State v. JohnsonState v. Johnson
Charles L. Johnson, II, Ironton, Ohio, pro se.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that denied a request for post-conviction relief filed by Charles L. Johnson, defendant below and appellant herein. Appellant assigns the following error for review:
“APPELLEE [SIC.] SUFFERED A VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL UNDER THE 6TH AMENDMENT IN THE U.S. CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶ 2} On April 11, 2016, the Scioto County Grand Jury returned an indictment that charged
{¶ 3} On Seрtember 13, 2017, appellant filed a petition to vacate or set aside his judgment of conviction or sentence and argued that he received ineffective assistance of counsel. In particular, appellant asserted that although his attorney instructed him to sign a speedy trial waiver, that waiver extended time only for a limited time (from June 20, 2016 to August 29, 2016). On September 21, 2017, the trial court overruled appellаnt’s petition. This appeal followed.
{¶ 4} The post-conviction relief process is a collateral civil attack on a criminal judgment, rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Post-conviction relief is not a constitutional right; instead, it is a narrow remedy that gives the petitioner no more rights than those granted by statute. Id.; State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶ 11. The post-conviction process is a means to resolve constitutional claims that cannot be addressed on direct appeal because the evidence that may support the claim is not contained in the record. State v. McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 19-20, citing State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18; Betts, supra.
{¶ 5} “[A] trial court’s decision granting or denying a post-cоnviction petition filed pursuant
{¶ 6} In his sole assignment of error, appellant asserts that he was denied his right to a speedy trial under the
{¶ 7} The state contends that this court’s January 30, 2018 entry in State v. Johnson, II, 4th Dist. Scioto 17CA3813 is evidence that appellant’s sentence is not reviewable. We point out, however, that Johnson II involved appellant’s motion for leave to file a delayed appeal. This court denied the motion and stated: “pursuant to
{¶ 8} Second, the state argues that, although appellant’s brief contains only one assignment
{¶ 9} Turning to the merits of appellant’s petition, aftеr our review we find no abuse of discretion in the trial court’s decision. The standard for ineffective assistance of counsel is set forth in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Appellant must establish two criteria: first, he must establish that counsel’s performance fell below “an objective standard of reasonable representation; second, appellant must establish that prejudice arises from counsel’s performance. Id. at 142. Thus, an apрellant must establish that “but for counsel’s unprofessional
{¶ 10} In the case sub judice, our review reveals that appellant’s first trial counsel filed a motion to suppress evidence prior to his withdrawal as counsel. The state points out that because appellant’s second trial counsel recognized that the issues raised in the motion to suрpress had already been decided in the state’s favor in other appellate cases, counsel appropriately withdrew the motion and negotiated a fair and just plea agreement. Moreover, the state claims that appellant failed to show any prejudice as the plea agreement limited appellant’s sentence to two years in prison, when he could have bеen sentenced to sixteen and one half years in prison.
{¶ 11} With respect to the speedy trial issue, appellant challenges the trial court’s denial of his post-conviction relief request on the bаsis of an alleged statutory speedy trial violation. However, we point out that appellant did not raise the speedy trial issue prior, or after, he entered his knowing, voluntary and intelligent guilty plea. Consequently, the doctrine of res judicata bars further litigation of any claim decided on direct appeal, or that could have been raised and decided on direct appeal, but was not. See State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995). Agаin, the post-conviction relief remedy is designed for errors based upon facts and evidence outside the record and not reviewable on direct appeal. State v. Damron, 4th Dist. Ross No. 10CA3158, 2010-Ohio-6459, ¶ 20; State v. Rodriguez, 65 Ohio App.3d 151, 153, 583 N.E.2d 347 (9th Dist.1989). This includes alleged speedy trial errors. See State v. Ross, 7th Dist. No. 11-MA-32, 2012-Ohio-2433, ¶ 38. Here, appellant points to no evidence outside the record to support his claim. Furthermore, we also point out that appellant opted to enter a guilty plea pursuant to a plea
{¶ 12} Finally, it appears from our review that appellant’s discovery demands, his motion to suppress evidence, and other motions to continue the proceeding legitimately tolled the speedy trial clock. Time was tоlled from April 20, 2016 to May 10, 2016 for discovery (See
{¶ 13} Accordingly, based upon the foregoing reasons, we overrule appellant’s assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issuе out of this Court directing the Scioto 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 by the trial cоurt or this court, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Suprеme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the appellant fo file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 1 of the Rules of Practice of thе Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 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.
Hoover, P.J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commencеs from the date of filing with the clerk.