OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. King, Appellee.
[Cite as State v. King (1994), Ohio St.3d .]
Criminal law -- Requirement for effective waiver of
constitutional and statutory rights to speedy trial.
To be effective, an accused's waiver of his or her
constitutional and statutory rights to a speedy trial must
be expressed in writing or made in open court on the
record. (State v. O'Brien [1987], 34 Ohio St.3d 7,
516
N.E.2d 218, applied and followed; State v. Mincy [1982],
2
Ohio St.3d 6, 2 OBR 282,
441 N.E.2d 571, followed.)
(No. 93-1290 -- Submitted April 26, 1994 -- Decided August
31, 1994.)
Certified by the Court of Appeals for Stark County, No.
CA-9131.
On February 25, 1992, plaintiff-appellant, the state of
Ohio, charged defendant-appellee, Mary Ann King, with a
violation of R.C. 2917.21 for telephone harassment, a first
degree misdemeanor. At her arraignment on March 10, 1992,
defendant pled not guilty and filed a demand for a jury trial.
The trial court set the trial date for May 21, 1992.
Defendant's counsel contacted the prosecutor on May 11,
1992, seeking the prosecutor's approval for a motion to
continue because defendant was having difficulty complying with
a request for discovery. The record indicates that the
prosecutor agreed to the motion, although there is some dispute
as to whether he conditioned his approval on the defendant's
agreement to sign a waiver to a speedy trial. Consequently, on
May 18, 1992, defendant filed a motion for a continuance.
Some time after this exchange, defendant's counsel
contacted the court to relay the prosecutor's agreement and
eventually reached Vivian Miller, the trial judge's secretary.
Miller informed counsel that before granting a continuance the
judge's policy first was to obtain a time waiver. Again,
however, the testimony reflects a disagreement regarding the
substance of that conversation. Miller testified that
defendant's counsel orally agreed to forward a signed time
waiver to the court. In fact, Miller wrote and initialled a
note on the case jacket, indicating counsel "will send time
waiver." Counsel, however, insists that he made no such
agreement. In any event, the trial court granted the motion to
continue on May 20, 1992 and set the new trial date for July 6,
1992.
Thereafter, apparently operating under the assumption that
defendant had waived her right to a speedy trial, Miller
notified the parties on or about July 7, 1992 that the court
had rescheduled the trial for August 31, 1992. Shortly before
then, on August 20, 1992, defendant filed a motion to dismiss
for failure to comply with the speedy trial provisions of R.C.
2945.71 and 2945.73, and of the United States and Ohio
Constitutions. The court, however, overruled the motion,
finding that defendant waived her right to a speedy trial by
her attorney's oral representations, and that the court
reasonably relied upon the waiver in continuing the trial date
from July 6, 1992 to August 31, 1992.
Defendant subsequently pled no contest and was convicted
of telephone harassment. She was sentenced to sixty days'
incarceration with all days suspended and fined five-hundred
dollars.
On appeal, the court of appeals vacated defendant's
conviction and sentence, ruling that a waiver of her right to a
speedy trial does not appear in the trial judge's journal and
that, therefore, the trial court erred in finding the oral
waiver effective. The appeals court also found that the trial
court erred in not granting defendant's motion to dismiss
because the continuance was not journalized in accordance with
the holding in State v. Mincy (1982), 2 Ohio St.3d 6, 2 OBR
282,
441 N.E.2d 571.
The court of appeals, finding its decision on the issue of
a defendant's oral waiver of speedy trial rights to be in
conflict with the decision of the Court of Appeals for Hancock
County in State v. Hanes (June 27, 1991), Nos. 5-90-41 and
5-90-42, unreported, certified the record of the case to this
court for review and final determination.
John A. Poulos, Canton City Prosecutor, and Francis G.
Forchione, First Assistant City Prosecutor, for appellant.
Augustin F. O'Neil, for appellee.
Wright, J. The principal query before us is whether a
defendant's oral waiver of speedy trial rights, which does not
appear on the record, is effective. In the absence of such a
waiver we also consider whether a trial court may sua sponte
continue a defendant's trial beyond the expiration of the time
limit prescribed in R.C. 2945.71 for bringing a defendant to
trial, without a journal entry explaining the reasons for the
continuance. For the reasons that follow, we hold that a
defendant's waiver of his or her right to a speedy trial must
either be written or made on the record in open court. We also
reaffirm our holding in Mincy, supra, that any sua sponte
continuance must be reasonable, and must be accompanied by a
journal entry which is made prior to the expiration of the
statutory time limit and explains the reasons for the
continuance.
It is well-settled law that an accused may waive his
constitutional right to a speedy trial provided that such a
waiver is knowingly and voluntarily made. Barker v. Wingo
(1972), 407 U.S. 514, 529,
92 S.Ct. 2182, 2191,
33 L.Ed.2d 101,
116. Consistent with this principle, this court has found the
statutory speedy trial provisions set forth in R.C. 2945.71 to
be coextensive with constitutional speedy trial provisions.
State v. O'Brien (1987),
34 Ohio St.3d 7,
516 N.E.2d 218.
Thus, we have held that an accused's express written waiver of
his statutory rights to a speedy trial, made knowingly and
voluntarily, also constitutes a waiver of his speedy trial
rights guaranteed by the United States and Ohio Constitutions.
O'
Brien, supra, paragraph one of the syllabus. Furthermore,
this court has held that, for purposes of trial preparation, a
defendant's statutory right to a speedy trial may be waived,
with or without the defendant's consent, by the defendant's
counsel. State v. McBreen (1978),
54 Ohio St.2d 315,
8 O.O.3d
302,
376 N.E.2d 593, syllabus.
Our leading case considering the effect of waiving a
defendant's right to a speedy trial is O'Brien, supra. In
O'Brien, the defendant was charged with driving under the
influence and signed an express written waiver of his statutory
right to a speedy trial set forth in R.C. 2945.71. After the
court continued defendant's trial on its own and the state's
motions, defendant, who had not previously formally objected to
the continuances, moved to dismiss his case alleging he had
been deprived of his constitutional right to a speedy trial.
In holding that the statutory speedy trial provisions of R.C.
2945.71 and the constitutional guarantees found in the Ohio and
United States Constitutions are coextensive, the court
expressed that a "trial court may reasonably rely upon the
written waiver of speedy trial as filed within the case."
(Emphasis added.)
O'Brien at 10,
516 N.E.2d at 221.
From the court's decision in O'Brien we can infer that a
court's reliance on an unjournalized oral waiver, alleged or
actual, is not effective. In fact, the cases in which we have
considered and upheld the validity of a waiver of a defendant's
right to a speedy trial involve circumstances in which the
accused either expressly waived his or her right in writing or
waived it in open court on the record. See State v. Kelley
(1991), 57 Ohio St.3d 127,
566 N.E.2d 658 (guilty plea waives a
defendant's right to challenge his or her conviction on
statutory speedy trial grounds); State v. Adams (1989),
43 Ohio
St.3d 67,
538 N.E.2d 1025 (written waiver of speedy trial
rights as to an initial charge not applicable to subsequent
applicable charges arising from the same circumstances);
O'
Brien, supra (express written waiver, if voluntarily and
knowingly made, may also constitute waiver of state and federal
constitutional speedy trial rights); Montpelier v. Greeno
(1986),
25 Ohio St.3d 170, 25 OBR 212,
495 N.E.2d 581 (guilty
plea waives defendant's right to a speedy trial); State v.
Bauer (1980),
61 Ohio St. 2d 83,
15 O.O.3d 122,
399 N.E.2d 555
(record discloses that defendant failed to appear for trial and
thus waives his right to a speedy trial for the period of
initial arrest to rearrest); Westlake v. Cougill (1978),
56
Ohio St.2d 230,
10 O.O.3d 382,
383 N.E.2d 599 (defendant
effectively waived in writing his right to a speedy trial); and
State v.
McBreen, supra (defendant's counsel signed two "Waiver
of Time Provisions" forms).
It is disputed whether appellee's trial counsel orally
waived appellee's right to a speedy trial. Be that as it may,
aside from the opposing allegations, we are unable to determine
the existance in the record of any conclusive evidence
regarding waiver. We find the lack of any definitive evidence
of waiver of appellee's speedy trial right critical. The
conclusion that we draw from O'Brien, and which is suggested by
the other cases cited above, is that a waiver of speedy trial
rights must be expressly written or in some form that can be
conclusively determined from the record. We see no reason to
depart from our previous case law. Therefore, we hold that, to
be effective, an accused's waiver of his or her constitutional
and statutory right to a speedy trial must be expressed in
writing or made in open court on the record.
Applying this standard to the instant case, we find that
appellee did not waive her statutory or constitutional rights
to a speedy trial. A close review of the record reveals that
neither appellee nor her trial counsel made an express written
waiver or waived her rights to speedy trial in open court on
the record. Therefore, we must affirm the holding of the court
of appeals which ruled that the trial court erred in finding
the appellee's alleged oral waiver effective.
But finding the alleged oral waiver to be ineffective does
not answer the question of whether the court violated
respondent's right to a speedy trial when it sua sponte
continued appellee's trial date beyond the time limit set forth
in R.C. 2945.71. Pursuant to R.C. 2945.72(H) a court may grant
a continuance upon its own initiative as long as it is
reasonable. This provision has been interpreted to permit
courts to sua sponte continue an accused's trial beyond the
time limit prescribed by R.C. 2945.71, but only when reasonable
and only when the continuances are made by journal entry prior
to the expiration of the time limit. See State v. Lee (1976),
48 Ohio St.2d 208,
2 O.O.3d 392,
357 N.E.2d 1095, and Aurora v.
Patrick (1980),
61 Ohio St.2d 107,
15 O.O.3d 150,
399 N.E.2d
1220.
We embraced this construction in our decision in State v.
Mincy (1982), 2 Ohio St.3d 6, 2 OBR 282,
441 N.E.2d 571. In
Mincy, the trial court scheduled the defendant's trial for the
eighty-seventh day after he had been charged, three days before
the expiration of the statutory time within which a criminal
defendant must be brought to trial. On the trial date, the
court sua sponte continued the trial and did not record an
entry on its journal explaining the reason for the continuance
until after the statutory time period had expired. Conceding
that "the time limit provisions of R.C. 2945.71 are flexible to
a degree,"
id. at 7, 2 OBR at 283,
441 N.E.2d at 572, the court
nevertheless held that "[w]hen sua sponte granting a
continuance under R.C. 2945.72(H), the trial court must enter
the order of continuance and the reasons therefor by journal
entry prior to the expiration of the time limit prescribed in
R.C. 2945.71 for bringing a defendant to trial."
Id. at
syllabus.
In the case under consideration, it was incumbent upon the
prosecutor to bring appellee to trial within ninety days of her
being served. The trial court originally scheduled the trial
for May 21, 1992, eighty-six days after she had been served.
The trial court's grant of the first motion to continue tolled
the speedy trial provisions until the new trial date on July 6,
1992. However, the trial court then sua sponte continued the
trial pursuant to R.C. 2945.72(H) from July 6, 1992 to August
31, 1992, without a time waiver and without recording a
judgment entry explaining the reasons for continuing the trial
beyond the expiration of the ninety-day period. Indeed, the
new trial date appears only as a notice sent to the parties by
the trial judge's secretary.
It is axiomatic that "[i]n Ohio a court speaks through its
journal." State ex rel. Worcester v. Donnellon (1990), 49 Ohio
St.3d 117, 118,
551 N.E.2d 183, 184. At a minimum, the trial
court was required to enter the order of continuance and the
reason therefor by journal entry prior to the expiration of the
time limit prescribed in R.C. 2945.71 for bringing a defendant
to trial. Because this was not done, the trial court erred in
overruling appellee's motion to dismiss.
Accordingly, we affirm the judgment of the court of
appeals.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.
