State v. Wright , 2016 Ohio 7795 ( 2016 )

[Cite as State v. Wright, 2016-Ohio-7795.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case Nos. 15CA3705
: 15CA3706
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DELANIO WRIGHT, :
:
Defendant-Appellant. : Released: 11/17/16
_____________________________________________________________
APPEARANCES:
Brian A. Smith, Akron, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.1
_____________________________________________________________
McFarland, J.
{¶1} Delanio Wright appeals his convictions for trafficking in
marijuana in the vicinity of a school in violation of R.C.
2925.03(A)(2)(C)(3)(6), and possession of heroin, in violation of R.C.
2925.11(A)(C)(6)(b) after he entered no contest pleas in the Scioto County
Common Pleas Court. Appellant’s counsel has advised this Court that, after
reviewing the record, he cannot find a meritorious claim for appeal.
However, counsel has requested this court to independently review the
1
The State has not filed a brief or other responsive pleading herein. Delanio Wright, although he was
served with a copy of the brief on his behalf filed by appellate counsel together with instructions that he
may file his own brief within certain time constraints, has also elected not to file a brief.
Scioto App. Nos. 15CA3705 and 15CA3706 2
transcript of proceedings and determine whether the trial court erred by
overruling Appellant’s motion to dismiss on statutory speedy trial grounds.
As a result, Appellant’s counsel has moved to withdraw under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find no merit to the
potential assignment of error raised in counsel’s brief and, after
independently reviewing the record, find no additional error prejudicial to
Appellant’s rights in the trial court proceedings. The motion of counsel for
Appellant requesting to withdraw as counsel is granted, and this
consolidated appeal is dismissed for the reason that it is wholly frivolous.
FACTS
{¶2} On September 26, 2013, Appellant was indicted on two counts of
trafficking in drugs in the vicinity of a school, a felony of the fourth degree
and in violation of sections 2925.03(A)(2), (C)(3)(b) and (C)(6)(c) of the
Ohio Revised Code; one count of possession of heroin, a felony of the fourth
degree and in violation of section 2925.11 of the Ohio Revised Code; one
count of assault on a peace officer, a felony of the fourth degree and in
violation of section 2903.13 of the Revised Code; and one count of
possession of marijuana, a minor misdemeanor and in violation of section
2925.11 of the Revised Code. On April 4, 2014, Appellant pleaded guilty to
the marijuana trafficking and heroin possession charges and was sentenced
Scioto App. Nos. 15CA3705 and 15CA3706 3
to twelve months’ imprisonment on each count, to run consecutive to each
other and his current sentence.
{¶3} On September 29, 2014, the trial court allowed Appellant to
withdraw his plea, vacated the judgment of conviction, and set the matter for
a pretrial. On June 22, 2015, Appellant filed a motion to dismiss the
indictment on speedy trial grounds, pursuant to R.C. 2945.71. On July 2,
2015, Appellant pleaded guilty to the same marijuana trafficking and heroin
possession charges as he did previously. He received the same sentence,
twelve months of imprisonment on each count, to run consecutive to each
other and to his current sentence. Appellant has filed a timely notice of
appeal.
ANDERS BRIEF
{¶4} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),
counsel may ask permission to withdraw from a case when counsel has
conscientiously examined the record, can discern no meritorious claims for
appeal, and has determined the case to be wholly frivolous. Id. at 744; State
v. Adkins, 4th Dist. Gallia No. 03CA27, 2004-Ohio-3627, ¶ 8. Counsel’s
request to withdraw must be accompanied with a brief identifying anything
in the record that could arguably support the client’s appeal. Anders at 744;
Adkins at ¶ 8. Further, counsel must provide the defendant with a copy of
Scioto App. Nos. 15CA3705 and 15CA3706 4
the brief and allow sufficient time for the defendant to raise any other issues,
if the defendant chooses to. Id.{¶5} Once counsel has satisfied these requirements, the appellate
court must conduct a full examination of the trial court proceedings to
determine if meritorious issues exist. If the appellate court determines that
the appeal is frivolous, it may grant counsel’s request to withdraw and
address the merits of the case without affording the appellant the assistance
of counsel. Id. If, however, the court finds the existence of meritorious
issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Anders at 744; State v. Duran, 4th Dist. Ross No.
06CA2919, 2007-Ohio-2743, ¶ 7.
{¶6} In the current action, Appellant’s counsel advises that the appeal
is wholly frivolous and has requested permission to withdraw. Pursuant to
Anders, counsel has filed a brief raising one potential assignment of error for
this Court’s review.
POTENTIAL ASSIGNMENT OF ERROR
“1. WHETHER THE TRIAL COURT ERRED IN OVERRULING
DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL
GROUNDS, PURSUANT TO R.C. 2945.71.”
A. STANDARD OF REVIEW
{¶7} “Upon review of a speedy-trial issue, a court is required to count
Scioto App. Nos. 15CA3705 and 15CA3706 5
the days of delay chargeable to either side and determine whether the case
was tried within applicable time limits.” State v. Bailey, 4th Dist. Ross No.
14CA3461, 2015-Ohio-5483, ¶ 15, quoting State v. Bailey, 4th Dist. Scioto
No. 09CA3287, 2010-Ohio-2229, ¶ 56, quoting State v. Sanchez, 110 Ohio
St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 8. “Our review of a trial
court's decision regarding a motion to dismiss based upon a violation of the
speedy trial provisions involves a mixed question of law and fact.” State v.
Eldridge, 4th Dist. Scioto No. 02CA2842, 2003-Ohio-1198, at ¶ 5, citing
State v. Brown, 131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist.1998);
State v. Kuhn, 4th Dist. Ross No. 97CA2307, 1998 WL 321535. “We
accord due deference to the trial court's findings of fact if supported by
competent, credible evidence. However, we independently review whether
the trial court properly applied the law to the facts of the case.” Eldridge at
¶ 5, citing Brown at 391, 722 N.E.2d 594. Finally, we must “strictly
construe the speedy trial statutes against the state[.]” Brecksville v. Cook, 75
Ohio St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706.
B. LEGAL ANALYSIS
{¶8} Appellate counsel’s brief sets forth the only possible issue
presented for review and argument that the trial court erred in
Scioto App. Nos. 15CA3705 and 15CA3706 6
overruling his motion to dismiss on speedy trial grounds, pursuant to R.C.
2945.71. Appellant’s motion to dismiss was filed on June 22, 2015.
Appellate counsel points out the record before us does not contain a waiver
of Appellant’s right to a speedy trial. Appellate counsel asserts that the
record is replete with continuances and delays in bringing Appellant’s case
to trial within the statutory limits set forth in the Ohio Revised Code.
{¶9} The Sixth Amendment to the United States Constitution
guarantees an accused the right to a speedy trial in all criminal prosecutions.
State v. Bailey, 4th Dist. Ross No. 14CA3461, 2015-Ohio-5483, at ¶ 17;
State v. Sweat, 4th Dist. Ross No. 14CA3439, 2015-Ohio-2689, ¶ 13. That
guarantee is applicable to the states through the Fourteenth Amendment Due
Process Clause. Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct.
988, (1967). Similar protection is afforded under Section 10, Article I of the
Ohio Constitution. See State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589(1971), paragraph one of the syllabus (“The provisions of Section 10, Article
I of the Ohio Constitution and of the Sixth Amendment to the United States
Constitution, as made applicable to the states by the Fourteenth Amendment,
guarantee to a defendant in a criminal case the right to a speedy trial.”).
Furthermore, Ohio law also includes a statutory speedy trial right. See R.C.
2945.71 et seq.
Scioto App. Nos. 15CA3705 and 15CA3706 7
{¶10} The United States Supreme Court has recognized that delays
are unavoidable in the criminal justice system, and has determined that
whether a prosecution has been constitutionally speedy depends upon the
particular facts and circumstances of each case. State v. Bailey, 4th Dist.
Ross No. 14CA3461, 2015-Ohio-5483, at ¶ 18; Sweat, supra at ¶ 14. See
Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, (1972). Appellant has
limited his argument to an alleged deprivation of a statutory speedy trial.
