State v. Preston ( 2013 )

[Cite as State v. Preston, 2013-Ohio-5679.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 10CA4
vs. :
RANDALL A. PRESTON, SR., : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Eric M.
Hedrick, Ohio Assistant Public Defender, 250 East Broad
Street, Ste. 1400, Columbus, Ohio 432151
COUNSEL FOR APPELLEE: Justin Lovett, Jackson County Prosecuting Attorney, 295
Broadway Street, Ste. 100, Jackson, Ohio 45640
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-17-13
ABELE, J.
{¶ 1} This matter comes before us on a reopened appeal. A jury found Randall A.
Preston, Sr., defendant below and appellant herein, guilty of three counts of sexual battery in
violation of R.C. 2907.03. We affirmed that conviction. See State v. Preston, 4th Dist. Jackson
No. 10CA4, 2011-Ohio-1645 (Preston I).
{¶ 2} Subsequently, we denied an App.R. 26(A) Application for Reconsideration but,
1
Different counsel represented appellant at various stages of these proceedings.
JACKSON, 10CA4 2
on August 2, 2012, granted appellant’s application to reopen appeal for the sole purpose of
considering whether appellate counsel was constitutionally ineffective for failing to challenge
trial counsel’s failure to file a motion to dismiss on speedy trial grounds. The matter is properly
before us and appellant assigns the following error for review:
“RANDALL PRESTON RECEIVED
CONSTITUTIONALLY-INEFFECTIVE-ASSISTANCE-OF-TRI
AL-COUNSEL. TRIAL COUNSEL FAILED TO TIMELY RAISE
A SPEEDY-TRIAL CHALLENGE. EXCLUSIVE OF TOLLING
EVENTS NECESSITATED BY MR. PRESTON, MORE THAN
270 [DAYS] ELAPSED BEFORE MR. PRESTON WAS
BROUGHT TO TRIAL FOR THE COUNTS CONTAINED IN
THE 2008 SUCCESSIVE INDICTMENT. HAD MR.
PRESTON’S TRIAL ATTORNEY TIMELY RAISED A
SPEEDY-TRIAL CHALLENGE, THE CHARGES AGAINST
MR. PRESTON WOULD HAVE BEEN DISMISSED. BECAUSE
TRIAL COUNSEL DID NOT PROVIDE
EFFECTIVE-ASSISTANCE-OF-COUNSEL, MR. PRESTON
SUFFERED ACTUAL PREJUDICE.”
{¶ 3} During the evening of August 23, 2007, appellant walked into his home and
strolled past his stepson, Adam Kennedy. Thereafter, Kennedy heard his sister (S.K.) scream
from a downstairs bathroom. S.K. later exited the bathroom and confided to her brother that
appellant walked in on her while she showered, but more importantly, had forced her into sexual
relations with him over a number of years.2 Adam and S.K. thereafter contacted the authorities.
{¶ 4} On October 22, 2007, the Jackson County Grand Jury returned an indictment in
Case No. 07CR194 that charged appellant with various offenses. The record in that case
indicates that appellant was released on his own recognizance and placed under house arrest.
2
Appellant is S.K.’s stepfather.
JACKSON, 10CA4 3
On November 21, 2008, Case No. 07CR194 was dismissed, without prejudice.3
{¶ 5} On December 9, 2008, the Jackson County Grand Jury returned a second
indictment that charged appellant with substantially the same offenses. He pled not guilty to all
charges, and again, remained out of jail. On March 4, 2009, appellant filed a motion to dismiss
five of the charges and argued that when time elapsed from Case No. 07CR194 is tacked onto the
time elapsed in the instant case, the R.C. 2945.71 statutory speedy trial time had elapsed. The
State filed a memorandum contra that included a detailed time line for the Case No. 07CR194
proceedings. On May 11, 2009, the trial court accepted the State’s calculations and noted that
appellant had to be brought to trial within “118 days from the date of this entry.”
{¶ 6} On July 13, 2009, appellant orally moved to dismiss the case. He, however,
withdrew that motion on August 3, 2009. The case then came on for jury trial on October 29,
2009. At the conclusion of the State’s case, the prosecution announced that it would withdraw
counts one, two and three of the indictment. The defense then requested a Crim.R. 29 motion
for judgment of acquittal on the remaining counts, and the trial court granted the motion as to
count five.
