State v. Williams , 2014 Ohio 4475 ( 2014 )

[Cite as State v. Williams, 2014-Ohio-4475.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100898
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYRONE WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574782-B
BEFORE: Jones, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: October 9, 2014
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Steven N. Szelagiewicz
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Tyrone Williams appeals his convictions, rendered after
a bench trial. We affirm in part and reverse in part.
I. Procedural History and Facts
{¶2} In 2013, Williams was charged with kidnapping, two counts of felonious
assault, improperly discharging a firearm into a habitation, aggravated burglary, criminal
damaging, and having a weapon while under disability. The indictment included
specifications for repeat violent offender and notices of prior conviction.
{¶3} At trial, Akeem Henson testified he was at his grandmother’s house playing
video games with some friends. Williams’s stepdaughter, Kiyanna Ford, was at the
house and had a relationship with Henson of which Williams did not approve.
{¶4} Ford left the house and sometime thereafter her older brother, Robert,
knocked on the door and asked Henson to come outside to speak with him, which Henson
did. Henson testified Robert said, “Man, I heard something about you.” At that point,
Williams came from around the side of the porch, and said, “I told you.” Henson asked,
“What are you talking about?” According to Henson, Williams put him in a headlock
and hit him in the back of the head with a gun. The two men “tussled” and Williams hit
him again before Henson “squirmed free and got him off.” Henson ran down the street
to another relative’s house and called the police. He went to the hospital and received
two staples to close the wound to his head.
{¶5} Henson testified he heard a gunshot while he was running away from his
grandmother’s house but did not see Williams shoot the gun. When he returned to his
grandmother’s house later that evening, Henson saw that the glass in the front screen door
was shattered and there was a bullet hole in an interior door.
{¶6} The police later showed Henson a photo array and he selected the man he
thought was his assailant, but it turned out the person he chose was not Williams.
Henson testified the photo looked different than Williams did in court. He told the trial
court he was “100 percent sure” that Williams was the person who hit him in the head
with a gun.
{¶7} Jeremy Lumpkin testified that he was at Henson’s grandmother’s house
playing video games when Robert, whom Lumpkin knew, came over and asked to speak
to Henson. He heard Robert tell Henson, “I need you to come outside to talk to you.”
After the two men went outside, Lumpkin heard a “tussle” and then saw Henson running
down the street. Lumpkin testified he “[saw] a gun aiming at the door” and ran to hide
behind the television. The “gun went off and it hit the glass and came in and the shot hit
the door. That’s when he walked in.” Lumpkin identified the “he” as Williams, whom
he also knew. Lumpkin stated that once in the house Williams said “the bulls* * * is
over,” before he started “flipping chairs” over.
{¶8} Lumpkin insisted Williams had a gun and he saw Williams with a gun before
and after the shot was fired but he did not see Williams actually fire the gun because he,
Lumpkin, was running to hide.
{¶9} Reginald McKay, Henson’s cousin, was also at the house when Robert came
over. Robert and Henson went outside to talk. McKay heard “bumping” on the
porch, looked outside, and saw Williams, who “came out of nowhere,” walk up on the
porch with a gun. According to McKay, Williams pointed the gun at the door. McKay
ran back towards his grandmother’s bedroom and heard two gunshots. McKay picked
Williams out of a photo lineup and identified him as the man who shot into the house.
{¶10} Cleveland police officer Nikolai Przybylski testified that he responded to the
scene and spoke with the homeowner, Mildred Hudson. Hudson told the officer she
heard gunshots and breaking glass and called police. The victim, Akeem Henson,
returned from the hospital when the officer was there and the officer noted a “small
laceration to the rear left side of [Henson’s] head.” The officer also observed that the
glass to the storm door was shattered and there was a bullet hole in a wooden interior
door.
{¶11} Detective Philmore Evans testified that when he interviewed Williams, the
suspect told him that Henson “was [having sex with] my daughter [Kiyanna]” and
Williams was telling him not to or he would “get” Henson for “statutory [rape].”
