City of Brecksville v. Cook

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 53

.]




            CITY OF BRECKSVILLE, APPELLANT, v. COOK, APPELLEE.
                    [Cite as Brecksville v. Cook, 

1996-Ohio-171

.]
Criminal law—Speedy trial—Mayor’s courts—Transfer to municipal court is
        “removal within meaning of R.C. 2945.72(F)—Period of delay necessary
        to the removal is the time from arrest or summons to the date the mayor’s
        court certifies the case to the municipal court.
                                  __________________
The transfer of a case pursuant to R.C. 1905.032 from the mayor’s court to the
        municipal court is a “removal” within the meaning of R.C. 2945.72(F), and
        the period of delay necessary to the removal is the time from arrest or
        summons to the date the mayor’s court certifies the case to the municipal
        court.
                                  __________________
     (No. 94-1897—Submitted November 8, 1995—Decided March 4,1996.)
       CERTIFIED by the Court of Appeals for Cuyahoga County, No. 65766.
                                  __________________
        {¶ 1} The facts of this case are simple and undisputed. On May 22, 1993,
appellee, Eric Cook, was cited for an automobile exhaust equipment defect, a minor
misdemeanor violation of Section 337.20 of the Codified Ordinances of the city of
Brecksville. The citing officer issued Cook a ticket and instructed him to appear in
Brecksville Mayor’s Court on June 3, 1993.
        {¶ 2} On June 3, 1993, Cook appeared as directed, entered a plea of not
guilty, and did not waive his right to a speedy trial. On June 4, 1993, the mayor
certified the case to the Garfield Heights Municipal Court for trial. On June 9,
1993, the municipal court received the matter, placed it on the docket, and notified
Cook of his arraignment set for June 22.
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         {¶ 3} Cook appeared before the municipal court on June 22, again entered
a plea of not guilty, and informed the court that thirty-one days had passed since
the date of his citation, suggesting that the speedy trial statute had run without the
state bringing him to trial. The judge explained that Cook was mistaken, that a new
thirty-day period had begun when the mayor certified the case to the municipal
court, and that the statute had consequently not run. The judge set the trial for June
28, 1993, at which time Cook was convicted and fined. Cook then appealed to the
Eighth District Court of Appeals.
         {¶ 4} The court of appeals held, over a dissent, that Cook had not been
brought to trial within the time required by R.C. 2945.71(A), and that his statutory
right to a speedy trial had therefore been violated. The court reversed Cook’s
conviction, and sua sponte certified that its decision was in conflict with Gahanna
v. Partlow (1985), 

27 Ohio App. 3d 267

, 27 OBR 311, 

501 N.E.2d 51

. On October
19, 1994, we determined that a conflict existed and allowed the appeal to resolve
the speedy trial question raised by Cook in the court of appeals.
                                     __________________
         Roger A. Wadsworth, Brecksville City Prosecutor, for appellant.
         Augustin F. O’Neil, for appellee.
                                     __________________
         MOYER, C.J.
         {¶ 5} This appeal presents two related issues:                  (1) whether the delay
produced by the transfer pursuant to R.C. 1905.0321 of a minor misdemeanor case


1. R.C. 1905.032 provides:
         “(A) If a person who is charged with a violation of a law or an ordinance is brought before
a mayor’s court and the violation charged is not within the jurisdiction of the court, as set forth in
section 1905.01 of the Revised Code, the mayor promptly shall transfer the case to the municipal
court, county court, or court of common pleas with jurisdiction over the alleged violation and shall
require the person to enter into a recognizance to appear before that court.
         “***
         “(B) Upon the transfer of a case by a mayor under division (A) of this section, all of the
following apply:




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                                      January Term, 1996




from the mayor’s court to the municipal court for trial upon a plea of not guilty
constitutes a removal such that the speedy trial statute is tolled under R.C.
2945.72(F); and (2) if the statute is tolled, which events mark the beginning and the
end of the tolled period?
         {¶ 6} Ohio’s speedy trial statute was implemented to incorporate the
constitutional protection of the right to a speedy trial provided for in the Sixth
Amendment to the United States Constitution and in Section 10, Article I, of the
Ohio Constitution. State v. Broughton (1991), 

