State v. Knox , 2019 Ohio 3567 ( 2019 )

[Cite as State v. Knox, 2019-Ohio-3567.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107414
v. :
MICHAEL KNOX, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: September 3, 2019
Cuyahoga County Court of Common Pleas
Case No. CR-16-611757-A
Application for Reopening
Motion No. 530102
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Oscar Albores, Assistant Prosecuting
Attorney, for appellee.
Michael Knox, pro se.
KATHLEEN ANN KEOUGH, J.:
Michael Knox timely seeks to reopen his appeal pursuant to
App.R. 26(B), claiming that appellate counsel was ineffective for failing to raise a
number of issues on appeal. For the following reasons, the application is denied.
I. Background
According to Knox, in 2017 he was incarcerated in the state of
Michigan when he caused a notice of availability to be sent to officials in Cuyahoga
County pursuant to the Interstate Agreement on Detainers (“IAD”). He was
subsequently extradited to Ohio to face charges related to the rape of two women
that occurred in 1999. State v. Knox, 8th Dist. Cuyahoga No. 107414, 2019-Ohio-
1246, ¶ 2. He was found guilty of numerous counts, but after the merger of allied
offenses he was sentenced to 8 years to life for each of two counts of rape — for an
aggregate prison term of 16 years to life. That aggregate term was ordered to be
served consecutive to the existing prison sentence he was serving in Michigan.
Knox appealed his convictions to this court, raising four assignments
of error. This court overruled each assigned error and affirmed the convictions, but
remanded the matter for Knox to be classified as a Tier III sex offender pursuant to
a stipulation Knox entered on the record before the trial court. Id. at ¶ 72-73.
On June 4, 2019, Knox timely filed an application for reopening.1
There, he did not specifically set forth any proposed assignments of error, but did
1 This application was subsequently replaced with one that complied with
Loc.App.R. 13.2 on July 10, 2019.
include a number of issues that appellate counsel should have raised in the direct
appeal. The state did not respond in opposition.
II. Standard Applicable to Applications for Reopening
App.R. 26(B) allows a criminal defendant to assert a claim of
ineffective assistance of appellate counsel following the disposition of the direct
appeal. The rule states, “[A] defendant in a criminal case may apply for
reopening of the appeal from the judgment of conviction and sentence, based
on a claim of ineffective assistance of appellate counsel.” App.R. 26(B)(1). The
rule goes on to provide that “[a]n 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.” A claim of ineffective assistance of appellate
counsel is analyzed under the same standard for a claim of ineffective assistance of
trial counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). State v. Were, 120 Ohio St. 3d 85, 2008-Ohio-5277,
896 N.E.2d 699, ¶ 10. Therefore, the applicant must establish that appellate counsel
was deficient for failing to raise a claim or issue, and there is a reasonable probability
of success had it been raised in the appeal. Further, 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.” State v. Spivey, 84 Ohio St. 3d
24, 25, 701 N.E.2d 696 (1998).
The rule further requires the applicant to assert “[o]ne or more
assignments of error or arguments in support of assignments of error that previously
were not considered on the merits in the case by any appellate court or that were
considered on an incomplete record because of appellate counsel’s deficient
representation[.]” App.R. 26(B)(2)(c). Knox’s application fails to set forth any
proposed assignments of error. This is sufficient grounds to deny the application.
State v. Lewis, 8th Dist. Cuyahoga Nos. 88627, 88628, and 88629, 2008-Ohio-679,
¶ 17. However, this court will address the arguments that can be gleaned from the
application to the extent that they can be discerned.
III. The Interstate Agreement on Detainers
R.C. 2963.30 implements the IAD in Ohio. The statute provides one
imprisoned in a state (the “holding state”) and accused of a crime in another state
(the “receiving state”) the opportunity to have charges adjudicated in a timely
fashion. It provides that once initiated by the prisoner, the receiving state must
bring the individual to trial within 180 days of the request. Id., Article III(a).
Under the prisoner-initiated procedure outlined in the statute, the
“warden, commissioner of corrections or other officials having custody
of the prisoner” must promptly inform the prisoner of any detainer as
well as the prisoner’s rights in making a request for final disposition.
R.C. 2963.30, Article III(c). The prisoner may then provide a written
notice for final disposition to the warden, commissioner of corrections,
or other official having custody of him, who must forward it to the
“appropriate prosecuting official and court” in the receiving state, that
is, the state where the detainer is pending. Id., Article II(c) and III(b).
The receiving state must bring the prisoner to trial within 180 days of
receiving the prisoner’s request for disposition, or the charges will be
dismissed with prejudice for good cause shown. Id., Article III(a) and
(d). A prisoner invoking the IAD also waives any objection to
extradition. Id., Article III(e). Because a prisoner’s request under the
statute operates as a request for final disposition of any untried
indictments on which a detainer from the receiving state is based, the
authorities with custody of the prisoner must notify all the prosecuting
officers and courts in the receiving state of any request for final
disposition by the prisoner. Id., Article III(d).
State v. Johnson, 4th Dist. Scioto No. 16CA3733, 2016-Ohio-7036, ¶ 16, citing State
v. Black, 142 Ohio St. 3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 9.
An indictment was filed charging Knox with several offenses on
November 28, 2016. Knox asserts that he complied with the IAD when he caused a
notice of availability to be sent to Cuyahoga County on March 23, 2017. Knox did
not point to any evidence in the record to support this, but included attachments to
his application that do not indicate where in the record this information can be
found. An independent review of the record reveals that the only evidence relating
to Knox’s IAD claim is an unauthenticated attachment to a pro se motion to dismiss
Knox filed early in the case. Knox asserts that this shows he was not brought to trial
within 180 days.
Assuming Knox’s assertions about the timing of his notice of
availability are accurate, the record indicates that Knox’s refusal to accept the
delivery of paperwork resulted in significant delay. The IAD provides that when
inmates initiate this process they waive any objection to extradition to the receiving
state. R.C. 2963.30, Article III(e). Knox did not do so in the present case. The
information provided by Knox in support of his IAD claim indicates that Knox
refused paperwork that would have resulted in his transportation to Ohio. As a
result, Knox had to be extradited to Ohio through Michigan’s court system. Knox
sets forth that extradition proceedings were conducted by a Michigan court that did
not conclude until October 6, 2017.
Even whn validly invoked, delay in bringing a defendant to trial
caused by defendants tolls the period the receiving state has to bring them to trial.
IAD speedy trial time tolls in the same manner as time tolls under the
Federal Speedy Trial Act, 18 U.S.C. §3161. U.S. v. Collins (C.A. 9, 1996),
90 F.3d 1420, 1426-27; U.S. v. Cephas (C.A. 2, 1991), 937 F.3d 816, 819,
cert. denied, (1992), 502 U.S. 1037, 112 S. Ct. 884, 116 L. Ed. 2d 788;
U.S. v. Odom (C.A. 4, 1982), 674 F.2d 228, 231, cert. denied, (1982),
457 U.S. 1125, 102 S. Ct. 2946, 73 L. Ed. 2d 1341; U.S. v. Robinson (E.D.
Mich. 2003), 290 F. Supp. 2d 808, 817, aff’d by, U.S. v. Robinson (C.A.
6, 2006), 455 F.3d 602; U.S. v. Ellerbe (C.A. D.C., 2004), 362 U.S. App.
D.C. 95, 372 F.3d 462, 468 (IAD speedy trial time tolls for periods of
delay caused by defendant’s own actions, including defendant’s
motions as provided in Speedy Trial Act). See also, Young v. Mabry
(C.A. 8, 1979), 596 F.2d 339, 343 (IAD speedy trial time tolls when
defendant is “legally or administratively” unavailable for trial); U.S. v.
Roy (C.A. 7, 1987), 830 F.2d 628, 635 (same). Under the Speedy Trial
Act, time is tolled for “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion[.]” 18 U.S.C. 3161(h)(1)(F).
State v. Golden, 177 Ohio App. 3d 771, 2008-Ohio-3227, 896 N.E.2d 170, ¶ 18 (3d
Dist.).
The delay caused by Knox’s refusal to accept service and waive
extradition proceedings is properly attributable to him. This tolls the time Ohio had
to bring Knox to trial. Ellerbe (IAD speedy trial time tolls for periods of delay caused
by defendant’s own actions, including defendant’s motions as provided in Speedy
Trial Act); Mabry (IAD speedy trial time tolls when defendant is “legally or
administratively” unavailable for trial). Knox’s IAD calculations set forth in his
application fail to account for this tolling.
