In The Supreme Court Of Ohio

State ex rel. Jobn W. Mc Queen

Relator;

V.

Klatt, Frencb & Sadler

Appellate Didtrict Judges

Respondents'

--------------------------------------

Petition For Writ Of Procedendo

John W. Mc Queen #597618

LOCI

P.O. Box 69

London, Ohio-43140

Defendant-Appellant; Pro-se

Klatt(19275) French(40339) & Sadler(22350)

Appellate District Judges

10th. District Court Of Appeals

373 South High Street 23rd. Floor

Columbus, Ohio

10-1386Case No-------------

CLERK OF COURTSUPREME CUU'HT OF OHIO

FLEDAUG 0 6 2010

rI_E.RK OF COt1FiTSUPF?EitI1E COURT OfOHI®

43215-6312

Statement Of The Case And Facts

On 12-15-08, Appellant was convicted and the court imposed the

maximum allowable sentence of five years upon the Appellant.

On appeal Appellant raised the issue of his speedy trial rights,

state and federal had been violated. Respondenhs', ratber than

following its own or this courts decisions in State V. McKinney

(Sept. 26,1989) Franklin App. N o.89 AP-186; State V. Siler(1979),

57 Ohio St. 2d. 1, 11 0.0. 3d. 1; Elmwood Place V. Denike 56 Ohio

St. 2d. 10 0.0. 3d. 528; State V. Mincy(1982) 2 Ohio St. 62 0 B R

282; State V.Terra 598 N.E. 2d. 753(1991);affirmed.

On his application for resideration, Respondents' again failed to

consider the law of The State Of Ohio.

On Marcb 11,2010, Relator filed his petition for writ of procedendo

with court.

: On March 26,2010, Respoadents' filed motion dismiss. They informed

the court Relator failed to comply with R.C. 2969(A)&(c).

Relator has complied and is now entitled to have his case heard on the

merits. Since procedendo is an appropriate remedy.

"When the Relator bas a clear legal right to the relief requested.

2), The respondents' bas a clear legal duty to perform the requested ac-

tion and; 3), The Relator has no plain and adequate remedy in ordinary

course of law. 399 N.E. 2d. 81.

1

Hroposition Of Law

'y47e ap;.,ellant has submitted the Court Of'A.ppeals decision of Lecember 1,2009;

;.ts memorandum decisionrendered Sanuar,^> 26,2010; its decision cf Februa a 18,2010;

and all of the ccntinuances had in thir. case.

Had Respendents' followed this Cou°ts' law in this case, appellant would be dc-

in-; s mething other than troubling this Court nowe

Initially, respcndents' concluded that appellant was arrested on April 22,2008s

wnd in.icted cn IHay 5;2008.. The ii-iitial trial date was set for 7une 17y2008. Thus

at the time ef appella_-itls trial date(23),days had passed, which under the triple

ccu-^t provision couiated as (6g), days,

L1'„hougrl appellant re:iused to si€n all of the continuances, he states here tha.t

the Octobe.r 1, to the 14t.h.(no entry appears in the record), yet this continuance

a.L^ t!'P oc'q was ^_i"langed Lc h1:"17,

Y.-

° aS 7e1 l K,7C , Ohz,. Ste `d ,i ,i1 01 .0.jd^ 1, the trial conr,t issued

'Z.l*ic° sC'ttil'^o: a t,r1.2.l date that was beyCn,^,' the S:)eedV iY'].al li:7ltoThe Cia7en..a*lt

-^^-lec- a mctior, to disrr,iss, which was overruied, The Seventh Appellate District re-

versed, hclding that R.C. 2945-72(H), can not, extend the 90 day limit provided by

=94^,a71, unless the trial court grants a continuance by journal entry prior to the

^xpi_ration of the statutcry time limite

In the case before this courty the court below never even considered this venj

rrrNcrtant fact,

The October 28th to December 8th, continuance is sua spcnteeAnd this court has

tated that sua sponte continuances may be crdered by trial court but only wh.en reascn-

ble and only when the continuances are made by journal entry prior to the expiration of

he time limita

2

Tnis court has also stated that the statutor stpeedy triai limit is not tolled

,nder 2945,^2(^3)s wnless a sua sncnte c.ontinuance order is filed that is suppoa^ted

by sufficient detail, 5-i Oh3.c ste 2d, at 4-5, Irr.this case, the trial court onl,y

stated it was unavailable^ Nc fla.rther reasons were given.

^he appellant had a ri.ght tc have his case dec^.ded by this courtPS laweThe Appel"1-.

ate District is not free tc decide cases and at the same time, overlook what the law

of The State has to sayo The appellate wculd mcve this court to decide his case or

enter its order corrrpelling the court below to follow the law.

P<0, Dox r:G

Londc_. , Ohio

q"`";Q0

3

Affidavit In Support Of Complaint

---------- __®_---_®________________________________®-____--_-_®___®-

Relator, State ex rel. John McQueen, does state that the fact and circumstances

giving raise to this complaint are true to the best of his knowledge. And that he is so

entitled to a fair determination of his case.

Relator was denied the benefits of State V. McKinney(Sept. 26,1989) Franklin

App. No. 89 AP- 186 and State V. Terra 598 N.E. 2d. 753 (1991)(Franklin App.), as well

as this Court's decisions in State V. Siler(1979), 57 Ohio St. 2d. 1, 11 0.0. 3d. 1;

Elmwood Place V. Denike, 56 Ohio St. 2d. 10 0.0. 3d. 528; State V. Mincy (1982), 2

Ohio St. 62 0 B R 282. Further Relator says not.

P.O.Box 69

London, Ohio

- 43140

Notary Public.

GILBERj k HURW^O.^P tWr$Utres 19 2013

FlLEDi:!?: ;h,P^'Er`,t.,"•.,

IN THE COURT OF APPEALS OF OHIO 22NO JAN 26 PH :i< 48TENTH APPELLATE D6STRECT CLEfi{s Ct= COURTS

State of Ohio,

Plaintiff-Appe(lee,No. 09AP-195

v. (C.P.C. No. 08CR05-3349)

John W. McQueen, : (REGtiE-.AR CALENDAR)

Qefendant-AppelEant.

MEMC3RANDUM DECISION

Rendered on January 26, 2010

Ron O'Brien, Prosecuting Attorney, and John N. Cousins, IV,for appe(Eee.

John W. McQueen, pro se.

ON APPLICATION FOR RECONSIDERATION

SADLER, J.

{¶1} Appelfant, John W, McQueen ("appeilant"), has filed a pleading entitled a

"Request For Reconsideration" of our decision in this case, in which we affirmed

appellant's conviction on one count of domestic violence. State v. McQueen, 10th Dist.

No. 09AP-195, 2009-Ohio-6272.

PrlorCivil Aclions

STATE OF 01110

]vIAD1SON COUNTY

) ss;) (Section ^ 2()69.25of Ohio Revised Cude}

1, tlre unil®rsignecJ Affiant, afier firsl being duly sworn Emil ca.utioned in a.cc,ordance witl-j law.,

depose ancl attest the following:

i have/have noicorlunenced an action in reference to R.C. § 2969.25 vviflii» the Previcsus

Bve (5) years- ;The br^ef description of 11ic nature of the civil acti on or ap:>eal', :_

I

2- The Case Name(s), Case NuAbd,' a1d Cour(sa) which the civil action(s) or appeal(s)

v,as brought is are follows:

3. The Name of Each Pa-Cy to t11e civil action(s) or appeal(s) are as follows:

4. The outcoine of the civil action(s) or appeal(s), including whether the Court dismissed

the civi] action(s) or appeail(s) as'fi7volous or malicious under State or Federal Law - or Rule of Court;

whether the Court made an award against the prisoner or the prisoner's counsel of record for frivolous

conduct under Statrte or Rule of Court; and if the Court so disrnissecl the action(s) oa appeal(s) or made

an award of that natm-e, the date of the Final Order affirming the distriissal or award is as follows:

Attachment not scanned

I'i9or C;ivil, L^ctioi'is ""'^ R.C fi. 2909.25

5. Pu-rsum^t to Section § 2969.25((") oft1>e Ohio Revised Code, tbe prisone- seek to iile the

actiorior appeal against a govennliental employee or entity Witv a waiver oltbeprepsymeniofthe full

filing fees assessed by the Curl in which the action or appeal iis filed, and includes in this afCidavit an

crtaa.cJied C'ei°t^fed Cashier`s Slctremen-1 that sets i'bitb thebalance in the prisorier's account for each of

the procediii.- six (6) montbs., as ceil:if^ed by tbe Cashier's Office o1'tlje London Correctional 1nstitution

attached hereto.

FURTHER, Affiant sayeth nauglit.

Affiant, Pro se

hy,C)T.;`. ^Y ATTEST

Sworn to and subscribed in my presence this R"i day oi

S ea] GILBERTA IFNNOMNctary PuDioy 3t* of c*^^Mvfte ra F.4hres 132013

My Coizvz7 ss.on E3.pares

Attachment not scanned

Affidavit

Before me appeared, John W. Mc Queen, and does state that: I, John W.

Mc Queen, have filed the following appeals or civil actions:#10-0061Supreme

Court#10-0459 Supreme Court;# No. 09 AP-195; 10th. Dist. And No 08 CR-05

3349 - No 09 AP-1160.

Further Relator says Not.

P.O. Box 69

London, Ohio

43140

Sworn And Subscribed Before Me This -^'-^^-^-Dayof-- --7^r--2010

Notary Public

GILBERf k HURW0l7iopdyryPutitic,Slale

o

M4 CAmmission FaWa 1 ^'2019

Certificate Of Service

I hereby certify that a copy of the foregoing petition was forwarded by

J.S. mail To: Richard A. Termuhlen prosecuting attorne ,, Franklin Coun y,

^olumbus, Ohio-43215-6312- 373 South High St. This-_-I-Dayo-2010.

1^'Repectfully^Submitted

#597618

^^ . 0 12 -V49 COURT OF COMMON E'I<Ei ASs FkbAY'BKLERI GOEfMY5 ® .I''fii'

CRIMINAL DIVISION

Statc of Ohio,

iDlaintiff,. . CASE NO. 3`3-LLL

-ws- JUDGE JOifN A. CONNOR

,ok, Ac

Defendant.

Upon Motion of flh® a

sFaown, to svit:

ENTRY

.^, or good cause

L

ttus case, being sct for treal on the 9--^ day of ji d-^ a 200^at

.m. is hereEiy continued for reassignment to the of

2008

I?efcndant waives ihe right to & spccdy trial for the period of Ytds continuance as to the

Fcnding charge or charges as eaell as any sarbseqvcnt a.dditionil charge or charges wahich may

arese froffi the same set of facts and circumstances as tho °savtia3 c6srge.

3LTDGh J®HN fa CONIJOILAPPROLTaD:

Ron O'$rien, EsqFranldin County Prosecuting Attomey

slano0 30 )Ia310

1 . 0 =zi Wa L I Nn(' Ml

01Fi0'03 N1T4NV83l8di03 SV31d Pa04.dW00

03' i1. i

.r

57043 gy7IR iHE COURT OF COMMON PLEAS, [H'PFANKLIN COUNTY, 0HI0

CRIMINAL DMSION

STATE OF ®l-9fiO,

Plaintiff,

Vs.

jobr^ A- a itr/o. Case No.

Defendant, : Judge

m<..ss C k ^4^p

Upon motion of the

to wit: A . f^CXnWV&^^and for good cause shown,

this case, being set for trial on the / IZday of^1^ OL^ Zp t,{/ at 9:00 a.m., is hereby continued fora,reassignment to the ^ day of -2711 j 20 at 9:00 a.m.

Defendant waives the right to a speedy triat for the period of this continuance as to the pending charge

or charges as well as any subsequent, additional charge or charges which may arise from the same sct of facts

and circumstances as the initial charge.

JudgeApproved:

Ron O'BrienProsecuting AttomeyFranklin County, Ohio

Shontell D. Walker 0080530Assistant Prosecuting AttomeyCounsel for State of Ohio

c^ 8C-^

nor . oo .'0 3

^ Gc-) 5^x °n0̂l

n

..

o?;C7Oc On'

^ rxoc=

c» c :;.4

PA-9A (Rev. 3.2000)

57102 -^ ^Balil;E COURT OF COMMON PL,LAS, P'l7ANKE,t1V COUNTY, OHIOCRIMINAL DIVISION

S"1!'A"g'Ef7"P 0H â 0,

Plaintiff,

vs. Case 19'®.

Defendant. Judge

ENTRY

U on rnotion of theand for good cause shown,

towit AJ,„^

th.is case, be i ng set for trial on the dayof 20 O6 at 9 00 a m,is hereby continued for

reass gnment to ihe2-K day of nLi)bLK-, 20a at 9 00 a m

Defendant waives the right to a speedy tr i al for the period of this continuance as to the pending charge

or charges as well as any subsequent, additional charge or charges wh i ch may anse from the same set of facts

a.nd circumstances as the mGttal cha,rge.

Judge

Approved

Ron O'Br i enProsecut ing AttorneyFranklin Co„nty, Ohio

'!Shontell D Walker 0080530Assistant Prosecuting Attorney

Counsel for State of Ohio

Counsel for the Defendant

_^

^-5-Defend t

S123t100 A0 }IdU10

P0 :! kd 111 13080DZ

ofln,c a3

^^011PUTER

PA-9A(Rcv 3-2000)

, 7 0 5° Y#&E COURT OF COMMON P3.,EAS, FRANKLIN COUNTY, OHIOCRIMINAL DIVISION

towt

STATE OF OHIO,

^^aIIdât9ffy.

vs. Case I®'o. Q( ) Co^ ^ I^

^1D{ 1'1 1 ^C^UPPl^^

Defendant. Judge

s,iisKY

Upon motion of the ^anft-f% and for good cause shown,

fD CA^QIp^(fl

this case, being set for tnal on the /J^ day of , 209 at 9.00 a m , is hereby continued for

reassigrunent to the ^- day of ` , 20^__ at 9-00 a m

Defendant waives the right to a speedy tnal for the period of this continuance as to the pending charge

or charges as well as any subsequent, additional charge or charges wh i ch may anse from the same set of facts

and circumstances as the in itial charge

Judge

Approved

Ron O'BrienProsecuting Attorneyrrari;ciin County, Ohio

hontell D Walker 0080530Assistant Prosecuting AttorryeyCounsel for Stata of Ohio

rTi

O^ CJ9 arr

n0 3

rnmOC^jyC7

C ot^77 0xo

Ln .^ oz..i ^

defendant PA-9A(Rev 3-2000)

57114 - IdB atr]E COURT OF COMMON PLEAS, P'iRANfGT.IN COUNTY, OHIOCRIMINAL D1VESfOPd

STATE OF OHIO,

P1a âerkOtf,

vs.

e 4k Y) RC, QVW

Case No. ()^ u 3 3 t !

Defendant. .9cadbe CAQ^°9r)M'

ENTRY

to Wrt

Upon motion of the

^/- A Vak/^Q

and for good cause shown,

, 20 at 9 00 a m, rs hereby contrnued forthrs case, being set for trial on the^day of QCk7^1 ^

reassrgrnneni to the day of ^ , 20_OK at 9 00 a m -

Defendant waives the right to a speedy trtal for the period ofthrs conttnuance as to the pending charge

or charges as we!1 as any subsequen[, add tronal' charge or charges which may arrse from the same set of facts

and crrcumstances as the imtza; charge

Judge

Approved

Ror, O'BrienProsecuting AttorneyFrankhn Countv, Ohio

ol.C.4(,t^-^-_.honiell D Walker 00 801,30

Assrs.ant Prosecut ng AttorneyCounse; for S+.ate of Ohto

^^ ^^'Z^4at Law G2-jv C. o-^ s 3

or the Defer(8ant

Defendan^PA-9A (Rn, 3-2000)

kISPO^ON OF GRIEVANCE

INMATE: MCQUEEN, JOHN

NUMBER: A597618

INSTITUTION: LOCI

DATE: 03/08f2010

COMPLAINT CODE: INSTITUTIONAL OPERATIONS - InmateAccount - Improper charge

DISPOSITION: DENIED - No violation of rule, policy, or law

GRIEVANCE NUMBER: LOCI-03-10-000033

r- The disposition of this grievance will be delayed longer than 14 calendar days for the following reason(s):

^" Your grievance, filed on 03/03/2010, has been reviewed and disposed of as follows:Inn7ate McQueen I am in receipt of your NOG regarding the Cashier's Office deducting a montl-dy charge from your account forunspecified purposes. You state you have requested signed receipt from tlie Commissatq to no avail. Concluding, you asked theCashiers to send you a copy of a cash slip for $7.35 for copies.

Inmate McQueen I received your new Demand Statement and I will send it to you. You are required to keep your cash slips andother receipts. Please take the time to review your Demand Stateinent and if you have further questions contact the Cashier'sOffice Directly. You have not stated why you need the commissary signed tickets or the cash slip for $7.35. You have a history ofreceiving copies so I ain not sut-e what you are complaining about. You currently have $22.43 in, your account.

There doe no appear to be any violations by the Cashier's Office. In the future if you have questions regarding your accountplease contact the Cashier's Supervisor Evelyn Hall. This office will take no further action pertaining to thi.s matter.

If you wish, you may appeal this decision to the Chief Inspector within 14 calendar days. Appeal forms are available in theoffice of the Inspector of Institufional Services.

a4s.u M. t"Page 1 of 1

02/12/2010London Correctional Institution

Inmate Demand Statement

Inmate Name: MCQUEEN, JOHI^^

Lock Location: LoCI,D,1,,,124LNumber A597618

Date Range: 12/01/2009 Through 02/13/2010

Beginning Account Balances:Endin Ag ccount Balances:

Saving Debt Payable

Pos Exemption $0.00 $0.00 $0.00 Pos Exemptioninmate's Persor $0 2

Savin,g

$8.76Debt

$0 00Payable

$0 0( .8) $0.00 $0.00 Inmate's Personal A,

Begdn Totals $0 2 ($4.55).

$0 00. 0

$0 00( . 8) $0.00 $0.00 End Total . .

TransactioiDate

TransactionAmount Descri tionp

s

Comment

$4.21

Savin 9

$0.00

Debt

$0.00

Payable12/01/2009 Balance Balance Balancelr i4 i2 Reservation to Pos Odre Pos Exemption

Exemption $000 $0.0012/04/2009 $18.00 State Pay State Pay

$17.72 $0.00 $0 0012/07/2009 ($0 .10) Copy Charges .

i 2r14f'1$17.62 $0.00 $0.00

009 ($17.57) Commissary Sale Ticket Number 16012612 $0.05 $000 $0 00

/16/2009 ($0.88) Postage Charges (USPS)12/

$0( .83) $0.00 $0 0021/2009 ($0.45) Copy Charges.

12/21/2009 ($0.10) Copy Charges$1.28) $0.00 $0.00

'($1.38) $0.00 $0 0012121/ 009 ($0.55) Copy Charges .

12/21/2009 ($0.30) Copy Charges($1.93) $0.00 $0.00

($2.13) $0.00 $0.000 Iiv uZu iu $12.77 Reservation to Pos Odre Pos Exemption

2Exemption .23)($ $0.00 $0.0001/04/2010 $20.00 Money Order Money Order

01/0 $17.77 $000 $0 007/2010 ($1.90) Postage Charges (USPS)

.

01/08/2010 $18 $15.87 $0.00 $0.00.00 State Pay State Pay

01/13/201$33.87 $0.00 $0.00

0 ($29.90) Commissary Sale Ticket Number 163947$3 9701/20/2010 . $0.00 $0.00($2.70) Copy Charges$1.27 $0.00 $0 0001/20/2010 ($0.30) Copy Charges .

01/20/2010 ($1.00) Copy Char es$0.97 $0.00 $0.00

g1/ ($0,03) $0.00 $0 000 21/2010 ($2.58) Postage Charges (USPS)

.

01/25/2010 ($0.55) Copy Charges($2.61) $0.00 $0.00

($d.16) $0.00 $0 0001/25/2010 ($0.40) Copy Charges .

3($.56) $0.00 $0.00v`/u u u $11.44 Reservation to Pos Odre Pos Exemption

3Exemption .56)($ $0.00 $0.0002/01/2010 ($0.20) Copy Charges .

02/05/2010 ^$18 00 State Pa($3.76) $0.00 $0.00. y S:ate Pay

02 $14.24 $0.00 $0 00/05/2010 ($7.35) Copy Charges.

02/08/2 $6.89 $000 $0.00010 ($2.68) Commissary Sale Ticket Number 167184

P$4.21 $0.00 $0.00

age. 1/2 A597618 MCQUEEN, JOHNLoCI 02/12/2010

IN THE COURT OF APPEALS OF OHIO °^' ,9 FEP i;j ph

TENTH APPELLATE DISTRICT L E T

State of Ohio,

Plaintiff-Appellee,

V.

John W.McQueen,

Defendant-Appellant.

No. 09AP-195(C,P.C. No. 08CR05-.3349)

(REGULAR CALENDAR)

MEMORANDUM DECISION

Rendered on February 18, 2010

Ron O'Brien, Prosecuting Attorney, and John H. Cousins, IV,for appellee.

John W. McQueen, pro se.

ON APPLICATION FOR RECONSIDERAT ION

SADLER, J.

{¶1} Appellant, John W. McQueen, has filed an application asking that we

reconsider our decision in this case, in which we affirmed appellant's conviction on a

charge of domestic violence. State v. McQueen, 10th Dist. No. 09AP-195, 2009-Ohio-

6272. We overruled a previous application for reconsideration appellant filed in this case

in a decision dated January 26, 2010.

No. 09AP-1952

{'52} As part of the basis for his request for reconsideration, appellant points to

an order issued by a magistrate of this court in case No. 09AP-1160, an original action

filed by appellant in this court. The order directs appellant to file either a deposit for court

costs or an affidavit of indigency. It is not clear whether appellant is arguing that the

magistrate's order should be reconsidered, but, if so, an application for reconsideration

filed in this case is not the proper method for appeltant to challenge the magistrate's order

issued Ir7 case IYi1.V9Ap-1 16V.

{9j3} The remainder of appellant's application for reconsideration addresses the

same issue that appellant argued in his first application for reconsideration: that the trial

court violated his speedy trial rights. The proper standard for our consideration of an

application for reconsideration is whetl;-er the application "calls to the attention of the court

an obvious error in its decision, or raises ari issue for consideration that was either not

considered at all or was not fully considered by the court when it should have been."

Columbus v. Hodge (1987), 37 Ohio App.3d 68, citing Matthews v. Matthews (1981), 5

Ohio App.3d 140. However, "[a]n application for reconsideration is not designed for use

in instances where a party simply disagrees with the conclusions reached and the logic

used by an appellate court." State V. Owens (1996), 112 Ohio App.3d 334, 336,

dismissed, appeal not allowed, 77 Ohio St.3d 1487.

{¶4} Appellant's second application for reconsideration is simply a continued

expression of appellant's disagreement with our decision. Thus, the application neither

calls to our attention any error in our decision, nor raises any issue for our consideration

that was either not considered by us or not fully considered by us when it should have

beeri.

20^662 - K67 FILEDCoV;F fI.....

IN THE COURT OF APPEALS OF OHIO 211.10 JAN 26 PM 3- 45

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appelfeeo

V.

John W. McQueen,

Defendant-Appellant.

CLERK CF COURTS

No. 09AP-195(C.P.C. No. OBCR05-3349)

(REGULAR CALENDAR)

MEMORANDUM DECISION

Rendered on January 26, 2010

Ron O'Bnen, Prosecuting Attomey, and John H. Cousins, IV,for appellee.

John W. McQueen, pro se.

ON APPLICATION FOR RECONSIDERATION

SADLER, J.

(¶t} Appellant, John W. McQueen ("appefianY'), has filed a pleading entitled a

"Request For Reconsideration" of our decision in this case, in which we affirmed

appellant's conviction on one count of domestic violence. State v. McQueen, 10th Dist.

No. 09AP-195, 2009-Ohio-6272.

20662 - K68

No. 09AP-195 2

{¶2} Applications for reconsideration are governed by App.R. 26(A). That rule

requires that an application for reconsideration be made "before the judgment or order of

the court has been approved by the court and filed by the court with the clerk for

joumalization or within ten days after the announcement of the court's decision,

whichever is the later." Our decision in this case was announced on December 1, 2009,

and appellant did not request reconsideration until December 14, 2009. Thus, appellant`s

application for reconsideration was not timely filed, although we may extend the4ime for

filing if the application raises an issue of such importance that an extension is warranted.

See State v. Pilgrim (Dec. 15, 2009), 1oth Dist No. 08AP-993 (memorandum decision).

{13} AppellanYs application for reconsideration does not set forth any reason for

his failure to f+ie a timely application for reconsideration, nor does appellant argue that his

application raises an issue of such importance that we should extend the time for filing.

As such, we need not consider the application. Pilgrim. Moreover, even if we were to

extend the time for filing an application for reconsideration, appellant's application fails on

its merits.

{14} The proper standard for our consideration of an application for

reconsideration is whether the application "calls to the attention of the court an obvious

error in iis decision, or raises an issue for consideration that was either not considered at

all or was not fully considered by the court when it should have been." Columbus v.

Hodge (1987), 37 Ohio App.3d 68, citing Mafithews v. Matthews (1981), 5 Ohio App.3d

140. However, "ja]n application for reconsideration is not designed for use in instances

where a party simply disagrees with the conclusions reached and the logic used by an

20662 - K69

No. 09AP-195

appellate court.'° State v. Owens (1996), 112 Ohio App.3d 334, 336, dismissed, appeal

not allowed, 77 Ohio S0d 1487.

{15} In his application for reconsideration, appellant argues that we erred in our

decision overruling appellants fifth assignment of error, in which he argued that the

charge against him should have been dismissed for the state's failure to bring him to trial

within the statutory speedy trial period. Specifically, appellant takes issue with that

portion of our decision in which we stated that the speedy trial period was tolled for the

period of continuances that were granted without his consent, but with the consent of his

counsel. McQueen at ¶37. Appellant argues that we failed to consider that some of the

continuances at issue were granted without his consent after appellant began

representing himself, and that those continuance entries were signed by the attorney that

had been appointed as standby counsel, thus taking those continuances outside the

statutory provision set forth in R.C. 29A5.72(H), which tolls the speedy trial period for

continuances granted at the defendant's request.

{¶6} However, we did address that issue. We stated that appellant's standby

counsel could not bind appellant for the purposes of the provision in R.C. 2945.72(H)

regarding continuances granted at the defendant's request. However, we applied the

provision in R.C. 2945.72(H) tolling the speedy trial period for the period of any

reasonable continuance granted other than at the request of the defendant, and

concluded that the continuances granted without appellant's consent at the time he was

acting as his own attomey were not unreasonable. McQueen at ¶43. Thus, even if

appellant had filed a timely application for reconsideration or had set forth an issue

significant enough for us to extend the time for filing such an application, appeliant's

20662 - K7®

No. ®9AP-195 4

application does not set forth an obvious error in our decision or raise an issue that was

either not considered or was not fully considered by us.

{¶^j Therefore, appellant`s application for reconsideration is denied.

Appl'lcation for reconsideretion denied.

KLAT'f and FRENCH, JJ., concur.

20662 - K3 o.r .,,_FI! EU.i^i, ('^-s9D^;/^i •

IN THE COURT OF APPEALS OF OHIO 'i;1 JqH 26 PH 3: 53

TENTH APPELLATE DISTRICT LLEBtii (;F. COURTS

State of Ohio,

Plaintiff-Appellee,

V.

John W. McQueen,

Defendant-Appellant.

No. 09AP-195(C.P:C. No. 06CR05-3349)

(REGULAR CALENDAR)

JOURNAL ENTRY

For the reasons stated in the memorandum decision of4his court rendered

herein on January 26, 2010, it is the order of this court that appellant's application for

reconsideration is denied.

SADLER, KLATT, and FRENCH, JJ.

By GL_-

1A

Judge Lisa L. Sadler

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appellee,

V.

John W. McQueen,

Defendant-Appeilant.

No. 09AP-195(C.P.C. No. 08CR05-3349)

(REGULAR CALENDAR)

D E C i S I O N

Rendered on December 1, 2009

Ron O'Brien, Prosecuting Attorney, and Richard A.Termuh(en, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, forappellant.

APPEAL from the Franklin County Court of Common Pleas.

SADLER; J.

{¶1} Appellant, John W. McQueen ("appellant"), filed this appeal seeking

reversal of a judgment by the Franklin County Court of Common Pleas convicting him of

one count of domestic violence, a third-degree felony. For the reasons that follow, we

affirm.

No. 09AP-195

{t2} Appellant was charged with domestic violence for an inciderit that occurred

on April 22, 2008. On that date, appellant was living in an apartment with Sharon

Robinson. Robinson testified that she and appellant were in a relationship, and when

asked if appellant was her boyfriend, Robinson stated, "More or less, yeah." (Tr. 135.)

{¶3} According to the testimony at trial, appellant and Robinson were smoking

crack cocaine. Appellant had Robinson go to an upstairs apartment to get a friend of hers

named Toni to come to their apartment. Toni came down to the apartment at one point,

but then left. Robinson then went upstairs to the apartment where Toni was visiting for

about 20 minutes. When Robinson came back downstairs, she and appellant began

arguing. Appellant held Robinson down with a metal bar across her shoulders, and

punched her in the forehead. Robinson left the apartment to go upstairs to use a

telephone, and a neighbor saw her and called for the police. Police arrested appellant,

and he was charged with domestic violence.

{¶4} Prior to trial, appellant's counsel raised the issue of appellant's competency

to stand trial pursuant to R.C. 2945.37. The trial court ordered appellant to submit to a

competency evaluation by NetCare's Forensic Psychiatry Center: By letter dated

September 18, 2008, Dr, Pamela Chapman, a psychologist with NetCare, reported that

an attempt had been made to conduct the evaluation as ordered on September 15, but

that appellant had refused to participate. The lefter stated, "As a result of Mr. McQueen's

lack of participation in the interview, I am unable to render an opinion regarding his ability

to understand the nature and objective of the legal proceedings against him and of

assisting counsel in his defense." The letter also stated, "During our brief discussion, Mr.

McQueen's thinking contained signs of suspicious, paranoid and persecutory thoughts."

No. 09AP-1953

{¶5} On October 1, 2008, the trial court held a hearing to consider the letter from

NetCare, as well as appellant's request to act as his own attorney during trial. During that

hearing the foilowing discussion occurred:

THE COURT: We're here set for trial today, and Mr.McQueen, on August the 13th, you asked to be your ownattorney.

THE DEFENDANT: Yes, judge. You want to do acompetency hearing. I want you to explain that.

THE COURT: I want to make sure you are competent torepresent yourself.

THE DEFENDANT: What would make you think I am not?

THE COURT: There was some indication -

THE DEFENDANT: Did I not tell you that I alreadyrepresented myself back in 1999 * "^?

THE COURT: You know, that's a long time ago, and when Ilet somebody represent themselves, just so I know they areabsolutely positive that they know - that they understand whatI am aboutto explain to them. It's only for your protection. It'snothing against you.

THE DEFENDANT: We have a right under the constitution torepresent ourselves.

THE COURT: I agree, and I was just trying to protect you andI apologize -

THE DEFENDANT: I look at it as benefiting the prosecution -

THE COURT: I apologize if you take offense at it. You sayyou are competent.

THE DEFENDANT: I have given you no reason to thinkotherwise, your Honor.

No. 09AP-195

THE COURT: That's fine, that you think that you arecompetent. The NetCare evaluation was that you felt youwere and didn't want to answer any of their questions.

THE DEFENDANT: I obtained a paper from the lady, righthere.

MR. BASNETT: If I may approach, your Honor.

THE COURT: It says here you met with -

THE DEFENDANT: As far he [sic] and I was concerned, thecompetency hearing was completed after I stopped her andsaid, What do you assess? Am I crazy to you? She said, No.

THE COURT: I don't think you are crazy at all. I don't thinkyou are crazy at all. I do it with anybody, that you shouldn'ttake it personal. I want to make sure -

THE DEFENDANT: I have 15 years' paralegal.

THE COURT: Okay. I am going to find that you arecompetent and we're going to proceed, and the next thing Ihave to tell you - and we'll, niake this part of the record onceyou file that.

4

(Oct. 1, 2008 Tr. 2-4.)

{¶6} After further colloquy between the court and appellant, the trial court

determined that appellant would be allowed to represent himself at trial, but directed

attorney Jeffrey Basnett, who had been appellant's counsel, to serve as standby counsel

during the trial. During this colloquy, the court made a number of statements regarding

some of the difficulties of proceeding pro se:

THE COURT: Now, do you want to represent yourself[?]

THE DEFENDANT: Most certainly.

THE COURT: Now, let me tell you, if you representyourself,there is [sic] some things I got [sic] to tell you about. The firstthing we are going to do is we will have to impanel a jury.

No. 09AP-1 J5

THE DEFENDANT: 8 have picked a jury before.

THE COURT: Have you done voir dire before?

THE DEFENDANT: Yes, I have. It usually takes about five,six hours to do that.

THE COURT: No. I am going to allow both sides one hour.

THE DEFENDANT: Hovv many challenges are you going toget?

THE COURT: You geffour challenges.

THE DEFENDANT: Okay.

THE COURT: Then the State has to put evidence on and youhave a right to cross-examine the witnesses. If I - if eitherside, whether you object or the other side objects on thematter of law and evidence, I rule on it, and, of course, youare required to make your record. But then once I have ruled,you have to accept the ruling and go forward with the nextquestion or go forward with the trial.

THE DEFENDANT: Well, certainly.

THE COURT: The... C.ourt doesn't permit a continuedargument over the ruling. You are not an attorney. Youunderstand that. You seem to know the rules of evidencewell. I can tell you, I have been a judge for 16 years -

THE DEFENDANT: You have been a judge of 16 years. Youare running for the Court of Appeal [sic] right now.

THE COURT: And the rules are very difficult to interpret evenfor a lawyer. You are going to have to do that by yourself. Iwill ask Mr. Basnett.

THE DEFENDANT: That won't be necessary.

THE COURT: I am going to ask him to stand byjust in case.

THE DEFENDANT: That will not be necessary.

5

No. 00AP-195 6

THE COURT: He is going to sit there in case you have aquestion. He will be here in case you do. You don't have touse him at all. I always have a lawyer stand by in the case.Once the State puts on their evidence, you are entitled tocross-examine the witnesses. When you cross-examine theState's witnesses, you can ask just about anything you wantthat's relevant to the case. When you recross, you can onlyask about what the prosecutor asked on redirect. You can'tgo beyond the prosecutor's redirect, and it gets limited interms of what you can ask.

THE DEFENDANT: I Will be careful not to go beyond thescope.

THE COURT: Okay. It sounds like you understand that. Theclosing arguments, I will limit those to an .hour also. Theprosecutor she gets to go first and last.

THE DEFENDANT: The burden of proof is on her; it's not onrrie.

THE COURT: She gets up to an hour. She has to reservetime for rebuttal; and you get an hour for closing argument,and those.are limited by the rules that I will erforce; and if yougo beyohd what's the limit in closing argument, of course, Iwill have to make a ruling only if there is an objection -

(Oct. 1, 2008 Tr. 7-9)

{¶7} A number of other issues were also discussed during the October 1, 2008

hearing, including appellant's argument that his speedy trial rights had been violated by

the state's failure to bring him to trial within 90 days, and whether appellant was entitled to

obtain Robinson's statement to the police.

{f8} At the commencement of trial, appellant actively participated in jury

selection, questioning prospective jurors, and exercising peremptory challenges. During

trial, appellant was able to make relevant evidentiary objections. Appellant was disruptive

No. 09AP-195 7

throughout the course of the trial. Ultimately, during the prosecuting attorney's rebuttal in

closing arguments, appellant became so disruptive he was removed from the courtroom.

{¶9} The jury found appellant guilty on the charge of domestic violence. The trial

court sentenced appellant to a term of five years of imprisonment. Appellant filed this

appeal, asserting five assignments of error:

ASSIGNMENT OF ERROR NUMBER ONE

THE TRIAL [COURT] ERRED WHEN IT FAILED TO HOLD AHEARING, AS REQUIRED BY R.C. 2945.37(B), TODETERMINE WHETHER THE DEFENDANT WASCOMPETENT TO STAND TRIAL WHEN THE ISSUE OFTHE DEFENDANT'S COMPETENCY HAD BEENPROPERLYRAISED BEFORE TRIAL.

ASSIGNMENT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED WHEN IT ALLOWED THEDEFENDANT TO REPRESENT HIMS:ELF WHEN THERE1NERE UNRESOLVED ISSUES CONCERNING THEDEFENDAINT'S ABILITY AND COMPETENCE TO ACT ASHIS OWN LAWYER.

ASSIGNMENT OF ERROR NUMBER THREE

THE TRIAL COURT ERRED WHEN IT ENTERED AJUDGMENT OF CONVICTION AGAINST THE DEFENDANTWHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAINTHE CONVICTION AND.THE CONVICTiON WAS AGAINSTTHE MA.NIFEST WEIGHT OF THE. EVIDENCEPRES.ENTED.

ASSIGNMENT OF ERROR NUMBER FOUR

THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TOHAVE THE JURORS APPLY THE CORRECT STANDARDOF LAW TO HIS CASE WHEN THE COURT FAILED TOPROVIDE THE DEFINITION OF WHAT OHIO LAW MEANS,IN A DOMESTIC VIOLENCE CASE, WHEN IT REFERS TO"A PERSON LIVING AS A SPOUSE." THIS FAILUREELIMINATED THE STATE'S NEED TO PROVE BEYOND A

No. 09AP-195

REASONABLE DOUBT THAT THE DEFENDANT AND THECOMPLAINANT HAD COHABITED AS REQUIRED BY LAW.

ASSIGNMENT OF ERROR NUMBER FIVE

THE TRIAL COURT ERRED WHEN IT OVERRULED THEDEFENDANT'S MOTION TO DISMISS FOR SPEEDY TRIALVIOLATIONS.

8

{¶1®} In his first assignment of error, appellant argues that the trial court erred

when it failed to hold a hearing on appellant's competency to stand trial as required by

R.C. 2945.37(B). A defendant is competent to stand trial if the defendant has sufficient

present ability to consult with counsel with a reasonable degree of understanding and has

a rational as well as a factual understanding of the proceedings against him. State v.

Were, 94 Ohio St.3d 173, 2002-Ohio-481. A defendant who lacks the capacity to

understand the nature and object of the proceedings, to consult, with counsel, and to

assist with preparation of a defense may not be subjected to a trial. State v. Thomas, 97

Ohio St.3d 309, 2002-Ohio-6624.

{1[11} Pursuant to R.C. 2945.37(G), a defendant is presumed to be competent to

stand trial unless, after hoiding a hearing, the court finds by a preponderance of the

evidence that the defendant is incapable of understanding the nature of the proceedings

or of assisting with the defense. R.C. 2945.37(B) provides that, if the issue of a

defendant's competency to stand trial is raised before the commencement of trial, the

court "shall" hold a hearing. However, the failure to hold a hearing may be harmless error

where the record fails to reveal sufficient indicia of incompetency. State v. Bock (1986),

28 Ohio St3d 108. A trial court's finding that a defendant is competeht to stand trial must

be upheld where there is reliable and cPedible evidence to support that finding, because

No. g9AP-1959

deference must be given to the trial court's ability to see and hear what goes on in its

courtroom. Were. See also State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193; State v.

Cowans, 87 Ohio St.3d 68, 1999-Ohio-250.

{¶12} Appellant argues that Were controls the outcome of this case. In Were, the

defendant's counsel raised the issue of the defendant's competency to stand trial prior to

the trial's commencement. However, the defendant refused to cooperate with the

competency evaluation, resulting in the submission to the trial court of an examiners'

report concluding that the defendant was competent. The exaniiners' report concluded

that the defendant's failure to cooperate with the evaluation v 3as based on int"ransigence.

The trial court accepted the repbrt, and found the defendant competent without holding a

hearing.

{T13} '+ he Supreme Court of Ohio reversed the defendant's subsequent

conviction, finding that the failure to hold a hearing in that case violated the defendant's

constitutionat right to a hearing oq competency. !R!ere at 175. The court based its

conclusion on the finding that the record was "replete with suggestions of [defendant's]

incompetency." Id. Specifically, the defendant's counsel had repeatedly raised the issue

of the defendant's incompetency, and the defendant had filed a number of pro se motions

with the.co.urt seeking to have his attorneys dismissed, Id.

{¶14} Initially, we note that it appears that in this case the October 1, 2008

hearing was for the purpose of considering appellant's competency both to stand trial and

to represent himself in this case. Although the trial court did not hold a full evidentiary

hearing., the court did consider the report submitted by NetCare, and held a colloquy with

appellan't regarding his understanding of the proceedings. Ohio courts since Were have

No. 09AP-195 10

recognized that a full evidentiary hearing on the issue of competency is not necessary

where the trial court engages in a colloquy with the defendant, and the record shows a

lack of indicia of incompetency. Woodley v. Bradshaw (May 12, 2008), N.D.Ohio No.

1:05 CV 0028, 2008 U.S. Dist. LEXIS 39313, citing State v. Ortiz, 9th Dist. No.

06CA009011, 2007-Ohio-4350; State v. Robinson, 8th Dist. No. 89136, 2007-Ohio-6831.

Indicia of incompetency, or the lack thereof, may be gleaned from the entire record,

including statements made by the defendant during the course of the trial. Were (indicia

of incompetency included repeated allegations of incompetency made by defense

counsel throughout the course of the trial); Bock (no indicia of incompetency based on

defendant's demeanor while testifying during trial).

{¶f5} We find that in this case, the trial court's colloquy with appellant was

sufficient to aifow the trial court to conclude that appellant was competent to stand trial.

Unlike in Were, the record is not replete with indicia of incompetence. Appellant's

statements.durin.g, the October 1, 2008 Z>earing. showed that he understood the nature. of

the proceedings against him, as appellant was able to make arguments .regarding his

assertion that his speedy trial rights had been violated, and showed an understanding of

the procedure to be used in jury selection and at trial. In addition; appellant was able to

testify oh his own behalf during trial, and nothing in this testimony provides any indication

that appellant did not understand the nature and object of the proceedings against him.

Although appellant's behavior during the trial was sometimes disruptive, and may have

caused the jury to view him negatively, this behavior does not equate to a conclusion that

appellant did not understand the nature of the proceedings against him. Based on the

record, appellant did understand the nature of the proceedings against him. Therefore,

No. 09AP-195 11

the trial court did not err in finding appellant competent to stand trial without holding a full

evidentiary hearing.

{9j16} Accordingly, appellant's first assignment of error is overruled.

{T17} In his second assignment of error, appellant argues that the trial court erred

when it found appellant competent to represent himself at trial. Specifically, appellant

relies on the decision by the United Stafes Supreme Court in Indiana v. Edwards (2008),

_ U.S. ___, 128 S.Ct: 2379, fo argue that the trial court should have refused to allow

appellant to act as his own counsel based on residual questions regarding appellant's

competency.

{¶18} In Edwards, the Supreme Court recognized that in some cases there is a

distinction between a defendant's competency to stand trial and a defendant's

competency to waive thie right to counsel and selt.-represent. The issue in Edwards was

whether a state can insist that a defendant who has been found competent to stand trial

proceed to trial.with counsel. based on concerns about the. defendant's .competency to.

represent himself; thus denying the defendant's constitutional -right to proceed without

counsel. The court concluded that the constitution does permit a state to insist that a

defendant not be allowed to represent himself in those circumstances. Id. at 2386.

{¶19} Appellant argues that Edwards stands for the proposition that a state must

insist that a defendant who has been found competent to stand trial be prevented from

waivirig the right to courrsel where there are remaining questions regarding that

defendant's competency to waive the right to counsel and represent himself -at trial.

Appellant therefore argues that in this case, it was error for the triaf court to allow

appellant to represent himself. However, Edwards does not stand for the proposition that

No. 09AP- 195 12

the state must insist that a defendant not be allowed to represent himself based on

questions regarding competency; rather; the case stands only for the proposition that the

state may insist that a defendant proceed to trial with counsel based on concerns

regarding competency without violating the constitution. Thus, appellant's reliance on

Edwards is misplaced.

{1120} Therefore, appellant's second assignment of error is overruled.

{¶21} In his third assignment of error, appellant argues that his conviction was

based on insufficient evidence, and was against the manifest weight of the evidence.

When reviewing the sufficiency of the evidence supporting a criminal conviction, an

appellate court must examine the evidence subrnifted at trial to deterrrnine whether such

evidence, if.believed., would convince an average person of the defendant's guiltbeyond

a reasonabie doubt. State v. Jenks (1991), 61 Ohio St.3d 259. Tkie relevant inGuiry is

whether, after viewing the evidence in a light most favorable to the prosecution, -any

rational:trier..of-fact.could.have,.fo.und the.essential elements of.the crime proven.beyo.nd a

reasonable doubt. Id. at paragraph two of the syllabus. See also Jackson v. Virginia,

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789.

{¶22} This test raises a question of law and does not allow the court to weigh the

evidence. State v. Ivlartin (1983), 20 Ohio App.3d 172. Rather, the sufficiency of the

evidence test "gives full play tb the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts." Jackson at 319. Accordingly, the reviewing court does not

substitute its judgment for that of the fact finder. Jenks at 279.

No. 09AP-19513

{'523} !n determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a"thirteenth juror." Under this standard of review,

the appellate court weighs the evidence in order to determine whether the trier of fact

"clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered." State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52. However, in engaging in this weighing, the appellate court must bear in

mind the fact finder's superior, first-hand perspective in judging the demeanor and

credibility of witnesses, See State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one

of the syllabus. The power to reverse on "manifest weight" grounds should only be used

in excepti.onal circumstances, when "the evidence weighs heavily against the conviction."

Thompkins at 387.

{T24} Appellant was charged with domestic violence in violation of R.C. 2919.25,

which prohibits a person from "knowingly caus[ing] or attempt[ing] to cause physical harm

to a.iamily. or household. memb.er.." R.C. 2919.25(A). "Family or household memer'!, is

defined, in relevant part; as "Any of the following who..is residing or has resided with the

offender: (i) A spouse, a person living as a spouse, or a former spouse of the offender."

R.C. 2919.25(F)(1)(a). As set forth in R.C. 29.19.25(F)(2), a "person living as a spouse" is

"a person who is living or has lived with the offender in a common law marital relationship,

who otherwise is cohabiting.with the offender, or who otherwise has cohabited with the

offerider within five years prior to the date of the alleged commission of the act in

question." As relevant to this case, the issue is whether appellant and Robinson were

cohabiting.

No.09AP-i95 14

{975} Genera4ly, whether two people are cohabiting is a question of fact to be

resolved by the.jury. State v. Miller (1995), 105 Ohio App.3d 679. The Supreme Court of

Ohio has stated that "[t]he essential elements of 'cohabitation' are (1) sharing of familial or

financial responsibilities and (2) consortium." Stafe v. Williams, 79 Ohio St.3d 459, 1997-

Ohio-79, paragraph two of the syllabus. The court further stated:

Possible factors establishing shared familial or financialresponsibilities might include provisions for shelter; food,clothing; utilities, and/or commingled assets Factors thatmight establish consortium include mutual respect, fidelity,affection, society, cooperation, solace comfort, aid of eachother, friendship; and conjugal relations.

Id. at 465.

{^26} At trial, Robinson testified that appellant lived at her apartment, that

appellant was her boyfriend "more or less," and that the two had been in a relationship for

about a year. (Tr. 134-35.) In response to questioning on cross-examinat(on by

appellant, Robinson testified that she and appellant both cleaned the apartment, and both_ ..._ _.. ; . ,._. . . __ _

cooked meals, (Tr. 165.) During his testimony, appellant stated that, "I cared so much for

this person that I went and brought her coffee in bed and cooked her meals in #he

morning.." (Tr. 219.) Appellant also testi,fied that "When we didn't have anything to eat, I

went out and got some food and brought it in the house." (Tr. 220.)

{127} Viewed in a light most favorable to the state, this evidence was sufficient to

establish farnilial responsibilities and consortium, and thus was sufficient to establish that

appellant and Robinson were cohabiting. Therefore, the conviction was supported by

sufficient evidence. Nor can we say that this is one of those rare cases in which the jury

No. 09AP-195 15

clearly lost its way and created a miscarriage of justice such that the conviction must be

reversed on manifestvveight grounds.

{128} Therefore, appellant's third assignment of error is overruled.

{$29} In hisfiourth assignment of error, appellant argues that the trial court erred

in its instruction to the jury on the elements necessary to establish the offense of domestic

violence. Specifically, appellant argues fhat the tria( court correctly instructed the jury on

the definition of family or household member set forth in R.C. 291.9.25(F)(1), but did not

instruct the jury on the definition of a person living as a spouse as set forth in R.C.

2919.25(F). Appellant argues that the failure to give such an instruction had the effect of

relieving the state of its burden of proving a necessary element of the bffense of domestic

violence.

{^,:30} Appellant did not raise any objection to. the jury instructions at tnal, nor did

appellant make any specific request for an instruction on the definition of a person livi,ng

as a sp?use: Generally; the failure-to.:ob,ject at trial or to request a speeific instructiora

waives all but plain error with respect. to the jury instructions given. State. v. Johnson,

10th Dit. No. 08AP-652, 2009-Ohio-3383.

{¶31} In order to constitute plain error; the error must be an obvious defect in the

trial proceedings, and the error must have affected substantial rights. State v. Barnes, 94

Ohio St.3d 21, 2002-Ohio-68. Plain error exists only when it can.be. said that "but for the

error, the outcome of the trial would clearly have been otherwise." State v. Biros, 78 Ohio

St.3d 426, 431, 1997-Ohio-204.

{1[32} In this case, we have already determined that the jury was presented with

sufficient evidence that appellant and Robinson were cohabiting, and thus were living as

No, 09AP-19516

spouses. As a result, we cannot say that the outcome of the trial would clearly have been

othervyise if the jury had been instructed on the definition of living as a spouse.

{¶33} Therefore, appellant's fourth assignment of error is overruled.

{¶34} In his fifth assignment of error, appellant argues that the trial court erred

when it denied his motion to dismiss on speedy trial grounds. R.C. 2945.71(C) provides

that a person against whom a felony charge. is pending must be brought to trial within 270

days of the pePson's arrest. P.C. 2945.71(E) provides that each day for which the

accused is held in jail in lieu of bond on the pending charge counts as three days. R..C.

2945.72 sets for4h a number of reasons for which tfie statutory time period for bringing an

accused to trial rnay be extended.

{¶35} Since appellant was held in lieu of bond pending trial, the state effectively

had 90 days in which to bring appeilaritt0 trial. Appellant was arrested on April 22, 2008,

and trial commenced on December 15, 2008, more than90 days after appeliant`s arrest..

Thus,the burderi.shifted to the stafe to show that the speedy trial time had .been ext..ended

for any of the reasons set forth in R.C. 2945.72.

{¶36} Appellant was arrested on April 22, 2008, and indicted by the Franklin

County Grand Jury on May 5, 2008. The initial trial date was set for June 17, 2008. On

May 15, 2008, a.ppellant's counsel filed a motion seeking discovery from the state, which

the state provided on June 16., 200.8.. A..defendant's motion for discovery tolls the

statutory speedy trial period pursuant to R.C. 2945;72(E). State v. Freeman, 7th Dist. No.

08 MA 81, 2009-01iio-3052. Thus, at the time of ap'pellant's initial trial date, 23 days had

passed, which under the triple count provision counted as 69 days.

fVo. 09AP-195 = 17

{J(37} On June 17, 2008, the court continued the trial date until July 9, 2008 at the

request of both parties. The continuance entry states that the reason for the continuance

was to allow counsel to prepare for trial. Appellant's counsel at the time signed the entry,

but appellant refused to sign. R.C. 2945.72(H) provides that the speedy trial time is

expanded for "[t]he period of any continuance granted on the accused's own motion, and

tt e period of any reasonable continuance granted other than upon the accused's own

motion." Although appellant refused to consent to the continuance, at^is^vuell es^^^I^isYSe^.

that a defendant is bound by the aqtions of counsel waiving the speedy trial right. State v.

llhcBr..ee- ft (1978)==-54 Ohfotj^t 2dMIM1zS'. Thus, the speedy trial time was tolled during the

time perlod between June 17, 2008 and July 9, 2008.

qi38} On July 9, 2008, the tria'I court signed a second entry continuing the trial

date to Juy 14, 2008. The stated reason was that appellarit's counsei was sick.

Appeliant did sign that entry. Thus, the speedy trial time was tolled during the period of

the -seco.nd.continuance.

{q;3I} On July 14, 2008, the trial court signed another entry continuing the case

until August 11, 2008. This entry was signed by appellant's counsel at the time, although

appellant refused to sign. Thus, the speedy trial time was tolled during the period of the

third continuance.

(^j4®} On July 16, 2008, appellant's counsel was allowed to withdraw, and Jeffrey

Basnett was appointed to represent appellant. Attorney Basnett filed a second motion for

discovery on July 18, 2008, which also had the effect of tolling the speedy trial period.

{¶41} On August 11, 2008, the court signed another entry continuing the trial date

until August 14, 2008. The stated purpose was to evaluate appellant's cornpetency to

PJo. 09AP-195 18

stand trial. On August 14, 2008., the trial court journalized its order directing, that a

psychjatric evaluation be.performed. The court also signed an entry continuing the trial

until October 1, 2008, again for the statedpurpose of completing the psychiatric

evaluation. R.C. 2945.72(B) provides for the extension of the speedy trial time for any

period "during which [the accused's] mental conipetence to stand trial is being

determined:" Thus, the speedy trial time was tolled during the period between August 11,

2008 and October 1, 2008.

{¶4^} During the October 1, 2008 hearing, the trial court stated that trial would be

set for October 14, 200:>; gftoifg^+no^enfiy^ap:pearAWSMYftit is clear from the

transcript of the October 1, 2008 hearing that appellant objected to tne rurtner

continuance of the case. Ttius, the speedy trial fime period for t.tiat continuance can only

be tolled if the contiriuancE vrras reasonabfe. '=NhiatWWWWW_I

was unreasonablejTherefore, the speedy time period was tolled d.uring that perio.d:

{^43} O- n Octob.er.14, 20Q8, the.;trial courtaigned an ent .ry: continuing the tr;ial until.

October 28, 2008. The stated reason was that the court was in trial on another case,

was^sic p` i ^itryarties ^ : , ^.p

written underneath it the words "Legal Advisor;'

was being.:gtanted on motion of both

with the blank.for his signature having

own attorney-with Basnettacting as stendby counsel. Appellant..refused to sign the entry.

Since Basne:tt was noC acting as appellant's counsel at that time, his signature on the

However, once again; we canrrot say that a two-week

continuance was`unreasona'ble. Th'erefore, the speedy time period was tolled during the

period of that continuance.

No. 09AP-195 19

{¶441 On October 28, 2008, the trial couit signed a final entry continuing the trial

until December 8, 2008. This entry also states that the continuance was being granted

on the motion of both parties, with the stated reason being that the court was unavailable.

Ti is enit^ w, as :a'Iso igo;ed=^by=`a:ttor.ney'Basn`^04M„ghisAca;pac^ifiy.£ta^^^p[5^'d!1oti>tj,g^^ IK;y

Thus, although the entry states that it

vvas.being made on the motion of the. parties, it is clear that it was instead either made

sua sponte by the court or on the state's motion,

{¶45} A sua sponte continuance must affirmatively demonstrate that the

continuance was reasonable in light of its necessity or purpose. State v. Bounds, 5th

Dist. No. 2009-CA-0063, 2009-Ohio-4767. The issue of whether a continuance is

reasonable must be established on a case by case basis, and is not subject to any per se

rule $Sr^te V. S^ffe!( (19'HBj; 85 0hio St^3'tl :9`0`. A continuance based on the trial court's

engagement in another trial is. generally viewed as reasonable. Bounds. However, in

such cases; a coiitinuance may be rendered unreasonable based on the lengthof the

continuance. Id.

{1146} In this case, the October 28, 2008 continuance entry does not state that the

^7 ^:..court was enaged in another trial, but simply states that the court wasa^t^^^1t^;1

Although the trial court should have more specifically stated the reason for its

unavailability, we accept the court's assertion that it was unavailable for trial between

October 28 and December 8. Nor can we sa,y that the length of the continuance was so

unreasonable as to require that we find the speedy trial period was not tolled during that

time period.

fJo: 09AP-195 20

(9J47) Finally, tiie trial court continued the December, 2008 trial date until

December 15, 2008. The entry states that it was being granted on the state's motion, and

tfie reason given was that one of the state's witnesses was unavailable: We cannot'say

that a one-week continuance on the state's motion was unreasonable such that the

speedy triai time was not tolled during the period of that continuance. As such, appellant

was brought to trial within the time required by R.C. 2945.711.

48} Accordingly, appeflant's fifth assig:nment of error is overruled.

{ 49} Having overrule.d. all of appellant's assignirients of error, we affirm the

judgment of the. Franklin `Gounty Court of. Comrrion Pleas.

Judgment affirmed.

FRENGH, P.J., and KLATT, J.; concur.