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State v. Allen

Court of Appeals of Ohio, Second District, Montgomery

June 2, 2017

STATE OF OHIO Plaintiff-Appellee
v.
CARLO W. ALLEN Defendant-Appellant

         Criminal Appeal from Municipal Court Trial Court Case No. 2016-CRB-5439

          J. JOSEPH HYDE, Attorney for Defendant-Appellant

          AMY B. MUSTO, Attorney for Plaintiff-Appellee

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Carlo W. Allen, appeals from his conviction on one count of disorderly conduct after being warned to desist, a misdemeanor of the fourth degree. Pursuant to R.C. 2945.71(B)(1), Allen argues that his conviction should be vacated because his right to a speedy trial was violated. We find that Allen was not denied his right to a speedy trial, and we therefore affirm the judgment of the trial court.

         I. Facts and Procedural History

         {¶ 2} A neighbor filed a criminal complaint against Allen in Dayton Municipal Court on August 11, 2016, charging him with public indecency in violation of R.C. 2907.09(A)(1) and disorderly conduct in violation of R.C. 2917.11(A)(5) and (E)(3)(a). On August 23, 2016, Allen appeared for arraignment and accepted service of summons; he pleaded not guilty to both of the charges. The court scheduled a pretrial conference for September 19, 2016.

         {¶ 3} At the pretrial conference, the court set the case for a bench trial on September 29, 2016, but two days after the conference, Allen submitted a jury demand within the time allowed under Crim.R. 23(A). The following day, the court rescheduled the case to be heard on October 27, 2016, which at that point was the next available date for a jury trial.

         {¶ 4} On October 17, 2016, Allen moved for dismissal, arguing that he had not been brought to trial within 45 days of service of summons as required by R.C. 2945.71(B)(1). In a decision filed on October 24, 2016, the court overruled Allen's motion, and his case proceeded to trial as scheduled. The jury found Allen not guilty on the charge of public indecency, and guilty on the charge of disorderly conduct. Allen filed his notice of appeal on November 8, 2016.

         II. Analysis

         {¶ 5} In his sole assignment of error, Allen contends that:

         THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANTS PRE-TRIAL MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.

         {¶ 6} Under R.C. 2907.09(C)(2) and 2917.11(E)(3)(a), both of the charges for which Allen was tried are fourth degree misdemeanors. R.C. 2945.71(B)(1) states that "a person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial" within "forty-five days after the person's arrest or the service of summons, if the offense charged is a misdemeanor of the third or fourth degree * * *." Here, the parties concur that Allen's speedy-trial time began to run on August 23, 2016, when he received service of summons. Appellant's Br. 5; see Appellee's Br. 1-2. The forty-fifth day afterward was Friday, October 7, 2016.

         {¶ 7} In "an appeal raising a speedy trial issue, " the standard of review "is to simply count the days as directed in R.C. 2945.71 et seq." State v. Stevens, 8th Dist. Cuyahoga No. 87693, 2006-Ohio-5914, ¶ 32, citing City of Cleveland v. Seventeenth St. Ass'n, 8th Dist. Cuyahoga No. 76106, 2000 WL 426553, *2 (Apr. 20, 2000), and State v. Saikus, 8th Dist. Cuyahoga No. 71981, 1998 WL 108150, *5 (Mar. 12, 1998). Once "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 [that] the statutory limit was not exceeded by [showing] the time was properly extended pursuant to R.C. 2945.72." State v. Nichols, 5th Dist. Richland No. 04 CA 56, 2005-Ohio-1771, ¶ 11, citing State v. Butcher,27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). Because the right to ...


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