Further, Knox’s assertions rely on information not contained within
the appellate record on appeal.
Appellate review is strictly limited to the record. The Warder, Bushnell
& Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). Thus, “a
reviewing court cannot add matter to the record that was not part of
the trial court’s proceedings and then decide the appeal on the basis of
the new matter.” State v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500
(1978), paragraph one of the syllabus. “Nor can the effectiveness of
appellate counsel be judged by adding new matter to the record and
then arguing that counsel should have raised these new issues revealed
by the newly added material.” State v. Moore, 93 Ohio St. 3d 649, 650,
2001-Ohio-1892, 758 N.E.2d 1130. “Clearly, declining to raise claims
without record support cannot constitute ineffective assistance of
appellate counsel.” State v. Burke, 97 Ohio St. 3d 55, 2002-Ohio-5310,
776 N.E.2d 79, ¶ 10.
State v. Stefan, 8th Dist. Cuyahoga No. 104979, 2018-Ohio-3493, ¶ 6. Therefore,
Knox has not demonstrated that appellate counsel was ineffective for failing to raise
this claim in the direct appeal.
IV. Preindictment Delay
Knox claims that appellate counsel was ineffective because Knox was
prejudiced by preindictment delay. However, this claim was raised by appellate
counsel in the direct appeal. Knox, 8th Dist. Cuyahoga No. 107414, 2019-Ohio-1246,
at ¶ 31-43. Therefore, counsel may not be deemed ineffective for failing to argue the
issue. State v. Melendez, 8th Dist. Cuyahoga No. 106994, 2019-Ohio-2212, ¶ 8,
citing State v. Adams, 146 Ohio St. 3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 23-
24.
Knox also argues that the delay in prosecution resulted in Knox being
denied his constitutional right to confront his accuser because one of the victims,
P.H., had died before trial. This was also addressed on appeal. Knox at ¶ 36-40, 63-
71. Therefore, this cannot form the basis for reopening.
V. Fraudulent Prosecution
Knox alleges that Ohio fraudulently prosecuted him, but the
argument set forth in the application is difficult to follow.
Knox claims, without citing to specific testimony, that during the
hearing on his motion to dismiss for preindictment delay, the state alleged that P.H.
identified him in a photo array after P.H. was deceased. The record does not support
that claim. The only photo array that was presented in this case was one shown to
the other victim, J.S. In fact, testimony at the suppression hearing established that
no detective was able to speak with P.H. during the investigation. (Tr. 95.) The
argument presented does not set forth a colorable claim of ineffective assistance of
appellate counsel.
VI. Consecutive Sentences
Knox asserts that because he was only indicted in one case in Ohio,
the trial court could not impose consecutive sentences.
R.C. 2929.14(C)(4) vests a trial court with discretion to impose
sentences consecutively when the court makes the required three findings set forth
in the statute. It provides, “[i]f multiple prison terms are imposed on an offender
for convictions of multiple offenses, the court may require the offender to serve the
prison terms consecutively * * *.”
The trial court ordered the two sentences imposed in this case for
each count of rape to be served consecutive to each other. Knox ignores provisions
of R.C. 2929.14(C)(4) that allows for multiple sentences in the same case to be served
consecutively.2
Knox has not demonstrated a colorable claim of ineffective assistance
of counsel in this regard.
VII. Sexually Violent Predator Specification and Sex
Offender Classification
Knox claims that the finding of guilt for a sexually violent predator
specification and his sex offender classification constitutes impermissible judicial
fact-finding. He claims the jury, not the judge was required to make findings to
validly impose either. These claims are belied by the record and law.
The docket reflects that on April 20, 2018, Knox voluntarily waived
trial by jury on the sexually violent predator specifications. That waiver was signed
by Knox and filed with the clerk. After the jury trial concluded, the trial court held a
bench trial on the specification, which resulted in findings of guilt. Therefore, Knox
is incorrect in his assertion that a jury was required to adjudicate the sexually violent
predator specifications.
2 If Knox is attempting to assert that the trial court could not impose his Ohio
sentences consecutive to his Michigan sentence, the “multiple prison term” language
quoted above from R.C. 2929.14(C)(4) has been interpreted to include previously
imposed prison terms from other jurisdictions. State v. Legg, 4th Dist. Meigs No. 05CA3,
2006-Ohio-194 (dealing with former R.C. 2929.14(E), which contains substantially
similar pertinent language to current R.C. 2929.14(C)(4)), citing State v. Gillman, 10th
Dist. Franklin No. 01AP-662, 2001-Ohio-3968; and State v. Griffith, 4th Dist. Ross No.
00CA2583, 2002-Ohio-6142.
As this court has previously recognized, Knox stipulated to his
classification as a Tier III sex offender. Knox, 8th Dist. Cuyahoga No. 107414, 2019-
Ohio-1246, at ¶ 72. This court remanded the case for the trial court to enter a nunc
pro tunc entry classifying Knox as such. Knox’s stipulation to his sex offender status
means that appellate counsel could not be ineffective for failing to argue that Knox
should not be classified as a Tier III sex offender by the trial court. Further, under
the sex offender classification scheme to which Knox stipulated the classification is
automatic based on the offense. R.C. 2950.01(G)(1)(a). There is no fact-finding
inherent in the imposition of the classification. Therefore, appellate counsel was not
ineffective for failing to advance this argument in the appeal.
VII. Double Jeopardy
Knox asserts that “this is Double Jeopardy and the case is collateral
[sic] estopped if not res judicata estopped.” In attachments to his application, Knox
appears to assert that the extradition proceedings in Michigan somehow precluded
Ohio from indicting and convicted him on charges in the present case based on
principles of double jeopardy.
The United States Supreme Court has recently reaffirmed the dual-
sovereignty doctrine. Gamble v. United States, 587 U.S.___, 139 S. Ct. 1960, 204
L. Ed. 2d 322 (2019). The Court held,
[t]he dual-sovereignty doctrine is not an exception to the double
jeopardy right but follows from the Fifth Amendment’s text. The
Double Jeopardy Clause protects individuals from being “twice put in
jeopardy” “for the same offence.” As originally understood, an “offence”
is defined by a law, and each law is defined by a sovereign. Thus, where
there are two sovereigns, there are two laws and two “offences.”
Id. at paragraph (a) of the syllabus.
Knox’s claim that some court proceeding in Michigan precludes his
indictment and trial in Ohio due to protections afforded by the Double Jeopardy
Clause of the United States Constitution are incorrect.3 The states are separate
sovereigns and charges in one do not preclude charges in others based on principles
of double jeopardy. State v. McKinney, 80 Ohio App. 3d 470, 609 N.E.2d 613 (2d
Dist.1992). It also must be noted that the Michigan proceedings appear to comprise
only Knox’s extradition to Ohio, and Knox does not state why such proceedings
preclude his trial in Ohio. Further, as explained above, Knox’s reliance on matters
that are not contained within the appellate record may not form the basis for
reopening. Stefan, 8th Dist. Cuyahoga No. 104979, 2018-Ohio-3493, at ¶ 6.
Knox does not express why collateral estoppel or res judicata preclude
his convictions. Therefore, Knox has not set forth a colorable claim of ineffective
assistance of appellate counsel.
IX. Prosecutorial Misconduct
Knox asserts a claim that the prosecutor used unethical tactics and
conduct to recharge him and obtain an illegal conviction by circumventing and
manipulating the process. However, Knox does not level any specific allegation of
3 Knox does not cite to other sources of double jeopardy protections such as Ohio’s
constitution or statutes. Therefore, those potential arguments will not be addressed.
prosecutorial misconduct. He appears to assert an argument similar to the one he
raises regarding double jeopardy.
Knox cites to Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629,
79 L. Ed. 1314 (1935), to support his claim. Knox further claims that the conduct was
so egregious that it rendered the entire trial fundamentally unfair. But again, he
does not allege any specific violation. Knox cites to Berger for the simple
proposition that “[i]t is as much the duty of the United States Attorney to refrain
from improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.” Id. at paragraph six of the
syllabus. Similar to the double jeopardy argument, Knox has not established a
colorable claim of ineffective assistance of appellate counsel.
In Knox’s discussion of judicial misconduct, discussed below, he also
asserts that the trial judge and the prosecutor conspired against him. Knox appears
to claim that there exists a prior indictment that was dismissed without prejudice,
but does not cite to anywhere in the record to establish this claim. In an attachment
to the application, Knox indicates that a previous case, “case number 17-0556,” was
dismissed without prejudice. However, Knox does not properly identify this case
and the number does not appear to be a Cuyahoga County Common Pleas Court case
number. Knox’s reliance on matters that are not contained within the appellate
record may not form the basis for reopening. Stefan, 8th Dist. Cuyahoga No.
