[Cite as State v. Thacker,
2019-Ohio-1305.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. CT2018-0035
THOMAS J. THACKER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court, Case No. TRC 1606648
JUDGMENT: Reversed and Vacated
DATE OF JUDGMENT ENTRY: April 5, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX APRIL CAMPBELL
Prosecuting Attorney 545 Metro Place South, Ste. 100
GERALD ANDERSON II Dublin, OH 43017
Assistant Prosecutor
17 North Fifth St., Box 189
Zanesville, OH 43702-0189
[Cite as State v. Thacker, 2019-Ohio-1305.]
Gwin, P.J.
{¶1} Appellant Thomas J. Thacker [“Thacker”] appeals his conviction and
sentence after a plea in the Muskingum County Court.
Facts and Procedural History
{¶2} On October 17, 2016, Thacker was arrested for Operating a Vehicle under
the Influence ("OVI"), a first-degree misdemeanor; operating a vehicle after underage
consumption, a first-degree misdemeanor; and two minor misdemeanor traffic violations.
{¶3} On October 21, 2016, Thacker was arraigned and entered pleas of not
guilty. By Judgment Entry filed October 21, 2016, Thacker’s case was assigned a trial
date of November 30, 2016. On November 17, 2016, counsel entered an appearance
and filed an Administrative License Suspension Appeal [ALS] on behalf of Thacker.
[Docket No. 6]. Also on November 17, 2016, counsel for Thacker filed a Request for
Discovery. [Docket No. 7]. By entry filed November 8, 2016, the trial court scheduled a
pre-trial hearing in the case for November 30, 2016. [Docket No. 9]. On November 22,
2016, the state filed a letter indicating a response to Thacker’s discovery request and
requesting reciprocal discovery. [Docket No. 10]. Also on November 22, 2016, the trial
court scheduled the case for a pre-trial hearing and a hearing on Thacker’s ALS appeal
for November 30, 2016. [Docket No. 11].
{¶4} On February 2, 2018, the trial court scheduled Thacker’s case for a trial on
February 13, 2018. [No Docket Number]. On February 12, 2018, Thacker filed a motion
to dismiss on speedy trial grounds. [Docket Number 14]. On February 12, 2018, the
state filed a memorandum contra to Thacker’s motion to dismiss. [Docket Number 15].
On February 13, 2018, Thacker appeared in court with counsel and entered a plea of no
Muskingum County, Case No. CT2018-0035 3
contest to the driving while impaired charge, the dim light charge, and the seatbelt
violation charge. The state dismissed his underage consumption offense. On May 4,
2018, the trial court scheduled a sentencing hearing for May 8, 2018. [Docket Number
19]. By Judgment Entry filed May 8, 2018, the trial court sentenced Thacker to seven
days in jail a “$375 /75” fine plus court costs. [Docket Number 20].
Assignment of Error
{¶5} Thacker raises one assignment of error,
{¶6} “I. THE TRIAL COURT SHOULD HAVE DISCHARGED THACKER FROM
PROSECUTION, BECAUSE THE STATE VIOLATED HIS STATUTORY AND
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.”
Law and Analysis
STANDARD OF APPELLATE REVIEW.
{¶7} Speedy trial provisions are mandatory and are encompassed within the
Sixth Amendment to the United States Constitution. The availability of a speedy trial to a
person accused of a crime is a fundamental right made obligatory on the states through
the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200,
383 N.E.2d 579
(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational
effort to enforce the constitutional right to a public speedy trial of an accused charged with
the commission of a felony or a misdemeanor and shall be strictly enforced by the courts
of this state.” State v. Pachay,
64 Ohio St.2d 218,
416 N.E.2d 589 (1980), syllabus.
{¶8} Our review of a trial court’s decision regarding a motion to dismiss based
upon a violation of the speedy trial provisions involves a mixed question of law and fact.
State v. Larkin, 5th Dist. No.2004–CA–103, 2005-Ohio-3122, ¶11. As an appellate court,
Muskingum County, Case No. CT2018-0035 4
we must accept as true any facts found by the trial court and supported by competent,
credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17,
2016-Ohio-5912, ¶
43, citing
Larkin, supra. With regard to the legal issues, however, we apply a de novo
standard of review and thus freely review the trial court’s application of the law to the
facts.
Id.
