State v. Jackson

[Cite as State v. Jackson, 2022-Ohio-1522.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29226
:
v. : Trial Court Case No. 2020-CR-1064
:
BARNARD M. JACKSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 6th day of May, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BYRON K. SHAW, Atty. Reg. No. 0073124, 4800 Belmont Place, Huber Heights, Ohio
45424
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Barnard M. Jackson, appeals from his conviction in the
Montgomery County Court of Common Pleas after pleading no contest to felonious
assault, having weapons while under disability, discharging a firearm on or near a
prohibited premises, and improperly handling firearms in a motor vehicle. On December
8, 2021, Jackson’s appellate counsel filed a brief under the authority of Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of
any issues with arguable merit for appeal. On December 10, 2021, this court notified
Jackson that his counsel had found no meritorious claims for appeal, and we granted
Jackson 60 days to file a pro se brief assigning any errors for review. On January 10,
2022, Jackson filed a pro se brief wherein he raised seven assignments of error that
pertained to his speedy trial rights and his presentence motion to withdraw his no contest
plea. The State then filed a notice of intent not to respond to the arguments in Jackson’s
pro se brief.
{¶ 2} For the reasons outlined below, we find that all of Jackson’s pro se
arguments lack arguable merit. Furthermore, after conducting an independent review of
the record as required by Anders, we find no issues with arguable merit for Jackson to
advance on appeal. Therefore, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 3} On May 14, 2020, a Montgomery County grand jury returned an indictment
charging Jackson with one count of felonious assault in violation of R.C. 2903.11(A)(2),
a felony of the second degree; one count of having weapons while under disability in
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violation of R.C. 2923.13(A)(2), a felony of the third degree; one count of discharging a
firearm on or near a prohibited premises in violation of R.C. 2923.162(A)(3), a felony of
the third degree; one count of tampering with evidence in violation of R.C. 2921.12(A)(1),
a felony of the third degree, and one count of improperly handling firearms in a motor
vehicle in violation of R.C. 2923.16(A), a felony of the fourth degree. The charge for
felonious assault also included a five-year firearm specification.
{¶ 4} On May 19, 2020, Jackson pled not guilty to all the indicted charges at his
arraignment. Jackson’s counsel thereafter filed a motion to suppress on June 30, 2020.
The motion sought to suppress statements that Jackson had made to law enforcement
while he was arrested and in jail. On July 30, 2020, the trial court held a suppression
hearing. Detective Jacob Rillo of the Dayton Police Department was the only witness to
testify at the hearing. Det. Rillo’s testimony indicated that Jackson had made certain
statements during an attempted jail interview that Jackson terminated before the detective
could provide Miranda warnings. Specifically, Det. Rillo testified that after he introduced
himself to Jackson, Jackson asked him what he had been charged with and if anyone
had been killed. Det. Rillo testified that when he told Jackson that he had been charged
with felonious assault and that no one had been killed, Jackson said: “[T]here’s nobody
killed, so I ain’t got nothing to say.” Suppression Hearing Trans. (July 30, 2020), p. 13.
Det. Rillo testified that after Jackson made that statement he terminated the interview.
Det. Rillo also testified that Jackson’s statement was not made in response to any
questioning.
{¶ 5} Following the suppression hearing, the trial court accepted post-hearing
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briefs on the motion, which the parties filed on August 6 and 7, 2020. However, before
a decision was rendered on the motion to suppress, on August 24, 2020, Jackson filed a
pro se motion asking the trial court to remove his counsel from the case so that Jackson
could represent himself. In light of Jackson’s motion, and due to Jackson’s failure to
communicate, Jackson’s counsel filed a motion to withdraw from the case. On
September 16, 2020, Jackson and his counsel attended a scheduling conference, which
turned into a hearing on the aforementioned motions. During the hearing, Jackson
advised the trial court that he wanted to have new counsel appointed to his case. The
trial court granted Jackson’s request and issued an order appointing new counsel on
September 18, 2020. The scheduling conference was then continued to September 23,
2020.
