State v. GrissomState v. Grissom
Dennis P. Levin, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} This is an appeal from a judgment of the Erie County Court of Common Pleas, entered after defendant-appellant, Charles L. Grissom, was convicted of one count of possession of crack cocaine and one count of possession of cocaine, and sentenced accordingly. Appellant now challenges that judgment through the following assignments of error:
{¶ 3} “2. Appеllant was denied his right to the effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States and Article 1 Section 10 of the Ohio Constitution.”
{¶ 4} On November 28, 2006, appellant was arrested and charged in Sandusky Municipal Court with four drug related offenses. At that time, appellant was on parole in Lucas County case No. CR-93-7007A and on conditional release in another Erie County case. The following day, the court set bail and continued the case for appellant to secure counsel. Thereafter, on December 7, 2006, appellant аppeared with counsel for arraignment, pled not guilty, and the case was continued for a preliminary hearing, set for December 15, 2006. On that day, the preliminary hearing was waived, the bond was continued and the case was bound over to the grand jury.
{¶ 5} Appellant was indicted on April 13, 2007, and charged with one count of possession of cocaine and one count of possession of crack cocaine. Other critical events will be discussed infra. The case ultimately proceeded to trial on January 7, 2008, at the conclusion of which appellant was found guilty оf both offenses. Thereafter, appellant was sentenced to three years incarceration on the possession of crack cocaine conviction and 11 months incarceration on the possession of cocaine conviction, with the terms to run consеcutively. It is from that conviction that appellant now appeals.
{¶ 7} We first note that appellant filed his motion to discharge his case pro se before the trial court. Appellant was, however, represented by counsel in the trial court proceedings. On the first day of trial, the state requested that another pro se motion filed by appellant be stricken from the record. The court responded by ordering all of appellant‘s pro se motions stricken from the record. It is well-settled that “[i]n Ohio, a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, paragraph one of the syllabus. Accordingly, appellant‘s pro se motion was not properly before the court and the court had no obligation to rule on it. Nevertheless, because this court is rеquired to independently review the issue of whether an accused was deprived of his right to a speedy trial, strictly construing the law against the state, we will address appellant‘s speedy trial claim. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57.
{¶ 8} The right to a speedy trial is guaranteed by the United States and Ohio Constitutions. State v. Adams (1989), 43 Ohio St.3d 67, 68. Pursuant to
{¶ 9} “(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined * * *;
{¶ 10} “(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;
{¶ 11} “* * *
{¶ 12} “(E) Any period of delay necessitated by reason of a * * * motion, proceeding, or action made or instituted by the accused;
{¶ 13} “* * *
{¶ 14} “(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
{¶ 15} Accordingly, an accused‘s demand for discovery or a bill of particulars is a tolling event pursuant to
{¶ 16} The record reveals the following series of events. Appellant was first arrested and charged in Sandusky Municipal Court with four drug related offenses on November 28, 2006. It is well settled that the day оf arrest is not counted in computing the time by which an accused must be brought to trial. State v. Lautenslager (1996), 112 Ohio App.3d 108, 110. Appellant‘s first appearance in that court was on November 29, 2006, at which time bail was set. At the November 29, 2006, appearance, however, the case was continued until December 7, 2006, to allow appellant to secure counsel. On November 30, 2006, however, the Adult Parole Authority placed a parole hold on appellant. The time from November 29 to December 7, 2006, was therefore tolled pursuant to
{¶ 17} At the next appearance, on December 15, 2006, the preliminary hearing was waived, the case was bound over to the grand jury and the bond was continued.
{¶ 19} By our count, appellant‘s speedy trial time began to run on December 7, 2006. It was then tolled from April 25 to June 19, 2007, from July 9 to October 25, 2007, and from November 27 to December 11, 2007. Because a parole hold was placed on appellant on November 30, 2006, once the time began to run, he was not held in jail in lieu of bail on the charges in this case and, accordingly, appellant was not entitled to the three-for-one provision of
{¶ 21} The standard for determining whether a trial attorney was ineffective requires appellant to show: (1) that the trial attorney made errors so egregious that the trial attorney was not functioning as the “counsel” guaranteed appellant under the Sixth Amendment, and (2) that the deficient performance prejudiced appellant‘s defense. Strickland v. Washington (1984), 466 U.S. 668, 686-687. In essence, appellant must show that his trial, due to his attorney‘s ineffectiveness, was so demonstrably unfair that there is a reasonable probability that the rеsult would have been different absent his attorney‘s deficient performance. Id. at 693.
{¶ 22} Furthermore, a court must be “highly deferential” and “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance” in reviewing a claim of ineffective аssistance of counsel. Id. at 689. A properly licensed attorney in Ohio is presumed to execute his duties in an ethical and competent manner. State v. Hamblin (1988), 37 Ohio St.3d 153, 155-156. Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel. State v. Phillips (1995), 74 Ohio St.3d 72, 85. Even if the wisdom
{¶ 23} Appellant asserts that his trial counsel was ineffective for failing to raise an insanity defense in the proceedings below when he knew that appellant had previously been found not guilty by reason of insanity in another case.
{¶ 24} We recently addressed this same issue in State v. Anaya, 6th Dist. No. L-06-1375, 2008-Ohio-1853, where we stated:
{¶ 25} “Where facts and circumstances indicate that a plea of not guilty by reason of insanity would have had a reasonable probability of success, it is ineffective assistance of counsel to fail to enter the plea. State v. Brown (1992), 84 Ohio App.3d 414. Where, however, facts indicate that counsel was pursuing a reasonable strategy in not so pleading, or where the likelihood of success for the plea is low, the decision is not unreasonable. State v. Twyman, 2d Dist. No. 19086, 2002-Ohio-3558 (defendant had mental health disorder but no reasonable probability he would have been acquitted by reason of insanity); State v. Martin, 12th Dist. Nos. CA2003-06-065, CA2003-06-066, 2004-Ohio-702 (same); State v. Robinson, 6th Dist. No. L-03-1307, 2005-Ohio-5266, ¶ 33 (psychological evaluations and defendant‘s testimony showed counsel‘s decision not
{¶ 26} In the proceedings below, appellant‘s counsel filed a motion to have appellant‘s competency to stand trial evaluated. Appellant was referred to the Court Diagnostic and Treatment Center in Toledo, Ohio, where he was evaluated аnd determined to be competent to stand trial. In contrast to competency to stand trial, “[a] person is ‘not guilty by reason of insanity’ relative to a charge of an offense only if the person proves, in the manner specified in
{¶ 27} On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Erie County Court of
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.