2009-Ohio-5124
No. 09AP-38.Court of Appeals of Ohio, Tenth District.
Rendered on September 29, 2009.
APPEAL from the Franklin County Municipal Court, M.C. No. 2008 CR B 020463.
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City Prosecutor, and Melanie R. Tobias, for appellant.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellee.
DECISION
CONNOR, J.
{¶ 1} Plaintiff-appellant, City of Columbus (“appellant”), appeals from a decision issued by the Franklin County Municipal Court dismissing a criminal complaint based upon defendant-appellee, Gulam H. Memon’s (“Memon”), motion to dismiss for speedy trial violations. For the following reasons, we reverse and remand for further proceedings.
{¶ 2} On August 21, 2008, Memon was charged with soliciting for prostitution, a violation of Columbus City Codes 2307.24(A) and a misdemeanor of the first degree. On August 22, 2008, Memon entered a plea of not guilty at his arraignment, filed a demand
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for a jury trial, and requested that his trial take place within the speedy trial requirements set forth in R.C. 2945.71. The case was scheduled for jury trial on October 10, 2008.
{¶ 3} On October 10, 2008, the case was tried to the court. Memon was found guilty of soliciting for prostitution and was sentenced to 30 days in jail. He was given two days of jail-time credit and the balance of the sentence was suspended for one year of community control, with the added conditions that he attend “John school,” plus pay a $100 fine and court costs. A judgment entry reflecting his conviction and sentencing was filed on October 15, 2008.
{¶ 4} Minutes after sentencing Memon and adjourning court, the trial judge realized Memon had not formally waived his right to a trial by jury, as he had not executed a written jury waiver. As a result, the trial court, on its own motion, caused an entry to be filed on October 15, 2008, which set aside the judgment of conviction and sentence and declared it “held for naught.” (R. 10.) Due to concerns regarding impartiality, the trial judge recused himself and reassigned the matter for jury trial on November 10, 2008, before a different municipal court judge.
{¶ 5} On November 3, 2008, Memon’s trial date was continued to December 1, 2008. Memon did not waive his speedy trial rights at that time. On December 1, 2008, the trial date was continued again, due to an ongoing trial before the court. The matter was rescheduled for December 18, 2008. On that date, a hearing was held on Memon’s motion to dismiss on speedy trial grounds. Both parties agreed that more than 90 days
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had elapsed since Memon’s arrest. After hearing arguments from counsel, the trial court dismissed the matter for failure to prosecute within the statutory speedy trial time period.[1]
{¶ 6} On appeal, appellant asserts a single assignment of error for our review:
Appellant’s Sole Assignment of Error
The trial court erred in dismissing Defendant’s charge since the statutory speedy trial provisions of R.C. 2945.71 do not apply to retrials.
{¶ 7} In reviewing whether a defendant was denied his right to a speedy trial, an appellate court reviews questions of law de novo and applies the clearly erroneous standard to questions of fact. State v. Yuen, 10th Dist. No. 03AP-513, 2004-Ohio-1276, citing State v. Auterbridge (Feb. 25, 1998), 9th Dist. No. 97CA006702.
{¶ 8} We begin by noting that R.C. 2945.05 provides for jury trial waivers and requires that the waiver of the right to a trial by jury must be made in writing, signed by the defendant, filed, made a part of the record, and acknowledged in open court following an opportunity to consult with counsel. R.C. 2945.05. See als State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, ¶ 9. Where the requirements of R.C. 2945.05 are not met, the court’s exercise of jurisdiction is in error. State v. Issa, 10th Dist. No. 05AP-406, 2005-Ohio-6756.
{¶ 9} As noted above, Memon was charged with a first-degree misdemeanor. R.C. 2945.71 requires that a person charged with a misdemeanor of the first degree be brought to trial within 90 days of arrest or service of the summons. R.C. 2945.71(B)(2). Appellant argues the speedy trial protections of R.C. 2945.71 are not applicable to
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Memon because the statute only applies to original trials. Because Memon has already had one trial, which was held within 90 days of Memon’s arrest, appellant contends that it was not required to try Memon a second time within 90 days of his arrest. Appellant cites t State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, an State v. Fanning (1982), 1 Ohio St.3d 19, as authority to support its position.
{¶ 10} Memon, however, argues that because the conviction arising from the trial was set aside and held for naught, he either did not actually have a trial, or he was in fact given a new trial. Memon argues that the facts and circumstances in this case are distinguishable from both Hull and Fanning. Unlike a retrial following reversal on appeal or a mistrial, Memon argues a new trial does not cut off his statutory right to a speedy trial. Additionally, Memon questions the remedy imposed by the first trial judge when the court sua sponte vacated the conviction without conducting an inquiry with Memon as to how he wished to proceed. Memon argues the setting aside of the conviction was not initiated or requested by him and he had no input in the matter.
{¶ 11} As previously stated, where the accused has the right to a jury trial and has filed a jury demand, a trial court’s exercise of jurisdiction without a valid waiver of that right is in error. “Jurisdiction” is a court’s statutory or constitutional power to adjudicate a case. State v. Daniel, 10th Dist. No. 05AP-564, 2006-Ohio-4627, ¶ 8; Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11. The term “jurisdiction” includes both subject-matter jurisdiction and personal jurisdiction Daniel at ¶ 8; Pratts at ¶ 11. Jurisdiction is a condition precedent to the court’s ability to hear the case, and if a court acts without jurisdiction, any judgment issued by that court is void. Daniel at ¶ 9; Pratts at ¶ 11. “Jurisdiction” can also refer to a court’s exercise of jurisdiction over a particular case.
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This includes a trial court’s authority to determine a specific case within the class of cases that falls within its subject-matter jurisdiction. Pratts at ¶ 12.
{¶ 12} If a trial court lacks subject-matter jurisdiction, its judgment is void; but lack of jurisdiction over the particular case only renders the judgment voidable. Id. at ¶ 12; State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, ¶ 22 (Cook, J., dissenting), quoting State v. Swiger (1998), 125 Ohio App.3d 456, 462. Where the court undoubtedly has jurisdiction over both the subject matter and the parties, but lacks jurisdiction over the particular case, such as where the court failed to comply with the requirements of R.C. 2945.05, the trial court’s erroneous exercise of jurisdiction renders the judgment voidable, not void ab initio. See generally, Pratts; State v. Filiaggi (1999), 86 Ohio St.3d 230 Daniel.
{¶ 13} Neither subject-matter nor personal jurisdiction have been challenged in the instant case. Additionally, it is undisputed that the requirements of R.C. 2945.05 and of Lomax were never met. Therefore, the trial court erred in exercising jurisdiction by conducting a bench trial without a jury waiver. It is apparent from the record that this fact served as the basis for the first trial judge’s decision to vacate the conviction and schedule the case for trial before a second judge. However, the conviction in this case was voidable, not void. While a void conviction is “[o]f no legal effect; null[,]” a voidable conviction is “[v]alid until annulled[.]” Black’s Law Dictionary (9th ed. 2009). A voidable judgment is one where the court has both jurisdiction and authority to act, but the court’s judgment is invalid, irregular, or erroneous. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 12. Therefore, a trial did in fact take place for purposes of the speedy trial statute.
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{¶ 14} Next, we address the applicability of the speedy trial protections of R.C. 2945.71 in the context of Hull an Fanning. In Hull, the Supreme Court of Ohio held that R.C. 2945.71 was not applicable to criminal convictions which had been overturned on appeal and remanded for further proceedings. The Supreme Court determined that because R.C. 2945.71 was silent and did not address situations where an appellate court had reversed a conviction and remanded the matter for further proceedings, the court could not add language to the statute or presume to know the legislature’s intent. The Supreme Court found that if the legislature had intended for the statutory speedy trial provisions to apply to convictions which were reversed and remanded on a plea of no contest, it could have easily provided for such a circumstance. Hull at ¶ 19. We find the same could be said here, where a new trial was ordered after an improper exercise of jurisdiction, as the statute is equally silent under these circumstances.
{¶ 15} The Hull court went on to find that the failure to include a provision addressing the application of statutory speedy trial provisions to convictions which were reversed and remanded on a no-contest plea expressed an intent for the statute to only apply to those situations which followed the arrest or the service of a summons upon a person charged with a crime. Id. at ¶ 19.
{¶ 16} Other courts have also made similar findings. Se State v. McAllister (1977), 53 Ohio App.2d 176, 178, citin State v. Gettys (1976), 49 Ohio App.2d 241 (finding no difference, for purposes of the statute, between a retrial following the reversal of a conviction, and a trial following the vacation of a conviction based upon a no-contest plea, the court determined “the requirements of R.C. 2945.71 et seq., pertaining to time for trial, have no application to the time for trial of a cause in which an original conviction
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has been reversed and the matter remanded for retrial,” th McAllister court found the provisions of Ohio’s speedy trial statutes “are directed solely to an original trial following the arrest of a defendant “). See also State v. Workman (1977), 60 Ohio App.2d 204, 210 (R.C. 2945.71 could “not logically be applied to the situation where a second trial is involved. In many cases in which trial is held close to or at the end of the prescribed period, to hold a second trial also within that period would be, as here, fully impossible.” (Emphasis sic.)) See also State v. Schlee, 11th Dist. No. 2004-L-070, 2005-Ohio-5117, ¶ 81 (The court determined a new trial granted to defendant pursuant to Crim. R. 33 was not subject to the speedy trial timetable set forth in R.C. 2945.71, finding it was well-established in Ohio that the statutory speedy trial provisions of R.C. 2945.71 et seq. are not applicable to retrials.).
{¶ 17} Additionally, in Hull, the Supreme Court of Ohio further found that the time limit for bringing a person to trial whose conviction was overturned on appeal was governed by Section 10, Article I of the Ohio Constitution, and by the Sixth Amendment to the United States Constitution Hull at ¶ 20. In reaching this decision, the court relied, in part, upon its decision in Fanning, in which it determined that R.C. 2945.71 did not apply to retrials. In Fanning, the Supreme Court declined to apply the statute to a second trial conducted after a hung jury was unable to reach a verdict in the first trial. Instead, the Supreme Court determined that the standard to be applied was one of reasonableness under the federal and state constitutions. Id. at 21.
{¶ 18} “Ohio’s speedy trial statutes require that defendants be speedily brought to trial for a variety of substantial reasons. These include a concern that a defendant not be put to his defense after the evidence has grown `cold,’ or lost, or been dissipated by the
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death or disappearance of witnesses.” State v. Willis (1980), 69 Ohio App.2d 128, 131. Here, because Memon has in fact had a trial, the objective of the statutory speedy trial statute has been satisfied by the full record that was preserved in the initial trial.
{¶ 19} For purposes of the application of the speedy trial statute, we find no difference between a new trial ordered following an erroneous exercise of jurisdiction and the examples cited by appellant herein. Despite Memon’s contention that a new trial should be distinguished from a retrial based on a reversal from an appeal or a mistrial, we find this to be a distinction without a difference. All of these events involve circumstances where a trial has been commenced or a finding of guilt has been entered, but either the conviction was improper or some other irregularity occurred and, for one reason or another, a second or new trial is required.
{¶ 20} Additionally, Memon has failed to produce any relevant or binding authority which persuades us to find otherwise, in light of the cases and statutes cited above. Furthermore, Memon’s efforts to analogize the instant case to the circumstances i State v. Broughton (1991), 62 Ohio St.3d 253, also fail Broughton involved the dismissal of a defective indictment and a subsequent reindictment based upon the same facts. For purposes of speedy trial under R.C. 2945.71, the Supreme Court of Ohio determined that the speedy trial clock stopped on the date the first indictment was dismissed and resumed ticking, from the point at which it had stopped, when the second indictment was filed (unless the defendant was held in jail or released on bail pursuant to Crim. R. 12(I)). Memon argues that this concept should be applied here, meaning the speedy trial clock that was stopped after the initial trial began should have begun running again once the conviction was vacated. However, the circumstances here do not involve an indictment
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that was dismissed and refiled. Here, an actual trial was commenced and Memon was convicted, albeit improperly, due to the improper exercise of jurisdiction. Nevertheless, this concept cannot be applied to the instant case, as the circumstances and issues are in no way analagous.
{¶ 21} Memon has also disputed the authority and/or wisdom of the first trial judge in ordering a new trial on its own motion, and argues that such action should not effectually cut off his statutory right to a speedy trial. However, Memon did not challenge this issue on appeal at the time the conviction was vacated, nor did he file a cross-appeal in this case in order to assert this issue as an assignment of error. As this is not an issue before us, we shall not address whether or not the first trial judge acted prudently or within his authority in vacating the conviction sua sponte.
{¶ 22} Accordingly, we find the trial court erred in dismissing the criminal complaint on statutory speedy trial grounds, and we sustain appellant’s sole assignment of error. The judgment of the Franklin County Municipal Court is reversed, and we remand this matter for further proceedings consistent with this decision.
Judgment reversed; cause remanded.
FRENCH, P.J., and KLATT, J., concur.
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