State v. JonesState v. Jones
Rendered on August 21, 2012
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Keith L. Jones, pro se.
APPEAL from the Franklin County Court of Common Pleas
BRYANT, J.
{¶1} Defendant-appellant, Keith L. Jones, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to dismiss based on plaintiff-appellee, the State of Ohio, violating his right to a speedy trial. Because (1) the State did not violate defendant‘s speedy trial rights, and (2) defendant‘s trial counsel did not render ineffective assistance, we affirm.
I. Facts & Procedural History
{¶2} On April 25, 2005, the State indicted defendant on three counts of identity fraud, two counts of forgery, and two counts of theft. Defendant was arraigned before a magistrate two days later and entered a plea of not guilty to all charges. Both sides pursued discovery and, following a June 1, 2005 pretrial, the court set the matter for
{¶3} On June 14, July 12, and September 7, 2005, the parties jointly requested the trial court to continue the trial date, causing the court ultimately to schedule trial for November 3, 2005. In the interim, the court on September 7, 2005 granted defendant a $10,000 recognizance bond. After being released on his own recognizance, defendant failed to appear for his November 3, 2005 trial. The court revoked defendant‘s recognizance bond and issued a warrant for his arrest. Id. at ¶ 15.
{¶4} In his pro se motion to dismiss the charges involved here, defendant explained that his April 2005 arrest in Ohio for the charges involved in this appeal violated his federal parole obligations, prompting a United States District Court judge to sentence defendant to a 23-month prison term at the Federal Correctional Institution in Manchester, Kentucky. Id. at ¶ 17. The State issued a detainer capias to the Federal Correctional Institution on May 9, 2006, defendant was re-arrested on January 10, 2007, and the Franklin County Court of Common Pleas ordered the case re-activated.
{¶5} At a February 8, 2007 plea hearing, defendant pled guilty to two counts of identity fraud, and the court dismissed the remaining charges. The court ordered a pre-sentence investigation and, on the State‘s recommendation, released defendant on a recognizance bond. Originally scheduling the matter for sentencing on July 18, 2007, the trial court continued the sentencing to July 25, 2007. Id. at ¶ 18.
{¶6} When defendant failed to appear for sentencing on July 25, the court issued a warrant for his arrest. Defendant was arrested in Cincinnati, Ohio on auto theft charges, and the court issued a detainer capias to the Hamilton County jail on September 18, 2007. The State made several attempts to retrieve defendant from Hamilton County and ultimately succeeded in bringing him before the Franklin County Court of Common Pleas. Id. at ¶ 20.
{¶7} On July 10, 2008, defendant filed a pro se motion requesting that his felony charges, to which he already pled guilty, be dismissed “pursuant to
{¶8} After being placed on house arrest for health problems, defendant violated house arrest, causing the court to issue a warrant for his arrest. On November 16, 2009, defendant filed a pro se motion to dismiss “pursuant to Section [
{¶9} After his sentencing hearing, defendant failed to report to the probation office as required and, on March 23, 2010, the trial court filed an entry that declared defendant an absconder. At the probation revocation hearing, defendant stipulated to violating the terms of his probation. Id. at ¶ 24. On May 5, 2011, the court filed a judgment entry revoking defendant‘s community control and imposing the promised sentence of five years on each count.
{¶10} Defendant filed a notice of appeal from the court‘s May 5 judgment entry, alleging that the trial court should have granted defendant‘s pro se motion to dismiss pursuant to
{¶11} On December 6, 2011, the trial court issued a decision and entry denying defendant‘s motion to dismiss filed July 10, 2008. The court noted defendant signed numerous continuances, “which clearly state[d] that he waived the right to speedy trial for the period of those continuances.” Defendant timely appeals from the court‘s December 6, 2011 entry.
