2006 Ohio 3159 | Ohio Ct. App. | 2006
{¶ 2} Defendant was indicted along with co-defendant Nichole Taylor ("Taylor"). He executed a jury waiver that was filed and processed on May 12, 2005 at 9:28 a.m. The trial was continued to May 25, 2005, and defendant again executed a jury waiver that was filed on May 25, 2005 at 9:21 a.m.
{¶ 3} At trial, Sheriff Detective Engelhart testified that on June 10, 2004, at 1:30 a.m. he and two other detectives were engaged in undercover surveillance for drug activity at a gas station in Cleveland. They observed a red car, driven by defendant and occupied by Taylor, pull into the station. The two sat in the car for a few minutes, which the detectives found suspicious and indicative of possible drug activity. Eventually, Taylor purchased something from the clerk. At the same time, a male walked up to defendant and gave defendant a bag in exchange for cash.1 On the belief that a drug transaction took place, the detectives surrounded the vehicle. They obtained defendant's consent to search the car and observed bags of crack cocaine and marijuana in plain view. All three individuals were arrested.
{¶ 4} While in custody and after being Mirandized, defendant said he was going to sell the drugs for rent money. Taylor allegedly gave an identical account to the detectives.
{¶ 5} In a separate proceeding, Taylor was convicted and placed on probation. At defendant's trial, Taylor stated that the drugs belonged to her. She further denied making any statements to authorities.
{¶ 6} Defendant testified that he admitted to possessing the drugs as a means of protecting Taylor, his then girlfriend. He now maintains he had no knowledge of the presence of the drugs.
{¶ 7} The trial court found defendant guilty of possessing drugs. The trial court found the testimony of co-defendant Taylor not credible and described defendant's testimony as "suspect."
{¶ 8} Defendant received a sentence of community control sanctions, which he does not challenge on appeal. For purposes of our review, defendant assigns the following assignments of error:
{¶ 9} "I. Mr. Gums received the ineffective assistance of counsel when his attorney failed to move to dismiss the instant case for want of speedy trial, failed to move to suppress the contraband found in the vehicle as well as his statement to the police, and failed to object to the hearsay testimony in the State's case-in-chief in which Taylor's statements were introduced into evidence."
{¶ 10} To establish a claim of ineffective assistance of counsel, defendant must show two components: (1) "`that counsel's performance was deficient'"; and (2) "`* * * that the deficient performance prejudiced the defense.'" State v. Kole,
{¶ 11} Defendant contends his counsel was ineffective for various reasons. We disagree. Each alleged deficiency that was substantively briefed is examined separately below. App.R. 12(A)(2).
A. Speedy Trial.
{¶ 12} An ineffective assistance of counsel claim predicated upon a failure to file a motion to dismiss for want of speedy trial is reversible only for plain error. State v. Boone, Cuyahoga App. No. 81155, 2003-Ohio-996, ¶ 6, citing State v.Manos (Jan 15, 1998), Cuyahoga App. No. 64616.
{¶ 13} R.C.
{¶ 14} "(D) Any period of delay occasioned by the neglect or improper act of the accused;
{¶ 15} "(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;
{¶ 16} "* * *
{¶ 17} "(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;"
{¶ 18} Here, defendant was arrested on June 10, 2004 and released on June 12, 2004 — accumulating six (6) speedy trial days. Between June 12, 2004 and the date of trial on May 25, 2005, a total of 347 speedy trial days elapsed for a combined total of 354 days.
{¶ 19} Defendant agrees that the period between February 9, 2005 and March 31, 2005 should be excluded from the speedy trial calculation, totaling 50 days. We also exclude any time resulting from continuances at defendant's request, which include the period February 3, 2005 to February 9, 2005, totaling 6 days. Thus, by agreement of the parties, the speedy trial time is decreased to 298 days.
{¶ 20} The parties dispute the period between August 24, 2004 and January 22, 2005. A summons was issued by certified mail on August 24, 2004. Defendant's failure to appear at the September 2, 2004 arraignment resulted in the issuance of a capias. Defendant argues this time should not be excluded because the State failed to exercise due diligence in locating defendant and because he believes Crim.R.4(D)(3) required the summons be personally served. The State counters that the rule allows for service by certified mail and that the delay was caused by defendant's failure to claim his mail and thus tolls the speedy trial time. We agree.
{¶ 21} Personal service is mandated when a summons is served in lieu of arrest under division (A)(3) or when a summons is issued after arrest under division (F) of Criminal Rule 4. Both division (A)(3) and (F) of Crim.R. 4 pertain to misdemeanor cases. Defendant was charged with a felony and the summons was issued pursuant to Crim.R. 9. Accordingly, certified mail was an appropriate means of service.
{¶ 22} "A [defendant] furnishing an address to police upon arrest has some duty to accept certified mail delivered to that same address within a reasonable time * * * we should not allow [defendants] to use their slipperiness to claim the protection of the
B. Motion to Suppress.
{¶ 23} This Court has recently observed:
{¶ 24} "A failure to file a motion to suppress may constitute ineffective assistance of counsel where there is a solid possibility that the court would have suppressed the evidence. [citation omitted]. However, even when some evidence in the record supports a motion to suppress, we presume that defense counsel was effective if defense counsel could reasonably have decided that the filing of a motion to suppress would have been a futile act. [citation omitted]." State v. Jackson, Cuyahoga App. No. 86542.
{¶ 25} 2006-Ohio-1938, ¶ 18.
{¶ 26} Defendant maintains that the deputies lacked reasonable suspicion to stop him. Defendant further argues that he was subject to an illegal seizure under the
{¶ 27} The
{¶ 28} In this case, Det. Engelhart articulated reasonable suspicion to merit an approach of the vehicle, including an on-going surveillance; that defendant sat at the gas station for a period of time for no apparent reason; and that defendant exchanged money for a bag. Once the deputies approached, and notwithstanding the testimony that drugs were in plain view, defendant consented to a search of the vehicle.
{¶ 29} Under these factual circumstances, defense counsel could reasonably conclude that filing a motion to suppress would have been a futile act as there was not a solid possibility that the trial court would have suppressed the evidence.
{¶ 30} Assignment of Error I is overruled.
{¶ 31} "II. The trial court was without jurisdiction to conduct a bench trial because the requirements of R.C.
{¶ 32} Crim.R. 23(A) provides that a criminal defendant may knowingly, intelligently, and voluntarily waive in writing his right to trial by jury. State v. Bays,
{¶ 33} This Court has repeatedly held that strict compliance with R.C.
{¶ 34} Here, the record reflects that defendant executed two separate jury waiver forms; the first was filed and processed on May 12, 2005 at 9:28 a.m., and the second was filed on May 25, 2005 at 9:21 a.m. The requirements of R.C.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Cooney, J., and Calabrese, Jr., J., concur.