{¶11} R.C. 2945.71 provides that a person against whom a felony
charge is pending shall be brought to trial within two hundred seventy days
after arrest. Id. at (C)(2). State v. Bailey, 4th Dist. Ross No. 14CA3461,
2015-Ohio-5483, at ¶19. If an accused is not brought to trial within the
statutory time limit, the accused must be discharged. R.C. 2945.73(B).
However, R.C. 2945.71 time limits can be extended for any reason set out in
R.C. 2945.72, but those extensions must be strictly construed against the
State. See State v. Alexander, 4th Dist. Scioto No. 08CA3221, 2009-Ohio-
1401, ¶ 17; State v. Monroe, 4th Dist. Scioto No. 05CA3042, 2007-Ohio-
1492, ¶ 27. The original indictment arose as a result of alleged criminal
activities occurring at an apartment on Glover Street in Portsmouth, Ohio.
Appellant was arrested on April 30, 2013. He filed his motion to dismiss on
Scioto App. Nos. 15CA3705 and 15CA3706 8
June 22, 2015.2 It appears that because 795 days elapsed during the relevant
time period, Appellant’s statutory speedy trial rights were violated and that
Appellant has proven a per se violation of the statute. However, having
conducted a de novo review of the record, we find Appellant’s statutory
speedy trial rights were not in fact violated. In analyzing Appellant’s
argument, we have found State v. Castro, 13 N.E.3d 720, 2014-Ohio-2348(8th Dist.) to be instructive.
{¶12} Castro was indicted and convicted of two counts of sexual
battery. His guilty plea was subsequently vacated. He later pleaded no
contest and filed a timely appeal. On appeal, Castro argued his trial counsel
was ineffective for failing to file a motion to dismiss a reinstated indictment
on the basis that Castro's statutory and constitutional rights to a speedy trial
were violated. However, the appellate court found no merit to Castro's
claims that his right to a speedy trial was violated and, therefore, his
counsel's performance could be deemed ineffective.
{¶13} Castro pointed out that over 300 speedy trial days elapsed
between his arrest in December 2011 and his no-contest plea in May 2013.
The appellate court observed, however, that Castro originally pleaded guilty
2
We observe that the trial court did not rule on Appellant’s motion to dismiss when Appellant changed his
plea on July 6, 2015. A motion that is not expressly ruled upon when a case is concluded is presumed
overruled. State ex rel. Mender v. Chauncey, 4th Dist. Athens No. 14CA27, 2015-Ohio-3559, ¶ 27;
Kastelnik v. Helper, 96 Ohio St.3d 1, 3, 2002-Ohio-2985, 770 N.E.2d 58; Physiatrists Associates of
Youngstown, Inc. v. Saffold, 11th Dist. Trumbull No. 2003–T–0038, 2004-Ohio-2793, at ¶ 18.
Scioto App. Nos. 15CA3705 and 15CA3706 9
in October 2012. The Eighth District previously considered the effects of a
defendant's plea and a subsequent order vacating his plea upon the statutory
right to a speedy trial in State v. McAllister, 53 Ohio App.2d 176, 372
N.E.2d 1341 (8th Dist.1977).
{¶14} In McAllister, the court held that “[t]he provisions of Ohio's
speedy trial statutes, R.C. 2945.71 et seq., are directed solely to an original
trial following the arrest of a defendant, and have no application to the time
within which a defendant must be tried following the vacation of a no
contest plea on his own motion.” Castro, supra, at ¶ 20, quoting McAllister
at 178, 372 N.E.2d 1341; State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-
4252, 852 N.E.2d 706, ¶ 20. The Castro court held:
“This rationale extends to situations, such as the current one,
where a defendant's guilty plea is vacated, because the guilty
plea acted as the original trial proceeding satisfying the
statutory requirement that the defendant be brought to trial
within the 270-day period. State v. Davis, 2nd Dist.
Montgomery No. 16050, 1997 WL 435687 (July 18, 1997);
State v. Johnson, 2nd Dist. Montgomery No. 23908, 2011-
Ohio-1286, 2011 WL 941596. Castro's statutory right to a
speedy trial was not violated. Castro pleaded guilty to the
original indictment terminating his statutory right to a speedy
trial.” Id. at 21.
