State v. Thompson

Appellant, Nathan J. Thompson, was indicted May 19, 1993, by a Sandusky County Grand Jury on one count of aggravated robbery, with a firearm specification. As a result of the indictment, appellant was arrested on July 14, 1993 and was arraigned the following day in the Sandusky County Court of Common Pleas. Appellant entered a plea of not guilty and bond was set in the amount of $10,000; the record does not indicate that this bond was posted.

The initial trial date was set for September 21, 1993. That trial date was later reassigned to October 5, 1993, with no explanation included in the record for the change. The trial date was again reassigned to October 13, 1993; this time the reassignment notice contained a notation that the continuance was requested by the court. The case was once more reassigned; the new trial date was set for October 19, 1993. This last reassignment notice did not contain any explanation for the change.

Appellant's trial did commence on October 19, 1993, and appellant was convicted by a jury of aggravated robbery with the specification of possession of a firearm. A judgment entry was journalized on October 25, 1993, accepting the jury verdicts and sentencing appellant to ten to twenty-five years, with three years of additional actual incarceration to be served for the firearm specification. The trial court noted that as of the date of sentencing, appellant was "entitled to 98 DAYS credit against the sentence imposed."

Appellant filed a notice of appeal on October 28, 1993, setting forth the following three assignments of error:

"ASSIGNMENT OF ERROR NUMBER ONE

"The defendant was not brought to trial within 90 days of his arrest and is entitled to be discharged because he was not tried within the time required under the Speedy Trial Statute, Ohio Revised Code Sections 2945.71-73, even though he was in custody during that entire period of time, and there is no reason articulated in the record to justify an exception to the clear requirements of the statute.

"ASSIGNMENT OF ERROR NUMBER TWO

"Appellant was denied his constitutional right to effective assistance of counsel in that his counsel did not timely move for a discharge of appellant for failure of the State to bring him to trial within 90 days after he was placed in jail under bond in this case, as required by 2945.73(B), Ohio Revised Code.

"ASSIGNMENT OF ERROR NUMBER THREE

"It was reversible error for the jury to find defendant guilty of the specification in the indictment that he had a firearm on or about his person during the commission of the alleged offense."

I Appellant's first and second assignments of error will be discussed together.

The right to a speedy trial is guaranteed by the Constitutions of both the United States and the state of Ohio. Sixth Amendment to the Constitution of the United States; Section 10, Article I, Constitution of Ohio. The Ohio General Assembly has attempted to quantify this "amorphous" right since 1869. State v. Pachay (1980), 64 Ohio St. 2d 218, 219, 18 O.O.3d 427, 427, 416 N.E.2d 589, 590. Its most recent pronouncement is embodied in the "speedy trial" statutes, R.C. 2945.71 through2945.73, which the Supreme Court of Ohio "has repeatedly announced that the trial courts are to strictly enforce * * *."Id. at 221, 18 O.O.3d at 429, 416 N.E.2d at 591. R.C. 2945.71(C) and (E) provide that one who is accused of a felony and is "held in jail in lieu of bail on the pending charge" shall be brought to trial within ninety days of his or her arrest.¹

In the instant matter, appellant was arrested on July 14, 1993, and not brought to trial until October 19, 1993: a period of ninety-seven days as computed pursuant to R.C. 1.14. Appellant argues that, because the ninety-seven days between the beginning of his incarceration and the trial exceeds the maximum statutory time and the record contains no cognizable explanations for the delay, appellant is entitled to discharge and the trial court committed plain error for failing to suasponte grant the same.

Appellant's argument is specious in two respects. First, the record contains a document captioned "speedy trial calculations" upon which the notation "7-14-93 holder placed and served on him" appears. Elsewhere on the face of this document is the phrase "prob" and "parole viol. holder from Weaver's court." The words "prob" and "parole" are interlineated. This document appears to be an attachment to the trial court's judgment entry on arraignment. The provisions of R.C. 2945.71 that accelerate the speedy trial requirements apply only to one held in jail in lieu of bail solely on the pending charges. State v. McDonald (1976), 48 Ohio St. 2d 66, 2 O.O.3d 219, 357 N.E.2d 40, paragraph one of the syllabus. Where, in addition to the pending charges, a defendant is held for a parole or probation violation, the acceleration of time is not triggered. State v. Phillips (1990), 69 Ohio App. 3d 379,381, 590 N.E.2d 1281, 1282. Therefore, if appellant was on a parole or probation "holder" during this period, no violation of the speedy trial statute occurred.