62 Ohio St.3d 253, 256

, 

581 N.E.2d 541, 544

; see Columbus v. Bonner (1981), 

2 Ohio App.3d 34, 36

, 2 OBR 37, 39,

440 N.E.2d 606, 608

. The constitutional guarantee of a speedy trial was originally
considered necessary to prevent oppressive pretrial incarceration, to minimize the
anxiety of the accused, and to limit the possibility that the defense will be impaired.
State, ex rel. Jones v. Cuyahoga Cty. Ct. of Common Pleas (1978), 

55 Ohio St.2d 130, 131

, 

9 O.O.3d 108, 109

, 

378 N.E.2d 471, 472

.
         {¶ 7} Section 10, Article I of the Ohio Constitution guarantees to the party
accused in any court “a speedy public trial by an impartial jury.” “Throughout the
long history of litigation involving application of the speedy trial statutes, this court
has repeatedly announced that the trial courts are to strictly enforce the legislative
mandates evident in these statutes. This court’s announced position of strict
enforcement has been grounded in the conclusion that the speedy trial statutes
implement the constitutional guarantee of a public speedy trial.”                       (Citations
omitted.) State v. Pachay (1980), 

64 Ohio St.2d 218, 221

, 

18 O.O.3d 427, 429

, 

416 N.E.2d 589, 591

. We are acutely conscious of the magnitude of the rights we
interpret today. We have also previously explained, however, that “the prescribed
times for trial set forth in R.C. 2945.71 are not absolute in all circumstances, but a


         “(1) The mayor shall certify all papers filed in the case, together with a transcript of all
proceedings, accrued costs to date, and the recognizance given, to the court to which the case is
transferred.”




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certain measure of flexibility was intended by the General Assembly by the
enactment of R.C. 2945.72, wherein discretionary authority is granted to extend the
trial date beyond the R.C. 2945.71 time prescriptions.” State v. Wentworth (1978),

54 Ohio St.2d 171, 173

, 

8 O.O.3d 162, 163-164

, 

375 N.E.2d 424, 426

. It is against
these principles that we analyze the issues now before us.
       {¶ 8} R.C. 2945.71(A) provides: “A person against whom a charge is
pending in a court not of record, or against whom a charge of minor misdemeanor
is pending in a court of record, shall be brought to trial within thirty days after his
arrest or the service of summons.”
       {¶ 9} Circumstances justifying extension of the statutory period are
contained in R.C. 2945.72 which provides in pertinent part: “The time within
which an accused must be brought to trial, or, in the case of felony, to preliminary
hearing and trial, may be extended only by the following:
       “***
       “(F) Any period of delay necessitated by a removal or change of venue
pursuant to law[.]”
       {¶ 10} The Cuyahoga County Court of Appeals held that the transfer of the
case from the mayor’s court to the municipal court was not a “removal” within the
meaning of R.C. 2945.72(F).         The dissent countered that the intent of the
legislature, logistical imperatives and the efficient administration of justice require
that the transfer of a case from the mayor’s court to the municipal court be
considered a removal under the provisions of R.C. 2945.72(F). Further, the
dissenting judge argued that the correct rule was set out in Gahanna v. Partlow
(1985), 

27 Ohio App.3d 267

, 27 OBR 311, 

501 N.E.2d 51

, providing for tolling of
the speedy trial period from the date of arrest or issuance of the summons up to the
date of certification from the mayor’s court to the municipal court. For the reasons
that follow, we agree.




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                                 January Term, 1996




       {¶ 11} 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 note first
that the statute does not specifically define the word “removal.” In the absence of
a statutory definition we look to the usual and ordinary definition of the word for
guidance. Coventry Towers, Inc. v. Strongsville (1986), 

18 Ohio St.3d 120, 122

,
18 OBR 151, 152, 

480 N.E.2d 412, 414

. Webster’s Third New International
Dictionary (1986) 1921, defines “removal of causes” as, “the taking of pending
cases from a state court to a federal court *** [;] the transfer of a case from one
federal court to another [;] the transfer of a case from one to another court within
the same state ***.” Black’s Law Dictionary (6 Ed. 1990) 1296, defines “removal
of causes” as, “[t]he transfer of a case from one court to another; e.g. from one state
court to another, or from state court to federal court. *** More particularly, the
transfer of a cause of action, before trial or final hearing thereof, from a state court
to the United States District Court, under 

