State v. Preston, 2013 Ohio 5679

Background

Randall A. Preston, Sr. was tried for multiple sexual-battery counts; a jury convicted him on three counts and the trial court imposed consecutive 5-year terms (total 15 years).
An earlier indictment (Case No. 07CR194) charging substantially the same offenses was filed in Oct. 2007, during which Preston was released on own recognizance; that case was dismissed without prejudice on Nov. 21, 2008.
A second indictment returned Dec. 9, 2008 (the instant case) led to trial Oct. 29, 2009; Preston challenged the delay under Ohio’s statutory speedy-trial scheme (R.C. 2945.71 et seq.).
At trial, portions of the indictment were withdrawn and one count dismissed; jury convicted on counts 4, 6, and 7. This appeal was reopened solely to consider whether appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel based on trial counsel’s not moving to dismiss on speedy-trial grounds.
The core factual/record issue became whether time from the earlier case (07CR194) tolled or otherwise counted toward the 270-day statutory speedy-trial limit; after supplementing the record with the prior case papers, the court calculated 268 total days elapsed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Preston)	Held
Whether trial counsel’s failure to timely move to dismiss on statutory speedy-trial grounds prejudiced defendant	State argued combined time from both cases did not exceed 270 days; hence no prejudice	Preston argued >270 days elapsed (if time from 07CR194 counted), so failure to move caused prejudice and convictions should be dismissed	Held: No prejudice—total elapsed time was 268 days, within 270-day limit, so ineffective-assistance claim fails
Whether a speedy-trial waiver signed by defense counsel in 07CR194 validly tolled the clock	State relied on counsel-executed waiver and continuances to keep clock tolled through dismissal	Preston contended waiver invalid because he didn’t sign it and trial court did not rely on it earlier	Held: Waiver by counsel is effective under Ohio law (an accused or his counsel may waive the statute); court may consider the waiver when supplemented record is available
Whether appellate counsel was ineffective for not including the original papers from 07CR194 on prior appeal	State argued inclusion would not change outcome because total time stayed within statutory limit	Preston argued omission prevented proper speedy-trial review and prejudiced appellate review	Held: No prejudice from omission—supplemented record still shows trial occurred within statutory time; therefore no reversible error
Whether court is bound by trial court’s earlier May 11, 2009 time calculation or by parties’ prior memoranda	Preston argued the appellate court should be bound by earlier acceptance of State’s timeline	State and court argued appellate review on ineffectiveness claim can reexamine the full record when supplemented	Held: Court is not bound by the prior decision on the prematurely filed motion; with the supplemented record, appellate court reassessed timing and ruled in favor of State

Key Cases Cited

McMann v. Richardson, 397 U.S. 759 (U.S. 1970) (constitutional right to effective assistance of counsel)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
State v. O'Brien, 34 Ohio St.3d 7 (Ohio 1987) (statutory speedy-trial rights may be waived by an accused or his counsel)
State v. Brown, 98 Ohio St.3d 121 (Ohio 2002) (certain discovery requests are tolling events under Ohio speedy-trial statute)
State v. Perez, 124 Ohio St.3d 122 (Ohio 2009) (discussing standards for ineffective assistance analysis)
State v. Madrigal, 87 Ohio St.3d 378 (Ohio 2000) (courts may resolve ineffective-assistance claims by addressing only one Strickland prong)
State v. White, 82 Ohio St.3d 16 (Ohio 1998) (prejudice standard: reasonable probability that, but for counsel’s errors, outcome would differ)
State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (same prejudice standard for ineffective assistance)