{¶ 6} On September 23, 2020, Jackson’s newly-appointed counsel requested a
two-week continuance of the scheduling conference in order to obtain further discovery
from the State. The trial court granted the request, and the scheduling conference was
continued to October 7, 2020. Jackson, who was not pleased with his new counsel’s
representation, thereafter filed another pro se motion asking the trial court to remove his
counsel so that he could represent himself. Because of that motion, the October 7, 2020
scheduling conference was continued for purposes of holding a hearing to ensure that
Jackson understood the consequences of waiving his right to counsel. The waiver
hearing was held on October 14, 2020. During that hearing, the trial court questioned
Jackson extensively in order to ensure that Jackson was knowingly, intelligently, and
voluntarily waiving his right to counsel. After doing so, the trial court accepted Jackson’s
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oral and written waiver and ordered Jackson’s former counsel to remain in the case as
standby counsel.
{¶ 7} Following Jackson’s waiver of his right to counsel, the trial court held a status
conference on October 21, 2020. During the status conference, the trial court confirmed
that Jackson had no other evidence or filings pertaining to his motion to suppress. Once
receiving that confirmation, the trial court considered the suppression matter submitted to
the court and advised Jackson that a written decision would be forthcoming. However,
before the trial court could issue a decision, Jackson filed a notice of appeal with this court
on November 10, 2020. In the notice of appeal, Jackson argued that the trial court had
violated his right to a speedy trial. The State thereafter filed a motion to dismiss
Jackson’s appeal on grounds that Jackson had failed to identify what order of the trial
court he was seeking to appeal. On November 25, 2020, Jackson filed a motion to
voluntarily dismiss his appeal. This court sustained Jackson’s motion and dismissed the
appeal on December 24, 2020. See State v. Jackson, 2d Dist. Montgomery No. 28955
(Final Judgment Entry).
{¶ 8} On December 15, 2020, while Jackson’s appeal was still pending, Jackson
filed a motion in the trial court to dismiss the indicted charges on grounds that he had
been denied his right to a speedy trial. The trial court thereafter issued an entry and
order advising that it lacked jurisdiction over the motion due to Jackson’s pending appeal.
Once Jackson’s appeal was dismissed, on February 10, 2021, the trial court held a brief
hearing on the motion to dismiss. During the hearing, the State asked for three weeks
to file a response to Jackson’s motion, which the trial court granted. The trial court also
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granted Jackson two weeks to file a reply to the State’s response. Thereafter, Jackson
addressed the trial court and asked why the court had not yet ruled on his motion to
suppress. In response, the trial court advised Jackson that the court first needed to rule
on his motion to dismiss since the outcome of that motion could possibly result in the
dismissal of his case.
{¶ 9} On April 23, 2021, the trial court issued a decision overruling Jackson’s
motion to dismiss on grounds that Jackson’s speedy trial time had been tolled by
Jackson’s filing a motion to suppress. Approximately two months later, on June 18,
2021, the trial court issued a decision overruling Jackson’s motion to suppress.
Specifically, the trial court found that the statement Jackson sought to have suppressed
did not fall under the protections afforded in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1996), because the statement was spontaneous and not made in
response to a custodial interrogation. After overruling Jackson’s motion to suppress, the
trial court scheduled a jury trial for July 12, 2021.
{¶ 10} On the day of trial, Jackson had a discussion with the trial court and
confirmed that his speedy trial argument would be preserved for appeal if he entered a
no contest plea. After receiving this information, Jackson advised the trial court that he
wanted to accept a plea agreement that was offered by the State and to have standby
counsel reinstated as his counsel. The plea agreement required Jackson to plead no
contest to felonious assault with a reduced three-year firearm specification, having
weapons while under disability, discharging a firearm on or near a prohibited premises,
and improperly handling firearms in a motor vehicle. In exchange for Jackson’s no
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contest plea, the State agreed to dismiss the charge for tampering with evidence. The
parties also jointly agreed to Jackson’s receiving an aggregate, indefinite sentence of five
to six years in prison.
{¶ 11} After reinstating Jackson’s counsel and giving Jackson an opportunity to
confer with counsel, the trial court conducted a Crim.R. 11 plea colloquy. The trial court
then accepted Jackson’s no contest plea and found him guilty of the aforementioned
charges. The trial court also ordered a presentence investigation report and scheduled
the matter for sentencing.
{¶ 12} Prior to the sentencing hearing, Jackson filed a pro se motion to withdraw
his no contest plea. In the motion, Jackson failed to cite any basis or reasoning for
wanting to withdraw his plea. At the sentencing hearing, the trial court addressed
Jackson’s plea withdrawal motion and asked both Jackson and his counsel if they wanted
to add anything to the motion. In response, neither Jackson nor his counsel made any
comment about the motion, and Jackson specifically indicated that there was nothing
more he wanted to add. The State argued that Jackson’s motion should be overruled
because it provided no basis for withdrawing the plea and because it represented a mere
change of heart.
{¶ 13} After hearing from the parties, the trial court overruled Jackson’s motion to
withdraw his no contest plea. Following that ruling, Jackson briefly stated that he had
filed the motion because he felt that he was forced to take the plea and because he had
never had time to speak with his counsel about the plea. The trial court, however, found
that the matter had already been ruled on and proceeded to sentencing.
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{¶ 14} During Jackson’s sentencing, the trial court imposed an indefinite term of
two to three years in prison for felonious assault, and a mandatory three-year prison term
for the attendant firearm specification. The trial court ordered the three-year prison term
for the firearm specification to run prior and consecutively to the indefinite two-to-three
year term for felonious assault. The trial court also imposed 24 months in prison for
having weapons while under disability, 24 months in prison for discharging a firearm on
or near a prohibited premises, and 18 months in prison for improperly handling firearms
in a motor vehicle. The trial court ordered those three sentences to run concurrently
with each other and concurrently with the sentences imposed for felonious assault and
the firearm specification. Therefore, the trial court ultimately imposed the agreed
indefinite sentence of five to six years in prison.
{¶ 15} After sentencing, Jackson appealed from his conviction. As previously
discussed, Jackson’s appellate counsel filed a brief under the authority of Anders, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting the absence of any issues with
arguable merit for appeal. Counsel did not raise any potential assignments of error in
the Anders brief. Jackson, however, filed a pro se brief raising seven assignments of
error for review. Therefore, we will first review Jackson’s pro se assignments of error
and then conduct an independent review of the record as required by Anders.
Standard of Review
{¶ 16} In Anders cases, we are charged with conducting an independent review of
the record “to determine whether any issues involving potentially reversible error that are
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raised by appellate counsel or by a defendant in his pro se brief are ‘wholly frivolous.’ ”
State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7, quoting Anders
at 744. An issue is wholly frivolous if it lacks arguable merit, meaning that “on the facts
and law involved, no responsible contention can be made that it offers a basis for
reversal.” Id. at ¶ 8, citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-
6788, ¶ 4. If we find that any issue—whether presented by appellate counsel, presented
by the appellant, or found through an independent analysis—is not wholly frivolous, we
must appoint different appellate counsel to represent the appellant. Id. at ¶ 7, citing
Pullen.
Pro Se Assignments of Error
{¶ 17} The arguments raised under Jackson’s first six pro se assignments of error
all concern Jackson’s claim that he was denied his right to a speedy trial. To assist in
addressing each of these arguments, we will first discuss the general principles of law
pertaining to speedy trial claims.
Constitutional Right to Speedy Trial
{¶ 18} The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and by Section 10, Article I of the Ohio Constitution. State v.
Taylor, 2d Dist. Greene No. 2021-CA-2, 2021-Ohio-2701, ¶ 7, citing State v. Lackey,
2015-Ohio-5492, 55 N.E.3d 613, ¶ 21 (2d Dist.), citing State v. Adams, 43 Ohio St.3d 67,
68, 538 N.E.2d 1025 (1989). To determine whether a defendant’s constitutional right to
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a speedy trial has been violated, courts should apply the four-factor balancing test in
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors
to be balanced are: (1) the length of the delay between accusation and trial; (2) the reason
for the delay; (3) the defendant’s assertion, if any, of his right to a speedy trial; and (4)
the prejudice, if any, to the defendant. State v. Voris, 2d Dist. Miami No. 2021-CA-2,
2022-Ohio-152, ¶ 16, citing Barker, Doggett v. United States, 505 U.S. 647, 651, 112
S.Ct. 2686, 120 L.Ed.2d 520 (1992), and State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, ¶ 88. “[T]hese four factors are balanced considering the totality of
the circumstances, with no one factor controlling.” State v. Perkins, 2d Dist. Clark No.
2008-CA-81, 2009-Ohio-3033, ¶ 8, citing Barker.
{¶ 19} We note that “[u]ntil there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other [three] factors that go into the balance.”