104979, 2018-Ohio-3493, at ¶ 6.
He further asserts that because of this dismissed case, the state was
required to produce newly discovered evidence in order to reindict him. “A nolle
prosequi is merely a withdrawal of the indictment, which if done before jeopardy
has attached, does not prohibit reindictment.” State v. Dixon, 14 Ohio App. 3d 396,
397, 471 N.E.2d 864 (8th Dist.1984), citing State v. Eberhardt, 56 Ohio App. 2d 193,
381 N.E.2d 1357 (8th Dist.1978). Knox does not point to anything in the record that
would indicate that jeopardy attached to this alleged previous indictment, and
therefore does not present a colorable claim of ineffective assistance of appellate
counsel.
X. Judicial Misconduct/Double Jeopardy
Knox alleges that it was “judicial misconduct for the trial judge to
allow for this case to be prosecuted in her court room, when the judge knew that the
case was dismissed without prejudice as the prosecution had to present and submit
newly discovered or additional evidence in this case.”
Again, Knox fails to point to evidence in the record to support this
claim and fails to cite authority for the main premise of his argument. Again, Knox’s
reliance on matters that are not contained within the appellate record may not form
the basis for reopening.
The argument then goes on to mirror the claims made regarding
preindictment delay. That claim was raised by appellate counsel and argued in the
direct appeal. Therefore, it cannot be a valid basis for reopening.
XI. Ineffective Assistance of Trial Counsel
Finally, Knox asserts that appellate counsel was ineffective for not
arguing that trial counsel was ineffective in a number of ways.
The test for ineffective assistance of trial counsel is set forth
Strickland:
To establish ineffective assistance of counsel, an appellant must show
(1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e.,
a reasonable probability that, but for counsel’s errors, the outcome of
the proceeding would have been different.
State v. Sowell, 148 Ohio St. 3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 138, citing
Strickland, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Appellant asserts that he wished to testify at trial, but trial counsel
told him he could not. The record clearly established that Knox’s decision to testify
was clearly made by him.
After the state rested its case at trial, the following exchange was had
between the trial court and Knox and outside the presence of the jury:
THE COURT: Okay. Now, let me ask Mr. Knox, so now it is your
decision that you’re not going to testify —
THE DEFENDANT: Yes, ma’am.
THE COURT: — correct?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. Have you had ample time to talk with [your
attorney] about whether or not you wish to testify?
THE DEFENDANT: Yes, ma’am.
THE COURT: And do you feel that you need more time to talk to him
as to whether or not you should testify in this case —
THE DEFENDANT: No, ma’am.
THE COURT: — or you want to testify?
THE DEFENDANT: No, ma’am.
THE COURT: Okay. So it’s your decision that you’re not going to,
right?
THE DEFENDANT: Yes, ma’am.
(Tr. 693-694.)
Knox’s claim that he was prevented from testifying at trial is
contradicted by the record.
Knox also claims that he asked his trial counsel to voir dire potential
jurors if any of them saw Knox on a Crime Stoppers broadcast, and trial counsel did
not.
Trial counsel is afforded a great deal of deference in determining trial
tactics, and in questioning potential jurors. State v. Robinson, 8th Dist. Cuyahoga
No. 85207, 2005-Ohio-5132; State v. Phillips, 3d Dist. Allen No. 1-15-43, 2016-
Ohio-3105, ¶ 50. Knox does not point to anything in the record to substantiate that
this conversation with trial counsel occurred. A search of the transcript does not
reveal any mention of the Crime Stoppers broadcast. Knox’s reliance on matters
that are not contained within the appellate record may not form the basis for
reopening. Stefan, 8th Dist. Cuyahoga No. 104979, 2018-Ohio-3493, at ¶ 6.
Finally, Knox argues that trial counsel was deficient for failing to “ask
for the 180 day ruling motion” pursuant to the IAD. As explained above, Knox has
not asserted a valid claim for ineffective assistance of appellate counsel for failing to
argue this issue because Knox has failed to acknowledge his actions that made him
unavailable for trial. Therefore, trial counsel was not ineffective in this regard.
Application denied.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR