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State v. Cumbow

Court of Appeals of Ohio, Fifth District, Licking

July 20, 2018

STATE OF OHIO Plaintiff-Appellee
v.
TODD C. CUMBOW Defendant-Appellant

          Appeal from the Licking County Municipal Court, Case No. 17TRD11259

          For Plaintiff-Appellee TRICIA M. MOORE Assistant Law Director.

          For Defendant-Appellant SAMUEL H. SHAMANSKY DONALD L. REGENSBURGER COLIN E. PETERS.

          Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Defendant-appellant Todd C. Cumbow appeals his conviction and sentence from the Licking County Municipal Court. Plaintiff-appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On September 13, 2017, appellant was charged with speeding in violation of R.C. 4511.21, a minor misdemeanor. The complaint alleged that appellant was driving 62 miles per hour in a 45 mile per hour zone. Appellant, on September 19, 2017, filed a written plea of not guilty and demand for trial. In the same, he indicated that he was not waiving his right to a speedy trial. A bench trial was scheduled for October 4, 2017.

         {¶3} Thereafter, on September 29, 2017, the State filed a motion for a continuance of the trial on the basis that Ohio State Highway Patrol Trooper Untied, the citing officer, would not be available for trial. The motion stated that appellant's counsel objected to the request for a continuance. Pursuant to an Entry filed on October 2, 2017, the trial was continued until October 25, 2017 due to the Officer's unavailability. The trial court, in its Entry, found that the request for a continuance was reasonable pursuant to R.C. 2945.72(H) and that the speedy trial time tolled.

         {¶4} Just prior to commencement of trial on October 25, 2017, counsel for appellant moved for a dismissal pursuant to Crim.R. 48 on speedy trial grounds, arguing that the State had not demonstrated good cause for the continuance. The State, in response, argued, in relevant part, as follows:

         {¶5} MRS. MOORE: Thank you, Your Honor. What is the common procedure with our Courts, is that when the troopers are on vacation or unavailable for court dates, they send notice to both the Courts and the Law Director's office. This was done by Trooper Untied on August 9, 2017. It was dated, actually, August 8th, 2017, indicating to the Courts the day that he was unavailable. This should be filed with the Court. Based on that request, we did ask for Trooper Untied - - for a continuance because he is the only witness in the case and he was unavailable for trial. The Court granted that continuance, finding in its entry that it was reasonable pursuant to 2945.72. We believe that this, therefore, does toll time and we are well within the 30 days to bring this court case to trial.

         {¶6} THE COURT: Okay. Anything else?

         {¶7} MR. REGENSBERGER [Counsel for Appellant]: Your Honor, I'm unaware if there's any such letter in the Court's file. Maybe there is, maybe there isn't. I certainly don't believe that the State has any reason to mislead the Court about it. It certainly wasn't attached to the motion, but if it's in the court file, it's in the court file.

         {¶8} MRS. MOORE: I ...


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