State v. Forrest , 2021 Ohio 122 ( 2021 )

[Cite as State v. Forrest, 2021-Ohio-122.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109230
v. :
CHRISTOPHER FORREST, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 21, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-624782-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Debora Brewer, Assistant Prosecuting
Attorney, for appellee.
Law Office of Timothy Farrell Sweeney and Timothy F.
Sweeney, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Christopher Forrest, appeals his conviction
following his guilty plea. Finding no merit to the appeal, we affirm.
In 2018, Forrest was named in a five-count, superseding indictment,
charging him with rape, attempted rape, importuning, gross sexual imposition, and
kidnapping with a sexual motivation specification.1 All counts except the
importuning charge carried a sexually violent predator specification. He pleaded
not guilty and the case was set for trial multiple times. During voir dire on the day
of trial, Forrest agreed to accept a plea deal with the state. He pleaded guilty to an
amended count of attempted rape and the importuning offense as charged; the court
imposed the five-year, agreed-recommended sentence.
Forrest now appeals, raising three assignments of error, which we will
address together because they are interrelated, and he combined them in his brief.
In his first, second, and third assignments of error, Forrest contends
that he did not enter a knowing, voluntary, and intelligent plea because of his trial
counsel’s deficient performance in failing to pursue a dismissal based on statutory
and constitutional speedy trial grounds. In these assignments of error, he raises two
issues: (1) his speedy trial rights were violated, and (2) he was denied effective
assistance of counsel because counsel failed to seek dismissal on speedy trial
grounds.
“When a defendant enters a guilty plea, he generally waives all
appealable errors that may have occurred unless such errors are shown to have
1 Forrest was originally indicted under Cuyahoga C.P. No. CR-17-621521 with two
counts of rape, and one count each of kidnapping and importuning. The state dismissed
the case on July 24, 2019.
precluded a defendant from entering a knowing and voluntary plea.” State v.
Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 14, citing
State v. Kelley, 57 Ohio St. 3d 127, 566 N.E.2d 658 (1991), paragraph two of the
syllabus.
Moreover, when a defendant enters a guilty plea as part of a plea
bargain, he waives a claim of ineffective assistance of counsel, except to the extent
that the ineffective assistance of counsel caused the defendant’s plea to be less than
knowing and voluntary. State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-
Ohio-1743, ¶ 5; State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415,
¶ 11, citing State v. Spates, 64 Ohio St. 3d 269, 272, 595 N.E.2d 351 (1992).
To prevail on a claim of ineffective assistance of counsel, a defendant
must demonstrate: (1) deficient performance by counsel, i.e., that counsel’s
performance fell below an objective standard of reasonable representation, and (2)
that counsel’s errors prejudiced the defendant, i.e., a reasonable probability that but
for counsel’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraphs
two and three of the syllabus.
In this case, Forrest contends that counsel’s representation fell below
an objective standard of reasonable representation when counsel failed to pursue a
dismissal on speedy trial grounds, thus inducing him into entering an involuntary
plea. We disagree.
We initially note that a guilty plea generally waives a defendant’s right
to challenge his or her conviction on statutory speedy trial grounds. Kelley, 57 Ohio
St.3d 127, 566 N.E.2d 658, at paragraph one of the syllabus; State v. Yonkings, 8th
Dist. Cuyahoga No. 98632, 2013-Ohio-1890, ¶ 14-15. Thus, when a defendant
pleads guilty, he also generally waives the right to claim that his or her counsel was
ineffective based upon statutory speedy trial issues. See, e.g., State v. Logan, 8th
Dist. Cuyahoga No. 99471, 2014-Ohio-816, ¶ 20, citing State v. Bohanon, 8th Dist.
Cuyahoga No. 98217, 2013-Ohio-261, ¶ 8.
This court has held, however, that although a defendant generally
waives his statutory right to a speedy trial by pleading guilty, he does not waive his
constitutional right to a speedy trial. See State v. Kutkut, 8th Dist. Cuyahoga No.