{¶12} At the close of the state’s evidence, the court dismissed one count of
kidnapping and the aggravated burglary charge. The court then convicted Williams of
one count each felonious assault with a one-year firearm specification and repeat violent
offender specification; misdemeanor assault; improperly discharging a firearm into a
habitation and having a weapon while under disability, with three-year firearm
specifications; and, criminal damaging. The court sentenced Williams to a total of six
years in prison.
II. Assignments of Error
{¶13} Williams filed a timely notice of appeal and raises the following
assignments of error for our review:
I. Appellant’s convictions were not supported by sufficient evidence and
the trial court erred by denying his motions for acquittal.
II. The trial court erred by failing to merge all allied offenses of similar
import and by imposing separate sentences for allied offenses which
violated appellant’s state and federal rights to due process and protections
against double jeopardy.
III. The convictions were against the manifest weight of the evidence.
IV. The admission of the unauthenticated pre-trial photographic array
identification evidence at appellant’s trial was plain error, an abuse of
discretion and the result of ineffective assistance of counsel in violation of
appellant’s state constitutional rights.
V. The trial court erred by denying appellant’s motion to dismiss for
violation of his federal and state constitutional right to a speedy trial.
III. Law and Analysis
Sufficiency and Manifest Weight of the Evidence
{¶14} In the first assignment of error, Williams argues that there was insufficient
evidence to support his convictions. In the third assignment of error, he contends that
they were against the manifest weight of the evidence. Although these assignments of
error involve different legal standards, because the facts are the same for both, we will
discuss them together.
{¶15} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the state’s evidence is insufficient to sustain a conviction for the offense; Crim.R. 29(A)
and a sufficiency of the evidence review require the same analysis. State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶16} In analyzing whether a conviction is supported by sufficient evidence, the
reviewing court must view the evidence “in the light most favorable to the prosecution”
and ask whether “any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965(1995).
{¶17} When reviewing a claim challenging the manifest weight of the evidence,
this court, reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses, and determines whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Reversing a conviction as
being against the manifest weight of the evidence is reserved for only the exceptional case
in which the evidence weighs heavily against the conviction. Id. It is not the function
of an appellate court to substitute its judgment for that of the trier of fact. Jenks at 279.
{¶18} Williams was convicted of violating R.C. 2903.11(A)(2), felonious assault,
which provides, in part, that “[n]o person shall knowingly * * * [c]ause or attempt to
cause physical harm to another * * * by means of a deadly weapon or dangerous
ordnance.” He was also convicted of assault, as defined by R.C. 2903.13, which
provides that “[n]o person shall knowingly cause or attempt to cause physical harm to
another or another’s unborn.”
{¶19} The court also found Williams guilty of improperly discharging a firearm at
or into a habitation as set forth in R.C. 2923.161(A)(1) and which states, in part, that
“[n]o person, without privilege to do so, shall knowingly * * * [d]ischarge a firearm at or
into an occupied structure that is a permanent or temporary habitation of any individual.”
{¶20} Finally, Williams was convicted of criminal damaging, as defined by R.C.
2909.06(A)(1), which provides that “[n]o person shall cause, or create a substantial risk
of physical harm to any property of another without the person’s consent * * *
[k]nowingly, by any means * * * .”
{¶21} Williams argues that there was insufficient evidence to support his
convictions because no one testified they saw him fire the gun; no weapon or bullet,
bullet fragments, or shell casings were recovered; Henson never saw with what Williams
allegedly hit him; Henson picked someone other than Williams out of the photo lineup;
and the police did not arrest Williams until three months after the assault. We disagree
and find that there was sufficient evidence to support Williams’s convictions.
{¶22} Henson testified that he was mistaken in his identification at the police
station, but was able to identify Williams, someone he knew, in court and testified he was
“100 percent sure” it was Williams who had assaulted him. Henson testified that
although he did not see Williams with a gun, he knew Williams hit him with a gun
because he felt it “and it was metal. And afterwards when I came back [home], the door
at the bottom was shot and the glass was shattered and there was a bullet hole inside the
home.”
