2004 Ohio 1067 | Ohio Ct. App. | 2004
{¶ 3} In September of 2002, Mr. Bray's counsel moved to withdraw, as Mr. Bray had filed a grievance against him. The motion was granted and a new attorney was assigned. Mr. Bray then filed a motion to strike his time waiver, and a jury trial was scheduled for October 28, 2002. Prior to the start of trial, a competency hearing was held and Mr. Bray was found competent to stand trial. He then moved for dismissal of the indictment on speedy trial grounds. The motion was denied and the trial commenced.
{¶ 4} On the second day of trial, pursuant to a plea agreement, Mr. Bray entered a plea of no contest and agreed to a five-year sentence with credit for time served. The plea was accepted. The trial court found Mr. Bray guilty and sentenced him to five years in prison. Mr. Bray appealed, raising four assignments of error which have been rearranged to facilitate review.
{¶ 5} In his first assignment of error, Mr. Bray contends that his conviction should be overturned as he did not waive his right to a speedy trial. Mr. Bray's contention lacks merit.
{¶ 6} The
{¶ 7} When a court is not in compliance with the time requirements specified in R.C.
{¶ 8} Additionally, an accused may waive his rights to a speedy trial, so long as the waiver is knowingly and voluntarily made. State v. O'Brien (1987),
{¶ 9} In the instant matter, on February 14, 2002, Mr. Bray signed a waiver of his speedy trial rights. He does not assert that this waiver was unknowingly or involuntarily made. Mr. Bray attempted to limit the waiver by inserting the words "Limited Waiver[.]" However, in failing to give a date certain for the beginning and ending points for tolling purposes, the waiver was effective from the date of Mr. Bray's arrest and was unlimited in duration. See Smith, supra; Harris, supra. As such, in order to reassert his right to a speedy trial, Mr. Bray had the burden of filing a formal written objection and demand for trial. SeeO'Brien,
{¶ 10} In this assignment of error, Mr. Bray maintains that he was denied a fair trial due to the alleged misconduct of the prosecutor. We disagree.
{¶ 11} In deciding whether a prosecutor's conduct rises to the level of prosecutorial misconduct, a reviewing court determines if the prosecutor's actions were improper, and, if so, whether the substantial rights of the defendant were actually prejudiced. State v. Smith (1984),
{¶ 12} Pursuant to Crim.R. 52(B), a plain error or defect that affects a substantial right may be noticed although it was not brought to the attention of the trial court. "A plain error must be obvious on the record, such that it should have been apparent to the trial court without objection." State v.Kobelka, 9th Dist. No. 01CA007808, 2001-Ohio-1723, citing Statev. Tichon (1995),
{¶ 13} In the present matter, Mr. Bray maintains that the prosecutor erred by improperly questioning witnesses concerning irrelevant misconduct and improperly bolstering the credibility of the State's witness during trial. Specifically, the prosecutor questioned the victim, Shelly Eaton ("Eaton") about the argument which led to the domestic violence and felonious assault charges against Mr. Bray. Eaton responded that Mr. Bray had wanted money so that he could purchase crack cocaine. Upon cross-examination, defense counsel questioned Eaton about a possible contradictory response. The prosecutor then asked the next witness about Eaton's reputation for truthfulness.
{¶ 14} Additionally, Mr. Bray alleges that the prosecutor improperly referenced his past crimes and wrongful acts during sentencing. We note that Mr. Bray has failed to provide any citations to the record demonstrating such alleged misconduct. See App.R. 16(A)(7) (stating that an appellant's brief must contain argument and law, "with citations to the authorities, statutes, and parts of the record on which appellant relies").
{¶ 15} Although Mr. Bray maintains that he was denied a fair trial, he has not established, much less alleged, that the outcome of the proceedings without the challenged conduct would have been different. See Kobelka, supra. Furthermore, he has not demonstrated the existence of exceptional circumstances invoking plain error in order to prevent a manifest miscarriage of justice. See id. Accordingly, we do not find plain error to exist. Mr. Bray's fourth assignment of error is overruled.
{¶ 16} In his third assignment of error, Mr. Bray asserts that his conviction must be overturned as his trial counsel was ineffective. More specifically, Mr. Bray alleges that he was placed in the position of having to plead no contest due to trial counsel's: (1) failure to obtain a polygraph; (2) failure to appear at pretrial hearings; (3) failure to object to alleged prosecutorial misconduct; and (4) failure to fully advise him of the consequences of his no contest plea. Mr. Bray's assignment of error is not well taken.
{¶ 17} In order to establish the existence of ineffective assistance of counsel, the defendant must satisfy a two-pronged test:
"`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
{¶ 18} Mr. Bray bears the burden of proof on this matter.Colon at ¶ 49, citing State v. Smith (1985),
{¶ 19} Prejudice, the second prong of the Strickland
analysis, entails a reasonable probability that, but for counsel's errors, the result of the trial would have been different. State v. Bradley (1989),
{¶ 20} Therefore, based on the Strickland analysis, a defendant does not state a claim for ineffective assistance of counsel unless his attorney has acted unreasonably, given the facts of the case, and the unreasonable conduct was prejudicial to the defense. State v. Mills (1992),
{¶ 21} Upon review, we find that although Mr. Bray contends that he was prejudiced by his attorney's actions, he has failed to allege, much less demonstrate, that the result of the proceedings would have been different had he continued with the trial. Furthermore, there is no indication in the record that Mr. Bray pled no contest as a result of the alleged errors committed by his counsel. In fact, a review of the record reveals that the only misgivings Mr. Bray had about ending the trial and pleading no contest were his abilities to preserve the speedy trial issue for appeal. Accordingly, as Mr. Bray has failed to satisfy the requirements of Strickland, we are unable to conclude that he was denied the effective assistance of counsel. Mr. Bray's third assignment of error is overruled.
{¶ 22} In his second assignment of error, Mr. Bray maintains that the court erred by exceeding the minimum sentencing as provided for in R.C.
{¶ 23} On October 29, 2002, Mr. Bray, in open court, withdrew his former plea and entered a plea of no contest pursuant to a plea agreement in which he expressly "agreed [to a] 5 year prison sentence [with] credit for time served." Moreover, in court Mr. Bray indicated that he "under[stood] that the prosecution [was] recommending and [he] agree[d] to the 5 year prison sentence with credit for time served[.]" He further indicated that no other promises were made and that he was not forced into accepting the plea agreement. The court accepted Mr. Bray's plea, found him guilty, and sentenced him to five years imprisonment with credit for time served.
{¶ 24} A negotiated plea agreement is a contract and is thus governed by contract law principles. State v. Butts (1996),
{¶ 25} Although not the minimum, Mr. Bray received one of the sentences, provided by law for felonious assault, a felony of the second degree. See R.C.
Judgment affirmed.
Baird, P.J., Slaby, J., Concur.