State v. Hiler ( 2015 )

[Cite as State v. Hiler, 2015-Ohio-5200.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2015-05-084
Plaintiff-Appellee, :
OPINION
: 12/14/2015
- vs -
:
TESSA MARIE HILER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2012-09-1549
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Tessa Marie Hiler, appeals from her conviction and
sentence in the Butler County Court of Common Pleas for receiving stolen property. For the
reasons discussed below, we affirm the decision of the lower court.
{¶ 2} On October 24, 2012, appellant was indicted on one count of burglary in
violation of R.C. 2911.12(A)(3), a third-degree felony, and one count of receiving stolen
property in violation of R.C. 2913.51, a fifth-degree felony. A summons was issued but never
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served because appellant was incarcerated in Indiana for burglary. Thereafter, an arrest
warrant and holder were issued to Indiana for appellant.
{¶ 3} On December 13, 2013, appellant sent a letter to the court requesting final
disposition of her Butler County case pursuant to the Interstate Agreement on Detainers
(IAD) due to her incarceration in Indiana. Appellant sent a second such letter to the court on
February 18, 2014. These correspondence claimed enclosure of a certificate from an
Indiana prison official regarding the terms of appellant's incarceration and to have been
copied to the Butler County Prosecutor's Office. Nevertheless, the letters were not
accompanied by a certificate, nor was there any indication they were actually sent to the
prosecutor's office.
{¶ 4} No action was taken in appellant's Butler County case until October 23, 2014,
when appellant's trial counsel filed a notice of appearance and a discovery demand.
Appellant agreed to a continuance and was arraigned in December 2014, at which time
appellant filed a general time waiver. Eventually, on March 11, 2015, pursuant to a plea
agreement, appellant entered a plea of no contest to receiving stolen property. The court
then sentenced appellant to six months in prison to run concurrently with her eight-year
prison sentence in Indiana.
{¶ 5} Appellant now appeals and asserts three assignments of error for review. For
ease of discussion, we will address appellant's first and third assignments of error together.
{¶ 6} Assignment of Error No. 1:
{¶ 7} IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE COURT NOT
TO DISMISS THE CHARGES AGAINST APPELLANT BECAUSE OVER 180 DAYS
LAPSED BETWEEN THE APPELLANT'S FIRST DEMAND FOR UNDER [SIC.] THE
INTERSTATE AGREEMENT ON RETAINERS AND [WHEN] SHE WAS PRESENTED IN
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BUTLER COUNTY FOR DISPOSITION. ALL CONTRARY TO R.C. 2963 ARTICLE THREE,
WHICH REQUIRES THAT ONCE A DEMAND HAS BEEN MADE THE PERSON MUST BE
DELIVERED TO THE APPROPRIATE AUTHORITIES WITHIN 180 DAYS OR THE
CHARGES BE DISMISSED.
{¶ 8} Assignment of Error No. 3:
{¶ 9} THE CONVICTION AND SENTENCE IN THE INSTANT CASE WAS TAINTED
BY THE INEFFECTIVE ASSISTANCE OF COUNSEL OF THE TRIAL ATTORNEY IN THE
INSTANT CASE.
{¶ 10} In her first assignment of error, appellant argues the trial court abused its
discretion when it failed to dismiss the charges in her Butler County case because more than
180 days passed between her initial letter requesting a speedy trial and when she was
actually presented in Butler County. In her third assignment of error, appellant argues her
attorney was ineffective because he failed to seek dismissal of the charges based upon the
time lapse between her speedy trial request and disposition.
{¶ 11} We first note appellant failed to raise the issue of timeliness below, and thus
has forfeited all but plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶
16; Crim.R. 52(B). Plain error exists where there is an obvious deviation from a legal rule
which affected the defendant's substantial rights, or influenced the outcome of the
proceeding. State v. Barnes, 94 Ohio St.3d 21, 27 (2001). As such, the defendant "is
required to demonstrate a reasonable probability that the error resulted in prejudice - the
same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis
sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22.
{¶ 12} Specifically, to establish ineffective assistance of counsel, appellant must show
her trial counsel's performance was both deficient and prejudicial. Strickland v. Washington,
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466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989). With respect to deficiency, appellant must show her counsel's performance "fell
below an objective standard of reasonableness." Strickland at 688. There is a "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance" and as a result "judicial scrutiny of counsel's performance must be highly
deferential." Id. at 689. "An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment." Id. at 691.
{¶ 13} The IAD is a compact entered into by a majority of states and the United States
that establishes procedures to resolve one state's outstanding charges against a person
imprisoned in another state. New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659 (2000). In
Ohio, the IAD has been codified in R.C. 2963.30 et seq. The IAD's purpose is "to encourage
the expeditious and orderly disposition of [outstanding] charges and determination of the
proper status of any and all detainers based on untried indictments, informations or
complaints." R.C. 2963.30, Article I.
{¶ 14} Article III of the IAD outlines the procedure a prisoner follows in order to request
disposition of charges filed against her in another state when a detainer has been filed. R.C.
2963.30, Article III. Specifically, R.C. 2963.30, Article III(a), states a prisoner "shall have
caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting
officer's jurisdiction written notice of the place of his imprisonment and his request for a final
disposition to be made of the indictment, information or complaint[.]" Furthermore, R.C.
2963.30, Article III(a), states, "The request of the prisoner shall be accompanied by a
certificate of the appropriate official having custody of the prisoner * * *." Once a prisoner
complies with the procedure, a trial must begin within 180 days. R.C. 2963.30, Article III(a).
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Pursuant to R.C. 2963.30, Article III(b), the written notice referred to in R.C. 2963.30, Article
III(a) "shall be given or sent by the prisoner to the warden, commissioner of corrections or
other official having custody of him * * *."
{¶ 15} While pursuant to R.C. 2963.30, Article IX, interpretation of the IAD should be
liberally construed to effectuate its purposes, the IAD is a congressionally sanctioned
interstate compact within the Compact Clause of the United States Constitution, and thus the
IAD is a federal law subject to federal construction. Hill at 111. In Fex v. Michigan, 507 U.S.
43, 113 S.Ct. 1085 (1993), the United States Supreme Court held that "the 180-day time
period in Article III(a) of the IAD does not commence until the prisoner's request for final
disposition of the charges against him has actually been delivered to the court and
prosecuting officer of the jurisdiction that lodged the detainer against him." Fex at 52.1
{¶ 16} In this instance, appellant sent two letters, one in December 2013 and the
second in February 2014. Both letters were addressed to the "Butler County Municipal
Court." Despite naming the incorrect court, the letters were in fact filed with the Butler
County Common Pleas Court, the appropriate court. Nevertheless, there is no indication in
the record, other than the reference in appellant's correspondence, that she provided the
notice to the prosecutor's office. Based on the record, the prosecutor was never notified, and
thus appellant did not comply with the IAD. As such, the 180-day time limitation imposed by
the IAD was never triggered, and the trial court properly disposed of the charges.
Consequently, based on the record before us, there was no plain error and appellant was not
1. Ohio appellate districts agree Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085 (1993), requires notice to both the
court and the prosecutor before the 180-day timeframe for the prisoner to be brought to trial begins. See, e.g.,
State v. Owens, 12th Dist. Clermont No. CA2001-09-074, 2002 WL 2005699 (Sept. 3, 2002). However, Ohio
courts disagree as to whether notifying the appropriate official and attaching a certificate are necessary to comply
with R.C. 2963.30, Article III, given the statute's liberal construction. See State v. Moore, 3d Dist. Union Nos. 14-
14-06 thru 14-14-12, 2014-Ohio-4879, ¶ 16-29. Consequently, while there is no indication appellant contacted
the appropriate official having custody of her and there was no certificate from such an official attached to her
letters, our analysis and holding focus on the prosecutor's lack of notice.
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prejudiced by counsel failing to raise the timing issue below. Appellant's first and third
assignments of error are overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE TRIAL COURT
TO GIVE THE APPELLANT CREDIT FOR ONLY 3 DAYS JAIL TIME. APPELLANT
SHOULD HAVE BEEN GIVEN CREDIT FOR ALL THE TIME SHE WAS INCARCERATED
ON AND AFTER DECEMBER 13, 2013.
{¶ 19} In her second assignment of error, appellant argues the court should have
awarded her jail-time credit from December 13, 2103, the date the court was put on notice of
her demand for a speedy trial, and April 13, 2015, the date of her sentencing.
{¶ 20} Once a defendant has completed a prison sentence, any alleged error relating
to the calculation of jail-time credit becomes moot as there is no longer an existing case or
controversy. State ex rel. Compton v. Sutula, 132 Ohio St.3d 35, 2012-Ohio-1653, ¶ 5.
Furthermore, "[a]s jail-time credit relates only to the length of a sentence and not the
underlying conviction, no collateral disability results by applying the mootness doctrine to
felony sentences." (Emphasis sic.) State v. Barnes, 12th Dist. Warren No. CA2015-01-005,
2015-Ohio-3523, ¶ 8.
{¶ 21} In this instance, regardless of whether appellant was awarded jail-time credit for
the time she spent in prison from December 13, 2013, until the date of her sentence,
appellant has now completed her six-month prison sentence imposed on April 13, 2015. As
appellant has completed her prison sentence, there is no relief we can provide her relating to
jail-time credit on appeal. Appellant's second assignment of error is moot.
{¶ 22} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.
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