Appellant argues that the document containing the "speedy trial calculations" is insufficient to show that he was held on a parole or probation "holder" and that, in any event, such a holder was predicated on the same charges for which he was tried in this matter. This, appellant suggests, distinguishes his case from the line of cases following McDonald, supra,48 Ohio St.2d at 71, 2 O.O.3d at 221, 357 N.E.2d at 43, which stands for the proposition that, when a defendant is held in jail or prison for any reason other than awaiting trial for the crime at issue, the speedy trial time is not accelerated. In support of this proposition, appellant cites State v. Sisco (June 28, 1982), Fairfield App. No. 2-CA-82, unreported, 1982 WL 5462.

Appellant is correct insofar as the "speedy trial calculations" document does not show the exact nature of the "holder" with which appellant was served. Therefore, we are unable to determine whether the premise of appellant's argument distinguishing McDonald is accurate. Nonetheless, we note that the Supreme Court of Ohio has considered appellant's identical proposition and rejected it. See State v. Martin (1978), 56 Ohio St. 2d 207,210-211, 10 O.O.3d 369, 370-371, 383 N.E.2d 585, 587.

Finally, even were we to determine that the "speedy trial calculation" document is insufficient to establish a probation holder or, for that matter, even if no document whatsoever appeared in the record on this matter, appellant could still not prevail on these assignments. There is no need to reference such a holder unless the defendant properly raises the speedy trial issue.² The plain language of the statute states that the proper method of raising this issue is "[u]pon motion made at or prior to the commencement of trial * * *." R.C. 2945.73(B). It is the motion that triggers the prosecution's duty to produce evidence (e.g., a parole or probation "holder"), which negates the defendant's assertion that his trial has been too long delayed.

Were we to adopt appellant's position, a defendant could simply wait until his direct appeal to initially raise the speedy trial issue. On direct appeal, an appellate court can consider only the evidence to which the trial court was privy. See App.R. 9. Therefore, under such a scenario, the state would be foreclosed from supplementing the record to show that an appellant was being held on a holder from another case.³ Were we to find a failure to dismiss under such circumstances as plain error, justice would not be served. Accordingly, appellant's first assignment of error is not well taken.

With regard to appellant's second assignment of error, as we have discussed above, from the record before us it is not possible to discern whether there was a reasonable probability that a motion to dismiss on speedy trial grounds would have been successful. Therefore, appellant has failed to demonstrate that his trial counsel was ineffective for failing to raise such a motion. See Strickland v. Washington (1984), 466 U.S. 668,104 S. Ct. 2052, 80 L. Ed. 2d 674.⁴ Accordingly, appellant's second assignment of error is not well taken.

II Appellant's remaining assignment of error challenges the sufficiency of the evidence to support the jury's finding that an operating firearm was used in the commission of the crime of which appellant was accused. Appellant suggests that, because none of the several witnesses who described the silver revolver used in the robbery testified to seeing bullets in the weapon, the state failed to prove that it was operable so as to support a guilty verdict on the R.C. 2929.71 firearm specifications.

R.C. 2923.11 defines a "firearm" as:

"(B)(1) * * * any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. ``Firearm' includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable.

"(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm."

An examination of the record reveals testimony that the robbery participant who wielded the small silver revolver pointed it at the head of a victim and said that he would kill her if she said anything. This clearly is a representation and action of an individual exercising control over the firearm by which a jury could have reasonably inferred that the weapon was loaded and operable. This alone is sufficient to support the jury's verdict on the firearm specification. See State v. Murphy (1990), 49 Ohio St. 3d 206, 551 N.E.2d 932, syllabus; State v.Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus. Accordingly, appellant's third assignment of error is not well taken.

Upon consideration whereof, the judgment of the Sandusky County Court of Common Pleas is affirmed. It is ordered that appellant pay court costs of this appeal.

Judgment affirmed.

GLASSER, J., concurs.

HANDWORK, J., concurs separately.

¹ Certain exceptions apply which are not relevant to this appeal. See R.C. 2945.72. A two-hundred-seventy-day period is permitted for an accused who is not incarcerated in lieu of bail. R.C. 2945.71(C)(2).

² The better practice, however, when a court grants a continuance beyond the statutory period would be to include such a document if practicable.

³ Such a motion in this matter was, in fact, denied by this court.

⁴ We also note that DR 7-104 prevents a lawyer from advancing defenses that are unwarranted. In this case, if the trial lawyer knew that appellant was properly being held on a parole or probation holder, he would be prevented from ethically filing such a motion.