State v. Hall ( 2022 )

[Cite as State v. Hall, 2022-Ohio-3501.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-21-039
Appellee Trial Court No. 2019-CR-0459
v.
Demetrius Hall DECISION AND JUDGMENT
Appellant Decided: September 30, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Loretta Riddle, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Demetrius Hall, appeals the September 10, 2021
judgment of the Erie County Court of Common Pleas which, following a jury trial
finding him guilty of aggravated murder, murder, and tampering with evidence,
sentenced him to a life sentence with parole eligibility after 33 years. Because we find
that appellant’s speedy trial rights were not violated, we affirm.
I. Facts and Procedural History
{¶ 2} On December 19, 2019, appellant was indicted on charges stemming from
the December 8, 2019 stabbing death of C.S. at the Golden Corral restaurant in Sandusky,
Erie County, Ohio. It is undisputed that appellant was incarcerated from the time of the
indictment until trial. On January 2, 2020, the state filed a motion to amend the
indictment; it was amended and served on January 8. On January 23, 2020, appellant’s
counsel filed an appearance. On January 29, 2020, he entered not guilty pleas to the
charges.
{¶ 3} On February 4, 2020, appellant made a discovery demand. The state filed its
response on February 7, 2020, and a reciprocal demand for discovery. On February 14,
2020, appellant filed a motion for a continuance to complete discovery. Supplemental
discovery was filed by the state on February 18, 2020. The court rescheduled the pretrial
for March 17, 2020.
{¶ 4} During the course of the proceedings, several administrative orders were
filed addressing the COVID-19 pandemic. The orders filed on March 13, April 14, and
December 17, 2020, and March 1, 2021 acted to continue all pending civil and criminal
trials until March 29, 2021. The orders specifically stated:
2.
(5) With regard to criminal matters, due to the Court’s reduced
ability to obtain an adequate panel of prospective jurors during this public
health crisis, and the inability of the Court to function at normal capacity
being at risk (1) the Governor’s orders to restrict the amount of people at
gatherings that hinders the Court from securing jury pools, and (2) Ohio
Supreme Court Chief Justice’s advisements/concerns about conducting
Court proceedings during the pandemic, the time period of continuances
implemented by this General Order will be excluded under the Speedy Trial
Act and R.C. §2945.71.
{¶ 5} While under the COVID-19 pandemic orders on May 19, 2020, appellant
requested and was granted a continuance based upon counsel’s receipt of “voluminous”
supplemental discovery from the state. The matter was set for a pretrial on June 16,
2020, as requested.
{¶ 6} Following the pretrial, on June 30, the state filed a motion requesting an
immediate pretrial in order “to preserve the integrity of the record regarding speedy trial
time.” The following day, appellant’s counsel filed a motion for a competency and sanity
evaluation. The motion requested that if the evaluation is ordered, the matter reconvene
in 30-45 days. The motion was granted and the next hearing set for August 4, 2020.
{¶ 7} On September 30, 2020, appellant’s counsel’s request for leave to withdraw
was granted. Appellant had applied for and was appointed a public defender.
3.
{¶ 8} Appointed counsel entered a notice of appearance on October 21, 2020, and
on October 24, filed a request for discovery. On October 28, 2020, the trial court ordered
the rescheduling of a pretrial hearing because “defendant needs discovery as it was not
turned over by prior counsel.” The pretrial was rescheduled for November 24, 2020.
{¶ 9} On December 2, 2020, on the court’s own motion and “due to the Covid-19
Pandemic,” the matter was continued for pretrial on December 19, 2020. The court
found that the speedy trial time was tolled. On December 13, 2020, appellant’s counsel
filed a motion to continue the pretrial stating that he intended to file a motion for a
psychiatric evaluation. The motion was granted and the matter was set for pretrial on
February 9, 2021. On March 3, 2021, appellant’s counsel’s written request for a
continuance of the February 9 pretrial in order to secure a psychological reevaluation and
continue discovery was filed. Appellant signed the form acknowledging a waiver of his
speedy trial rights. The matter was continued to May 4, 2021, time was tolled.
