State v. Cross

Herbert, J.

Section 10 of Article I of the Constitution of the state of Ohio provides, in pertinent part:

“* * * In any trial, in any court, the party accused shall * * * have * * # a speedy public trial * *

The provisions of R. C. 2945.71 to 2945.73 implement that constitutional guarantee1 and R. C. 2945.71 provides:

*272 “No person shall be detained in jail without a trial for a continuous period of more than two terms after his arrest and commitment on an indictment or information, or, if he ivas in jail at the lime the indictment or information was found, more than two terms after the term at which the indictment or information was presented. Re shall be discharged unless a continuance is had on his motion or the delay is caused by his act.” (Emphasis added.)

R. C. 2945.73 provides:

“When application is made for the discharge of a person under Section 2945.71 * * * of the Revised Code, if the court is satisfied that there is material evidence for the state which cannot be had, that reasonable effort has been made to procure it, and that there is just ground to believe that such evidence can be had at the next term, the cause may be continued and the prisoner remanded or admitted to bail. If he is not brought to trial at the next term thereafter, he shall then be discharged. The discharge of the accused under this section or Section 2945.71 * * * of the Revised Code is a bar to further prosecution for the same offense.”

The state makes no claim that the provisions of R. C. 2945.73, relative to a continuance, have any pertinence to the facts of this case.

*273 The ultimate question to be determined in this appeal is whether, to be entitled to discharge under those sections, an accused must make formal written demand for trial at a time when his case could still be called for trial during the second term following the term in which he was indicted. We are here concerned only with the case of an accused who was continuously detained in jail without trial for a period longer than two terms of court following the term in which his indictment was presented, and who was so detained solely by reason of such indictment.

In granting appellee’s application for discharge, the Court of Common Pleas relied upon our decision in State v. Gray (1964), 1 Ohio St. 2d 21, 203 N. E. 2d 319. Paragraph two of the syllabus of that case reads:

“Where an accused was in jail at the time an indictment was returned against him and was thereafter detained in jail solely because of that indictment and without any trial thereon for a continuous period of more than two terms of court after the term in which that indictment was presented, where such accused filed an application in the latter of such terms, and also in the succeeding term, to be discharged because of such detention, where no continuance of the cause was had on such accused’s motion and no delay was caused by any act of such accused, and where the state does not contend that it had used any reasonable effort to procure or been unable to obtain material evidence for the state in time for trial within such two terms after the term in which such indictment was presented, such accused is entitled to discharge from any further prosecution under such indictment. * * *”

Before discussing the question of whether it is incumbent upon an accused, who may otherwise be entitled to a discharge under R. C. 2945.71 and 2945.73, to make a written demand for trial within the prescribed two-term period, it should be noted that the state contends that the trial court’s reliance upon the case of State v. Gray, supra (1 Ohio St. 2d 21), was misplaced. It is argued that in Gray the accused did not cause any delay in bringing his case to trial, whereas the instant appellee did cause such *274 delay. If this be so, R. C. 2945.71 clearly would require our reversal of this cause. However, the question of whether an accused caused the delay mentioned in that section is one of fact for determination by the trial court and, in the case at bar, that court has absolved the appellee of any responsibility for the delays which ensued below. An examination of the record discloses sufficient evidence to support the trial court’s conclusion in that regard.

In State v. Gray, supra, the accused, in addition to filing an application for discharge after the expiration of two terms of court, also took an affirmative step during the two-term period by filing an application for discharge under R. C. 2945.71. In the case at bar, the accused did not file his application for discharge until the expiration of the time period prescribed in R. C. 2945.71. The issue thus becomes whether an accused is entitled to discharge where the provisions of R. C. 2945.71 have been met, but where an accused has not filed an application for discharge prior to the expiration of the time limit prescribed therein.

We think it clear that nothing in the language of either R. C. 2945.71 or 2945.73 mandates the filing of an application for discharge thereunder during the second term after the term in which the indictment was presented. (Compare the concurring opinion of Taft, C. J., in State v. Gray, supra, at 27-28.)

The state also argues that appellee should not have been discharged because he failed to protect his right thereto by making a formal demand for trial upon his indictment at a time when his case could still be brought to trial within the time limit prescribed by R. C. 2945.71. We find no statutory enactment requiring any such action by appellee.

We recognize that under R. C. 2945.73, a discharge operates as a bar to any further prosecution of the accused on the same charge, irrespective of his guilt or innocence. The General Assembly has thus fashioned a severe sanction to be visited upon the state for the failure to bring an accused to trial within the prescribed time period. Additionally, that legislative body has chosen to implemeut the *275 constitutional guarantee to a speedy trial by placing the burden squarely upon the state to bring an accused to trial within the prescribed time limits. As stated in paragraph one of the syllabus in State v. Gray, supra:

“Sections 2945.71 to 2945.73, inclusive, Revised Code, which prescribe the period of time a person may be detained in jail or held by recognizance without trial after an indictment or information has been returned, are valid legislative enactments, the provisions of which are mandatory and must be strictly complied with by the state.” (Emphasis added.)

It is not our purpose here to depart from the accepted premise that ordinarily the constitutionally announced right to a speedy trial is not denied unless a demand for trial has remained unsatisfied for an unreasonable period. Cf. State v. Meeker (1971), 26 Ohio St. 2d 9.2 Furthermore, *276 we do not quarrel with the applicable paragraphs of the syllabi in State v. Cunningham (1960), 171 Ohio St. 54, 167 N. E. 2d 897; Erwin v. State (1876), 29 Ohio St. 186; and Johnson v. State (1884), 42 Ohio St. 207, limited as they are to their own facts, except with regard to the approval of the third paragraph of the syllabus in Ex Parte McGehan, 22 Ohio St. 442, infra. Each of such cases is factually distinguishable from the instant cause. We do conclude, however, that R. C. 2945.71 and 2945.73 provide an independent statutory proceeding, limited and controlled by their own terms, but unencumberable by a judicially legislated condition precedent.

*277 The law announced in the second paragraph of the syllabus in State v. Gray, supra (1 Ohio St. 2d 21), requires but a minimal alteration to comport with the facts of this case and the result reached'herein. Thus, where an accused was in jail at the time an indictment was returned against him and was thereafter detained in jail solely because of that indictment and without any trial thereon for a continuous period of more than two terms of court after the term in which the indictment was presented, where such accused filed an application following the latter of such terms to be discharged because of such detention, where no continuance of the cause was had on such accused’s motion and no delay was caused by any act of such accused, and where the state does not contend that it had used any reasonable effort to procure or been unable to obtain material evidence for the state in time for trial within such two terms after the term in which such indictment was presented, such accused is entitled to discharge from any further prosecution under such indictment. Furthermore, the mandatory duty of the state to try an accused within the *278 times prescribed in R. C. 2945.71 and 2945.73 is not obviated by the accused’s failure to demand a trial. The questions of whether such sections are self-executing (cf. State, ex rel. Haynes, v. Powers [1969], 20 Ohio St. 2d 46, 48, 254 N. E. 2d 19) and whether their operation may be waived by proceeding to trial without raising their applicability are not before us.

The state’s final contention is that, even if the appellee was otherwise entitled to a discharge under R. C. 2945.71 and 2945.73, the Court of Common Pleas should have denied his application because the state was at all times ready for trial. In support of this contention, reliance is placed upon paragraph three of the syllabus in Ex Parte McGehan (1872), 22 Ohio St. 442, which reads:

“To entitle a prisoner to such discharge, on the ground that he has not been brought to trial during the time limited by sections 161 or 162 [now R.C. 2945.71 and 2945.72], he must make application to the court therefor, and if when he makes such application, whether during the time so limited, or at a subsequent term of the court, the state is ready to proceed with the trial, or makes the showing specified in section 163 [now R. C. 2945.73] for a continuance, he will not be entitled to be discharged.” (Emphasis added.)

As we have stated above, the provisions of R. C. 2945.-71 and 2945.73 are couched in mandatory terms. At no place therein is any provision made with reference to the state being “ready to proceed with the trial.” Where an accused files an application for discharge pursuant to R. C. 2945.71, the sole fact that the state may be then ready to proceed to trial does not affect the accused’s right to a discharge. Insofar as paragraph three of the syllabus in Ex Parte McGehan, supra, is inconsistent herewith, it is overruled.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O’Neill, C. J., Duncan and Leach, JJ., concur. Schneider, Corrigan and Stern, JJ., dissent.

The great weight of authority, including our prior decisions, adopts the “implementation theory” with regard to statutes of this type. See, e. g., Kaminski v. State (1958), 51 Del. 163, 141 A. 2d 138; Zehrlaut v. State (1951), 230 Ind. 175, 102 N. E. 2d 203; State v. Hess (1956), 180 Kan. 472, 304 P. 2d 474; State v. Wilson (1967), 198 Kan. 532, 426 P. 2d 288; Heard v. Clark (1930), 156 Miss. 355, 126 So. 43; State, ex rel. Thomas, v. District Court (1968), 151 Mont. 1, 438 P. 2d 554; State v. Webb (1911), 155 N. C. 426, 70 S. E. 1064; State v. Dinger (1924), 51 N. D. 98, 199 N. W. 196; State v. Cunningham (1960), 171 Ohio St. 54, 56, 167 N. E. 2d 897; State v. Gray (1964), 1 Ohio St. 2d 21, 203 N. E. 2d 319; Brummitt v. Higgins (1945), 80 Okla. Crim. 183, 157 P. 2d 922; Application of Hayes (Okla. Crim. 1956), 301 P. 2d 701; *272 Flanary v. Commonwealth (1945), 184 Va. 204, 35 S. E. 2d 135. The writer is not convinced that such a conclusion is mandated, especially in view of the colloquy it apparently engenders in the area of waiver. Posing, but not imposing, an alternative view, the wording of the cited statutes could support a conclusion that they were intended to operate in the nature of a statute of limitations, ultimate in effect, but waivable if not asserted prior to the commencement of trial. This would constitute an unrelated but parallel protection of the modem constitutional right to a speedy trial, which, in the ordinary case, clearly and almost universally requires an ignored demand for trial to imbue it with practical efficacy. The argument can also be made that in the early years, the “speedy public trial” language of our Ohio Constitution was felt related to the actual conduct of the proceedings and did not extend to delays between arrest, indictment and commencement of trial. If such was the case, these sections of our Code played an imperative role during that period in our development of a system of criminal justice.

A review of textual authorities indicates that the majority of states adhere to the demand rule, that an accused who asserts the denial of a constitutional right to a speedy trial (now universally extant in the states, under the respective state constitutional provisions or under the Sixth and Fourteenth Amendments to the United States Constitution by virtue of Klopfer v. North Carolina [1967], 386 U. S. 213, 18 L. Ed. 2d 1) is not entitled to a discharge for delay of trial unless it appears that he resisted postponement, demanded a trial, or made some effort to procure a speedier trial than the state accorded him. Annotation, 57 A. L. R. 2d 302, at 326-334; 22A Corpus Juris Secundum 36-41, Criminal Law, Section 469.

It is significant, however, that few of those decisions cited as supportive of the demand rule involved the question of whether demand is required of an accused who wishes to assert a statutory discharge for not having been tried within the statutorily specified time limit.

In some cases, there was no applicable legislative enactment analogous to R. C. 2945.71 to 2945.73, requiring the discharge of an accused who is detained in jail or held by recognizance without trial for a specified time limit. E. g., State v. Orsini (1967), 155 Conn. 367, 232 A. 2d 907; State v. Wong (1964), 47 Hawaii 361, 389 P. 2d 439; State, ex rel. McGregor, v. Rigg (1961), 260 Minn. 141, 109 N. W. 2d 310; Commonwealth, ex rel. DeMoss, v. Cavell (1967), 423 Pa. 597, 225 A. 2d 673; State v. Violett (1961), 79 S. D. 292, 111 N. W. 2d 598.

Other cases cited in support of the “demand rule” involved situations where a statute requiring discharge for failure to bring an accused to trial within the specified time period was held inapplicable *276 because the statutory time period had not expired as of the trial date. State, ex rel. Thomas, v. District Court, supra (151 Mont. 1); State v. Green (1967), 70 Wash. 2d 955, 425 P. 2d 913.

Some cases so cited concerned an accused who was, at the time of his indictment, already serving a prison sentence on another charge. While these cases hew to the demand rule, there is language in the opinions suggesting that a distinction exists between the plight of an accused who is detained in jail solely under indictment, and a convict for whom discharge for denial of a speedy trial would not necessarily terminate imprisonment. E. g., Ex Parte State, ex rel. Atty. Genl. (1951), 255 Ala. 443, 52 So. 2d 158; State v. Keefe (1908), 17 Wyo. 227, 98 P. 122.

Perhaps the largest category of cases cited in support of the demand rule involves situations, not present in the instant case, where the accused caused the delay of his case by his own affirmative act, or where the accused directly or impliedly acquiesced in a continuance sought by the state. E. g., Williams v. State (1946), 210 Ark. 402, 198 S. W. 2d 489; Kominski v. State (1958), 51 Del. 163, 141 A. 2d 138; People v. Sweeney (1951), 409 Ill. 223, 99 N. E. 2d 143 (plea of guilty waives right to discharge); State v. McTague (1927), 173 Minn. 153, 216 N. W. 787; State v. Gau (1967), 182 Neb. 114, 153 N. W. 2d 298; Peoples v. State (1967), 83 Nev. 115, 423 P. 2d 883; Raburn v. Nash (1967), 78 N. M. 385, 431 P. 2d 874.

But see McCandless v. District Court (1953), 245 Iowa 599, 61 N. W. 2d 674, which holds that the statutory provisions, providing for dismissal of an indictment of an accused who is not tried within the time specified, become effective only if demand for trial has been made by the accused to the court.

Other jurisdictions, whose statutes pertaining to the discharge of an accused under indictment detained either in jail or on recognizance for a specified time limit resemble R. C. 2945.71 to 2945.73, hold *277 that an accused, who otherwise falls within the terms of the statute asserted, is not required to make any demand for trial at a time when his case could still be brought to trial within the time limit, and that such accused need take no affirmative action other than the filing of a timely application for discharge or a motion to dismiss. State v. Carrillo (1932), 41 Ariz. 170, 16 P. 2d 965; Hicks v. People (1961), 148 Colo. 26, 364 P. 2d 877; Zehrlaut v. State (1951), 230 Ind. 175, 102 N. E. 2d 203; State v. Hess (1956), 180 Kan. 472, 304 P. 2d 474; People v. Prosser (1955), 309 N. Y. 353, 130 N. E. 2d 891; Brummitt v. Higgins (1945), 80 Okla. Crim. 183, 157 P. 2d 922 (rejects demand rule only for defendants detained in jail under indictment or information, hut accepts demand rule for accused admitted to bail); Application of Hayes (Okla. Crim. 1956), 301 P. 2d 701; State v. Crosby (1959), 217 Ore. 393, 342 P. 2d 831; Flanary v. Commonwealth (1945), 184 Va. 204, 35 S. E. 2d 135. Cf. Glasgow v. State (Alaska 1970), 469 P. 2d 682, overruling State v. Goss (Alaska 1964), 390 P. 2d 220, holding (in a state which has no controlling statute) that a waiver of fundamental constitutional rights is not to be inferred from mere silence unless that silence is for some tactical purpose and, therefore, mere inaction in asserting a right to speedy trial does not result in that right being waived.