STATE OF OHIO v. BARNARD M. JACKSON
Appellate Case No. 29226
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 6, 2022
2022-Ohio-1522
Triаl Court Case No. 2020-CR-1064; (Criminal Appeal from Common Pleas Court)
Rendered on the 6th day of May, 2022.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
BYRON K. SHAW, Atty. Reg. No. 0073124, 4800 Belmont Place, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant
WELBAUM, J.
{¶ 2} For the reasons outlinеd below, we find that all of Jackson‘s pro se arguments lack arguable merit. Furthermore, after conducting an independent review of the record as required by Anders, we find no issues with arguable merit for Jackson to advance on appeal. Therefore, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 3} On May 14, 2020, a Montgomery County grand jury returned an indictment charging Jackson with one count of felonious assault in violation of
{¶ 4} On May 19, 2020, Jackson pled not guilty to all the indicted charges at his arraignment. Jackson‘s counsel thereafter filed a motion to suppress on June 30, 2020. The motion sought to suppress statements that Jackson had made to law enforcement while he was arrested and in jail. On July 30, 2020, the trial court held a suppression hearing. Detective Jаcob Rillo of the Dayton Police Department was the only witness to testify at the hearing. Det. Rillo‘s testimony indicated that Jackson had made certain statements during an attempted jail interview that Jackson terminated before the detective could provide Miranda warnings. Specifically, Det. Rillo testified that after he introduced himself to Jackson, Jackson asked him what he had been charged with and if anyone had been killed. Det. Rillo testified that when he told Jackson that he had been charged with felonious assault and that no one had been killed, Jackson said: “[T]here‘s nobody killed, so I ain‘t got nothing to say.” Suppression Hearing Trans. (July 30, 2020), p. 13. Det. Rillo testified that after Jackson made that statement he terminated the interview. Det. Rillo also testified that Jackson‘s statement was not made in response to any questioning.
{¶ 5} Following the suppression hearing, the trial court accepted post-hearing
{¶ 6} On September 23, 2020, Jackson‘s newly-appointed counsel requested a two-week continuance of the scheduling conference in order to obtain further discоvery from the State. The trial court granted the request, and the scheduling conference was continued to October 7, 2020. Jackson, who was not pleased with his new counsel‘s representation, thereafter filed another pro se motion asking the trial court to remove his counsel so that he could represent himself. Because of that motion, the October 7, 2020 scheduling conference was continued for purposes of holding a hearing to ensure that Jackson understood the consequences of waiving his right to counsel. The waiver hearing was held on October 14, 2020. During that hearing, the trial court questioned Jackson extensively in ordеr to ensure that Jackson was knowingly, intelligently, and voluntarily waiving his right to counsel. After doing so, the trial court accepted Jackson‘s
{¶ 7} Following Jackson‘s waiver of his right to counsel, the trial court held a status conference on October 21, 2020. During the status conference, the trial court confirmed that Jackson had no other evidence or filings pertaining to his motion to suppress. Once receiving that confirmation, the trial court considered the suppression matter submitted to the court and advised Jackson that a written deсision would be forthcoming. However, before the trial court could issue a decision, Jackson filed a notice of appeal with this court on November 10, 2020. In the notice of appeal, Jackson argued that the trial court had violated his right to a speedy trial. The State thereafter filed a motion to dismiss Jackson‘s appeal on grounds that Jackson had failed to identify what order of the trial court he was seeking to appeal. On November 25, 2020, Jackson filed a motion to voluntarily dismiss his appeal. This court sustained Jackson‘s motion and dismissed the appeal on December 24, 2020. See State v. Jackson, 2d Dist. Montgomery No. 28955 (Final Judgment Entry).
{¶ 8} On December 15, 2020, while Jackson‘s appeal was still pending, Jackson filed a motion in the trial court to dismiss the indicted charges on grounds that he had been denied his right to a speedy trial. The trial court thereafter issued an entry and order advising that it lacked jurisdiction over the motion due to Jackson‘s pending appeal. Once Jackson‘s appeal was dismissed, on February 10, 2021, the trial court held a brief hearing on the motion to dismiss. During the hearing, the State asked for three weeks to file a response to Jackson‘s motion, which the trial court granted. The trial court also
{¶ 9} On April 23, 2021, the trial court issued a decision overruling Jackson‘s motion to dismiss on grounds that Jackson‘s speedy trial time had been tolled by Jackson‘s filing a motion to suppress. Approximately two months later, on June 18, 2021, the trial court issued a decision overruling Jackson‘s motion to suppress. Specifically, the trial court found that the statement Jackson sought to have suppressed did not fall under the protections afforded in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the statement was spontaneous and not made in response to a custodial interrogation. After overruling Jackson‘s motion to suppress, the trial court scheduled a jury trial for July 12, 2021.
{¶ 10} On the day of trial, Jackson had a discussion with the trial court and confirmed that his speedy trial argument would be preserved for appeal if he entered a no contest plea. After receiving this information, Jackson advised the trial court that he wanted to accept a plea agreement that was offered by the State and to have standby counsel reinstated as his counsеl. The plea agreement required Jackson to plead no contest to felonious assault with a reduced three-year firearm specification, having weapons while under disability, discharging a firearm on or near a prohibited premises, and improperly handling firearms in a motor vehicle. In exchange for Jackson‘s no
{¶ 11} After reinstating Jackson‘s counsel and giving Jackson an opportunity to confer with сounsel, the trial court conducted a Crim.R. 11 plea colloquy. The trial court then accepted Jackson‘s no contest plea and found him guilty of the aforementioned charges. The trial court also ordered a presentence investigation report and scheduled the matter for sentencing.
{¶ 12} Prior to the sentencing hearing, Jackson filed a pro se motion to withdraw his no contest plea. In the motion, Jackson failed to cite any basis or reasoning for wanting to withdraw his plea. At the sentencing hearing, the trial court addressed Jackson‘s plea withdrawal motion and asked both Jackson and his counsel if they wanted tо add anything to the motion. In response, neither Jackson nor his counsel made any comment about the motion, and Jackson specifically indicated that there was nothing more he wanted to add. The State argued that Jackson‘s motion should be overruled because it provided no basis for withdrawing the plea and because it represented a mere change of heart.
{¶ 13} After hearing from the parties, the trial court overruled Jackson‘s motion to withdraw his no contest plea. Following that ruling, Jackson briefly stated that he had filed the motion because he felt that he was forced to take the plea and becausе he had never had time to speak with his counsel about the plea. The trial court, however, found that the matter had already been ruled on and proceeded to sentencing.
{¶ 15} After sentencing, Jackson appealed from his conviction. As previously discussed, Jackson‘s appellate counsel filed a brief under the authority of Anders, assеrting the absence of any issues with arguable merit for appeal. Counsel did not raise any potential assignments of error in the Anders brief. Jackson, however, filed a pro se brief raising seven assignments of error for review. Therefore, we will first review Jackson‘s pro se assignments of error and then conduct an independent review of the record as required by Anders.
Standard of Review
{¶ 16} In Anders cases, we are charged with conducting an independent review of the record “to determine whether any issues involving potentially reversible error that are
Pro Se Assignments of Error
{¶ 17} The arguments raised under Jackson‘s first six pro se assignments of error all concern Jackson‘s claim that he was denied his right to a speedy trial. To assist in addressing each of these arguments, we will first discuss the general principles of law pertaining tо speedy trial claims.
Constitutional Right to Speedy Trial
{¶ 18} The right to a speedy trial is guaranteed by the
{¶ 19} We note that “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into thе other [three] factors that go into the balance.” Barker at 530; Adams at ¶ 89. “A delay becomes presumptively prejudicial as it approaches one year in length.” Adams at ¶ 90, citing Doggett at 652. However, “a finding of ‘presumptive prejudice’ is merely a triggering mechanism under the first Barker factor, which justifies an inquiry into the other three factors.” Voris at ¶ 24, citing State v. Kraus, 2d Dist. Greene No. 2011-CA-35, 2013-Ohio-393, ¶ 23.
Statutory Right to Speedy Trial
{¶ 20} In Ohio, the constitutional right to a speedy trial is statutorily enforced by the provisions in
First Assignment of Error
{¶ 21} Under his first assignment of error, Jackson contends that his right to a speedy trial was violated because the trial court did not schedule his trial date in accordance with
{¶ 22} In this case, it is clear from the record that Jackson‘s case was not set for trial within 30 days after Jackson pled not guilty at his arraignment hearing.
{¶ 23} For the foregoing reasons, Jackson‘s first assignment of error lacks arguable merit.
Second, Third, and Fourth Assignments of Error
{¶ 24} Jackson‘s second, third, and fourth assignments of error all relate to whether the trial court violated the speedy trial time requirement set forth in
{¶ 25} The record indicates that Jackson was held in jail in lieu of bail from the date of his arrest, April 10, 2020. Therefore, the triple-count provision in
(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;
* * *
(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;
(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[.]
{¶ 26} Jackson does not dispute that his 90-day speedy trial time was tolled as a result of the General Assembly‘s passing Am.Sub.H.B. 197 in response to the COVID-19 pandemic. This legislation applied to Jackson because it tolled speedy trial times that were set to expire between March 9, 2020 and July 30, 2020, and Jackson‘s speedy trial time was set to expire on July 9, 2020. The tolling order “effectively [froze] time from March 9 until the expiration of the order. For example, if a deadline was set to expire on March 19 (10 days after the effective date of the order), then the deadline [would] expire 10 days after the end of the emergency period.” State v. Lewis, 2d Dist. Montgomery No. 28962, 2021-Ohio-1895, ¶ 42. “The Supreme Court of Ohio also issued an оrder on March 27, 2020, tolling deadlines retroactively for the same period of time.” Id. at ¶ 41, citing In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166, 141 N.E.3d 974.
{¶ 27} As previously noted, Jackson‘s speedy trial deadline was set to expire on July 9, 2020, which was 122 days after the effective date of the tolling order. Therefore, Jackson‘s new speedy trial deadline was calculated by adding 122 days to the tolling
{¶ 28} In addition to that tolling period, Jackson‘s motion to suppress tolled the speedy trial time pursuant to
{¶ 29} The following is a breakdown of the tolling events and the days tolled as a result of the motions, continuances, and the appeal filed by Jackson:
| Days Tolled | Tolling Period | Tolling Events |
|---|---|---|
| 0 days | 6-30-2020 to 7-30-2020 |
Motion to Suppress -
|
| 25 days | 7-30-2020 to 8-24-2020 |
Motion to Suppress Continued -
|
| 25 days | 8-24-2020 to 9-18-2020 |
First Pro Se Motion to Remove Counsel -
|
| 14 days | 9-23-2020 to 10-7-2020 |
Requested Continuance -
|
| 7 days | 10-7-2020 to 10-14-2020 |
Second Pro Se Motion to Remove Counsel -
|
| 20 days | 10-21-2020 to 11-10-2020 |
Motion to Suppress Continued -
|
| ||
| 44 days | 11-10-2020 to 12-24-2020 |
Appeal -
|
| 120 days | 12-24-2020 to 4-23-2021 |
Pro Se Motion to Dismiss -
|
| 56 days | 4-23-2021 to 6-18-2021 |
Motion to Suppress Continued -
|
{¶ 30} When added together, the foregoing breakdown of days tolled shows that a total of 311 days were tolled for reasons set forth in
{¶ 31} Although not specifically argued by Jackson, we also do not find a constitutional speedy trial violation. As previously noted, we use the four-factor balancing test in Barker to determine whether a constitutional speеdy trial violation has occurred. Voris at ¶ 16, citing Barker. The first factor—the length of the delay between accusation and trial—triggers our review of the other three factors since the delay in this case is over a year and thus presumptively prejudicial. See id. at ¶ 24; Adams at ¶ 90, citing Doggett at 652. As previously discussed, the three other factors are: (1) the reason for the delay; (2) whether the defendant asserted his right to a speedy trial; and (3) whether the defendant suffered any prejudice. Voris at ¶ 16, citing Barker. (Other citations omitted.)
{¶ 32} In reviewing those factors, we find that Jackson asserted his right to a speedy trial multiple times during the proceedings in this case and in his pro se motion to dismiss, which weighs in favor of finding a constitutional speedy trial violation. Voris at 23. However, the record also reveals that the delay in this case was largely attributable to Jackson‘s continuous filings and to the ongoing COVID-19 pandemic, which was outside the trial court‘s control. This weighs against finding a constitutional speedy trial violation. Id. at ¶ 22. Since the delay was largely attributable to Jackson‘s own actions, we also find no resulting prejudice, which also weighs against finding a constitutional
{¶ 33} For the foregoing reasons, Jackson‘s second, third, and fourth assignments of error lack arguable merit.
Fifth Assignment of Error
{¶ 34} Under his fifth assignment of error, Jackson contends that his right to a speedy trial was violated because the trial court failed to comply with Rule 39 of the Ohio Rules of Superintendence. That rule provides, in relevant part, as follows:
(B) Criminal Case Time Limits.
(1) In common pleas court, all criminal cases shall be tried within six months of the date of arraignment on an indictment or information. In municipal and county court, all criminal cases shall be tried within the time provided in Chapter 2945 of the Revised Code. Whenever a hearing or trial time is extended or shortened pursuant to
section 2945.72 of the Revised Code orCriminal Rule 5 or45 , the judge shall state the reason for the change in an order and journalize the order.
Sup.R. 39(B)(1).
{¶ 36} For the foregoing reasons, Jackson‘s fifth assignment of error lacks arguable merit.
