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Date: 05-05-2020
Case Style:
STATE OF OHIO v.
JOSEPHINE CIMPAYE
Case Number: 28304
Judge: Mary E Donovan
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
Plaintiff's Attorney:
State of Ohio appeals an order of the Dayton Municipal Court, which granted the motion to dismiss filed by defendant-appellee Josephine Cimpaye in Ohio?
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Defendant's Attorney: CARLO C. MCGINNIS,
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The record establishes that on July 28, 2018, Cimpaye was arrested for
domestic violence and transported to the Montgomery County Jail. On July 29, 2018,
the State filed complaints against Cimpaye charging her with two counts of domestic
violence, in violation of R.C. 2919.25(A), and two counts of assault, in violation of R.C.
2903.13(A). All four counts were misdemeanors of the first degree. At Cimpaye’s
arraignment on July 30, 2018, the trial court became aware that she required a Swahili
interpreter, but one was not available at that time.1 Accordingly, the trial court entered a
plea of not guilty on Cimpaye’s behalf and scheduled a pretrial hearing on August 20,
2018.
{¶ 3} On July 31, 2018, an employee at the Montgomery County Jail contacted the
trial court and indicated that an interpreter had visited Cimpaye at the jail. After speaking
with Cimpaye, the interpreter reported to jail staff that she was exhibiting troublesome
mental health issues such as talking to someone who was not there. Cimpaye also told
the interpreter that the walls were speaking to her. A jail employee informed the trial
court that, pursuant to its authority under R.C. Chap. 5122, the Montgomery County
Sheriff’s Department was civilly committing Cimpaye on an emergency basis to the Miami
Valley Hospital for a 48-hour hold. After further communications on the same day (July
1 An entry filed on July 30, 2018, indicates that Cimpaye was granted a conditional own
recognizance bond.
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31) between the trial court, the jail, the prosecutor, and defense counsel, it was
determined that Cimpaye’s mental condition had deteriorated to the point that she needed
to be taken to a different mental health facility for psychiatric care. Notably, the trial court
record and the stipulations at the motion to dismiss hearing do not reveal if Cimpaye was
hospitalized between July 31 and August 10, 2018, and returned to jail after any
emergency hold.
{¶ 4} On August 10, 2018, the Montgomery County Sheriff’s Department
transported Cimpaye to Northcoast Behavioral Health (“Northcoast”) for emergency
treatment pursuant to R.C. Chap. 5122.2 On August 14, 2018, a motion was filed
pursuant to R.C. Chap. 5122 in a local probate court to civilly commit Cimpaye for an
extended period.3 The probate court granted the commitment order, and Cimpaye was
involuntarily committed to Northcoast for a period of not less than 90 days and no longer
than two years.
{¶ 5} At the scheduled pretrial hearing on August 20, 2018, the trial court notified
the State and defense counsel that Cimpaye was receiving treatment at Northcoast. The
trial court further stated that it was tolling speedy trial time as of the date of the pretrial
hearing until Cimpaye’s condition could be assessed by mental health professionals and
communicated back to the trial court. Tr. 10-11, 44-45. On August 30, 2018, the trial
2 The stipulation at the motion to dismiss hearing referred to this as a 72-hour emergency
hold.
3 The record is unclear regarding which probate court issued the civil commitment orders,
but the trial court opined that it was likely the Summit County Probate Court, where
Northcoast is located, and neither the State nor Cimpaye asserted otherwise.
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court issued an entry ordering a competency and sanity evaluation of Cimpaye. 4
Although the order was faxed to Northcoast, a representative from the facility later
represented that Northcoast had no knowledge of the order. Tr. 46.
{¶ 6} The agreed to a timeline of events as set forth by the court at the motion to
dismiss hearing. This timeline established that on November 15, 2018, Cimpaye
voluntarily committed herself for additional treatment at Northcoast as the civil
commitment laws require a reevaluation after 90 days. Cimpaye remained at Northcoast
as a voluntary patient until she was discharged on January 15, 2019, at which point she
was transported back to the Montgomery County Jail.
{¶ 7} On January 16, 2019, Cimpaye appeared before the trial court represented
by counsel but without an interpreter. At that time, Cimpaye’s counsel indicated that she
intended to file a motion to dismiss Cimpaye’s case on speedy trial grounds. The trial
court then scheduled a motion to dismiss hearing to be held on January 22, 2019, and
set bond at $10,000 cash/surety. Cimpaye’s counsel filed a motion to dismiss the next
day, January 17, 2019, in which she argued that Cimpaye’s speedy trial time had expired
pursuant to R.C. 2945.38(C)(3).
{¶ 8} On January 22, 2019, the trial court held a hearing on Cimpaye’s motion to
dismiss. At the hearing, Cimpaye argued that her speedy trial time had expired pursuant
to R.C. 2945.38(C)(3) and R.C. 2945.73(C). Cimpaye contended that she had been held
in custody for 179 days and that the time she was in treatment at Northcoast should be
counted as jail time pursuant to R.C. 2945.73(C).
4 Notably, a written not guilty by reason of insanity plea had not been filed. We question
the trial court’s authority to order such an evaluation sua sponte, but note that the issue
has not been raised.
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{¶ 9} Ruling from the bench, the trial court found that Cimpaye had been held in
custody for 179 days, from July 28, 2018, until January 22, 2019. The trial court also
found that tolling the time Cimpaye spent at Northcoast was “unreasonable and
unjustified” due to the “length of the delay.” Tr. 53. The trial court concluded the tolling
had to be a “date certain.” Tr. 55. The trial court further found that while Cimpaye was
at Northcoast, both involuntarily and voluntarily, she was under a “police hold,” and
therefore charged all of that time against the State. The trial court calculated a total of
124 days chargeable to the State, which exceeded the 90 days permitted pursuant to
R.C. 2945.71, absent a tolling event. Accordingly, the trial court held that Cimpaye’s
right to a speedy trial had been violated and granted her motion to dismiss.
{¶ 10} It is from this judgment that the State now appeals.
{¶ 11} The State’s sole assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT DISMISSED THE STATE’S CASE
ON SPEEDY TRIAL GROUNDS.
{¶ 12} The State contends that the trial court erred when it granted Cimpaye’s
motion to dismiss on speedy trial grounds. We review a trial court's decision on a
defendant's motion to dismiss based on speedy-trial grounds for abuse of discretion. See
State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 12 (“The trial court's
decision overruling Defendant's motion to dismiss based upon constitutional speedy trial
grounds is reviewed under an abuse of discretion standard.”).
{¶ 13} The right to a speedy trial is guaranteed by the United States and Ohio
Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Ohio's
speedy trial statute, R.C. 2945.71, “was implemented to incorporate the constitutional
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protection of the right to a speedy trial” provided in the United States and Ohio
Constitutions. Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706 (1996). As
such, that statute must be strictly construed against the State. Id.
{¶ 14} The time limits for bringing a defendant to trial are found in R.C. 2945.71 to
2945.73. “Speedy-trial provisions are mandatory, and, pursuant to R.C. 2945.73(B), a
person not brought to trial within the relevant time constraints ‘shall be discharged,’ and
further criminal proceedings based on the same conduct are barred.” State v. Sanchez,
110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 7.
{¶ 15} Pursuant to R.C. 2945.71(B)(2), a person against whom a first-degreemisdemeanor charge is pending must be brought to trial within 90 days of arrest. A
defendant establishes a prima facie case for discharge once he or she demonstrates that
he or she has not been brought for trial within the time limits set forth in R.C. 2945.71.
State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). When a defendant
has established he or she was tried outside speedy-trial time limits, the burden shifts to
the state to show that the time limit was extended under R.C. 2945.72. Id. at ¶ 31.
{¶ 16} Although the time limits contained in R.C. 2945.71 must be strictly enforced,
R.C. 2945.72 provides a number of events and circumstances that will toll the running of
a defendant's speedy-trial time. State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904,
971 N.E.2d 937, ¶ 24. Pursuant to R.C. 2945.72, the time within which an accused must
be brought to trial may be extended for those reasons specifically enumerated in the
statute. One such reason for an extension is where the competency of the accused is
being challenged. In particular, R.C. 2945.72(B) provides that the time may be extended
for “[a]ny period during which the accused is mentally incompetent to stand trial or during
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which his mental competence to stand trial is being determined * * *.” (Emphasis added.)
{¶ 17} In the instant case, Cimpaye was arrested on July 28, 2018. When
computing speedy trial time, the day of arrest is not counted. State v. Cline, 2d Dist.
Champaign No. 2002-CA-05, 2003-Ohio-4712, ¶ 27, rev’d on other grounds, 103 Ohio
St.3d 471, 816 N.E.2d 1069, 2004-Ohio-5701 (2004). Therefore, the time for bringing
Cimpaye to trial began running on July 29, 2018, the day after her arrest. Id.
{¶ 18} As previously stated, Cimpaye was transported on August 10, 2018, by the
Montgomery County Sheriff’s Department to Northcoast for emergency treatment
pursuant to R.C. 5122.5 Thus, the State urges us to use August 10, 2018, as the date
that Cimpaye’s speedy trial time was tolled. Not counting the first day of Cimpaye’s
incarceration, the period between July 29, 2018, and August 10, 2018, amounts to 13
days in jail. Pursuant to R.C. 2945.71(E), that amount is tripled for a total of 39 days
chargeable to the State. The State acknowledges that there is no case law which
expressly states that speedy trial time is tolled under R.C. 2945.72 when a defendant is
civilly committed pursuant to R.C. 5122, rather than ordered to be evaluated for
competency to stand trial pursuant to R.C. 2945.37.
{¶ 19} In support of its argument for reversal, the State cites State v. Buhr, 1st Dist.
Hamilton No. C-780337, 1979 WL 208730 (Mar. 14, 1979), wherein the defendant was
civilly committed while charges were pending against him. Id. at *1. Prior to being bound
over, however, he was transported to a state hospital for emergency treatment due to
psychiatric issues. Id. On appeal, the issue decided by the court was whether the
5 Neither the record nor the stipulations of facts definitively establishes if any
hospitalization actually occurred between July 31, 2018, and August 9, 2018.
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defendant should have received a hearing and legal representation prior to being
committed. The Buhr court stated that “the commitment * * * made pursuant to a
psychiatric clinic report that [the defendant] was a danger to himself and needed
immediate hospitalization * * * should not be charged against the state.” Id. at *2.
{¶ 20} The State also cites State v. Claprood, 5th Dist. Licking No. 94 CA 34, 1995
WL 495258 (May 10, 1995), wherein the defendant attempted to hang himself in jail after
being arrested for abduction. Id. at *1. Accordingly, the defendant was committed to a
psychiatric hospital by a probate court. Id. On appeal for speedy trial issues, the
Claprood court stated that the time spent in the psychiatric hospital as a result of his
suicide attempt would not be charged against the State for speedy trial purposes. Id. at
*5. The State argues that based upon the language from the Buhr and Claprood
opinions, it is “implied that the time was tolled during the period” in which Cimpaye was
civilly committed for psychiatric issues by the Montgomery County Sheriff’s Department.