28 U.S.C.A. §1441

 et seq.”
       {¶ 12} 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 Federal
Rules of Civil Procedure, the General Assembly clearly was not referring to a
removal to federal court when it enacted R.C. 2945.72(F). Such a removal is a
device of civil rather than criminal procedure and there is no counterpart provision
in the criminal law authorizing removal from state to federal court. We conclude,
therefore, that the General Assembly intended the word “removal” in R.C.
2945.72(F) to refer to the transfer of a case from one state court to another,
including a transfer from the mayor’s court to the municipal court.
       {¶ 13} This interpretation is supported by the case law. Of the Ohio
appellate cases directly addressing the issue, two published cases predating the case
at bar both conclude that the transfer at issue is precisely the “removal” referred to
in R.C. 2945.72(F). See Gahanna v. 

Partlow, supra

 (

27 Ohio App.3d 267

), and
Boston Hts. v. Weikle (1991), 

81 Ohio App.3d 165

, 

610 N.E.2d 526

. Only the




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Cuyahoga County Court of Appeals’ own decision in Oakwood v. Ferrante (1975),

44 Ohio App.2d 318

, 

73 O.O.2d 374

, 

338 N.E.2d 767

, and two other unreported
cases even arguably suggest that the instant transfer is not a removal. In Ferrante,
a sua sponte continuance was the central issue in the case and the court of appeals
therefore did not directly address the removal issue
        {¶ 14} The Tenth District Court of Appeals held in Gahanna v. Partlow that
“a transfer of a case from a mayor’s court to a municipal court for a jury trial
pursuant to R.C. 2937.08 constitutes a removal within the contemplation of R.C.
2945.72(F), even though it does not constitute a change of venue.” 27 Ohio App3d
at 270, 27 OBR at 314, 

501 N.E.2d at 55

. Since the Partlow decision, most of the
courts in this state have followed its rule.
        {¶ 15} In view of our conclusion that the transfer from the mayor’s court to
the municipal court constitutes a “removal” under R.C. 2945.72(F), tolling the
speedy trial statute, it becomes necessary to identify the period during which the
statute is tolled. Ohio courts holding that the transfer constitutes a removal are
divided in their approaches to defining the tolling period. In recognition of this
court’s admonition to strictly construe the speedy trial statutes against the state, one
approach confines tolling to the period of certification -- the time necessary to the
process of the specific transfer.     This construction defines the period of the
certification as the time from certification in the mayor’s court to docketing in the
municipal court.
        {¶ 16} The approach is a well-intentioned attempt to preserve the
protections of the Constitution and the statute, while acknowledging the General
Assembly’s intent to allow the court system a reasonable logistical framework
within which to operate. We conclude, however, that the approach suffers from a
fatal flaw. The flaw is exposed when one considers the result of a prolonged delay
between certification in the mayor’s court and docketing in the municipal court.
Under such circumstances, the tolling period could extend indefinitely. This result




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                                January Term, 1996




would clearly frustrate the purpose of the constitutional safeguard and of the speedy
trial statute, working a significant deprivation of rights to the defendant.
       {¶ 17} The better rule is that articulated by the Tenth Appellate District in
Gahanna v. Partlow, and followed by the majority of courts that have written on
the issue. This view holds that the tolling period should extend from the date of
arrest or summons until the date of certification to the municipal court. This
approach has the advantage of guaranteeing the municipal court the full statutory
period within which to bring the accused to trial. It also places an absolute limit on
the total amount of time that can pass between arrest and trial. Its disadvantage is
that it provides for a possible doubling of the statutory period.
       {¶ 18} Cook argues that the potential doubling of the permissible period
between arrest and trial under the Partlow rule renders the solution unacceptable.
He contends that the violence done to the right of the accused by doubling the
period specifically chosen by the General Assembly to implement the constitutional
guarantee of a speedy public trial is far greater than the administrative benefit of
giving the mayor’s and municipal courts time to accommodate their current
docketing systems. Cook, citing State v. Pudlock (1975), 