Barker at 530; Adams at ¶ 89. “A delay becomes presumptively prejudicial as it
approaches one year in length.” Adams at ¶ 90, citing Doggett at 652. However, “a
finding of ‘presumptive prejudice’ is merely a triggering mechanism under the first Barker
factor, which justifies an inquiry into the other three factors.” Voris at ¶ 24, citing State
v. Kraus, 2d Dist. Greene No. 2011-CA-35, 2013-Ohio-393, ¶ 23.
Statutory Right to Speedy Trial
{¶ 20} In Ohio, the constitutional right to a speedy trial is statutorily enforced by the
provisions in R.C. 2945.71 et seq. Lackey, 2015-Ohio-5492, 55 N.E.3d 613, at ¶ 21,
citing Adams at 68. Under R.C. 2945.71(C)(2), the State is required to bring a felony
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defendant to trial within 270 days after the defendant’s arrest. Each day the person is
held in jail in lieu of bail on the pending charge is counted as three days. R.C.
2945.71(E). Therefore, if a felony defendant is held in jail the entire time preceding trial,
the time for bringing the defendant to trial is reduced to 90 days. Voris at ¶ 26, citing
State v. Dankworth, 172 Ohio App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, ¶ 31 (2d
Dist.). “For a violation of the rights these sections confer, a defendant may seek a
discharge from criminal liability pursuant to R.C. 2945.73.” State v. Kerby, 162 Ohio
App.3d 353, 2005-Ohio-3734, 833 N.E.2d 757, ¶ 18.
First Assignment of Error
{¶ 21} Under his first assignment of error, Jackson contends that his right to a
speedy trial was violated because the trial court did not schedule his trial date in
accordance with R.C. 2945.02. R.C. 2945.02 provides that: “The court of common pleas
shall set all criminal cases for trial for a day not later than thirty days after the date of entry
of the plea of the defendant.” The statute also provides that: “The failure of the court to
set such criminal cases for trial, as required by this section, does not operate as an
acquittal[.]” R.C. 2945.02.
{¶ 22} In this case, it is clear from the record that Jackson’s case was not set for
trial within 30 days after Jackson pled not guilty at his arraignment hearing. R.C.
2945.02, however, specifically indicates that the trial court’s failure to comply with the 30-
day requirement does not operate as an acquittal. Such a failure also does not
necessarily amount to a speedy-trial violation. As previously discussed, a speedy trial
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violation is determined by applying the four-factor balancing test in Barker and the
relevant provisions in R.C. 2945.71 et seq. Therefore, contrary to Jackson’s claim
otherwise, the trial court’s failure to set a trial date within 30 days after Jackson’s
arraignment was not a basis for dismissing the indicted charges on speedy trial grounds.
{¶ 23} For the foregoing reasons, Jackson’s first assignment of error lacks
arguable merit.
Second, Third, and Fourth Assignments of Error
{¶ 24} Jackson’s second, third, and fourth assignments of error all relate to
whether the trial court violated the speedy trial time requirement set forth in R.C. 2945.71.
Specifically, Jackson claims that the trial court took too long to rule on his pending motions
to dismiss and suppress, and that the resulting delay deprived him of his right to a speedy
trial.
{¶ 25} The record indicates that Jackson was held in jail in lieu of bail from the date
of his arrest, April 10, 2020. Therefore, the triple-count provision in R.C. 2945.71(E)
applied, and the State was required to bring Jackson to trial within 90 days after April 10,
2020. This time limit, however, may be extended or “tolled” for the reasons listed in R.C.
2945.72. State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 8.
As relevant to this case, those reasons include:
(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;
***
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(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;
(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[.]
R.C. 2945.72(E), (G) and (H).
{¶ 26} Jackson does not dispute that his 90-day speedy trial time was tolled as a
result of the General Assembly’s passing Am.Sub.H.B. 197 in response to the COVID-19
pandemic. This legislation applied to Jackson because it tolled speedy trial times that
were set to expire between March 9, 2020 and July 30, 2020, and Jackson’s speedy trial
time was set to expire on July 9, 2020. The tolling order “effectively [froze] time from
March 9 until the expiration of the order. For example, if a deadline was set to expire on
March 19 (10 days after the effective date of the order), then the deadline [would] expire
10 days after the end of the emergency period.” State v. Lewis, 2d Dist. Montgomery
No. 28962, 2021-Ohio-1895, ¶ 42. “The Supreme Court of Ohio also issued an order on
March 27, 2020, tolling deadlines retroactively for the same period of time.” Id. at ¶ 41,
citing In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme
Court & Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166, 141 N.E.3d 974.