{¶ 21} However, as noted by the State in its brief, “a comparison of R.C. 5122 and
R.C. 2945 reveals that they are distinct in nature, scope and in the goals they serve. Civil
commitment proceedings under R.C. 5122 seek to treat certain categories of mentally ill
people. R.C. 2945, in contrast, sets forth the necessary framework for ascertaining the
competency of a defendant charged in a criminal case.” State v. Stafford, 7th Dist. Noble
No. 265, 2002-Ohio-5243, ¶ 34. Additionally, as we previously stated, Ohio's speedy
trial statute, R.C. 2945.71, must be strictly construed against the State. Brecksville, 75
Ohio St.3d at 55, 661 N.E.2d 706. For those reasons, we disagree with the State and
find that the nine days between August 10 and August 19, 2018, during which Cimpaye
had been civilly committed to Northcoast, were chargeable to the State for speedy trial
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purposes.
{¶ 22} As previously stated, however, on August 20, 2018, the trial court held a
hearing wherein it notified the State and defense counsel that Cimpaye was receiving
treatment at Northcoast. The trial court further stated that it was tolling speedy trial time
beginning on August 20, 2018, until Cimpaye’s condition could be assessed by mental
health professionals and related back to the trial court. Tr. 10-11, 44-45. Significantly,
defense counsel did not object to the decision of the trial court to toll speedy trial time as
of the date of the August 20, 2018 hearing. Accordingly, we find the trial court’s decision
to toll Cimpaye’s speedy trial time beginning on August 20, 2018, was reasonable and
justified under the unique circumstances presented in the instant case, as Cimpaye
became unavailable due to her deteriorating mental state, was hospitalized out of county,
and, as noted, defense counsel did not register any objection, either orally or in writing,
to the trial court’s reasonable decision to toll Cimpaye’s speedy trial rights.
{¶ 23} R.C. 2945.37 sets forth the procedures a trial court must adhere to when
the issue of a defendant’s competency to stand trial is raised. R.C. 2945.37(C) states in
pertinent part:
The court shall conduct the hearing required or authorized under division
(B) of this section within thirty days after the issue is raised, unless the
defendant has been referred for evaluation in which case the court shall
conduct the hearing within ten days after the filing of the report of the
evaluation * * *.
(Emphasis added).
{¶ 24} Additionally, we find that Cimpaye’s reliance on R.C. 2945.38(C)(3) as a
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basis for dismissal of her case was wholly misplaced. R.C. 2945.38(C)(3) states as
follows:
No defendant shall be required to undergo treatment, including any
continuing evaluation and treatment, under division (B)(1) of this section for
longer than whichever of the following periods is applicable:
* * *
(3) Sixty days, if the most serious offense with which the defendant is
charged is a misdemeanor of the first or second degree[.]
{¶ 25} Only after the hearing before the trial court regarding the defendant’s
competency would the procedures established in R.C. 2945.38 apply. R.C. 2945.37(G)
provides:
If, after a hearing, the court finds by a preponderance of the evidence that,
because of the defendant's present mental condition, the defendant is
incapable of understanding the nature and objective of the proceedings
against the defendant or of assisting in the defendant's defense, the court
shall find the defendant incompetent to stand trial and shall enter an order
authorized by section 2945.38 of the Revised Code.)
(Emphasis added).
{¶ 26} As previously stated, the trial court ordered Cimpaye to submit to the
competency evaluation at Northcoast in an entry filed on August 30, 2018. However, no
evaluation report was submitted to the trial court prior to the motion to dismiss hearing
held on January 22, 2019. Because it had yet to receive the competency evaluation from
Northcoast, the trial court was unable to hold a competency hearing pursuant to R.C.
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2945.38(C), which would have, in turn, allowed it to render a determination regarding
Cimpaye’s competency to stand trial. Accordingly, the time constraints set forth in R.C.
2945.38(C)(3) upon a finding of incompetency are not applicable to the instant case.
{¶ 27} We further conclude that it was error for the trial court to hold that all of the
days that Cimpaye remained hospitalized at Northcoast were chargeable to the State for
speedy trial purposes. As previously stated, Northcoast failed to perform a competency
evaluation of Cimpaye pursuant to court order while she was hospitalized at the facility in
the time frame set forth in the order and by statute. Nevertheless, the Ohio Supreme
Court has addressed the issue of whether the tolling period ends when an examiner who
is ordered to file a competency report fails to do so within the prescribed statutory time
frame of R.C. 2945.371(G) (formerly R.C. 2945.371(D)). State v. Palmer, 84 Ohio St.3d
103, 106, 702 N.E.2d 72 (1998). R.C. 2945.371(G) provides that where a trial court
orders a competency examination, the examiner's report shall be filed with the court within
thirty days after entry of an order for examination. Pursuant to R.C. 2945.37(A), a
hearing must then be held within ten days after the filing of the report (which is forty days
from when the court orders the evaluation). Here, Northcoast never performed a
competency evaluation, although the record reflects that the trial court’s order was
submitted to Northcoast.
{¶ 28} R.C. 2945.72(B) clearly provides that the speedy trial time is extended by
“any period” during which the accused's competency is being determined. Palmer at 106.
The statutory extension in R.C. 2945.72(B) is not limited to a specific time period. Id.
Nowhere in R.C. 2945.72 or former R.C. 2945.371 does it state that if a report is not filed
when due, the tolling period ends and time begins to run again for speedy trial purposes.
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Id. Therefore, the tolling effect of R.C. 2945.72(B) cannot be cut short by an examiner's
failure to file a competency report within the prescribed time frame. The tolling provision
of R.C. 2945.72(B) does not end when a competency examiner fails to issue a report
within the time limits imposed by R.C. 2945.371(G). Although no report was prepared
by September 30, 2018, this was not fatal to the prosecution, as a “date certain” is not
mandatory; an involuntary civil commitment was in play, Cimpaye elected continued
treatment over a return to jail, and she had not asserted her speedy trial rights.
Therefore, the 60-day delay from November 15, 2018, to January 15, 2019, cannot be
deemed unjustified or unreasonable.
{¶ 29} Notably, as soon as Cimpaye was discharged from Northcoast and returned
to the Montgomery County Jail on January 15, 2019, defense counsel filed a motion to
dismiss on speedy trial grounds on January 17, 2019. The trial court, however, never
made a competency determination regarding Cimpaye, and therefore, the tolling of R.C.
2945.72(B) never ceased once Cimpaye was returned to jail from Northcoast. 6
Accordingly, the trial court erred when it found that the days between January 15, 2019,
and January 22, 2019, to be chargeable to the State for speedy trial purposes.
{¶ 30} As pertinent to this appeal, R.C. 2945.73(C)(1) states as follows:
Regardless of whether a longer time limit may be provided by sections
2945.71 and 2945.72 of the Revised Code, a person charged with
misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting
6 Although not specifically required by statute, we find that the better practice in a situation
where the trial court has ordered a civilly committed defendant to undergo a competency
evaluation would be for the trial court to make periodic inquiries and set status report
dates regarding the progress made by the mental health facility tasked with performing
the evaluation so that it is resolved in a timely and efficient manner.
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trial on the pending charge:
(1) For a total period equal to the maximum term of imprisonment which
may be imposed for the most serious misdemeanor charged[.]
{¶ 31} Here, the trial court incorrectly found that Cimpaye was in custody for 179
days from July 28, 2018, through January 15, 2019. Nevertheless, by the trial court’s
own calculation of 179 days, the time limit set forth in R.C. 2945.73(C)(1) had not been
reached because Cimpaye was charged with four first degree misdemeanors, each
carrying a maximum penalty of 180 days in jail. Therefore, the maximum term of
imprisonment that Cimpaye could have been ordered to serve was 180 days, which had
not been exceeded. Thus, R.C. 2945.73(C)(1) was inapplicable.
{¶ 32} In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),
the Supreme Court established a balancing test for determining whether a defendant's
constitutional right to a speedy trial has been violated. The four factors are “[l]ength of
delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant.” Barker at 530. “[T]hese four factors are balanced considering the totality of
the circumstances, with no one factor controlling.” State v. Perkins, 2d Dist. Clark No. 08-
CA-0081, 2009-Ohio-3033, ¶ 8.
{¶ 33} In our view, Cimpaye’s argument that she was prejudiced by the delay while
she was in treatment at Northcoast is undermined by the fact that she voluntarily elected
to remain at the mental health facility on November 15, 2018. Thus, a significant portion
of the delay in the instant case, from November 15, 2018, to January 15, 2019, was solely
attributable to Cimpaye, who voluntarily chose to remain in treatment at Northcoast when
she could have elected to return to Montgomery County and face the charges for which
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she was being accused. “We by no means advocate the failure of an examiner to timely
file a report. However, if a defendant is dissatisfied with the slow response time, he or
she can petition the court to enforce its order or request a hearing.” State v. Palmer, 84
Ohio St.3d 103, 702 N.E.2d 72 (1998), fn.1.
{¶ 34} We note that the record does not contain an entry appointing counsel for
Cimpaye at arraignment. However, we note that on August 15, 2018, Attorney Navay
Vaughn from the Montgomery County Public Defender’s Office filed a “NOTICE OF
ATTORNEY” in the instant case. Furthermore, to the extent Cimpaye argues that she
was not represented by counsel, the record establishes that she was in fact represented
by counsel from the public defender’s office at every stage of the case: 1) July 30, 2018,
Arraignment, Attorney Chuck Grove, Tr. 3; 2) July 31, 2018, Phone Conference, Attorney
Rusch, Tr. 9; 3) August 20, 2018, Attorney Navay Vaughn, Tr. 8; 4) January 16, 2019,
Attorney Michael Walczak, Tr. 14; 5) January 17, 2019, Attorney Navay Vaughn, Tr. 21;
6) January 22, 2019, Attorney Hope Smalls, Tr. 38.
{¶ 35} Lastly, in support of her argument that her speedy trial time was not tolled
while she was in treatment at Northcoast, Cimpaye cites State v. Johnson, 8th Dist.
Cuyahoga App. Nos. 78097-78099, 2001 WL 233401 (Mar. 8, 2001), which analyzed
Palmer and tolling for a competency determination under R.C. 2945.72(B). The Johnson
court determined that such a “tolling only occurs if competency is being determined.” Id.
at *3. The Johnson court's determination was based on the fact that, while the accused
was referred for an evaluation, the accused was never actually transported from the jail
to the evaluation facility. In the present case, unlike Johnson, Cimpaye was transported
to Northcoast, and was subject to evaluation for her competency to stand trial. Johnson
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is therefore distinguishable from the instant case.
{¶ 36} In conclusion, from July 29, 2018, (the day after Cimpaye’s arrest) to August
19, 2018, the 22 days she spent in jail were chargeable against the State. Counting each
of those days as three days pursuant to R.C. 2945.71(E) amounts to 66 days in jail for
speedy trial purposes. Furthermore, because the trial court had yet to receive a
competency report, make a finding of competency upon stipulation or otherwise, and/or
conduct a competency hearing, the tolling of R.C. 2945.72(B) never ceased once
Cimpaye returned to jail from Northcoast, and none of the days she spent in jail from
January 15, 2019, through January 22, 2019, were chargeable to the State.7 Therefore,
the total number of days attributable to the State for speedy trial purposes was only 66
days. Because fewer than 90 days had passed, we find that Cimpaye‘s statutory speedy
trial rights were not violated, nor was any delay unreasonable or unjustified in derogation
of her speedy trial rights under the Ohio and U.S. Constitutions. Thus, the trial court
erred when it granted Cimpaye’s motion to dismiss on speedy trial grounds.
{¶ 37} The State’s assignment of error is sustained.
Outcome: The State’s sole assignment of error having been sustained, the judgment
of the trial court is reversed, and this matter is remanded for proceedings consistent with this opinion.
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Defendant's Experts:
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