II. Assignments of Error
{¶12} On appeal, defendant assigns the following errors:
ASSIGNMENT OF ERROR NO.1: THE TRIAL COURT ERRED WHEN IT DID NOT PERMIT THE APPELLANT‘S GUILTY PLEA TO BE VACATED PURSUANT TO OHIO CRIMINAL RULE 32.1 AS HIS CRIMINAL ATTORNEY‘S CONDUCT CONSTITUTES INEFFECTIVE ASSISTANT [sic]
OF COUNSEL UNDER THE TWO PART STRICKLAND TEST. ASSIGNMENT OF ERROR NO. 2: THE TRIAL COURT ERRED IN BY FAILING TO HOLD AN EVIDENTIARY HEARING ON APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA AND VACATE HIS CONVICTION PURSUANT TO OHIO CRIMINAL RULE 32.1 DESPPITE [sic] APPELLANTS CLEAR AND UNEQUIVICAL [sic] REQUEST IN A MOTION THAT WAS FILED ON JULY 10, 2008, BUT DENIED BY THE TRIAL COURT AFTER APPELLANT WAS COMPELLED TO FILE A MANDAMUS. THE TRIAL COURT ISSUED ITS DENIAL ON November 31, 2011 THREE YEARS AFTERWARDS.
{¶13} Defendant‘s assignments of error appear to present issues regarding the trial court‘s decision to deny defendant‘s motion to withdraw his guilty pleas. Defendant, however, never moved to withdraw his guilty pleas. Rather, his July 10, 2008 pro se motion sought to dismiss the case pursuant to
{¶14} Apart from the language of his assigned errors, defendant‘s substantive arguments on appeal concern perceived violations of his speedy trial rights. Although, pursuant to
III. No Speedy Trial Violation
{¶15} Defendant contends the State violated his speedy trial rights, although he focuses his attention on particular aspects of particular statutes. In an effort to address fully his arguments on appeal, we resolve defendant‘s contentions under
A. Speedy trial under R.C. 2945.71
{¶16} “An accused is guaranteed the constitutional right to a speedy trial pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Ohio Constitution, Article I, Section 10.” State v. Carmon, 10th Dist. No. 11AP-818, 2012-Ohio-1615, ¶ 13, citing State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32. Ohio‘s speedy trial statutes,
{¶17} Pursuant to
{¶18} The record indicates defendant was arrested on April 15, 2005 and pled guilty on February 12, 2007, suggesting the State violated the applicable speedy trial provisions. Defendant, however, pled guilty to two of the crimes charged, with the other charges being dismissed. Because ” ‘a guilty plea waives a defendant‘s right to trial, it also necessarily waives any claim that the defendant was denied a speedy trial.’ ” State v. Robinson, 10th Dist. No. 01AP-1005 (Apr. 30, 2002), quoting Limpach v. Lane, 4th Dist. No. 99CA12 (Dec. 19, 2000). See also State v. Kelley, 57 Ohio St.3d 127 (1991), at paragraph one of the syllabus, following Village of Montpelier v. Greeno, 25 Ohio St.3d 170 (1986) (holding that “[a] plea of guilty waives a defendant‘s right to challenge his or her conviction on statutory speedy trial grounds pursuant to
{¶19} Even absent defendant‘s guilty plea, defendant‘s claim that the State violated his speedy trial rights would fail because the State brought defendant to trial within the speedy trial time limit. After defendant signed pre-plea waivers that tolled the speedy trial time pursuant to
{¶20} A “defendant who fails to appear at a scheduled trial, and whose trial must therefore be rescheduled for a later date, waives his right to assert the provisions of
{¶21} Pursuant to Bauer, the defendant‘s statutory speedy trial time did not begin to run until January 10, 2007, the date of defendant‘s re-arrest. The trial court held defendant‘s plea hearing on February 8, 2007 and filed defendant‘s entry of guilty plea on February 12, 2007. Even under the triple count provisions, defendant was brought to trial well within the 270 days mandated by the statute.
B. Speedy trial under R.C. 2963.30 and 2941.401
{¶22} Even absent defendant‘s guilty pleas, defendant‘s arguments under
{¶23}
{¶24} Moreover, where defendant is in the custody of the federal government, the provisions of
{¶25} Defendant also alleges his speedy trial rights were violated pursuant to
{¶26} To properly avail himself to
{¶27} Defendant alleged in the November 16, 2009 motion to dismiss pursuant to
{¶28} The record does not indicate defendant substantially complied with the requirements of
{¶29} The State did not violate defendant‘s right to speedy trial, and defendant‘s assignments of error contending it did are overruled.
IV. Ineffective Assistance of Counsel
{¶30} Defendant alleges his trial counsel was constitutionally ineffective in failing to file a motion to dismiss based on speedy trial violations and in advising defendant to waive his speedy trial rights. To prevail on an ineffective assistance of counsel claim, defendant must demonstrate (1) defense counsel‘s performance was so deficient he or she was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution, and (2) defense counsel‘s errors prejudiced defendant, depriving him of a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.
{¶31} “When a claim of ineffective assistance of counsel is based on counsel‘s failure to file a particular motion, a defendant must show that the motion had a reasonable probability of success.” Carmon at ¶ 12, citing State v. Barbour, 10th Dist. No. 07AP-841 (May 6, 2008); State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577 (4th Dist.) Because defendant did not demonstrate a reasonable probability that a motion to dismiss premised on a violation of his statutory speedy trial rights would have been successful, defendant likewise failed to demonstrate trial counsel was ineffective for failing to file a motion to dismiss on speedy trial grounds.
{¶32} To the extent defendant contends his counsel was ineffective in advising him to execute continuances waiving his speedy trial rights, defendant cannot demonstrate prejudice resulting from those waivers. Defendant executed three continuances waiving his speedy trial rights for the period of the continuances. Those continuances all occurred prior to the November 3, 2005 trial date and, because defendant failed to appear for his November 3, 2005 trial, the speedy trial time calculation did not begin until his subsequent re-arrest on January 10, 2007. Defendant did not sign, and neither party moved for, a continuance during the period of time between defendant‘s re-arrest and his guilty plea.
{¶33} Defendant also alleges that permitting him to enter a guilty plea after the speedy trial time expired “would amount to ineffective assistance of counsel, and thus, could affect the knowing and voluntary nature of the plea.” (Appellant‘s brief, at 4.) Because the speedy trial time had not expired when defendant entered his plea, its purported expiration could not have affected the knowing and voluntary nature of defendant‘s guilty plea. To the extent defendant alleges generally that his counsel was ineffective in permitting him to plead guilty, he ” ‘must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 89, quoting Hill v. Lockhart, 474 U.S. 52 (1985). Defendant does not allege that, but for counsel‘s alleged error, he would have insisted on going to trial.
{¶34} In the end, the facts underlying the charges in the present case demonstrate that defendant, impersonating a well-known public official, contacted four different car dealerships, forged documents, and successfully obtained two vehicles without paying any money in advance. Despite such facts and defendant‘s lengthy history of theft-related charges, defendant‘s trial counsel successfully negotiated a deal on behalf of her client where defendant pled guilty to two counts of identity fraud and the court dismissed the remaining charges. Defendant cannot establish that defense counsel‘s strategy, in negotiating a favorable plea bargain, fell below a reasonable level of representation. See State v. Bird, 81 Ohio St.3d 582, 585 (1998) (concluding defense counsel‘s discovery may have been “sufficient to convince him that a plea bargain was the best trial tactic in the case“); State v. Fowler, 10th Dist. No. 09AP-622, 2010-Ohio-747, ¶ 7
{¶35} Defendant did not receive ineffective assistance of counsel, and his two assignments of error are overruled insofar as they contend he did.
V. Disposition
{¶36} Having overruled defendant‘s two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and TYACK, JJ., concur.