{¶ 27} As previously noted, Jackson’s speedy trial deadline was set to expire on
July 9, 2020, which was 122 days after the effective date of the tolling order. Therefore,
Jackson’s new speedy trial deadline was calculated by adding 122 days to the tolling
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order’s expiration date (July 30, 2020). Id. at ¶ 42-43. Accordingly, the tolling order
extended Jackson’s speedy trial deadline to November 29, 2020.
{¶ 28} In addition to that tolling period, Jackson’s motion to suppress tolled the
speedy trial time pursuant to R.C. 2945.72(E), as did the multiple pro se motions that
Jackson subsequently filed in order to have two of his appointed counsels removed. The
pro se motions resulted in several hearings and continuances that also delayed the trial
court’s ability to rule on the motion to suppress. Because of this, the suppression matter
was not deemed submitted to the trial court until October 21, 2020. Shortly after the
suppression matter was deemed submitted, Jackson filed an appeal on November 10,
2020, which divested the trial court of jurisdiction over the case. The appeal was also a
tolling event under R.C. 2945.72(E). Furthermore, while the appeal was pending,
Jackson filed a pro se motion to dismiss the indicted charges on speedy trial grounds,
which tolled the speedy trial time under R.C. 2945.72(E) as well.
{¶ 29} The following is a breakdown of the tolling events and the days tolled as a
result of the motions, continuances, and the appeal filed by Jackson:
Days Tolling Period Tolling Events
Tolled
0 days 6-30-2020 to 7-30-2020 Motion to Suppress - R.C. 2945.72(E)
• June 30, 2020 – Jackson’s appointed counsel files a
motion to suppress.
(This event takes place within the period of the COVID-19
tolling order, which expired on July 30, 2020. Therefore, the
period of time between the filing of the motion to suppress
and the expiration of the tolling order was already tolled by
virtue of the COVID-19 tolling order.)
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25 days 7-30-2020 to 8-24-2020 Motion to Suppress Continued- R.C. 2945.72(E)
• July 30, 2020 - The trial court holds a hearing on
Jackson’s motion to suppress.
• August 6, 2020 - Jackson files a post-hearing brief on
motion to suppress.
• August 7, 2020 - State files a response opposing
Jackson’s post-hearing brief.
• August 24, 2020 - The trial court’s suppression ruling
is delayed by Jackson’s filing his first pro se motion to
remove counsel.
25 days 8-24-2020 to 9-18-2020 First Pro Se Motion to Remove Counsel - R.C. 2945.72(E)
• August 24, 2020 - Jackson files his first pro se motion
to remove counsel.
• September 16, 2020 - The trial court converts
scheduling conference to a hearing on Jackson’s
motion to remove counsel.
• September 18, 2020 – The trial court issues an order
appointing new counsel to Jackson.
14 days 9-23-2020 to 10-7-2020 Requested Continuance - R.C. 2945.72(H)
• September 23, 2020 - Jackson’s new counsel requests
a two-week continuance of the September 23rd
scheduling conference in order to obtain further
discovery from the State. The trial court granted
the requested continuance and reset the scheduling
conference for October 7, 2021.
7 days 10-7-2020 to 10-14-2020 Second Pro Se Motion to Remove Counsel - R.C. 2945.72(E)
• October 7, 2020 - The trial court continues the
scheduling conference due to Jackson’s filing a
second pro se motion to remove counsel on
September 30, 2020.
• October 14, 2020 - The trial court holds a waiver of
right to counsel hearing.
20 days 10-21-2020 to 11-10-2020 Motion to Suppress Continued - R.C. 2945.72(E)
• October 21, 2020 – The trial court deems the
suppression matter officially submitted to the court
following Jackson waiving his right to counsel.
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• November 10, 2020 – The suppression ruling is
delayed by Jacksons filing an appeal which divests the
trial court of jurisdiction.
44 days 11-10-2020 to 12-24-2020 Appeal - R.C. 2945.72(E)
• November 10, 2020 - Jackson files notice of appeal.
• December 24, 2020 - Jackson’s appeal is dismissed.
120 12-24-2020 to 4-23-2021 Pro Se Motion to Dismiss - R.C. 2945.72(E)
days • December 15, 2020 - Jackson files a pro se motion to
dismiss the indicted charges on speedy trial grounds,
which the trial court did not have jurisdiction to
consider until after the appeal was dismissed on
December 24, 2020.
• February 10, 2021 - The trial court holds a brief
hearing on Jackson’s motion to dismiss and grants the
State three weeks to file a memorandum in response
and grants Jackson two weeks to file a reply.
• April 23, 2021 - The trial court overrules Jackson’s
motion to dismiss.
56 days 4-23-2021 to 6-18-2021 Motion to Suppress Continued - R.C. 2945.72(E)
• June 18, 2021 – The trial court overrules Jackson’s
motion to suppress approximately two months after
overruling Jackson’s motion to dismiss.
{¶ 30} When added together, the foregoing breakdown of days tolled shows that a
total of 311 days were tolled for reasons set forth in R.C. 2945.72. That extended the
November 29, 2020 speedy trial deadline occasioned by Am.Sub.H.B. 197 to October 6,
2021. The record indicates that Jackson’s trial was scheduled on July 12, 2021, which
was well before the October 6, 2021 deadline. Therefore, we do not find that the trial
court violated the speedy trial time requirement under R.C. 2945.71, as the delay in
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bringing Jackson to trial was permitted under the provisions of R.C. 2945.72.
Accordingly, there was no statutory speedy trial violation.
{¶ 31} Although not specifically argued by Jackson, we also do not find a
constitutional speedy trial violation. As previously noted, we use the four-factor
balancing test in Barker to determine whether a constitutional speedy trial violation has
occurred. Voris, 2d Dist. Miami No. 2021-CA-2, 2022-Ohio-152, at ¶ 16, citing Barker,
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The first factor—the length of the delay
between accusation and trial—triggers our review of the other three factors since the
delay in this case is over a year and thus presumptively prejudicial. See id. at ¶ 24;
Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 90, citing Doggett, 505
U.S. 647 at 652, 112 S.Ct. 2686, 120 L.Ed.2d 520. As previously discussed, the three
other factors are: (1) the reason for the delay; (2) whether the defendant asserted his right
to a speedy trial; and (3) whether the defendant suffered any prejudice. Voris at ¶ 16,
citing Barker. (Other citations omitted.)
{¶ 32} In reviewing those factors, we find that Jackson asserted his right to a
speedy trial multiple times during the proceedings in this case and in his pro se motion to
dismiss, which weighs in favor of finding a constitutional speedy trial violation. Voris at
¶ 23. However, the record also reveals that the delay in this case was largely attributable
to Jackson’s continuous filings and to the ongoing COVID-19 pandemic, which was
outside the trial court’s control. This weighs against finding a constitutional speedy trial
violation. Id. at ¶ 22. Since the delay was largely attributable to Jackson’s own actions,
we also find no resulting prejudice, which also weighs against finding a constitutional
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speedy trial violation. Id. at ¶ 24-25. While we agree that the trial court took an
extended period of time to rule on Jackson’s motion to suppress, we find that the delay
was reasonable given the ongoing, unprecedented COVID-19 pandemic, which has
caused considerable backlogs and scheduling difficulties in the trial courts. Therefore,
when weighing these factors, we do not find a constitutional speedy trial violation under
the circumstances of this case.
{¶ 33} For the foregoing reasons, Jackson’s second, third, and fourth assignments
of error lack arguable merit.
Fifth Assignment of Error
{¶ 34} Under his fifth assignment of error, Jackson contends that his right to a
speedy trial was violated because the trial court failed to comply with Rule 39 of the Ohio
Rules of Superintendence. That rule provides, in relevant part, as follows:
(B) Criminal Case Time Limits.
(1) In common pleas court, all criminal cases shall be tried within six months
of the date of arraignment on an indictment or information. In municipal and
county court, all criminal cases shall be tried within the time provided in
Chapter 2945 of the Revised Code. Whenever a hearing or trial time is
extended or shortened pursuant to section 2945.72 of the Revised Code or
Criminal Rule 5 or 45, the judge shall state the reason for the change in an
order and journalize the order.
Sup.R. 39(B)(1).
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{¶ 35} It is well-established that “ ‘the Rules of Superintendence are only general
guidelines for the court to follow * * * and do not give rise to substantive rights. * * * In
other words, the Ohio Rules of Superintendence are purely internal housekeeping rules
which do not create substantive rights in individuals or procedural law.” In re J.S., 2d
Dist. Clark No. 2013-CA-48, 2013-Ohio-5756, ¶ 44, quoting In re R.S., 4th Dist. Highland
No. 11CA29, 2012-Ohio-2016, ¶ 41. Because “the Rules of Superintendence do not
alter the basic substantive rights of a criminal defendant[,]” Jackson cannot use Sup.R.
39(B)(1) to establish that his speedy trial rights were violated. State v. Burnette, 7th Dist.
Columbiana No. 09 CO 44, 2011-Ohio-6400, ¶ 13, citing State v. Singer, 50 Ohio St.2d
103, 110, 362 N.E.2d 1216 (1977). Whether Jackson’s right to a speedy trial was
violated is instead determined by applying the four-factor balancing test in Barker and the
relevant provisions in R.C. 2945.71 et seq.
{¶ 36} For the foregoing reasons, Jackson’s fifth assignment of error lacks
arguable merit.
Sixth Assignment of Error
{¶ 37} Under his sixth assignment of error, Jackson contends that the trial court
erred by failing to grant his December 15, 2020 motion to dismiss because the trial court
misconstrued the motion as challenging the sufficiency of the indictment as opposed to
raising a speedy trial violation. While the trial court did analyze the sufficiency of the
indictment in its decision overruling Jackson’s motion to dismiss, the trial court also
determined that there was no speedy trial violation since the speedy trial time had been
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tolled by Jackson filing a motion to suppress—a motion which was still pending at the
time Jackson filed his motion to dismiss. As discussed more fully under Jackson’s
second, third, and fourth assignments of error, we find that, due to various tolling events
caused by Jackson and the COVID-19 pandemic, Jackson was not subject to a
constitutional or statutory speedy trial violation. Therefore, the trial court did not err in
denying Jackson’s motion to dismiss.
{¶ 38} For the foregoing reasons, Jackson’s sixth assignment of error lacks
arguable merit.
Seventh Assignment of Error
{¶ 39} Under his seventh assignment of error, Jackson contends that the trial court
erred by overruling his presentence motion to withdraw his no contest plea without holding
a hearing.
{¶ 40} In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), the Supreme
Court of Ohio held that when ruling on a presentence motion to withdraw a plea, “[a] trial
court must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea.” Id. at paragraph one of the syllabus. Xie, however,
did not specifically indicate what type of hearing is required for such a motion. State v.
Hurlburt, 10th Dist. Franklin No. 12AP-231, 2013-Ohio-767, ¶ 7; State v. Robinson, 8th
Dist. Cuyahoga No. 89651, 2008-Ohio-4866, ¶ 24; State v. Taylor, 12th Dist. Butler No.
CA2013-10-186, 2014-Ohio-3080, ¶ 9.
{¶ 41} This court has previously held that a trial court’s “inviting and hearing oral
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arguments on a motion to withdraw a guilty plea at the sentencing hearing, immediately
before sentence is imposed, can constitute a full and fair hearing on that motion.” State
v. Forest, 2d Dist. Montgomery No. 19649, 2003-Ohio-1945, ¶ 19, citing State v.
Holloman, 2d Dist. Greene No. 2000-CA-82, 2001 WL 699533 (June 22, 2001) and State
v. Mooty, 2d Dist. Greene No. 2000-CA-72, 2001 WL 991976 (Aug. 31, 2001). Accord
State v. Santiago, 195 Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 75 (2d Dist.)
(Hall, J., concurring in part and dissenting in part), citing Forest, Holloman, Mooty, State
v. Griffin, 8th Dist. Cuyahoga No. 82832, 2004-Ohio-1246, State v. Hairston, 10th Dist.
Franklin Nos. 07AP-160 and 07AP-161, 2007-Ohio-5928, and State v. Eversole, 6th Dist.
Erie Nos. E-05-073, E-05-076, E-05-074, and E-05-075, 2006-Ohio-3988 (“Time and
again, this court and other courts of appeals have found a hearing on a motion to withdraw
a plea to be adequate when it consisted of no more than a brief opportunity for the defense
to state the reasons why the defendant wanted to withdraw his plea.”).
{¶ 42} “An opportunity to be heard with respect to a motion to withdraw a guilty
plea requires, at a bare minimum, an opportunity to inform the trial court of the basis for
the motion.” State v. Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, ¶ 23.
Therefore, “[i]f a trial court invites and hears argument on a motion to withdraw a guilty
plea at a sentencing hearing before it imposes sentence, this procedure may constitute a
full and fair motion hearing.” State v. Harmon, 4th Dist. Pickaway No. 20CA6, 2021-
Ohio-2610, ¶ 25, citing Griffin at ¶ 18, Holloman, and Mooty.
{¶ 43} In this case, Jackson filed a presentence motion to withdraw his no contest
plea that provided absolutely no basis for withdrawing the plea. Jackson’s motion was
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nothing more than a general request to have his plea withdrawn. Prior to imposing a
sentence, the trial court addressed the motion at Jackson’s sentencing hearing by asking
Jackson and his counsel if they wanted to add anything to the motion. Jackson’s counsel
declined to make any comment about the motion and Jackson specifically indicated that
he had nothing further to add. Therefore, no basis for withdrawing the plea, let alone a
reasonable and legitimate one, was provided to the trial court at the hearing.
{¶ 44} It was not until after the trial court overruled the motion that Jackson spoke
up and claimed that he had filed the motion because he felt that he had been forced to
take the plea and because he had not had a chance to speak with his counsel about the
plea. The record, however, establishes that Jackson did have an opportunity to speak
with counsel about his no contest plea. Jackson specifically advised the trial court at the
plea hearing that he had the opportunity to discuss the no contest plea with his counsel
and that no further discussion was needed on the matter. See Plea Hearing Trans. (July
12, 2021), p. 114. In any event, the trial court had already ruled on the motion and was
not obligated to address Jackson’s latent claims, which at best would be considered a
motion for reconsideration—a legal nullity at the trial court level. State ex rel. Pendell v.
Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988); Pitts v. Ohio
Dept. of Transp., 67 Ohio St.2d 378, 381, 423 N.E.2d 1105 (1981); Cleveland Hts. v.
Richardson, 9 Ohio App.3d 152, 154, 458 N.E.2d 901 (8th Dist.1983); State v. Kramer,
10th Dist. Franklin No. 03AP-633, 2004-Ohio-2646, ¶ 7.
{¶ 45} We note that this case is distinguishable from our holding in Burnett, 2d Dist.
Montgomery No. 20496, 2005-Ohio-1036, wherein we reversed the trial court’s judgment
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overruling a motion to withdraw a guilty plea under circumstances where the trial court
overruled the motion without ever hearing from counsel or the defendant as to the basis
of the motion. Unlike Burnett, the trial court in this case provided Jackson and his
counsel an opportunity to state a basis for the motion at the sentencing hearing, but they
provided none. Therefore, the present case is not like Burnett or other similar cases
where the trial court simply failed to hold any hearing at all. See, e.g., Robinson, 8th
Dist. Cuyahoga No. 89651, 2008-Ohio-4866, at ¶ 30-34; Hurlburt, 10th Dist. Franklin No.
12AP-231, 2013-Ohio-767, at ¶ 7.
{¶ 46} The present case is also distinguishable from our holding in State v. Bush,
2d Dist. Clark Nos. 2015-CA-39, 2015-CA-40, 2015-CA-41, 2015-CA-42, 2016-Ohio-
5536, wherein the appellant moved to withdraw his guilty plea and actually made factual
assertions and referred to documents and evidence in support of his motion at the
sentencing hearing. In Bush, we found that although the trial court gave the appellant
an opportunity to explain the basis for his motion, the trial court erred by failing to hold an
evidentiary hearing on the motion so that the defendant could call witnesses and present
his documentary evidence. Id. at ¶ 12-14. Unlike the defendant in Bush, however,
Jackson made no factual assertions or references to documentary evidence in support of
his motion to withdraw no contest plea. Therefore, an evidentiary hearing was not
necessary in this case. Instead, the hearing requirement was satisfied by the trial court’s
giving Jackson and his counsel an opportunity to state a basis for the motion at the
sentencing hearing.
{¶ 47} For the foregoing reasons, Jackson’s seventh assignment of error lacks
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arguable merit.
Independent Anders Review
{¶ 48} In addition to reviewing Jackson’s pro se assignments of error, we
conducted an independent review of the record as required by Anders, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493. Our independent review, however, revealed no issues with
arguable merit for Jackson to advance on appeal.
Conclusion
{¶ 49} Because Jackson’s pro se arguments lack arguable merit, and because our
independent Anders review revealed no issues with arguable merit for Jackson to
advance on appeal, the judgment of the trial court is affirmed.
.............
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Byron K. Shaw
Barnard M. Jackson
Hon. Dennis J. Adkins