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City Of Richmond Heights v. Abriani8/24/2000
ng the June 16, 1998 written statement along with the accompanying Notice of Scheduling Conflict, we find that the written statement was a waiver of the ninety day statutory time period for speedy trial purposes. The June 16, 1998 written statement expressly stated: Waiver of Time and ALS hearing. Contrary to defendant's claim, this language does not reflect that he only waived his right to appeal his A.L.S. hearing within five days of his arrest. A valid waiver of his ALS hearing would automatically nullify any time requirement for such a hearing. Accordingly, we cannot say that the trial court erred in finding that the Waiver of Time expressed in the June 16, 1998 written statement was not a waiver of the five day ALS hearing requirement as defendant claims.
Furthermore, the record reflects that defendant was arrested on May 7, 1998. Under the speedy trial provisions of R.C. 2945.71(B)(2), defendant had to be brought to trial within ninety days of that date or by August 7, 1998. However, the Notice of Scheduling Conflict also filed on June 16, 1998 clearly requested that the trial be scheduled either before August 1, 1998 or after August 31, 1998. The delay of defendant's trial after August 7, 1998 was the result of his own counsel's request and required a waiver of his speedy trial rights. As discussed above, the language used by defense counsel in the June 16, 1998 statement expressed such a waiver. Based on these facts, we find that the trial court correctly found that defendant's June 16, 1998 written statement was a valid waiver of his speedy trial rights.
The right to a speedy trial is granted by statute and the Ohio and United States Constitutions. State v. O'Brien (1987), 34 Ohio St.3d 7, 8. In O'Brien, the Ohio Supreme Court held that a defendant's right to be tried within the statutory time limits may be waived by defendant or his counsel if the waiver is made knowingly and voluntarily. Id. at 9. The Court further held:
Following an express, written waiver of unlimited duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time. Id. at paragraph two of the syllabus.
As discussed above, the June 16, 1998 written statement was a valid written waiver of defendant's speedy trial rights. This waiver was also of unlimited duration as it did not specify a time frame within which to hold defendant's trial. However, despite this waiver, the prosecution still had a constitutional duty to bring defendant to trial within a reasonable time. Id. In determining whether an accused's constitutional right to a speedy trial has been violated, courts must evaluate the following: (1) the length of the delay; (2) the justification for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice which the delay caused the defendant. State v. Triplett (1997), 78 Ohio St.3d 566, 568, citing Barker v. Wingo (1972), 402, U.S. 514, 530-532; O'Brien, supra, at 10; Cleveland v. Waltz (May 5, 1988), Cuyahoga App. Nos. 53809, 53811 and 53812, unreported.
In O'Brien, the Ohio Supreme Court determined that Mr. O'Brien, charged with DUI, had signed a written waiver of his right to speedy trial but had never filed a formal written demand for trial and thus, his initial waiver remained effective. The Court held that Mr. O'Brien's right to speedy trial had not been violated when the trial court tried him nine months after his arrest and further, that such a delay could not be regarded as presumptively prejudicial. Id. at 10
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