Prosecutor, for appellant. 15 Augustin F. O Neil, for appellee. 16 ----------- 3 1 MOYER, C.J. This appeal presents two related issues: (1) 2 whether the delay produced by the transfer pursuant to R.C. 1905.0321 3 of a minor misdemeanor case from the mayor s court to the municipal 4 court for trial upon a plea of not guilty constitutes a removal such that 5 the speedy trial statute is tolled under R.C. 2945.72(F); and (2) if the 6 statute is tolled, which events mark the beginning and the end of the 7 tolled period? 8 Ohio s speedy trial statute was implemented to incorporate the 9 constitutional protection of the right to a speedy trial provided for in the 10 Sixth Amendment to the United States Constitution and in Section 10, 11 Article I, of the Ohio Constitution. State v. Broughton (1991), 62 Ohio 12 St.3d 253, 256, 581 N.E.2d 541, 544; see Columbus v. Bonner (1981), 13 2 Ohio App.3d 34, 36, 2 OBR 37, 39, 440 N.E.2d 606, 608. The 14 constitutional guarantee of a speedy trial was originally considered 15 necessary to prevent oppressive pretrial incarceration, to minimize the 16 anxiety of the accused, and to limit the possibility that the defense will 4 1 be impaired. State, ex rel. Jones v. Cuyahoga Cty. Ct. of Common 2 Pleas (1978), 55 Ohio St.2d 130, 131, 9 O.O.3d 108, 109, 378 N.E.2d 3 471, 472. 4 Section 10, Article I of the Ohio Constitution guarantees to the 5 party accused in any court a speedy public trial by an impartial jury. 6 Throughout the long history of litigation involving application of the 7 speedy trial statutes, this court has repeatedly announced that the trial 8 courts are to strictly enforce the legislative mandates evident in these 9 statutes. This court s announced position of strict enforcement has 10 been grounded in the conclusion that the speedy trial statutes 11 implement the constitutional guarantee of a public speedy trial. 12 (Citations omitted.) State v. Pachay (1980), 64 Ohio St.2d 218, 221, 18 13 O.O.3d 427, 429, 416 N.E.2d 589, 591. We are acutely conscious of the 14 magnitude of the rights we interpret today. We have also previously 15 explained, however, that the prescribed times for trial set forth in R.C. 16 2945.71 are not absolute in all circumstances, but a certain measure of 5 1 flexibility was intended by the General Assembly by the enactment of 2 R.C. 2945.72, wherein discretionary authority is granted to extend the 3 trial date beyond the R.C. 2945.71 time prescriptions. State v. 4 Wentworth (1978), 54 Ohio St.2d 171, 173, 8 O.O.3d 162, 163-164, 375 5 N.E.2d 424, 426. It is against these principles that we analyze the 6 issues now before us. 7 R.C. 2945.71(A) provides: A person against whom a charge is 8 pending in a court not of record, or against whom a charge of minor 9 misdemeanor is pending in a court of record, shall be brought to trial 10 11 within thirty days after his arrest or the service of summons. Circumstances justifying extension of the statutory period are 12 contained in R.C. 2945.72 which provides in pertinent part: The time 13 within which an accused must be brought to trial, or, in the case of 14 felony, to preliminary hearing and trial, may be extended only by the 15 following: 16 *** 6 1 2 3 (F) Any period of delay necessitated by a removal or change of venue pursuant to law[.] The Cuyahoga County Court of Appeals held that the transfer of 4 the case from the mayor s court to the municipal court was not a 5 removal within the meaning of R.C. 2945.72(F). The dissent 6 countered that the intent of the legislature, logistical imperatives and the 7 efficient administration of justice require that the transfer of a case from 8 the mayor s court to the municipal court be considered a removal under 9 the provisions of R.C. 2945.72(F). Further, the dissenting judge argued 10 that the correct rule was set out in Gahanna v. Partlow (1985), 27 Ohio 11 App.3d 267, 27 OBR 311, 501 N.E.2d 51, providing for tolling of the 12 speedy trial period from the date of arrest or issuance of the summons 13 up to the date of certification from the mayor s court to the municipal 14 court. For the reasons that follow, we agree. 15 16 In determining whether a transfer from the mayor s court to the municipal court for trial constitutes a removal under R.C. 2945.72(F), we 7 1 note first that the statute does not specifically define the word removal. 2 In the absence of a statutory definition we look to the usual and ordinary 3 definition of the word for guidance. Coventry Towers, Inc. v. 4 Strongsville (1986), 18 Ohio St.3d 120, 122, 18 OBR 151, 152, 480 5 N.E.2d 412, 414. Webster s Third New International Dictionary (1986) 6 1921, defines removal of causes as, the taking of pending cases from 7 a state court to a federal court *** [;] the transfer of a case from one 8 federal court to another [;] the transfer of a case from one to another 9 court within the same state ***. Black s Law Dictionary (6 Ed. 1990) 10 1296, defines removal of causes as, [t]he transfer of a case from one 11 court to another; e.g. from one state court to another, or from state court 12 to federal court. *** More particularly, the transfer of a cause of action, 13 before trial or final hearing thereof, from a state court to the United 14 States District Court, under 28 U.S.C.A. ยง1441 et seq. 15 16 Though the term removal might be used most often in relation to the transfer from state court to a United States District Court under the 8 1 Federal Rules of Civil Procedure, the General Assembly clearly was not 2 referring to a removal to federal court when it enacted R.C. 2945.72(F). 3 Such a removal is a device of civil rather than criminal procedure and 4 there is no counterpart provision in the criminal law authorizing removal 5 from state to federal court. We conclude, therefore, that the General 6 Assembly intended the word removal in R.C. 2945.72(F) to refer to the 7 transfer of a case from one state court to another, including a transfer 8 from the mayor s court to the municipal court. 9 This interpretation is supported by the case law. Of the Ohio 10 appellate cases directly addressing the issue, two published cases 11 predating the case at bar both conclude that the transfer at issue is 12 precisely the removal referred to in R.C. 2945.72(F). See Gahanna v. 13 Partlow, supra (27 Ohio App.3d 267), and Boston Hts. v. Weikle (1991), 14 81 Ohio App.3d 165, 610 N.E.2d 526. Only the Cuyahoga County Court 15 of Appeals own decision in Oakwood v. Ferrante (1975), 44 Ohio 16 App.2d 318, 73 O.O.2d 374, 338 N.E.2d 767, and two other unreported 9 1 cases even arguably suggest that the instant transfer is not a removal. 2 In Ferrante, a sua sponte continuance was the central issue in the case 3 and the court of appeals therefore did not directly address the removal 4 issue 5 The Tenth District Court of Appeals held in Gahanna v. Partlow 6 that a transfer of a case from a mayor s court to a municipal court for a 7 jury trial pursuant to R.C. 2937.08 constitutes a removal within the 8 contemplation of R.C. 2945.72(F), even though it does not constitute a 9 change of venue. 27 Ohio App3d at 270, 27 OBR at 314, 501 N.E.2d at 10 55. Since the Partlow decision, most of the courts in this state have 11 followed its rule. 12 In view of our conclusion that the transfer from the mayor s court 13 to the municipal court constitutes a removal under R.C. 2945.72(F), 14 tolling the speedy trial statute, it becomes necessary to identify the 15 period during which the statute is tolled. Ohio courts holding that the 16 transfer constitutes a removal are divided in their approaches to defining 10 1 the tolling period. In recognition of this court s admonition to strictly 2 construe the speedy trial statutes against the state, one approach 3 confines tolling to the period of certification -- the time necessary to the 4 process of the specific transfer. This construction defines the period of 5 the certification as the time from certification in the mayor s court to 6 docketing in the municipal court. 7 The approach is a well-intentioned attempt to preserve the 8 protections of the Constitution and the statute, while acknowledging the 9 General Assembly s intent to allow the court system a reasonable 10 logistical framework within which to operate. We conclude, however, 11 that the approach suffers from a fatal flaw. The flaw is exposed when 12 one considers the result of a prolonged delay between certification in 13 the mayor s court and docketing in the municipal court. Under such 14 circumstances, the tolling period could extend indefinitely. This result 15 would clearly frustrate the purpose of the constitutional safeguard and of 11 1 the speedy trial statute, working a significant deprivation of rights to the 2 defendant. 3 The better rule is that articulated by the Tenth Appellate District in 4 Gahanna v. Partlow, and followed by the majority of courts that have 5 written on the issue. This view holds that the tolling period should 6 extend from the date of arrest or summons until the date of certification 7 to the municipal court. This approach has the advantage of 8 guaranteeing the municipal court the full statutory period within which to 9 bring the accused to trial. It also places an absolute limit on the total 10 amount of time that can pass between arrest and trial. Its disadvantage 11 is that it provides for a possible doubling of the statutory period. 12 Cook argues that the potential doubling of the permissible period 13 between arrest and trial under the Partlow rule renders the solution 14 unacceptable. He contends that the violence done to the right of the 15 accused by doubling the period specifically chosen by the General 16 Assembly to implement the constitutional guarantee of a speedy public 12 1 trial is far greater than the administrative benefit of giving the mayor s 2 and municipal courts time to accommodate their current docketing 3 systems. Cook, citing State v. Pudlock (1975), 44 Ohio St.2d 104, 106, 4 73 O.O.2d 357, 358, 338 N.E.2d 524, 525, and State v. Wentworth 5 (1978), 54 Ohio St.2d 171, 174, 8 O.O.3d 162, 164, 375 N.E.2d 424, 6 427, expresses concern that the Partlow rule conflicts with what he 7 describes as the dual bedrock principles of speedy trial jurisprudence. 8 The first is the principle that broad interpretation of the R.C. 2945.72 9 extension statute would frustrate the purpose of the speedy trial 10 protections. The second is that practices undercutting implementation 11 of the speedy trial provisions must not be employed to extend the 12 requisite time periods. We agree that the constitutional proportions of 13 the rights at issue require us to engage in careful reflection before 14 holding in favor of a rule which has the practical effect of extending the 15 statutory period. We conclude, however, that the proper balance 13 1 between the competing goals of the speedy trial statutes and the 2 effective administration of justice is achieved by the Partlow rule. 3 A further objection raised by Cook is the apparent conflict between 4 the plain language of R.C. 2945.71(A), providing that the statutory 5 period begins to run at the time of arrest or service of summons, and the 6 effect of the Partlow rule. Cook contends that the Partlow rule 7 postpones the beginning of the statutory period in contradiction to the 8 express language of R.C. 2945.71(A). Furthermore, he argues, the rule 9 permits the state to use the tolling procedures to the detriment of an 10 11 accused s constitutional right to a speedy trial. We do not agree that the extension contemplated by the Partlow 12 rule would either contradict the plain language of the statute or permit 13 the state to intrude on a defendant s constitutional right. The Revised 14 Code expressly provides for extension of the period under specific 15 circumstances which include the instant removal. The fact that R.C. 16 2945.71(A) speaks of the period from arrest to trial does not exclude the 14 1 possibility that the Revised Code might elsewhere provide for a tolling of 2 some portion of that period. There is no reason that the tolled portion, if 3 properly construed as delay necessitated by a removal, may not fall 4 between arrest and certification, rather than at some other time prior to 5 trial. 6 Under the Partlow rule, the period would have the advantage of a 7 definite terminus. The mayor s court would be required to certify the 8 case within thirty days from the date of arrest in order to invoke the 9 tolling period, and the municipal court would have to bring the defendant 10 to trial within thirty days from the date of certification. The statutory 11 period, therefore, could not be extended indefinitely and the accused s 12 right to a reasonably speedy trial would be protected. Because mayor s 13 courts are courts not of record, all cases first brought there would be 14 subject to the thirty-day period set out in R.C. 2945.71(A) and the total 15 possible time between arrest and trial would be sixty days. 15 1 Furthermore, we are convinced that the General Assembly could 2 constitutionally have chosen to allow the state sixty days within which to 3 bring minor misdemeanor defendants to trial in the first place. See 4 Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; 5 State v. Broughton, 62 Ohio St.3d at 256, 581, N.E.2d at 544, (The test 6 for an unconstitutional denial of a speedy trial is one which considers 7 the totality of the circumstances, rather than rigid numerical 8 delineations.). There are clearly reasonable grounds for the General 9 Assembly s determination that an extension of the statutory period is 10 necessary to allow courts to effectively conduct their administrative 11 affairs. On the other hand, the inconvenience to a defendant originally 12 appearing in mayor s court is slight. Because the defendant is not 13 subject to pretrial incarceration, he is neither unable to continue earning 14 his livelihood nor impeded in his efforts to secure witnesses and prepare 15 his defense. No evidence is likely to be lost or destroyed during the 16 additional thirty days and no witnesses are likely to have become 16 1 unavailable. The defendant, therefore, is not prejudiced by the further 2 delay and his constitutional right to a speedy trial has not been denied. 3 Conversely, the burden imposed on the state by a strict, thirty-day 4 rule would be considerable. Although the right of the defendant to a 5 speedy trial is one of constitutional proportions, there is an important 6 countervailing interest that must be given weight in the balance of 7 competing interests. It is the right of the people to require criminal 8 defendants to stand trial for their alleged offenses. The mechanism of 9 transfer from the mayor s court to the municipal court, combined with 10 the short statutory provision for courts not of record, would render it 11 nearly impossible for the system to bring the defendant to trial in 12 municipal court within thirty days of his or her arrest. We conclude, 13 therefore, that the balance of important constitutional interests weighs in 14 favor of the Partlow rule. 15 16 Accordingly, we hold that the transfer of a case pursuant to R.C. 1905.032 from the mayor s court to the municipal court is a removal 17 1 within the meaning of R.C. 2945.72(F) and that the period of delay 2 necessary to the removal is the time from arrest or summons to the date 3 the mayor s court certifies the case to the municipal court. 4 5 The judgment of the court of appeals is therefore reversed and Cook s conviction is reinstated. Judgment reversed. 6 7 8 DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur. 9 10 11 12 FOOTNOTE: 13 1 14 (A) If a person who is charged with a violation of a law or an 15 ordinance is brought before a mayor s court and the violation charged is 16 not within the jurisdiction of the court, as set forth in section 1905.01 of R.C. 1905.032 provides: 18 1 the Revised Code, the mayor promptly shall transfer the case to the 2 municipal court, county court, or court of common pleas with jurisdiction 3 over the alleged violation and shall require the person to enter into a 4 recognizance to appear before that court. 5 *** 6 (B) Upon the transfer of a case by a mayor under division (A) of 7 8 this section, all of the following apply: (1) The mayor shall certify all papers filed in the case, together 9 with a transcript of all proceedings, accrued costs to date, and the 10 recognizance given, to the court to which the case is transferred. 11 12 13 19
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