{¶ 7} The defense then put on its case that, in essence, largely challenged S.K.’s
credibility. At the conclusion of the trial, the jury returned guilty verdicts on counts four, six
and seven. The trial court ordered appellant to serve five years on each count, with the
sentences to be served consecutively for a total of fifteen years. The matter is now properly
3
As we noted in Preston I, the original papers from Case No. O7CR194 were not included in the record of this case.
See 2011-Ohio-1645, at ¶11, fn. 3. On August 28, 2012, we granted appellant's motion to supplement the record in this case
with the original papers from the prior case. Consequently, we may now properly consider those proceedings to determine
appellant’s speedy trial arguments.
JACKSON, 10CA4 4
before us on a reopened appeal.
{¶ 8} Our analysis of appellant’s assignment of error begins with the proposition that a
person against whom a felony charge is pending must be brought to trial within two hundred and
seventy days. R.C. 2945.71(C)(2). If an accused is not tried within the statutory time limit, he
must be discharged. R.C. 2945.73(B). However, the R.C. 2945.71 time limits may be extended
for the reasons in R.C. 2945.72.
{¶ 9} In Preston I, we determined that in this case 246 days elapsed for speedy trial
purposes. 2011-Ohio-1645, at ¶11. Thus, the task before us here is to determine if more than
24 days elapsed for speedy trial purposes while Case No. 07CR194 was pending. If 25 or more
days elapsed, then the R.C. 2945.71 270 day time limit expired and we must vacate appellant’s
conviction.
{¶ 10} The docket in Case No. 07CR194 reveals that appellant was arrested in the prior
case on October 23, 2007. This event started the speedy trial clock. On November 14, 2007,
appellant filed a discovery request that the Ohio Supreme Court has deemed a “tolling event”
under R.C. 2945.72(E). See State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d
159, at ¶¶21-23. At this point, 22 days had elapsed. For the following reasons, however, we do
not believe that the speedy trial clock re-started in the first case.
{¶ 11} Our review of the record reveals that on January 7, 2008, appellant himself
requested a continuance of his trial scheduled later that month. Second, apparently an ongoing
dispute existed over what evidence was discoverable. Appellant filed a motion to compel
discovery on January 23, 2008, and, before that issue could be resolved, appellant filed another
motion for a trial continuance. Finally, and most important, on March 25, 2008 appellant filed a
JACKSON, 10CA4 5
waiver of his speedy trial rights. We believe that this waiver, coupled with the failure to resolve
the discovery dispute and appellant’s two continuance requests, results in the conclusion that the
speedy trial time clock remained stopped through dismissal of the case on November 21, 2008.
Adding the 22 days that we calculate that have elapsed in Case No. 07CR0194 to the 246 days
we found to have elapsed in this case, we conclude that a total of 268 days elapsed in both cases.
This is two days less than the R.C. 2945.71 statutory time frame. Thus, no violation of
appellant’s statutory speedy trial rights occurred.
{¶ 12} Appellant raises several arguments that challenge the use of his waiver in the
speedy trial calculations. First, he contends that he did not sign the waiver himself, and nothing
in it indicates that he truly intended to waive his rights. The Ohio Supreme Court, however,
held that the R.C. 2945.71 provisions can be waived by “an accused, or his counsel.” (Emphasis
added.) State v. O’Brien, 34 Ohio St.3d 7, 9, 516 N.E.2d 218 (1987). In Case No. 07CR0194
trial counsel properly executed the speedy trial waiver and this is sufficient to make it valid and
operative. Appellant’s signature is not necessary to accomplish that result.
{¶ 13} Appellant’s next asserts that the State did not take into account his Case No.
07CR0194 waiver in calculating time for purposes of its March 30, 2009 memorandum opposing
the motion to dismiss for speedy trial violations. In its May 11, 2009 decision that denied that
motion as premature, the trial court found “the time line outlined by the State of Ohio in its
memorandum [to be] correct.” Appellant suggests that we are bound by that finding and, thus,
cannot now consider the waiver. We disagree.
{¶ 14} Before we address appellant’s argument, we parenthetically note that this is
precisely the reason that we refused to consider the prior proceedings from Case No. 07CR0194
JACKSON, 10CA4 6
when we ruled on Preston I. The State erred in its calculation of time that elapsed in Case No.
07CR0194 and neither the trial court nor this Court had the benefit of those proceedings when
passing on the speedy trial issue. Appellant also argued, in an Application for Reconsideration,
that we should accept references to that prior case made in the pleadings of this case. Had we
done so, rather than deny his Application on July 5, 2011, we would have allowed an erroneous
calculation of time to stand. This amply illustrates the importance of having access to the
original papers of a prior proceeding if one intends to rely on those prior proceedings to make an
argument.
{¶ 15} As to the merits of the argument that we cannot consider the former speedy trial
waiver when the trial court did not do so, we remind appellant that we are not reviewing the trial
court’s May 11, 2009, decision.4 The question before us now is if appellant's trial counsel was
constitutionally ineffective for failing to file a later motion to dismiss, and whether appellate
counsel was ineffective for failing to argue that issue on appeal. We, however, are not bound by
the State’s argument in its opposing memorandum, nor the trial court’s May 11, 2009 decision to
accept the State’s time calculations.
{¶ 16} It is well-settled that a criminal defendant has a right to counsel that includes the
right to the effective assistance from counsel. McMann v. Richardson, 397 U.S. 759, 770, 90
S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Lytle, 4th Dist. Ross No. 96CA2182, 1997 WL
4This Court has noted that speedy trial issues involve mixed questions of law and fact. We review the legal issues de
novo, but defer to a trial court's findings of fact if supported by competent, credible evidence. See e.g. State v. Smith, 4th Dist.
th
Ross No. 10CA3148, 2011-Ohio-602, at ¶18; State v. Watson, 4 Dist. Ross No. 08CA3072, 2009-Ohio-4852, at ¶6; State v.
Bradley, Ross App. No. 08CA3055, 2009-Ohio-1620, at ¶8. As mentioned above, we are not reviewing a trial court’s decision
here. Rather, we are determining whether trial and appellate counsel were ineffective for making a later motion to dismiss on
speedy trial grounds and failing to effectively argue that point in Preston I.
JACKSON, 10CA4 7
118069 (Mar. 10, 1997). To establish ineffective assistance of counsel, a defendant must show
(1) his counsel's deficient performance and (2) that such deficient performance prejudiced the
defense and deprived him of a fair trial. See e.g. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); also see State v. Perez, 124 Ohio St.3d 122,
2009-Ohio-6179, 920 N.E.2d 104, at ¶200. However, both prongs of this “Strickland test” need
not be analyzed if a claim can be resolved under one. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52 (2000).
{¶ 17} Thus, if a defendant cannot demonstrate prejudice by the failure of counsel to take
a particular action, we need not determine if counsel was actually deficient by not that taking
action. To establish prejudice, a defendant must demonstrate a reasonable probability exists
that, but for counsel's alleged error, the outcome of the case would have been different. State v.
White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), at paragraph three of the syllabus.
{¶ 18} Once all of the original papers from Case No. 07CR0194 are included in the
record of this case, it is clear that 268 days of the 270 day time limit elapsed before appellant's
trial. Thus, even if trial counsel requested a second time a dismissal on speedy trial grounds, it
is clear appellant suffered no prejudice as his trial was held within R.C. 2945.71 parameters.
{¶ 19} Therefore, for the same reason appellant suffered no prejudice from appellate
counsel by not including the original papers from Case No. 07CR0194 in the record of this case.
Even if the papers from Case No. 07CR0194 had been included in the record, with those in this
case, the record shows that appellant's trial was held within the requisite statutory time frame.
{¶ 20} Therefore, for all of these reasons, we hereby overrule appellant's assignment of
JACKSON, 10CA4 8
error and, once again, affirm the trial court's judgment.
JUDGMENT AFFIRMED5.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Jackson County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
5
We acknowledge that appellant makes reference in his brief to constitutional speedy trial rights that are slightly
different than statutory speedy trial rights. State v. Cottrill, 4th Dist. Ross No. 11CA3270, 2012- Ohio-1525 at ¶5.
However, because appellant confines his argument to statutory speedy challenges, we do the same. See State v. Cottrell, 4th
Dist. Ross Nos. 11CA3241 & 11CA3242, 2012-Ohio-4583, at ¶8, fn. 1. It should be noted, however, that we would have
reached the same conclusion even under a separate constitutional speedy trial challenge.
JACKSON, 10CA4 9
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.