98479, 2013-Ohio-1442, ¶ 9, citing State v. Carmon, 8th Dist. Cuyahoga No. 75377,
1999 Ohio App. LEXIS 5458, 4 (Nov. 18, 1999), citing State v. Branch, 9 Ohio
App.3d 160, 162, 458 N.E.2d 1287 (8th Dist.1983).2
The Sixth and Fourteenth Amendments of the United States
Constitution and Section 10, Article I of the Ohio Constitution guarantee a defendant
the constitutional right to speedy trial. State v. Taylor, 98 Ohio St. 3d 27, 2002-
Ohio-7017, 781 N.E.2d 72, ¶ 32.
2 This court recognizes that both the First and Second Appellate Districts have
reached different conclusions as to whether a guilty plea waives an alleged constitutional
speedy trial violation. See, e.g., State v. Watson, 2018-Ohio-4971, 126 N.E.3d 289 (1st
Dist.), and State v. Johnson, 2d Dist. Greene No. 2013-CA-1, 2013-Ohio-4077.
To determine whether there has been a denial of a defendant’s
constitutional right to a speedy trial, the court balances the four factors identified in
Barker v. Wingo, 407 U.S. 514, 530-533, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). State
v. Long, Slip Opinion No. 2020-Ohio-5363, ¶ 14. Those factors are: “‘(1) the length
of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his speedy
trial right; and (4) prejudice to the defendant.’” Id., quoting State v. Hull, 110 Ohio
St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 22, citing Barker at 530.
A defendant must meet the “threshold requirement” of a
“presumptively prejudicial” delay to trigger a Barker analysis. State v. Duncan, 8th
Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 8. “‘Until there is some delay which
is presumptively prejudicial, there is no necessity for inquiry into the other factors
that go into the balance.’” Long at id., quoting Barker at 530. Courts have generally
held that a delay approaching one year becomes “presumptively prejudicial.” Long
at id., citing Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d
520 (1992), fn. 1.
A. Length of the Delay
In this case, Forrest was arrested on September 18, 2017, and
remained in jail until the time he entered his guilty plea on July 23, 2019. The length
of delay was approximately two years, thus satisfying the threshold requirement of
a presumptively prejudicial delay, which would weigh in Forrest’s favor.
B. Reason for the Delay
The second factor under Barker is the reason for the delay. A review
of the record reveals that Forrest’s actions contributed to much of the delay. During
the pendency of the case, discovery was ongoing regarding offenses that carried a
potential penalty of life in prison. On April 23, 2018, the case was called for trial and
immediately prior to voir dire, Forrest requested a continuance due to an
unexpected family tragedy that prevented some of his witnesses from appearing at
trial. The trial was continued until June. However, in May 2018, Forrest filed a
motion to disqualify counsel. Following a hearing on the motion, the court
appointed new counsel, who then sought discovery and a continuance of trial. We
find that Forrest’s request to change counsel at this stage of the proceedings
effectively caused his defense to start anew.
Additionally, during the pendency of the case, Forrest underwent two
psychological evaluations, one of which occurred after he submitted a series of pro
se filings three months prior to trial. Additionally, two weeks prior to trial where he
entered his plea, Forrest filed a “Notice of Issue of Mental Incompetence” suggesting
that he was incompetent. In fact, from the time new counsel was appointed and
until Forrest submitted these multiple pro se filings causing further delay, less than
12 months had passed.
Finally, we recognize that the trial court entered short and general
continuances of trial from July 2018 until April 2019. However, the continuances
were recorded as being “at the defendant’s request,” and there is no evidence in the
record that the continuances or delay in trial were deliberate attempts by the state
to prejudice Forrest’s defense or induce a plea. See Long, Slip Opinion No. 2020-
Ohio-5363, at ¶ 56 (DeWine, J., dissenting), citing Barker, 407 U.S. at 531, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (deliberate attempts to hamper the defense weigh against the
government).
Based on the record before this court, we find that Forrest caused most
of the delay in this case; thus the second Barker factor weighs against him.
