State v. MarburyState v. Marbury
Dated: December 8, 2010
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant, Carlton Marbury, appeals the judgment of the Summit County Court of Common Pleas. We affirm.
BACKGROUND
{¶2} On the afternoon of July 9, 2007, a vehicle driven by John Leonard was pulled over for speeding on Interstate 77 south. Carlton Marbury was the passenger of the vehicle. Mr. Leonard and Mr. Marbury shared an apartment in Canton and were headed south from Cleveland.
{¶3} In the weeks preceding the trаffic stop, Canton police were conducting surveillance on Mr. Leonard‘s activities using a global positioning system that had been mounted on his vehicle. The authorities suspected that Mr. Leonard was supplying drugs to street-level dealers in Canton. A detective with the Canton Police Department was tracking Mr. Leonard on July 9, 2007, and believed that he was going to Cleveland to pick up drugs tо bring back to
{¶4} A trooper observed the vehicle, determined that it was exceeding the speed limit and initiated a traffic stop. The trooper also had his drug-sniffing dog evaluate the vehicle. The dog alerted on the vehicle, law enforcement officers searched the car and found nearly three thousand grams, or over six pounds, of cocaine and a bag of marijuana. Mr. Leonard and Mr. Marbury were arrested and questioned by police. Their apartment and the residences of some of their friends and family were searched.
{¶5} Mr. Marbury was charged with felony trafficking of cоcaine, felony possession of cocaine and misdemeanor possession of marijuana. A major drug offender specification was attached to each of the felony charges. A jury found Mr. Marbury not guilty of possession of marijuana, but was unable to reach verdicts on the remaining charges of trafficking and possession of cocaine. Upon retrial, another jury сonvicted Mr. Marbury of the felony charges and the major drug offender specifications. The trial court sentenced Mr. Marbury to two, mandatory, ten-year sentences in prison, to be served concurrently, and declined to sentence additional incarceration for the major drug offender specifications.
{¶6} Mr. Marbury has appealed and has assigned four errors for our review. Mr. Marbury argues that: (1) trial counsel was ineffective for failing to file a motion to dismiss on
INEFFECTIVE ASSISTANCE
{¶7} In his first, second and fourth assignments of error, Marbury claims that various deficiencies in trial counsel‘s representation resulted in ineffective assistance of counsel.
{¶8} “In Ohio, a properly licensed attorney is presumed competent. The appellant bears the burden of proving that his trial counsel was ineffective.” (Internаl citation omitted.) State v. Hamblin (1988), 37 Ohio St.3d 153, 155-156. In order to prove that trial counsel was ineffective, an appellant must demonstrate: (1) deficiency in his attorney‘s representation and, (2) that the deficiencies prejudiced his defense. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. Deficiency of representation “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendаnt by the Sixth Amendment.” Strickland, 466 U.S. at 687. An appellate court must consider “the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct.” (Quotations and citations omitted.) State v. Armstrong, 9th Dist. No. 03CA0064-M, 2004-Ohio-726, at ¶20. To succeed on his claim, the appellant must establish both elements, because “‘[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.‘” Bradley, 42 Ohio St.3d at 142, quoting Strickland, 466 U.S. at 691.
{¶9} In examining a claim of ineffective assistance, “[a]n appellate court may analyze the prejudice prong of the Strickland test alone if such analysis will dispose of a claim of ineffective assistance of counsel on the ground that the defendаnt did not suffer sufficient prejudice.” State v. Kordeleski, 9th Dist. No. 02CA008046, 2003-Ohio-641, at ¶37, citing State v. Loza (1994), 71 Ohio St.3d 61, 83.
Speedy Trial
{¶10} In his first assignment of error, Mr. Marbury contends that his first and second trials were conducted outside of Ohio‘s statutory speedy trial time limits. Mr. Marbury was arrested on July 9, 2007. Subsequently, Mr. Marbury was indicted on two felonies and a minor misdemeanor. The first trial took place on September 22, 2008. The second trial took place on March 12, 2009.
