2005 Ohio 4957 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT VIOLATED THE APPELLANT'S CONSTITUTIONAL RIGHTS PURSUANT TO THE
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT TO SUBSTANTIVE DUE PROCESS BY ITS FAILURE TO COMPLY WITH R.C. SECTIONS
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT TO PROCEDURAL DUE PROCESS BY ITS FAILURE TO COMPLY WITH R.C. SECTIONS
FOURTH ASSIGNMENT OF ERROR:
"DEFENSE COUNSEL'S FAILURE TO RAISE THE CONSTITUTIONAL ISSUES OF SPEEDY TRIAL AND PROCEDURAL AND SUBSTANTIVE DUE PROCESS CONSTITUTES INEFFECTIVE ASSISTANCE."
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED PLAIN ERROR."
{¶ 3} Appellant and his wife, Michelle, married in 1990 and have ten living children. In the summer of 2003, both were arrested on forgery and fraud charges. Their arrest prompted their children to be placed in foster homes. While in foster care, two of the children revealed to their foster parents that sexual activity had occurred within their family, including vaginal intercourse and fellatio with their father.
{¶ 4} On December 11, 2003, the Vinton County Grand Jury returned an indictment that charged appellant with two counts of rape in violation of R.C.
{¶ 5} At the December 23, 2004 sentencing hearing, the trial court imposed five year prison sentences for each offense and ordered the prison terms to be served consecutively. This appeal followed.
{¶ 7} In addition to the general constitutional right to a speedy trial, Ohio law also includes a statutory speedy trial right. See R.C.
{¶ 8} R.C.
{¶ 9} In the case sub judice the record indicates that appellant was arrested and jailed on November 25, 2003.3 Appellant was not released on bond. Thus, the "triple count" provision applied and required the prosecution to bring appellant to trial within ninety days.
{¶ 10} On January 12, 2004, forty-nine days after his arrest, appellant filed a "suggestion of incompetence to stand trial" as well as a notification of the "possibility of a N.G.R.I. [not guilty by reason of insanity] defense." He requested the court to order an evaluation by the Shawnee Forensic Center ("SFC") in Portsmouth. We note that this motion tolled appellant's statutory speedy trial clock. See R.C.
{¶ 11} On March 8, 2004, appellant filed a motion to dismiss the charges for a violation of his speedy trial rights. Appellant contended that his evaluation had not been performed within a reasonable period of time. The trial court overruled appellant's motion and the evaluation was eventually completed. The matter then came on for hearing and on May 18, 2004, the trial court found appellant competent to stand trial.
{¶ 12} Ordinarily, the trial court's May 18, 2004 order would have re-started the speedy trial time clock. However, several weeks prior to that time, appellant filed another motion and asked for an additional evaluation of his mental status. Less than a week before the trial court found appellant competent to stand trial, it granted appellant's request for a second evaluation. We note that this entry would also have tolled the running of the statutory speedy trial clock. See R.C.
{¶ 13} With respect to the second evaluation, no indication appears in the record to indicate whether this in fact occurred. No further evaluation appears in the original papers (as does the first one), and we found no indication that the matter was resolved prior to appellant pleading no contest to the reduced charges. Thus, we again note that it does not appear that the statutory speedy trial time clock started to run again. We also note that appellant took other actions that would have tolled the statutory speedy trial time clock (e.g. filed a motion to suppress evidence and requested a continuance), but we see no reason to discuss these matters as it does not appear that the statutory speedy trial time clock started again.
{¶ 14} In sum, our calculations reveal that only forty-nine (49) days of the proceedings could be charged against the statutory speedy trial time. Appellant's request for competency evaluation tolled that time and the clock did not restart during the pendency of the charges. Presumably for this reason, appellant does not argue that his R.C.
{¶ 16} Delays are unavoidable in the criminal justice system and, for that reason, the United States Supreme Court has recognized that the question of whether a trial has been constitutionally speedy depends upon the particular facts and circumstances of each individual case. SeeBarker v. Wingo (1972),
{¶ 17} After our review of the record in the case sub judice, we are not persuaded that the delay was sufficient to trigger a constitutional analysis. Delays begin to become presumptively prejudicial as they approach the one year mark. Doggett, supra at 652, fn. 1. This, however, is not a hard and fast rule and depends on the particular circumstances. We note that the Ohio Supreme Court found in State v. Taylor,
{¶ 18} In this case at bar, eleven months elapsed between appellant's arrest and his conviction. During that time appellant made two separate requests for competency evaluations, filed two separate motions to dismiss for speedy trial violations, filed a motion to suppress evidence and requested a continuance of one of the trial dates. In light of the totality of these circumstances, particularly the two separate requests for psychological evaluations, we are not persuaded that the eleven month delay was so presumptively prejudicial as to trigger consideration of theBarker factors.