{¶ 10} On April 6 and 26, 2021, appellant filed several pro se motions including
discovery requests and an objection to the time being tolled under the COVID-19
pandemic orders.
{¶ 11} On May 4, 2021, the court, on its own motion ordered a continuance to
May 25, 2021, due to the court’s unavailability caused by a scheduling conflict. At the
May 25, 2021 pretrial, appellant again expressed dissatisfaction with the course of
discovery and the tolling due to the pandemic. On that date, defense counsel’s request
for funds to hire an investigator was granted. The matter was set for trial on August 24,
4.
2021, with the court indicating that the speedy trial time was tolled. Following
appellant’s trial and sentencing, he commenced this appeal.
II. Assignments of Error
Assignment of Error No. I: Mr. Hall was denied his constitutional
right to a speedy trial.
Assignment of Error No. II: Mr. Hall received ineffective assistance
of counsel.
III. Discussion
{¶ 12} In appellant’s first assignment of error he argues that he was
unconstitutionally confined for 411 days prior to the trial in this matter. Initially we note
that under R.C. 2945.73(B), an accused is required to make a motion to dismiss based on
a speedy-trial violation “at or prior to the commencement of trial[.]” If no motion is
filed, we review the issue under a plain error analysis. State v. Mills, 6th Dist. Williams
No. WM-09-014, 2010-Ohio-4705, ¶ 18, citing State v. Conkright, 6th Dist. Lucas No. L-
06-1107, 2007-Ohio-5315, ¶ 20. Because appellant did not file a motion in the trial
court, our review is limited to plain error. Plain error is an error that affects an
appellant’s substantial rights. Crim.R. 52(B). Plain error should be found “only in
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
5.
{¶ 13} Pursuant to R.C. 2945.71(C)(2), a person with a pending felony charge
“[s]hall be brought to trial within two hundred seventy days after the person’s arrest”
Further, each day in confinement “in lieu of bail on the pending charge shall be counted
as three days.” R.C. 2945.71(E).
{¶ 14} Under R.C. 2945.72, the time by which an accused must be brought to trial
may be tolled under a variety of circumstances, including:
(B) Any period during which the accused is mentally incompetent to
stand trial or during which his mental competence to stand trial is being
determined, or any period during which the accused is physically incapable
of standing trial;
(C) Any period of delay necessitated by the accused’s lack of
counsel, provided that such delay is not occasioned by any lack of diligence
in providing counsel to an indigent accused upon his request as required by
law;
***
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the accused;
***
(G) Any period during which trial is stayed pursuant to an express
statutory requirement, or pursuant to an order of another court competent to
issue such order;
6.
(H) The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other than
upon the accused’s own motion; * * *.
{¶ 15} Using the dates set forth above, appellant’s pretrial incarceration spanned
December 19, 2019, until August 23, 2021, a total of 613 days, or 1,819 days under the
triple-count provision. However, several tolling events occurred between the time of
appellant’s arrest on the charges until the start of trial including multiple continuance
requests, requests for competency evaluations, a request for an investigator, and a change
of counsel.
{¶ 16} By far, the longest tolling period occurred during the COVID-19 pandemic
orders. The court halted all civil and criminal trials from March 13, 2020, until March
31, 2021, or a total of 383 days. Appellant does not assign error to the tolling period
necessitated by the pandemic orders. We agree that delays associated with the COVID-
19 pandemic toll the speedy trial clock. State v. Williams, 6th Dist. Lucas No. L-21-
1111, 2022-Ohio-2439, ¶ 45, citing State v. Wright, 6th Dist. Lucas No. L-21-1101,
2022-Ohio-143, ¶ 37; 2020 Ohio Atty.Gen.Ops. No. 2020-002.
{¶ 17} We further note that during this time, and evidenced above, the parties
continued to exchange discovery, two competency examinations were requested (only
one was completed due to restricted access to the jail), a request was made and granted
allowing state funds to hire an investigator, and appellant retained new counsel. The case
did not stagnate under the pandemic orders.
7.
{¶ 18} Appellant claims that he was unconstitutionally denied his right to a speedy
trial based on the dates of December 19, 2019, until February 4, 2020 (46 days x 3= 138)
and May 25, 2021 until August 23, 2021 (91 days x 3= 273) for a total of 411 days.
{¶ 19} We agree that between appellant’s indictment, December 19, 2019, and
arraignment, January 28, 2020, 40 days elapsed or 117 days. From January 29 until
discovery request of February 4 – 19 days were charged to the state. Thus, thus a total of
138 days is chargeable to the state.
{¶ 20} Once the pandemic orders were lifted, on May 4, 2021, the court, on its
own motion, continued the matter to May 25, 2021, due to a scheduling conflict with the
court. The order indicated that the speedy trial time was tolled. We note that the court is
permitted to grant a reasonable continuance based on a scheduling conflict. R.C.
2945.72(H); State v. Stoddard, 2020-Ohio-893, 152 N.E.3d 990 (9th.Dist.), ¶ 14, citing
State v. Glass, 3d Dist. Auglaize No. 2-04-01, 2004-Ohio-4402, ¶ 11.
{¶ 21} Thereafter, at the May 25, 2021 pretrial counsel requested and was granted
funds to hire an investigator. The delay from May 25 until the August 24, 2021 trial was
explained to appellant as follows:
THE COURT: Okay. Well, your attorney’s asked for $2,000, up to
2,000 so he can hire a court inves—or an investigator to help you with your
case.
So the Court has given permission that we will fund that. So your
investigator will do his duties and then it takes some time for him to
8.
interview witnesses and so forth and so that’s why we have a trial date in
August.
{¶ 22} Appellant’s counsel further explained his difficulties in obtaining discovery
in the matter; largely due to appellant’s refusal to provide specific information regarding
various individuals he claimed had information regarding the matter. Accordingly, we
find that the time form the May 25 2021 pretrial until the August 24, 2021 trial was
properly tolled.
{¶ 23} Based on the foregoing, we find that the delay caused by the COIVD-19
pandemic and delays attributed to appellant’s counsel’s various requests in order to
prepare for appellant’s trial did not result in a violation of appellant’s constitutional right
to a speedy trial. The days chargeable to the state totaled 138 days, and no error and,
thus, no plain error occurred. Appellant’s first assignment of error is not well-taken.
{¶ 24} In appellant’s second assignment of error, he argues that trial counsel was
ineffective by failing to move to dismiss the indictment on speedy trial grounds. In
raising an ineffective assistance of counsel claim, a defendant must prove two elements:
“First, the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of
prejudice requires a showing “that there is a reasonable probability that, but for counsel’s
9.
unprofessional errors, the result of the proceeding would have been different.” Id. at 694;
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the
syllabus.
{¶ 25} Based on our disposition of appellant’s first assignment of error we
conclude that counsel was not ineffective in failing to raise the speedy trial issue.
Counsel was appointed nearly ten months into the proceedings and during a global
pandemic. Counsel had difficulty getting discovery from prior counsel and information
from appellant. Appellant asserts that counsel was ineffective in requesting a
continuance for a psychological evaluation that was never conducted. Counsel did state
that the reevaluation was not completed due to difficulties with jail access. We note that
the continuance was also requested due to ongoing discovery. Appellant’s second
assignment of error is not well-taken.
IV. Conclusion
{¶ 26} On consideration whereof, the September 10, 2021 judgment of the Erie
County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered
to pay the costs of this appeal.
Judgment affirmed.
10.
State of Ohio v.
Demetrius Hall
C.A. No. E-21-039
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
11.