{¶15} Here, we begin by setting forth the following timeline:
April 30, 2013 Appellant arrested on pertinent
charges.
Scioto App. Nos. 15CA3705 and 15CA3706 10
June 4, 2013 Case dismissed.3
September 26, 2013 Appellant indicted.
November 15, 2013 Appellant arraigned. The pleadings appear
to indicate Appellant was served the
indictment in open court at arraignment. At
this point, 164 days had elapsed between the
date Appellant’s charges were dismissed in
June and he was served with the indictment.
4
November 21, 2013 Defendant’s request for discovery.
December 9, 2013 State’s response to discovery. 18 days
had elapsed between Defendant’s
request and the State’s response.
December 11, 2013 Defendant’s motion to continue trial.
December 20, 2013 Defendant’s motion granted. 9 days had
elapsed.
January 13, 2014 Defendant’s pro se request for
independent testing.
January 14, 2014 Defendant’s motion denied. One day
elapsed between Defendant’s motion and
the court’s denial.
3
An October 17, 2013 entry in the trial court proceedings indicates Appellant’s case was re-filed, having
previously been dismissed in case numbers 13CR390 and 13CR420. According to the Scioto County
Common Pleas Court website, 13CR390 was the case number assigned to Appellant’s co-defendant, Dawn
Bissell, and 13CR420 was the case number assigned to Appellant. These cases were dismissed on June 4,
2013. Therefore, Appellant was not being held on the Scioto County charges after June 4, 2013. Both trial
courts and appellate courts can take judicial notice of filings readily accessible from a court's website. In re
Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933, ¶ 35; State ex rel. Everhart v. McIntosh, 115
Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial
opinions and public records accessible from the internet).
4
The pleading docket accompanying the appellate file indicates Appellant was brought to Scioto County
from the Ross Correctional Institute for arraignment and subsequent court appearances. Service of
summons on the indictment is not indicated prior to arraignment on November 15, 2013.
Scioto App. Nos. 15CA3705 and 15CA3706 11
January 27, 2014 Superseding indictment filed.
(Forfeiture specification)
January 30, 2014 State’s supplemental response to discovery.
January 30, 2014 State’s response to request for discovery.
February 4, 2014 Defendant’s request for new counsel.
Counsel’s motion to withdraw.
February 4, 2014 State’s motion for continuance of trial.
February 20, 2014 State’s motion to continue granted. Time to
be tolled and charged against defendant.5
The time elapsed between the date of the
motion to continue and its grant was 16
days.
April 4, 2014 Appellant entered plea of guilty.
{¶16} Here, Appellant was arrested on April 30, 2013. He entered a
plea on April 4, 2014. During that time, 339 days had elapsed. As
previously discussed in Castro, the Ohio speedy trial statutes are directed
solely to the original trial following arrest. The statutory speedy trial
provisions have no application to the time within which a defendant must
be tried following vacation of a no contest plea on one’s own motion.
Castro, supra, at ¶ 20, quoting McAllister at 178, 372 N.E.2d 1341.
5
The State’s motion to continue trial was filed on the same day as a defense motion to withdraw as
counsel. New counsel was subsequently appointed and the relevant time tolled would have been 9 days.
However, the State’s (simultaneous) motion to continue was not granted until February 20, 2014. We
perceive the entry granting continuance which states the time is to be charged against the defendant to be a
scrivener’s error.
Scioto App. Nos. 15CA3705 and 15CA3706 12
Appellant’s motion to vacate his plea terminated his right to statutory
speedy trial after his April 4, 2014 plea to the original indictment.6
{¶17} Therefore, counting the number of days tolled due to the case
being dismissed once, the failure to serve Appellant until November 2013,
Appellant’s discovery requests, the parties’ motions to continue, and the
defendant’s request for new counsel (filed on the same day as the State’s
motion to continue), we arrive at 208 days in total. As such, subtracting
208 from 339 indicates Appellant was tried within 131 days, well within
the 270-day statutory limit. As in Castro, we find no statutory violation.
{¶18} Normally, due to the fact Appellant did not raise a
constitutional argument, as well as our above resolution of Appellant’s
statutory argument, further analysis would be foreclosed. However, in the
context of an Anders review, where we fully examine the trial court
proceedings, we have also analyzed Appellant’s speedy trial claim within
the constitutional realm. We also find no constitutional violation.
{¶19} In Castro, the appellate court also found Castro’s constitutional
speedy trial rights were not violated. In analyzing Castro’s claim, the
appellate court recognized there are four broad factors within the framework
for analyzing constitutional speedy-trial claims: the length of delay, the
6
We note the principal established in the case law does not differentiate between the guilty plea in Castro
and the no contest plea in McAllister.
Scioto App. Nos. 15CA3705 and 15CA3706 13
reason for the delay, the defendant's assertion of his right, and prejudice to
the defendant. Id. at 22; Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182.
The length of delay is the triggering mechanism. State v. Kraus, 2nd Dist.
Greene No. 2011-CA-35, 2013-Ohio-393, 2013 WL 492850, ¶ 23, citing
Barker. “ ‘Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go into the
balance.’ ” Id., quoting Barker. “Generally, courts have found that a delay
approaching one year becomes ‘presumptively prejudicial.’ ” State v. Winn,
8th Dist. Cuyahoga No. 98172, 2012-Ohio-5889, 2012 WL 6513616, ¶ 44,
citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, (1992),
fn. 1.
{¶20} In Winn, the appellate court determined that over a year and a
half between the arrest and the defendant's trial was not presumptively
prejudicial because the defendant “requested numerous continuances, filed
many motions, changed counsel, and underwent competency evaluations[,]”
and was arrested pursuant to a capias issued when he failed to appear for
pretrial hearings. Winn at ¶ 44. This court found that all of these delays
were for the defendant's benefit and thus contributed to the delay in timely
prosecuting. Id.; Castro at 23. Castro states at ¶ 24:
“Similarly, this case was pending for less than one and a half
years from Castro's arrest to his no-contest plea in May 2013.
Scioto App. Nos. 15CA3705 and 15CA3706 14
During that time, Castro requested numerous continuances,
filed many motions, and criminally conspired with his counsel -
causing the trial court to vacate his original guilty plea. In light
of these specific sets of circumstances, we are not persuaded
that the delay was so presumptively prejudicial as to trigger
consideration of the Barker factors. Further, even if we found
the delay presumptively prejudicial, Castro is unable to
demonstrate any prejudice. His sole claim of prejudice assumes
that he was somehow incapable of mounting an effective
defense because of the year-and-a-half delay between his arrest
and his no-contest plea. Castro failed to substantiate any such
prejudice in the record presented on appeal, and our
independent review finds no such prejudice.”
{¶21} Again, in this case, Appellant’s arrest date is April 30, 2013 and
he entered a plea on April 4, 2014. This is not quite one year. However, as
in Castro, we do not find the approach of one year presumptively prejudicial
so as to trigger consideration of the remaining Barker factors. Appellant
filed a request for discovery, a motion to continue, a pro se motion, and a
request for new counsel. In addition, further delays were caused by
Appellant’s pro se motion to vacate or set aside judgment of conviction of
sentence, a pro se motion for summary judgment, a request to represent
himself, and the request of two subsequently appointed attorneys to
withdraw from representation of him.
{¶22} As in Castro, Appellant contributed to the delays in bringing
him to trial. Appellant herein has not substantiated any prejudice in the
record. We find no constitutional violation of his speedy trial guarantees.
Scioto App. Nos. 15CA3705 and 15CA3706 15
{¶23} We have reviewed the record in its entirety and find no error
which resulted in prejudice to Appellant. As such, we conclude that the
potential assignment of error advanced by appellate counsel is wholly
without merit. The motion of counsel for Appellant requesting to withdraw
as counsel is granted. This appeal is dismissed for the reason that it is
wholly frivolous.
APPEAL DISMISSED.
Scioto App. Nos. 15CA3705 and 15CA3706 16
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Costs are assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.