44 Ohio St.2d 104, 106

,

73 O.O.2d 357, 358

, 

338 N.E.2d 524, 525

, and State v. Wentworth (1978), 

54 Ohio St.2d 171, 174

, 

8 O.O.3d 162, 164

, 

375 N.E.2d 424, 427

, expresses concern that
the Partlow rule conflicts with what he describes as the dual bedrock principles of
speedy trial jurisprudence. The first is the principle that broad interpretation of the
R.C. 2945.72 extension statute would frustrate the purpose of the speedy trial
protections. The second is that practices undercutting implementation of the speedy
trial provisions must not be employed to extend the requisite time periods. We
agree that the constitutional proportions of the rights at issue require us to engage
in careful reflection before holding in favor of a rule which has the practical effect
of extending the statutory period. We conclude, however, that the proper balance




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between the competing goals of the speedy trial statutes and the effective
administration of justice is achieved by the Partlow rule.
        {¶ 19} A further objection raised by Cook is the apparent conflict between
the plain language of R.C. 2945.71(A), providing that the statutory period begins
to run at the time of arrest or service of summons, and the effect of the Partlow
rule. Cook contends that the Partlow rule postpones the beginning of the statutory
period in contradiction to the express language of R.C. 2945.71(A). Furthermore,
he argues, the rule permits the state to use the tolling procedures to the detriment
of an accused’s constitutional right to a speedy trial.
        {¶ 20} We do not agree that the extension contemplated by the Partlow rule
would either contradict the plain language of the statute or permit the state to
intrude on a defendant’s constitutional right. The Revised Code expressly provides
for extension of the period under specific circumstances which include the instant
removal. The fact that R.C. 2945.71(A) speaks of the period from arrest to trial
does not exclude the possibility that the Revised Code might elsewhere provide for
a tolling of some portion of that period. There is no reason that the tolled portion,
if properly construed as “delay necessitated by a removal,” may not fall between
arrest and certification, rather than at some other time prior to trial.
        {¶ 21} Under the Partlow rule, the period would have the advantage of a
definite terminus. The mayor’s court would be required to certify the case within
thirty days from the date of arrest in order to invoke the tolling period, and the
municipal court would have to bring the defendant to trial within thirty days from
the date of certification. The statutory period, therefore, could not be extended
indefinitely and the accused’s right to a reasonably speedy trial would be protected.
Because mayor’s courts are courts not of record, all cases first brought there would
be subject to the thirty-day period set out in R.C. 2945.71(A) and the total possible
time between arrest and trial would be sixty days.




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                                January Term, 1996




       {¶ 22} Furthermore, we are convinced that the General Assembly could
constitutionally have chosen to allow the state sixty days within which to bring
minor misdemeanor defendants to trial in the first place. See Barker v. Wingo
(1972), 

407 U.S. 514

, 

92 S.Ct. 2182

, 

33 L.Ed.2d 101

; State v. Broughton, 

62 Ohio St.3d at 256, 581

, N.E.2d at 544, (The test for an unconstitutional denial of a speedy
trial is one which considers the totality of the circumstances, rather than rigid
numerical delineations.). There are clearly reasonable grounds for the General
Assembly’s determination that an extension of the statutory period is necessary to
allow courts to effectively conduct their administrative affairs. On the other hand,
the inconvenience to a defendant originally appearing in mayor’s court is slight.
Because the defendant is not subject to pretrial incarceration, he is neither unable
to continue earning his livelihood nor impeded in his efforts to secure witnesses
and prepare his defense. No evidence is likely to be lost or destroyed during the
additional thirty days and no witnesses are likely to have become unavailable. The
defendant, therefore, is not prejudiced by the further delay and his constitutional
right to a speedy trial has not been denied.
       {¶ 23} Conversely, the burden imposed on the state by a strict, thirty-day
rule would be considerable. Although the right of the defendant to a speedy trial is
one of constitutional proportions, there is an important countervailing interest that
must be given weight in the balance of competing interests. It is the right of the
people to require criminal defendants to stand trial for their alleged offenses. The
mechanism of transfer from the mayor’s court to the municipal court, combined
with the short statutory provision for courts not of record, would render it nearly
impossible for the system to bring the defendant to trial in municipal court within
thirty days of his or her arrest. We conclude, therefore, that the balance of important
constitutional interests weighs in favor of the Partlow rule.
       {¶ 24} 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” within the




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meaning of R.C. 2945.72(F) and that the period of delay necessary to the removal
is the time from arrest or summons to the date the mayor’s court certifies the case
to the municipal court.
          {¶ 25} The judgment of the court of appeals is therefore reversed and
Cook’s conviction is reinstated.
                                                               Judgment reversed.
          DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
                              __________________




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