{¶23} Williams was seen by multiple eyewitnesses holding a gun both moments
before the shot was fired and after it was fired. Both McKay and Lumpkin testified they
saw Williams point a gun at the house, and heard gunshots immediately after they turned
to run. McKay identified Williams in the photo lineup as the man who had a gun and
came into the house. Officer Przybylski testified that the hole in the door was, in his
opinion, a bullet hole. The homeowner testified that the hole in her door was not there
before she heard gunshots that evening.
{¶24} Witnesses saw Williams brandishing a gun, and Henson testified that he was
hit in the head with something hard and metal. Although no gun was recovered from
Williams, his arrest was not made until three months after the assault and he therefore had
plenty of time to dispose of the weapon.
{¶25} Williams further argues that several witnesses gave perjured testimony. He
claims that Henson changed his story and Lumpkin’s testimony was weak and
inconsistent with McKay’s account of events. But when this court considers a manifest
weight challenge, we must remain mindful that the credibility of the witnesses and the
weight to be given the evidence are primarily for the trier of fact to assess, which was the
trial court in this case. State v. Bradley, 8th Dist. Cuyahoga No. 97333,
2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. The trier of fact is in the best position to take into
account any inconsistencies in the testimony, along with the witnesses’ manner,
demeanor, gestures, and voice inflections, to determine whether the proffered testimony
was credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26; see
also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,
2013-Ohio-4906, ¶ 93 (in considering the credibility of witnesses on a manifest weight
challenge, an appellate court is “guided by the presumption” that the jury, or the trial
court in a bench trial, is “‘best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony,”’ quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984)).
{¶26} Both McKay and Lumpkin testified that they heard commotion outside and
saw Williams with a gun shortly thereafter. When they turned to run they heard a
gunshot, the glass screen on the door shattered, and a bullet hole was left in an interior
door. The fact that neither witness saw Williams pull the trigger of the gun is irrelevant
because they both witnessed him holding a gun moments before a shot was fired at the
house and McKay saw him with the gun when he came into the house immediately after
the shot was fired.
{¶27} Reversal on manifest weight grounds is reserved for the “‘exceptional case
in which the evidence weighs heavily against the conviction.”’ Thompkins, 78 Ohio St.3d
at 390, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717(1st Dist.1983). We do not find that this is the exceptional case where the evidence
weighs heavily against conviction. Therefore, Williams’s convictions are not against the
manifest weight of the evidence.
{¶28} The first and third assignments of error are overruled.
Allied Offenses
{¶29} In the second assignment of error, Williams claims that his conviction for
felonious assault should have merged with his conviction for assault and his conviction
for improperly discharging a firearm into a habitation should have merged with his
criminal damaging conviction.
{¶30} Williams failed to object to the imposition of multiple sentences below and
has therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.” An error rises to the level of plain error only if, but for the error, the
outcome of the proceedings would have been different. State v. Harrison, 122 Ohio
St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97,
372 N.E.2d 804 (1978). The Ohio Supreme Court has held that the imposition of
multiple sentences for allied offenses of similar import is plain error. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v.
Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.
{¶31} Where the same conduct by the defendant can be construed to constitute two
or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one. R.C.
2941.25(A). Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his or her conduct results in two or more offenses of the same
or similar kind committed separately or with a separate animus as to each, the defendant
may be convicted of all of them. R.C. 2941.25(B).
{¶32} Thus, there is a two-part test to determine if offenses should be merged.
First, the elements of the two crimes are compared. State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 17, citing State v. Blankenship, 38 Ohio
St.3d 116, 117, 526 N.E.2d 816 (1988). The elements of the two offenses were
previously considered only in the abstract but are now compared in the factual context of
the defendant’s conduct. Id. at ¶ 20; State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, syllabus. If the crimes correspond to a sufficient
degree, then crimes are allied offenses of similar import, and the court must proceed to
the second step. See Williams at id.{¶33} In the second step, the defendant’s conduct is reviewed, and only if the
crimes were committed separately or there was a separate animus for each crime (or they
are of dissimilar import under the first prong) can the defendant be sentenced for both.
Id. In reviewing a trial court’s merger decision, the appellate court conducts a de novo
review of the trial court’s application of the law to the facts. Id. at ¶ 27-29.
{¶34} Thus, as the reviewing court, we first determine “whether it is possible to
commit one offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other.” Johnson at ¶ 48. “If the multiple
offenses can be committed by the same conduct, then the court must determine whether
the offenses were committed by the same conduct, i.e., ‘a single act, committed with a
single state of mind.”’ Id., quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149. Due to the subjective nature of the analysis based on
the facts of each case, some crimes may be allied offenses in certain cases, but not in
another case under a different set of facts. Johnson at ¶ 52.
{¶35} Williams argues that his convictions for felonious assault and assault were
allied because there was only one victim of the assault, Henson. The state contends that
there were other victims of the incident because Williams shot his gun into Mildred
Hudson’s house, thereby attempting to cause harm with a deadly weapon to the other
people present in the home — McKay, Lumpkin, and Hudson.
{¶36} First, in analyzing felonious assault and assault offenses under Johnson, we
find that they could be committed by the same conduct. Simple assault is a lesser
included offense of felonious assault. State v. Tolbert, 60 Ohio St.3d 89, 92, 573 N.E.2d
617 (1991). It follows then that both offenses could be committed with the same
conduct.
{¶37} Although the state’s contention, in theory, is true, as indicted and convicted,
the felonious assault and assault offenses are allied because the only victim listed in the
indictment was Akeem Henson. Had the state listed any of the other people present in
the house at the time of the shooting in the indictment, or made Crim.R. 7(D) motion
before, during, or after trial to amend the indictment to conform to the evidence, the
state’s argument may have merit. But as it stands, the state’s argument must fail.
{¶38} Williams was convicted of felonious assault, in that he knowingly caused or
attempted to cause serious physical harm to Akeem Henson with a deadly weapon, a gun.
The trial court also convicted him of assault, finding that he caused physical harm to
Akeem Henson. Based on the record before us, we find that the charges arose from the
same conduct and Williams committed the felonious assault and assault against Akeem
Henson with a single animus. As a result, the trial court committed plain error by not
merging the two counts.
{¶39} Williams further contends that his convictions for improper discharge into a
habitation and criminal damaging should merge as allied offenses, yet he offers no basis
or authority for his claim. Notwithstanding this fact, we find that these two counts are
also allied.
{¶40} Under the first prong of the Johnson test, we consider Williams’s particular
conduct and see that improper discharge into a habitation can be committed while
criminal damaging is committed; therefore, the offenses are allied. In applying the
second prong, we must determine whether Williams committed the improper discharge
into a habitation offense separately or possessed an animus for shooting at or into the
house that was separate from the animus he possessed in committing criminal damage.
{¶41} Animus means “purpose or, more properly, immediate motive” and can be
inferred from the surrounding circumstances. State v. Logan, 60 Ohio St.2d 126, 131,
397 N.E.2d 1345 (1979). Although it is unclear why Williams shot into the house when
the person he was upset with, Henson, had already run away, one can infer he wanted to
damage the house that Henson lived in. Thus, he possessed the same animus for
shooting in the house and for damaging the house by shooting into it and breaking the
glass in the security door, putting a bullet hole in a wood door, and upending chairs.
{¶42} Finally, we find that the improper discharge into a habitation conviction
does not merge into the felonious assault or assault convictions. The felonious
assault/assault against Henson was complete and Henson had already run away when
Williams shot into the house. Thus, under the particular facts of this case, Williams had
more than one animus when he shot into the house and damaged Mildred Hudson’s
property.
{¶43} Accordingly, the second assignment of error is sustained. We reverse the
judgment of conviction on (1) the felonious assault and assault counts and (2) the
improper discharge into a habitation and criminal damaging counts and (3) remand for a
new sentencing hearing at which the state must elect which allied offense it will pursue
against Williams. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d
182, at paragraphs one and two of the syllabus. But the determination of Williams’s
guilt for committing allied offenses remains intact, both before and after the merger of
allied offenses for sentencing. Id. at paragraph three of the syllabus.
Photo Lineup
{¶44} In the fourth assignment of error, Williams argues that the use of the photo
lineup prejudiced him, and because his counsel did not object to it or file a motion to
suppress, he was afforded ineffective assistance of counsel.
{¶45} As an initial matter, we note that Williams chose to proceed pro se and
counsel was there merely for standby purposes. In any event, in order to establish
ineffective assistance of counsel, it must be demonstrated that counsel’s performance fell
below the objective standard of reasonable competence, and that there is a reasonable
probability that, but for such deficiency, the outcome of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Johnson, 88 Ohio St.3d 95, 108, 723 N.E.2d 1054 (2000).
{¶46} In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the
United States Supreme Court held that an identification derived from unnecessarily
suggestive procedures, which have a likelihood of leading to a misidentification, violates
a defendant’s right to due process. In determining the admissibility of challenged
identification testimony, a reviewing court applies a two-prong test: (1) did the
defendant demonstrate that the identification procedure was unduly suggestive; and, if so,
(2) whether the identification, viewed under the totality of the circumstances, is reliable
despite its suggestive character. State v. Harris, 2d Dist. Montgomery No. 19796,
2004-Ohio-3570, ¶ 19; see also State v. Thompson, 8th Dist. Cuyahoga No. 90606,
2009-Ohio-615, ¶ 32, citing State v. Page, 8th Dist. Cuyahoga No. 84341,
2005-Ohio-1493.
{¶47} Upon review of the two photo arrays admitted into evidence, we do not find
that they were unduly suggestive. McKay was shown a photo array in which he picked
out Williams. Williams claims that McKay testified that Williams looked “different”
from the other men in the lineup. But McKay did not testify as such. McKay testified
that he only knew one person in the photo lineup and that person was Williams. When
Williams questioned McKay about the hairstyle and skin color of the other men in the
lineup, McKay opined that another man pictured had a hairstyle similar to Williams’s and
any difference in skin tone was probably due to the camera’s flash.
{¶48} Henson viewed a different photo array. He testified that he picked
someone other than Williams from the photo array, and, at the time he selected the other
person, was 99 percent sure the person he chose was who assaulted him. At trial, he
stated he had been mistaken. Thus, it is likely that Williams was actually assisted, not
prejudiced, by the admission of the photo lineups. Based on this, we also do not find
that Williams received ineffective assistance of counsel before he chose to proceed pro se
at trial.
{¶49} In light of the above, the fourth assignment of error is overruled.
Speedy Trial
{¶50} In the fifth assignment of error, Williams claims that his right to a speedy
trial was violated.
{¶51} An accused is guaranteed the constitutional right to a speedy trial pursuant
to the Sixth and Fourteenth Amendments of the United States Constitution and Section
10, Article I, of the Ohio Constitution. State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017, 781 N.E.2d 72, ¶ 32. These speedy trial rights are essentially
equivalent. State v. Butler, 19 Ohio St.2d 55, 57, 249 N.E.2d 818 (1969). Ohio’s
speedy trial statutes, found in R.C. 2945.71 et seq., were implemented to enforce those
constitutional guarantees. Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706(1996); State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 10.
{¶52} R.C. 2945.71(C)(2) requires a criminal defendant against whom a felony
charge is pending to be brought to trial within 270 days from arrest. For purposes of
computing time under R.C. 2945.71(C)(2), each day during which the accused is held in
jail in lieu of bail on the pending charge shall be counted as three days. See R.C.
2945.71(E). Consequently, “[a] felony defendant in Ohio must be tried within ninety
days if incarcerated on the pending charge or within two hundred seventy days if on bail.”
State v. Coleman, 45 Ohio St.3d 298, 304, 544 N.E.2d 622 (1989). If the state violates
a defendant’s right to a speedy trial, then the court must dismiss the charges against the
defendant. R.C. 2945.73(B). But “[i]f the defendant is in jail on a separate unrelated
case, the three-for-one provision does not apply, and the speedy trial time is counted on a
one-for-one basis.” State v. Pond, 8th Dist. Cuyahoga No. 91061, 2009-Ohio-849, ¶ 14.
{¶53} The speedy trial statute may be tolled by several events, set forth in R.C.
2945.72, which provides, in pertinent part:
***
(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;
(D) Any period of delay occasioned by the neglect or improper act of the
accused;
(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;
***
(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;
***.
{¶54} Once the statutory limit has expired, the defendant has established a prima
facie case for dismissal. State v. Howard, 79 Ohio App.3d 705, 607 N.E.2d 1121 (8th
Dist.1992). At that point, the burden shifts to the state to demonstrate that sufficient
time was tolled pursuant to R.C. 2945.72. State v. Geraldo, 13 Ohio App.3d 27, 468
N.E.2d 328 (6th Dist.1983).
{¶55} Williams was arrested on May 23, 2013, and the time with which to bring
him to trial began to run from that date; because Williams was in jail until trial, the state
only had 90 days. As of the first pretrial, held on June 18, 2013, 26 days had run against
the state. Williams requested a continuance until July 8; therefore, time would be tolled
during that time period under R.C. 2945.72(H), and would remain at 26 days.
{¶56} On July 18, 2013, counsel for the defendant filed a motion to withdraw
necessitating new counsel being appointed. Pretrials were continued at Williams’s
request on July 25, August 14, August 29, September 12, September 29, and October 3,
2013. Williams filed pro se motions on October 2 and 9, 2013.
{¶57} The court continued the October 9, 2013 trial date at Williams’s request.
He filed an additional pro se motion on October 15. The court denied his pro se motions
on October 31. On November 15, Williams asked to proceed pro se but requested a
specific attorney to serve as his “stand-by” counsel. As of November 15, 2013, an
additional 15 days would count against the state, bringing the total to 41 days.
{¶58} Williams then filed numerous pro se motions. Trial was continued to
December 16, 2013, the date when the specific attorney Williams requested was
available. Trial was had on December 16, 2013.
{¶59} Williams contends that he did not consent to any continuances made by his
appointed counsel, however, the Ohio Supreme Court has held that “[a] defendant’s right
to be brought to trial within the time limits expressed in R.C. 2945.71 may be waived by
his counsel for reasons of trial preparation and the defendant is bound by the waiver even
though the waiver is executed without his consent.” State v. McBreen, 54 Ohio St.2d
315, 376 N.E.2d 593 (1978), syllabus. Thus, the continuances, in addition to Williams
decision to request new counsel and then to represent himself but ask for specific
“stand-by” counsel, plus his numerous pro se motions, mean that no more than 41 out of
90 days of speedy trial time had expired. Simply put, as of the trial date, only 41 days of
Williams’s speedy trial time had been used.
{¶60} Because we find no statutory speedy-trial violation here, Williams’s only
other avenue is to demonstrate that the trial court and prosecution violated his
constitutional speedy trial rights. State v. Gaines, 9th Dist. Lorain No. 00CA008298,
2004-Ohio-3407, ¶ 16. In order to determine whether a defendant sustained
constitutional speedy trial violations, we balance four factors, which are the length of
delay, the reason for the delay, the defendant’s assertion of his or her right, and the
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972). But first, the defendant must make a threshold showing of a
“presumptively prejudicial” delay to trigger application of the Barker analysis. Doggett
v. United States, 505 U.S. 647, 650, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), citing
Barker at 530-531; State v. Miller, 10th Dist. Franklin No. 04AP-285, 2005-Ohio-518, ¶
11. Courts have generally found that a delay approaching one year becomes
“presumptively prejudicial.” Doggett at 652, fn. 1.
{¶61} The case at bar was pending for less than seven months. During that time,
Williams switched attorneys before deciding to represent himself but asked for a specific
attorney to act as his stand-by counsel; requested and was granted continuances; and filed
numerous pro se motions. Thus, Williams has not made the threshold showing that the
delay was presumptively prejudicial and we find no constitutional violation of his speedy
trial rights.
{¶62} In light of the above, Williams’s statutory and constitutional speedy trial
rights have not been violated. His fifth assignment of error is overruled.
IV. Remand Instructions
{¶63} We reverse the judgment of conviction on (1) the felonious assault and
assault counts and (2) the improper discharge into a habitation and criminal damaging
counts and (3) remand for a new sentencing hearing at which the state must elect which
allied offenses it will pursue against Williams.
{¶64} Judgment affirmed in part; reversed in part. Case remanded for
proceedings consistent with this opinion.
It is ordered that appellant and appellee split 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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR