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2007-0519. State v. Blackburn, Slip Opinion No. 2008-Ohio-1823.
Ashtabula App. No. 2006-A-0029, 2007-Ohio-1071. Judgment reversed and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1823.pdf
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(April 23, 2008) The Supreme Court of Ohio ruled today that, in calculating the time within which a criminal defendant must be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case in which there are different charges based on the same underlying facts and circumstances of the previous case. The Court’s 5-2 majority opinion was written by Justice Evelyn Lundberg Stratton.
Under R.C. 2945.71, Ohio’s “speedy trial” statute, the state must bring a criminal defendant charged with a felony to trial within a maximum of 270 days after the date of arrest. Failure by the state to try a defendant within that statutory time limit is grounds for dismissal of the charges. The statute provides, however, that a defendant may “waive” (voluntarily give up) his right to be tried within the 270 day limit; and also provides that speedy trial time in a case is “tolled” (temporarily stopped from running) during any period of delay in pretrial proceedings that is initiated by the defendant.
Today’s decision applies the “speedy trial” statute to a case in which a defendant initiated delays in pretrial proceedings in a case where he faced one set of criminal charges, but the state subsequently dismissed those charges and obtained a new indictment charging the defendant with different offenses based on the same events.
Kenneth Blackburn was arrested on Dec. 17, 2004. The original charge against him was dismissed by the state without prejudice five days later. He was subsequently indicted by a grand jury and charged in the Ashtabula County Court of Common Pleas on Feb. 22, 2005, with illegally conveying weapons or other prohibited items into a detention facility and a related conspiracy count. Blackburn entered a discovery request in March which tolled his speedy trial time for 18 days. On June 7, 2005, Blackburn filed a motion for a continuance because he had retained new counsel who needed additional time to prepare. The motion included language that Blackburn was waiving his speedy-trial right for the period of time resulting from the continuance. The court granted the motion and rescheduled the trial. This motion thus extended the speedy-trial time.
On Dec. 5, 2005, at the state’s request, the court dismissed the indictment without prejudice. On Feb. 6, 2006, Blackburn was reindicted and charged with two felony counts of trafficking in drugs and one count of conspiracy. On March 14, 2006, Blackburn filed a motion to dismiss, alleging that the state had failed to bring him to trial within 270 days. The trial court determined that 301 days had elapsed since the defendant’s original arrest on Dec. 17, 2004. The court granted the motion and dismissed all charges.
In its calculations of Blackburn’s speedy-trial time, the trial court did not toll the periods of delay caused by his motions for discovery and for a continuance in the prior case arising from the Feb. 22, 2005, indictment. The court relied on the Supreme Court of Ohio’s decision in State v. Adams (1989) which held that “[w]hen an accused waives the right to a speedy trial as to an initial charge, this waiver is not applicable to additional charges arising from the same set of circumstances that are brought subsequent to the execution of the waiver.”
On appeal, the state argued that Adams applied to a waiver of speedy-trial rights, while this case involved tolling of the time for a speedy trial under R.C. 2945.72. The 11th District Court of Appeals rejected that argument and affirmed the dismissal of charges, holding that “R.C. 2945.72(E) does not apply to toll speedy trial in prior indictments for purposes of subsequent indictments filed by the state when each indictment contains different charges arising under the same set of facts.” The state appealed the court of appeals decision, and the Supreme Court agreed to review the case.
In today’s majority decision, Justice Stratton wrote: “The narrow issue before us is whether to include the delays resulting from defense motions filed in Blackburn’s second case, No. 2005-CR-58, in calculating his speedy-trial time. … In Adams, the court addressed the effect of the defendant’s waiver upon a subsequently filed charge that arose out of the same facts as the former charge. … The state argues that there is a distinction between a speedy-trial waiver and the tolling provisions in R.C. 2945.72. We agree that these are two separate, distinct concepts that affect speedy-trial calculations in different ways.”
“In Adams, the defendant executed waivers that intentionally relinquished his speedy-trial rights for specific time periods as to the original charge against him,” wrote Justice Stratton. “We held that the waivers did not apply to new charges that arose out of the same underlying facts because the defendant lacked sufficient knowledge to voluntarily and intentionally relinquish the right as to the subsequent charge of which he had no knowledge. However, this justification does not apply to the statutory tolling of speedy-trial time under R.C. 2945.72. Tolling occurs by operation of the statute. In case No. 2005-CR-58, Blackburn asked for additional time so that his new counsel could prepare his case. When the trial court granted Blackburn’s motion, his speedy-trial time was automatically extended under R.C. 2945.72(H). Unlike waiver, statutory tolling does not necessarily require an informed, tactical decision. … (A) speedy-trial waiver and the tolling provisions in R.C. 2945.72 are separate concepts. A defendant’s express waiver of a right to a speedy trial allows additional time at that defendant’s request, whereas the automatic tolling of time, under circumstances described in R.C. 2945.72, operates to protect the state’s ability to adequately prosecute persons who have committed crimes.”
Justice Stratton concluded: “Blackburn contends that his motion to continue contained waiver language. But waiver language is not necessary in a motion to continue. Blackburn does not contend that the court conditioned his continuance upon a waiver. There is no evidence that there was a discussion of waiver in open court. Therefore, we do not consider the sentence concerning waiver in the motion to be dispositive because the tolling provisions of R.C. 2945.72 automatically apply regardless of whether Blackburn also waived time. Consequently, we hold that in calculating the time within which a criminal defendant must be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case in which there are different charges based on the same underlying facts and circumstances of the previous case. We reverse the judgment of the court of appeals and remand to the trial court to recalculate the defendant’s speedy trial time consistently with this opinion.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
“(I)n Adams, we reasoned that ‘a knowing and intelligent waiver cannot be made until all the facts are known by the accused, which includes knowing the exact nature of the crime he is charged with,” wrote Justice Lanzinger. “Knowing the exact nature of the crime will also affect which motions may be filed in a criminal case. … (T)he decisions to file motions in a particular case that will automatically extend the time during which a speedy trial must be held are just as much tactical decisions as the decision whether to execute a waiver in a particular case. In either event, the result should be the same. The speedy-trial clock does not reset for the new charge arising from the same set of facts, whether the time is extended by waiver or tolling. For these reasons, I would affirm the judgment of the court of appeals.”
Contacts
Shelley M. Pratt, 440.576.3662, for the state and Ashtabula County prosecutor’s office.
William P. Bobulsky, 440.998.4214, for Kenneth Blackburn.