The First Trial
{¶11} Pursuant to
{¶12} As to the first trial that took place on September 22, 2008, Mr. Marbury states that although he filed a motion to suppress, his motion was never heard, never withdrawn and never
{¶13} Mr. Marbury has not provided this Court with any legal authority that suggests that his motion to suppress was rendered a nullity and as such, it did not toll any speedy trial time. Although he relies upon State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, his reliance is misplaced because Sanchez is factually and procedurally dissimilar to this case. In Sanchez, the Supreme Court of Ohio examined the tolling effect of an immigration detainer and a motion in limine. Id. at paragraphs one and two of the syllabus, ¶28. It determined that an immigration detainer that did not purport to hold the defendant in custody did not nullify the triple-count provision of Ohio‘s speedy trial statute. Id. See, also,
“This does not imply that the state may prolong its rеsponse time or that a trial court has unbridled discretion in taking time to rule on a defense motion. Although outside time limits for response may be set by local rule, in many cases, the state will not need the entire time. Furthermore, as we have already stated, ‘[a] strict adherence to the spirit of the speedy trial statutes requires a trial judge, in the sound exercise of his judicial discretion, to rulе on these motions in as expeditious a manner as possible.‘” Id. at ¶27, quoting State v. Martin (1978), 56 Ohio St.2d 289, 297.
{¶14} It is clear that Sanchez cannot support Mr. Marbury‘s argument that his motion to suppress was rendered a nullity. Relevant to this case, Sanchez stands for the proposition that a trial court has a duty to rule on a defendant‘s motion in as expeditious a manner as possible and that a failure to do so can affect the continued tolling of speedy trial time. In this matter, Mr. Marbury filed his motion to suppress on August 31, 2007. At his request, the suppression
{¶15} We further note that Mr. Marbury has not addressed other tolling events that occurred prior to the first trial. For example, on August 2, 2007, the State filed a demand for discovery. However, the record does not contain evidence of Mr. Marbury‘s response to the discovery request. “The failure of a criminal defendant to respond within a reasonable time to a prosеcution request for reciprocal discovery constitutes neglect that tolls the running of speedy trial time pursuant to
The Second Trial
{¶16} Mr. Marbury also argues that his right to a speedy trial was violated by the delay between the 2008 trial that resulted in a mistrial on his felony charges and the eventual re-trial of those charges held in March 2009. Again, he asserts that trial counsel was ineffective for failing to assert his speedy trial rights in light of the passage of an additional 172 days.
{¶17} Although the Ohio Revised Code outlines the time pеriod during which an offender must be brought to trial to preserve the offender‘s constitutional right to a speedy trial, see
{¶18} Mr. Marbury fails to develop an argument with respect to the amount of time between his two trials. Mr. Marbury makes no argument as to whether the delay between the conclusion of the first trial in September 2008 and the beginning of the second trial in March
{¶19} The record reveals that Mr. Marbury and his counsel signed each of the journal entries rescheduling the trial аnd that at least one continuance was at Mr. Marbury‘s request. Because Mr. Marbury has not addressed all of the factors to be considered in determining whether the delay between his two trials was constitutionally reasonable, we cannot say that Mr. Marbury‘s counsel was ineffective in failing to assert his speedy trial rights prior to the second trial.
{¶20} In light of the above analysis, Mr. Marbury‘s first assignment of error is оverruled.