Sixth Assignment of Error
{¶ 37} Under his sixth assignment of error, Jackson contends that the trial court erred by failing to grant his December 15, 2020 motion to dismiss because the trial court misconstrued the motion as challenging the sufficiency of the indictment as opposed to raising a speedy trial violation. While the trial court did analyze the sufficiency of the indictment in its decision overruling Jackson‘s motion to dismiss, the trial court also determined that there was no speedy trial violation since the speedy trial time had been
{¶ 38} For the foregoing reasons, Jackson‘s sixth assignment of error lacks arguable mеrit.
Seventh Assignment of Error
{¶ 39} Under his seventh assignment of error, Jackson contends that the trial court erred by overruling his presentence motion to withdraw his no contest plea without holding a hearing.
{¶ 40} In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), the Supreme Court of Ohio held that when ruling on a presentence motion to withdraw a plea, “[a] trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. at paragraph one of the syllabus. Xie, however, did not specifically indicate what type of hearing is required for such a motion. State v. Hurlburt, 10th Dist. Franklin No. 12AP-231, 2013-Ohio-767, ¶ 7; State v. Robinson, 8th Dist. Cuyahoga No. 89651, 2008-Ohio-4866, ¶ 24; State v. Taylor, 12th Dist. Butler No. CA2013-10-186, 2014-Ohio-3080, 9.
{¶ 41} This court has previously held that a trial court‘s “inviting and hearing oral
{¶ 42} “An opportunity to be heard with respect to a motion to withdraw a guilty plea requires, at a bare minimum, an opportunity to inform the trial court of the basis for thе motion.” State v. Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, ¶ 23. Therefore, “[i]f a trial court invites and hears argument on a motion to withdraw a guilty plea at a sentencing hearing before it imposes sentence, this procedure may constitute a full and fair motion hearing.” State v. Harmon, 4th Dist. Pickaway No. 20CA6, 2021-Ohio-2610, 25, citing Griffin at ¶ 18, Holloman, and Mooty.
{¶ 43} In this case, Jackson filed a presentence motion to withdraw his no contest plea that provided absolutely no basis for withdrawing the plea. Jackson‘s motion was
{¶ 44} It was not until after the trial court overruled the motion that Jackson spoke up and claimed that he had filed the motion because he felt that he had been forced to take the plea and because he had not had a chance to speak with his counsel about the plea. The record, however, establishes that Jackson did have an opportunity to speak with counsel about his no contest plea. Jackson specifically advised the trial court at the plea hearing that he had the opportunity to discuss the no contest plea with his counsel and that no further discussion was needed on the matter. See Plea Hearing Trans. (July 12, 2021), p. 114. In any event, the trial court had already ruled on the motion and was not obligated to address Jackson‘s latent claims, which at best would be considered a motion for reconsideration—a legal nullity at the trial court level. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988); Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 381, 423 N.E.2d 1105 (1981); Cleveland Hts. v. Richardson, 9 Ohio App.3d 152, 154, 458 N.E.2d 901 (8th Dist.1983); State v. Kramer, 10th Dist. Franklin No. 03AP-633, 2004-Ohio-2646, 7.
{¶ 45} We note that this case is distinguishable from our holding in Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, wherein we reversed the trial court‘s judgment
{¶ 46} The present case is also distinguishable from our holding in State v. Bush, 2d Dist. Clark Nos. 2015-CA-39, 2015-CA-40, 2015-CA-41, 2015-CA-42, 2016-Ohio-5536, wherein the appellant moved to withdraw his guilty plea and actually made factual assertions and referred to documents and evidence in support of his motion at the sentencing hearing. In Bush, we found that although the trial court gave the appellant an opportunity to explain the basis for his motion, the trial court erred by failing to hold an evidentiary hearing on the motion so that the defendant could call witnesses and present his documentary evidence. Id. at ¶ 12-14. Unlike the defendant in Bush, however, Jackson made no factual assertions or references to documentary evidence in support of his motion to withdraw no contest plea. Therefore, an evidentiary hearing was not necessary in this case. Instead, the hearing requirement was satisfied by the trial court‘s giving Jackson and his counsel an opportunity to state a basis for the motion at the sentencing hearing.
{¶ 47} For the foregoing reasons, Jackson‘s seventh assignment of error lacks
Independent Anders Review
{¶ 48} In addition to reviewing Jackson‘s pro se assignments of error, we conducted an independent review of the record as required by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Our independent review, however, revealed no issues with arguable merit for Jackson to advance on appeal.
Conclusion
{¶ 49} Because Jackson‘s pro se arguments lack arguable merit, and because our independent Anders review revealed no issues with arguable merit for Jackson to advance on appeal, the judgment of the trial court is affirmed.
DONOVAN, J. and EPLEY, J., concur.
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Mathias H. Heck, Jr.
Andrew T. French
Byron K. Shaw
Barnard M. Jackson
Hon. Dennis J. Adkins