{¶9} When reviewing the legal issues presented in a speedy-trial claim, we must
strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d
53, 57,
661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-
Ohio-2326, ¶ 12.
ISSUE FOR APPEAL.
A. Whether the trial court permissibly extended the trial date beyond the R.C.
2945.71 time prescriptions.
{¶10} The most serious offense Thacker was charged with was a misdemeanor
of the first degree. A person charged with a first-degree misdemeanor must be brought
to trial within 90 days unless the right to a speedy trial is waived. R.C. 2945.71(B)(2).
Thacker did not waive time. Pursuant to R.C. 2945.73, a person who is not brought to
trial within the proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be
discharged” and further criminal proceedings based on the same conduct are barred.
{¶11} A defendant establishes a prima facie case for discharge once he
demonstrates that he has not been brought for trial within the time limits set forth in R.C.
2945.71. State v. Ashbrook, 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, ¶ 49,
citing State v. Butcher,
27 Ohio St.3d 28, 30–31,
500 N.E.2d 1368 (1986). When an
appellant has established he was tried outside speedy-trial time limits, the burden shifts
Muskingum County, Case No. CT2018-0035 5
to the state to show that the time limit was extended under R.C. 2945.72. Id. at ¶31. If
the state fails to produce evidence in rebuttal under R.C. 2945.72, then discharge
pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy-trial issue, an
appellate court must calculate the number of days chargeable to either party and
determine whether the appellant was properly brought to trial within the time limits set
forth in R.C. 2945.71.” State v. Riley,
162 Ohio App.3d 730,
2005-Ohio-4337,
834 N.E.2d
887, ¶ 19 (12th Dist.).
{¶12} Certain events toll the accumulation of speedy-trial time. R.C. 2945.72
provides for a tolling of the time limitations under certain circumstances,
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:
(A) Any period during which the accused is unavailable for hearing
or trial, by reason of other criminal proceedings against him, within or
outside the state, by reason of his confinement in another state, or by
reason of the pendency of extradition proceedings, provided that the
prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to
stand trial or during which his mental competence to stand trial is being
determined, or any period during which the accused is physically incapable
of standing trial;
(C) Any period of delay necessitated by the accused's lack of
counsel, provided that such delay is not occasioned by any lack of diligence
Muskingum County, Case No. CT2018-0035 6
in providing counsel to an indigent accused upon his request as required by
law;
(D) Any period of delay occasioned by the neglect or improper act of
the accused;
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of
venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an express
statutory requirement or pursuant to an order of another court competent to
issue such order;
(H) The period of any continuance granted on the accused's own
motion, and the period of any reasonable continuance granted other than
upon the accused's own motion;
(I) Any period during which an appeal filed pursuant to section
2945.67 of the Revised Code is pending.
{¶13} In the case at bar, the state argues that Thacker’s failure to answer the
state’s request for discovery tolled the R.C. 2945.71 time period. [Appellee’s brief at 3].
{¶14} In State v. Palmer, 112 Ohio St.3d 457,
2007-Ohio-374,
860 N.E.2d 1011,
it took the defense 60 days to respond to discovery. In that response, Palmer revealed
that he had nothing to disclose and acknowledged his duty under Crim.R. 16(D) to
supplement his response should that circumstance change. Id. at ¶ 23. The trial court
tolled 30 of those 60 days against Palmer. The appellate court reversed that holding and
Muskingum County, Case No. CT2018-0035 7
reversed Palmer’s conviction. The Supreme Court reversed the appellate court and
reinstated that trial court’s holding. It explained that, “a trial court shall determine the date
by which the defendant should reasonably have responded to a reciprocal discovery
request based on the totality of facts and circumstances of the case, including the time
established for response by local rule, if applicable.” Id. at ¶ 24.
{¶15} In the case at bar, the state filed its discovery request on November 22,
2016. [Docket Number 10]. The next entry on the trial court’s docket is a judgment entry
filed February 2, 2018 setting Thacker’s case for a bench trial on February 13, 2018.
[Docket Number 11].
{¶16} We are not persuaded by the state’s contention that Thacker’s failure to
respond to its discovery request kept the speedy trial clock from ticking. First, the request
was made in November, 2016. There is no indication whatsoever in this record that the
state was delayed in its preparation for trial by Thacker’s failure to respond to its request
for discovery. What is evident in the record is that the delay of 437 days is nearly five
times the 90-day period set forth in R.C. 2945.71(B)(2) in which to bring Thacker’s case
to trial. To hold that 437 days count against Thacker where there is no indication in the
record that the state was delayed in its trial preparations by Thacker’s lack of response,
would be an injustice and not in keeping with the purposes of either speedy trial rights or
discovery. Cf. In re D.S., 8th Dist. Cuyahoga No. 97757, 2012-Ohio-2213, ¶36.