Confrontation Clause
{¶21} Next, Mr. Marbury contends that trial counsel was ineffective because counsel failed to object to the admission of improper testimony at Mr. Marbury‘s March 2009 trial on the felony drug charges. Mr. Marbury argues that a statement testified to by the agent from the ATF violated Mr. Marbury‘s right to confront witnesses against him pursuant to the rule announced in Bruton v. United States (1968), 391 U.S. 123. In that case, Bruton was tried with a co-defendant for аrmed postal robbery. Id. at 124. At trial, a postal inspector testified that while he was interrogating the co-defendant, the co-defendant admitted that he and Bruton committed the robbery. Id. The Supreme Court held that a curative jury instruction is insufficient to remedy
{¶22} Mr. Marbury quotes the following statement in his brief: “‘* * * he was going to Cleveland, possibly to purchase drugs to take back to Canton for sale.‘” According to Mr. Marbury, the ATF agent testified that Mr. Leonard, Mr. Marbury‘s co-defendant, made the statement to the agent while the agent was interrogating Mr. Leonard after his arrest. Further, that Mr. Leonard made the statement to explain his trip to Cleveland on July 9, 2007. Mr. Marbury interprets this statement as implicating him in the crime.
{¶23} Upon examination of the trial transcript, it is clear that the agent attributed the above-quoted statement to the detective with the Canton police, not to Mr. Leonard. Further, the agent made the statement during his testimony when he was explaining how he became involved with the surveillance of Mr. Leonard on July 9, 2007. The agent stated that he received a call from the detective who had been working on the investigation of Mr. Leonard and that the detective told him that he suspected that Mr. Leonard was travelling to Cleveland to buy drugs to sell in Canton. Because the agent was not testifying as to a statement made by Mr. Marbury‘s co-defendant, Bruton does not apply. Because the aforementioned testimony does not implicate Bruton, Mr. Marbury cannot demonstrate prejudice and therefore has failed to establish that his counsel was ineffective for failing to object to the testimony.
{¶24} Mr. Marbury also asserts that the trial court found that the agent‘s testimony concerning the purрose of Mr. Leonard‘s trip to Cleveland was “‘absolutely inadmissible.‘”
{¶25} Mr. Marbury‘s second assignment of error is overruled.
Cumulative Error
{¶26} Finally, Mr. Marbury urges this Court to determine that trial counsel‘s alleged errors, taken together, demonstrate that counsel was ineffective, thereby dеpriving Mr. Marbury of his constitutional rights. Specifically, Mr. Marbury points to trial counsel‘s failure to file a motion to dismiss on speedy trial grounds and failure to object to the admission of testimony that violated Mr. Marbury‘s right to confront witnesses against him. As we have determined above that Mr. Marbury has not effectively shown that he was prejudiced by the alleged errors of counsel, we therefore conclude that the doctrine of cumulative error does not apply. State v. Wade, 9th Dist. No. 02CA0076-M, 2003-Ohio-2351, at ¶55. Mr. Marbury‘s fourth assignment of error is overruled.
SENTENCING
{¶27} In his third assignment of error Mr. Marbury claims that the trial court erred by declining to exercise its discretion to disregard the jury‘s finding that Mr. Marbury was guilty of the major drug offender specifications. Mr. Marbury argues that the major drug offender finding is an issue for the court, not the jury, to determine. Mr. Marbury asserts that he was prejudiced when the trial court imposed a ten-yеar prison sentence because the court could have exercised its discretion to impose a lesser sentence.
{¶28} When an offender is convicted of possession or trafficking of cocaine and the amount of the drug involved exceeds one thousand grams, the offender is classified as a major drug offender pursuant to statute.
{¶29} In the instant matter, the testimony at trial demonstrated that Mr. Marbury was in possession of almost three thousand grams of cocaine. The jury convicted Mr. Marbury of felony possession and trafficking of cocaine and found that the amount of cocaine involved was in excess of one thousand grams. In light of the jury‘s findings, Mr. Marbury was classified as a major drug offender and the trial court was required by statute to impose a mandatory prison sentence of ten years.
{¶30} Mr. Marbury cites
{¶31} Mr. Marbury has not shown that the trial court erred. We overrule Mr. Marbury‘s third assignment of error.
CONCLUSION
{¶32} Upon thorough review of the record and the parties’ arguments, we overrule each of Mr. Marbury‘s assignments of error. Accordingly, we affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandаte, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR
APPEARANCES:
DONALD GALLICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.