{¶ 19} Even assuming arguendo that we did consider the delay presumptively prejudicial, we would not conclude that the Barker factors weigh in appellant's favor. Appellant met the third factor (a timely assertion of his rights) as evidenced by his two motions to dismiss. We believe, however, that the other three factors militate against him.
{¶ 20} The eleven month interval between appellant's arrest and his conviction was not inordinately long, particularly in light of the severity and the complexity of the crimes. Moreover, we note again that appellant's requests for mental evaluations necessitated the vast majority of the delay. Obviously, a portion of that delay was beyond the trial court's control. A letter from SFC revealed that "[d]ue to the increase in the amount of referrals" SFC was backlogged and could not perform appellant's first requested evaluation until March 23, 2004. In short, this is not a case in which the trial court and the prosecution simply neglected the matter and needlessly allowed appellant to languish in jail.
{¶ 21} We further note that appellant was scheduled to be tried on July 28, 2004, just over eight months after his arrest. Appellant, however, requested a continuance so that he could better prepare his defense. This added at least one additional month to the interval between his arrest and his conviction.4 Finally, we see no discernable prejudice in the eleven month delay. Appellant does not assert that any evidence had been lost or that defense witnesses died or moved away.
{¶ 22} In summary, when we balance the three factors against appellant's timely assertion of his speedy trial rights, we are not persuaded the interval between his arrest and conviction violated his constitutional right to a speedy trial.
{¶ 23} For this reason, we find no merit in his first assignment of error and it is hereby overruled.
{¶ 25} The prosecution candidly agrees that neither statutory time requirement was met. The question now is what to do about that failure. Appellant asserts that the two statutes create "substantive" and procedural rights. He suggests that because those rights were violated, his conviction should be reversed. The prosecution counters that (1) nothing in either statute requires a reversal of a conviction if the time limits are not met; and, (2) a reversal of appellant's convictions would be bad public policy because it would encourage every defendant to request a competency evaluation in hopes that the report and hearing would extend beyond the statutory deadlines and thus require a dismissal of charges. We disagree with appellant for three primary reasons.
{¶ 26} First, our colleagues in the Eighth and Ninth Districts have reviewed these statutory time requirements and found them to be directory, not mandatory. In other words, the Ohio General Assembly enacted those provisions to guide the procedure of competency evaluations, not to divest courts of jurisdiction if those time limits are not met. See State v. Ferguson (Jun. 30, 1999), Medina App. No. 2830-M; State v. Rieves-Bey (Oct. 23, 1997), Cuyahoga App. Nos. 70827 70828; State v. Foley (Jun. 17, 1982), Cuyahoga App. No. 43843. We find this reasoning persuasive and come to the same conclusion.
{¶ 27} Second, in State v. Palmer (1998),
{¶ 28} Finally, we agree with the prosecution that public policy concerns do not favor the view that a failure to meet the thirty day and ten day evaluation time limits require the reversal of a criminal conviction. The prosecution cogently predicts that if this were the case, requests for evaluations would no longer be filed as a concern for a criminal defendant's ability to understand and participate in his defense, but rather for the hope of a delay. We find no provision for discharge in either statute and we decline to read one into them.
{¶ 29} For these reasons, the second and third assignments of error are without merit and are hereby overruled.
{¶ 31} Counsel's failure to raise a meritless issue does not constitute ineffective assistance. See e.g. Ross, supra at ¶ 9; In reCarter, Jackson App. Nos. 04CA15 04CA16,
{¶ 32} For these reasons, the fourth and fifth assignments of error are without merit and are hereby overruled.
{¶ 33} Having considered all the errors assigned and argued in the appellant's brief, and having found merit in none of them, the judgment of the trial court is hereby affirmed.
Judgment affirmed.
Concurrence Opinion
{¶ 34} Appellant contends that a violation of Ohio's statutory requirements for filing a competency evaluation and conducting a hearing on that report amount to violations of procedural and substantive due process. However statutory violations don't per se implicate constitutional rights. In order to amount to a deprivation of substantive or procedural due process, the state's failure to comply with the relevant statutory time frames would have to offend "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." See, Montana v. Engelhoff (1996),
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Judgment Opinion with Opinion
Kline, J.: Concurs in Judgment Opinion