C. Assertion of Speedy Trial Right
The third factor to consider is the defendant’s assertion of his right to
a speedy trial. Forrest contends on appeal that he “repeatedly demanded his speedy
trial rights in written pro se motions and other filings.” The record reflects that
Forrest submitted multiple filings to the court in which he questioned the length of
delay of his trial. See Correspondence dated April 2, 2019; pro se Motion for
Discharge for Delay of Trial dated April 2, 2019; and pro se Motion for dismissal
dated June 4, 2019. Notwithstanding these pro se filings, Forrest was represented
by counsel at all times, and Ohio does not recognize hybrid representation. State v.
Thompson, 33 Ohio St. 3d 1, 6, 514 N.E.2d 407 (1987) (neither the United States
Constitution nor the Ohio Constitution require hybrid representation).
Even considering his pro se filings, Forrest’s initial assertion of his
right to a speedy trial occurred after he received new counsel and only three months
prior to him accepting a plea deal. By this time, the days he now complains of on
appeal — the “rote” continuances of trial from July 2018 to April 2019 — occurred
prior to his assertion. Accordingly, the timeliness of his assertion is questionable.
See State v. Doggett, 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)
(assertion of speedy trial must be in due course and timely).
Additionally, his second request for a speedy trial occurred right
before he presented the court with concerns about his competency to stand trial.
Thus, although he was demanding a speedy trial, he was also causing additional
delay by professing incompetence and making pro se requests. Forrest’s differing
actions did “not convey an earnest desire to have his case move quickly.” See Long,
Slip Opinion No. 2020-Ohio-5363, at ¶ 66 (DeWine, J., dissenting).
Accordingly, we find that this factor weighs against Forrest.
D. Prejudice from the Delay
The fourth Barker factor is prejudice to the defendant. Recently, the
Ohio Supreme Court reiterated that “[t]he prejudice factor in the analysis ‘should be
assessed in the light of the interests of defendants[,] which the speedy trial right was
designed to protect.’” Long at ¶ 22, quoting Barker, 407 U.S. at 532, 92 S. Ct. 2182,
33 L. Ed. 2d 101. The three interests are: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Id. The third interest — the impact
of the delay on the ability of the defendant to prepare his defense — is the greatest
concern because it “‘skews the fairness of the entire system.’” Id.
Forrest summarily contends that he was prejudiced because his
pretrial incarceration of nearly two years was oppressive and caused him an increase
in anxiety and concern. In support, he directs this court to the competency
evaluation performed in June 2019, which was submitted to this court under seal.3
Our review of the report reveals that Forrest has a history of depression. He received
mental health treatment in 2016 while he was in prison and continued to receive
services for depression following his release. The report noted that while he waited
for trial in the present case, Forrest continued to suffer from mild depression and
was taking antidepressant and antianxiety medications. Despite his diagnosis, the
report indicated that he was able to understand the risk of trial, and capable of
evaluating information to make a rational choice to either take a plea deal or go to
trial.
He further argues that the long passage of time presented “grave risks
that his defense would be impaired” because the allegations were “of a very young
teen, whose mother was strongly supportive of Forrest and did not want to pursue
the charges.” It appears that Forrest is suggesting that the support of the victim’s
mother was crucial to his defense, and the delay jeopardized that support.
Nevertheless, Forrest does not identify how his pretrial incarceration or delay in trial
hindered his ability gather evidence, contact witnesses, or prepare for his defense.
See Barker at 533. Accordingly, we find that Forrest has failed to show any
reasonable prejudice sufficient to suggest that this Barker factor should weigh in his
favor.
3
This court granted Forrest’s request to supplement the appellate record with the
competency evaluation dated June 14, 2019.
Balancing the Barker factors, we find that no violation of Forrest’s
constitutional speedy trial right. Accordingly, a motion to dismiss based on a claim
of a speedy-trial violation would have been meritless; therefore, his counsel did not
provide ineffective assistance by failing to pursue dismissal on this basis. Our review
of the record demonstrates that Forrest entered a knowing, intelligent, and
voluntary plea to the offenses of attempted rape and importuning. The assignments
of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR