[Cite as Toledo v. Sklarov, 2017-Ohio-137.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


City of Toledo                                    Court of Appeals Nos. L-15-1303
                                                                        L-15-1304
         Appellee
                                                  Trial Court Nos. CRB-14-20349
v.                                                                 CRB-14-20350

Sharon Sklarov                                    DECISION AND JUDGMENT

         Appellant                                Decided: January 13, 2017

                                              *****

         David Toska, City of Toledo Chief Prosecutor, Henry Schaefer
         and Joseph Howe, Assistant Prosecutors, for appellee.

         Jerome Phillips and Eric Allen Marks, for appellant.

                                              *****

         PIETRYKOWSKI, J.

         {¶ 1} Appellant, Sharon Sklarov, appeals from the October 30, 2015 judgment of

the Toledo Municipal Court convicting her of three violations of Toledo Municipal Code

1726.08, for failing or neglecting to obey or abide with an order to abate a public

nuisance. On this consolidated appeal, appellant asserts the following assignments of

error:
              First Assignment of Error: The lower court erred in denying

       appellant’s motion to dismiss for violations of her right to speedy trial.

              Second Assignment of Error: The lower court erred in finding that

       appellant was an owner or operator under TMC Sec. 1726.01 and 1726.08.

              Third Assignment of Error: The lower court erred in ordering

       appellant to pay restitution in the amount of $111,229.95.

       {¶ 2} The city of Toledo filed three criminal complaints against appellant on

December 30, 2014, for violating Toledo Municipal Code 1726.08(a). On the morning of

trial, appellant moved to dismiss the charges asserting the city had violated her speedy

trial rights. The trial court did not rule immediately on appellant’s motion to dismiss.

Instead, the court proceeded with a full bench trial. Appellant was found guilty of the

charges, fined and ordered to reimburse the city for costs incurred in maintaining the

property.

       {¶ 3} At the close of trial, the court denied appellant’s motion to dismiss finding

appellant was charged with a third-degree misdemeanor and, therefore, the city had 45

days to bring appellant to trial under the statute, R.C. 2945.71(B)(1), and trial was held

on the 37th day. Appellant filed a motion for a new trial on October 29, 2015, again

asserting that she was not brought to trial within the 30 days required by law. The trial

court denied the motion on November 3, 2015. A notice of appeal was filed on

November 23, 2015.

       {¶ 4} In her first assignment of error, appellant argues the trial court erred in

denying her motion to dismiss based on a violation of her speedy trial rights. Appellant’s


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argument is divided into two parts. First, she argues the trial court erred by finding that

she was charged with a third-degree misdemeanor. Second, she argues she was not

brought to trial within the speedy trial time permitted by R.C. 2945.71(B)(1) and

2945.72. We address only appellant’s second argument because it is dispositive of this

appeal.

       {¶ 5} We review the trial court’s decision denying a motion to dismiss, based on

an alleged violation of the speedy trial statutes, as a mixed question of law and fact. State

v. Lapoint, 6th Dist. Lucas No. L-14-1140, 2015-Ohio-1990, ¶ 12. Therefore, we give

deference to the trial court’s findings of fact, but review the application of the law to

those facts de novo. Id.

       {¶ 6} The fundamental right to speedy trial guaranteed by the Sixth Amendment to

the United States Constitution and Ohio Constitution, Article I, Section 10, is

implemented through the speedy trial statutes, R.C. 2945.71, et seq. State v. Pachay, 64

Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus. R.C. 2945.71(B)(1) requires that a

person accused of a third-degree minor misdemeanor must be brought to trial within 45

days after arrest or service of summons. We do not reach appellant’s argument of

whether the charge in this case was a minor misdemeanor, for which there is a 30-day

speedy trial requirement, because her trial did not occur even within the greater 45-day

time limit required for a third-degree misdemeanor.

       {¶ 7} The court and the prosecution have a mandatory duty to comply with the

speedy trial statutes, R.C. 2945.71 through 2945.73. State v. Reeser, 63 Ohio St.2d 189,

191, 407 N.E.2d 25 (1980); State v. Pudlock, 44 Ohio St.2d 104, 105-106, 338 N.E.2d


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524 (1975). The trial court must record the necessity and reasons for any continuance

made prior to the expiration of the speedy trial time limit if the time is to be chargeable

against the defendant pursuant to R.C. 2945.72(H). State v. Myers, 97 Ohio St.3d 335,

2002-Ohio-6658, 780 N.E.2d 186, ¶ 62; State v. Mincy, 2 Ohio St.3d 6, 8, 441 N.E.2d

571 (1982); State v. Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976), syllabus.

Extensions of time permitted by R.C. 2945.72 are strictly construed against the state.

State v. Hughes, 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999). Once an accused has

presented a prima facie case that the speedy trial time period was exceeded, the burden of

production shifts to the prosecution to demonstrate any extension of the time limit. State

v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986).

       {¶ 8} In this case, appellant moved the morning of trial, October 22, 2015, for

dismissal of the charges on speedy trial grounds asserting that “296” days had elapsed

since her speedy trial time had commenced. Despite the fact that the burden of

production shifted to the city to demonstrate that appellant’s speedy trial rights were not

violated, the city produced no evidence to explain that the alleged 296-day delay was

necessary and reasonable.

       {¶ 9} One time gap in this case, from September 3, 2015, until the day of trial,

October 22, 2015, is dispositive of the speedy trial issue. At a hearing on September 3,

2015, the parties stipulated to the issues to be heard but debated whether a jury trial was

necessary. The trial court agreed with the city that no jury was required, but scheduled a

jury pre-trial for September 28, 2015, and a jury trial for October 8, 2015 to protect

appellant’s rights. On September 16, 2016, the jury pre-trial was continued to


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October 15, 2015, and the jury trial to October 22, 2015, without any indication on the

record as to the reason for the continuance. Although the trial court indicated in its final

judgment that the scheduling of the trial for October 22, 2015, was due to continuances

requested by appellant and/or motions filed by appellant, the record does not support that

finding. The city concedes, this time period of 49 days must be construed in appellant’s

favor and charged against the city. This gap alone is clearly beyond the 45 days required

by R.C. 2945.71(B)(1).

       {¶ 10} The city instead argues that appellant acquiesced in the trial court’s

calculation of 37 days and, therefore, waived any right to challenge the trial court’s

calculation of the speedy trial days.

       {¶ 11} When the motion to dismiss on speedy trial time was discussed at the start

of trial, appellant did argue the basis for the motion was “prompted by the discovery of

counsel that * * * these charges are actually minor misdemeanors as opposed to

misdemeanors of the third degree.” However, appellant also argued the only delays

caused by her were due to two continuances she requested and a motion to recuse the

judge. Nonetheless, appellant argued: “I have still calculated that there are

approximately, I believe 199 days chargeable to the state. * * * I would submit that a

reasonable review of the journal in this case would establish that more than 30, in fact

probably more than 45 days, for a third degree will have elapsed without the defendant

being brought to trial.”

       {¶ 12} After trial, the judge indicated that he calculated the time as 37 days

chargeable to the city. Appellant’s response focused on the argument that the court’s


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calculations clearly indicated that appellant’s speedy trial rights had been violated

because her trial was required to be held within 30 days, as required for minor

misdemeanors. The remainder of the discussion focused on whether the charge was a

minor misdemeanor or a third-degree misdemeanor. No further discussion was held

regarding the calculation of the speedy trial time.

       {¶ 13} We find appellant properly raised the issue of speedy trial rights in her

motion to dismiss, pursuant to R.C. 2945.73(B), when she argued “296” days had

elapsed, and again in her initial argument to the court that “199” days were chargeable to

the city. Although appellant focused on the classification of the charge during oral

arguments, she did not waive her other argument that the actual number of speedy trial

days had exceeded even 45 days. Compare State v. McClain, 2015-Ohio-3690, 41

N.E.3d 871, ¶ 24 (2d Dist.); State v. Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, 858

N.E.2d 1249, ¶ 21-22 (5th Dist.).

       {¶ 14} At the time of trial, the city had the burden to produce evidence of

continuances attributable to appellant and did not meet that burden. The lack of evidence

was not due to any fault of appellant. There is no evidence in the record to support a

finding that the delay of trial from September 3, 2015, until October 22, 2015, could be

attributed to appellant. Therefore, we find the trial court erred in denying appellant’s

motion to dismiss. Appellant’s first assignment of error is found well-taken.

Consequently, the remainder of appellant’s assignments of error are rendered moot.




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       {¶ 15} Having found the trial court did commit error prejudicial to appellant and

that substantial justice has not been done, the judgment of the Toledo Municipal Court is

reversed and her conviction is vacated for violation of appellant’s speedy trial rights.

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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