State v. Phillips , 2017 Ohio 9063 ( 2017 )

[Cite as State v. Phillips, 2017-Ohio-9063.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-16-020
WD-16-028
Appellee WD-16-029
v. Trial Court Nos. 2015CR0349
2015CR0388
Terrance Lavander Phillips
DECISION AND JUDGMENT
Appellant
Decided: December 15, 2017
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Terrance Phillips, pro se.
*****
MAYLE, J.
{¶ 1} In these consolidated cases, Terrance L. Phillips has filed a timely App.R.
26(B) application to reopen the appeals. For the following reasons, we grant the
application.
{¶ 2} On March 24, 2016, a jury in the Wood County Court of Common Pleas
convicted Phillips on all counts set forth in two, multiple count indictments. In the first,
Phillips was convicted of one count of felonious assault, one count of having weapons
while under disability, and two counts of carrying concealed weapons. The counts
included multiple specifications (case No. 2015CR0349). In the second, Phillips was
convicted of one count of trespass in a habitation and four counts of breaking and
entering (case No. 2015CR0388).
{¶ 3} On August 4, 2017, we affirmed the convictions on direct appeal. State v.
Phillips, 6th Dist. Wood Nos. WD-16-020, WD-16-028, WD-16-029, 2017-Ohio-7107.
{¶ 4} On October 2, 2017, Phillips filed his application to reopen the appeals. The
state did not object or otherwise respond.
{¶ 5} Under App.R. 26(B)(1), a criminal defendant can apply for reopening of his
appeal from a judgment of conviction and sentence based on a claim of ineffective
assistance of appellate counsel. The application for reopening “shall be granted if there is
a genuine issue as to whether the applicant was deprived of the effective assistance of
counsel on appeal.” App.R. 26(B)(5).
{¶ 6} The two-prong analysis found in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 67 (1984), is the appropriate standard to assess a defense
request for reopening under App.R. 26(B)(5). State v. Spivey, 84 Ohio St. 3d 24, 25, 701
N.E.2d 696 (1998). Thus, the applicant “must prove that his counsel were deficient for
failing to raise the issues he now presents, as well as showing that had he presented those
claims on appeal, there was a ‘reasonable probability’ that he would have been
successful.” Id., citing State v. Reed, 74 Ohio St. 3d 534, 535, 660 N.E.2d 456 (1996).
2.
The applicant “bears the burden of establishing that there was a ‘genuine issue’ as to
whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” Id.
{¶ 7} In his application, Phillips argues that his appellate counsel was
ineffective for failing to raise a violation of his right to a speedy trial under the Sixth
Amendment to the U.S. Constitution and the Ohio Constitution, Article I, Section 10.
{¶ 8} R.C. 2945.71(C)(2) requires that the state bring a person charged with a
felony to trial within 270 days after the person’s arrest. If the person is held in jail,
however, each day spent in jail counts as three days. R.C. 2945.71(E).
{¶ 9} Once the accused demonstrates that the speedy-trial time period has expired,
he has established a prima facie case for dismissal. State v. Arrington, 6th Dist. Erie
No. E-16-050, 2017-Ohio-2578, ¶ 14. The burden then shifts to the state to demonstrate
that sufficient time was tolled or extended pursuant to R.C. 2945.72 such that no
violation occurred. State v. Hohenberger, 189 Ohio App. 3d 346, 2010-Ohio-4053, 938
N.E.2d 419, ¶ 35.
{¶ 10} “R.C. 2945.72 contains an exhaustive list of events and circumstances that
extend the time within which a defendant must be brought to trial.” State v. Ramey, 132
Ohio St. 3d 309, 2012-Ohio-309, 971 N.E.2d 937, ¶ 24. In calculating the speedy trial
time, and considering the possible extensions of that time, the provisions of R.C. 2945.72
are to be strictly construed against the state. State v. Singer, 50 Ohio St. 2d 103, 108-109,
362 N.E.2d 1216 (1977).
3.
{¶ 11} In his application, Phillips makes no effort to analyze the record to
demonstrate that he was not tried on a timely basis. His argument is conclusory only, i.e.
that his right to a speedy trial was violated.
{¶ 12} We have reviewed the journal entries in each case. In the first, Phillips was
arrested on August 25, 2015; in the second, he was arrested on September 18, 2015. The
speedy trial time begins to run when an accused is arrested for the offense in question,
but the actual day of the arrest does not count. R.C. 2945.71(C)(2); State v. Steiner, 71
Ohio App. 3d 249, 250-251, 593 N.E.2d 368 (9th Dist.1991). Phillips’ trial began on
March 22, 2016. From our review, it does not appear that Phillips ever posted bond and
that he spent the entire time, between his first arrest and the trial, in jail. Therefore, the
triple-count provision of R.C. 2945.71(E) applies, and Phillips’ burden of establishing
that more than 90 days elapsed between his arrest and trial is satisfied. By our count, 210
days elapsed in this case.
{¶ 13} Moreover, absent any argument by the state to rebut that presumption, with
record evidence that a sufficient number of days within that time period were tolled under
R.C. 2945.72, we find that there is genuine issue as to whether Phillips’ right to a speedy
trial was violated. Under App.R. 26(B), this court shall grant the application upon
finding such an issue. Therefore, Phillips’ motion for reopening is granted.
{¶ 14} This case shall proceed as on an initial appeal on the sole issue stated,
pursuant to App.R. 26(B)(7).
4.
{¶ 15} Finding that Phillips is indigent, the court sua sponte appoints Edward
Stechschulte, 5550 W. Central Avenue, P.O. Box 352170, Toledo, Ohio, 43635, to
represent him in this appeal. Phillips may file a motion to supplement the record with
necessary trial transcripts within 20 days and his brief shall be filed within 20 days
thereafter.
{¶ 16} The clerk shall serve notice of journalization of the entry of this order on
the parties and the clerk of the trial court.
{¶ 17} It is so ordered.
Application granted.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
5.