{¶17} The state argues that the trial court alluded to the reason for the excessive
delay in this case during the February 13, 2018 hearing. (T. Feb. 13, 2018 at 3; 5; 8; 9).
However, Crim.R. 32(C) expressly provides that a judgment in a criminal case “is effective
only when entered on the journal by the clerk.” The rule reflects the axiom that courts
Muskingum County, Case No. CT2018-0035 8
speak only through their journal entries. See State ex rel. White v. Junkin, 80 Ohio St.3d
335, 337,
686 N.E.2d 267, 269(1997); Schenley v. Kauth,
160 Ohio St. 109,
113 N.E.2d
625(1953), paragraph two of the syllabus. Without a journal entry, a decision or finding
of a court has no force or effect. State v. Ronan, 10th Dist. Franklin App. No. 06AP–63,
2007–Ohio–168, ¶ 9.
{¶18} 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, 48 Ohio St.2d 208,
357
N.E.2d 1095(1976), and Aurora v. Patrick,
61 Ohio St.2d 107,
15 O.O.3d 150,
399 N.E.2d
1220(1980). In the instant cause, it is uncontroverted that any action of the trial court
under the authority of R.C. 2945.72(H) occurred after the expiration of the statutory period
within which Thacker should have been brought to trial.
{¶19} In State v. Mincy, the Ohio Supreme Court condemned attempts to justify a
continuance beyond the R.C. 2945.71 time limit for trial occurring after the time has
already expired,
This court has previously condemned after-the-fact extension and
does not find it to be a meaningful distinction that appellee’s trial was initially
scheduled within the statutory time limit. The General Assembly has placed
a burden upon the prosecution and the courts to try criminal defendants
within a specified time after arrest. If we were to follow the state’s
reasoning, the only burden upon the prosecution and the courts would be
Muskingum County, Case No. CT2018-0035 9
to assure that a trial is scheduled within the appropriate time limit as long
as it could subsequently be explained why the defendant was not brought
to trial within the statutory time frame. It is obvious such reasoning does
not comport with the purposes of the speedy trial statutes. See State v.
Pudlock (1975), 44 Ohio St.2d 104,
338 N.E.2d 524 [
73 O.O.2d 357]; State
v. Siler (1979), 57 Ohio St.2d 1,
384 N.E.2d 710 [
11 O.O.3d 1].
2 Ohio St.2d 6, 8,
441 N.E.2d 571 (1982). Therefore, “prior to the expiration of the
statutory time limit [Thacker] was entitled to either, (1). a trial on the charges, or 2). if his
case was being continued by the court or prosecutor, the reason he was not being tried.
Since a court may only speak through its journal, it is necessary that such an entry be
spread upon its journal prior to the expiration of the statutory time limit. See, e.g.,
Andrews v. Bd. of Liquor Control (1955),
164 Ohio St. 275,
131 N.E.2d 390 [
58 O.O. 51];
Schenley v. Kauth (1953),
160 Ohio St. 109,
113 N.E.2d 625 [
51 O.O. 30].” Mincy,
2 Ohio
St.2d at 8,
441 N.E.2d 571.
{¶20} We therefore hold that because there was no time waiver by Thacker or his
attorney, or a judgment entry setting forth the necessity and reasonableness of the
continuance filed before the expiration of the statutory time period prescribed by R.C.
2945.71 for bringing Thacker to trial, the decision of the trial court overruling Thacker’s
Motion to Dismiss is reversed.
{¶21} Hacker’s sole assignment of error is sustained.
{¶22} Section 3(B) (2), Article IV of the Ohio Constitution gives an appellate court
the power to affirm, reverse, or modify the judgment of an inferior court.
Muskingum County, Case No. CT2018-0035 10
{¶23} The judgment of the Muskingum County Court is reversed. Pursuant to
Section 3(B) (2), Article IV of the Ohio Constitution, Thacker’s convictions and sentences
in this case are vacated, and the case is remanded to the trial court to enter the
appropriate dismissal entries.
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur
