{¶ 2} Appellant raisеs the following assignments of error for review and determination:
FIRST ASSIGNMENT OF ERROR:
"DEFENDANT'S CONVICTION AND SENTENCE WERE IN VIOLATION OF HIS CONSTITUTIONALLY PROTECTED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY NOT ORDERING AS PART OF DEFENDANT'S SENTENCE THAT HE BE GIVEN CREDIT FOR THE NUMBER OF DAYS SERVED DURING PRE-TRIAL INCARCERATION IN LIEU OF BAIL."
THIRD ASSIGNMENT OF ERROR:
"DEFENDANT'S CONVICTION AND SENTENCE WERE IN VIOLATION OF HIS RIGHT TO DUE PROCESS IN THAT HE WAS NOT AFFORDED A HEARING ON HIS MOTION TO DISMISS PRIOR TO ENTERING HIS PLEA OF NO CONTEST."
FOURTH ASSIGNMENT OF ERROR:
"DEFENDANT'S CONVICTION AND SENTENCE WERE IN VIOLATION OF HIS STATUTORY RIGHTS UNDER RULE 39(B)(2) OF THE RULES OF SUPERINTENDENCE FOR THE COURTS OF OHIO."
{¶ 3} On September 19, 2004, appellant, while incarcerated on unrelated charges, struck another inmate with a broom. On September 20, 2004, a complaint filed in municipal court charged appеllant with felonious assault in violation of R.C.
{¶ 4} On December 1, 2004, appellant filed a pro se motion to dismiss and asserted that because the grand jury had not taken action within sixty days from the date of his bindover, C.P.Sup.R. 39(B)(2) required the court to dismiss the charge. On December 3, 2004, the grand jury returned an indictment charging appellant with felonious assault.
{¶ 5} Subsequently, the prosecution entered into a plea agreement to reduce the charge to a misdemeanor assault offense and appellant pled no contest. The trial court then found appellant guilty and sentenced him to six months imprisonment to be served concurrently with the sentence imposed in Case Number 04CR284.1 This appeal followed.
{¶ 7} In response to appellant's argument that counsel rendered ineffective assistance, the prosecution writes:
"The State takes no position as to the propriety of crediting Appellant's jail sentence with time served prior to conviction. Pursuant to the plea agreement between Appellant and the State, the State reduced Appellant's indicted offense from a felony to a first degree misdemeanor, and took no position as to sentencing. It was understood at the time of the plea that any jail sentence imposed upon Appellant would have to be served concurrent to the prison sentence Appellant had received for his conviction in the Ross County Court of Common Pleas, case number 04C-R-284. In that matter Apрellant was sentenced, on March 2, 2005, to a cumulative prison sentence of 16 years. The State anticipated at the time of the plea that Appellant would not serve any actual additional time for his conviction of Assault. Whether Appellant receives credit for time served or not, he will ultimately serve the same amount of time in jail (post conviction) for the offense of Assault: none. Therefore, as a practical matter the State takes no position as to jail-time credit for this misdеmeanor conviction."
{¶ 8} Thus, the prosecution asserts that trial counsel was not ineffective in failing to request a hearing on appellant's pro se motion to dismiss because the motion became moot once the grand jury indicted appellant.
{¶ 9} A reviewing court will not reverse a trial court's judgment based upon a defendant's ineffective assistance of counsel claim unless the defendant shows both: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. See, e.g., State v. Smith (2000),
{¶ 10} In the case at bar, we disagree with appellant's claim that counsel's allegedly deficient performance concerning the failure to request jail time credit prejudicеd his case. R.C.
The department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced * * *.
{¶ 11} "The statute requires that any sentence be reduced by the number of days the prisoner was confined for any reason arising out of the offense for which he was convicted." State v.Redman, Ross App. No. 00CA2556,
{¶ 12} In his аppellate brief, appellant acknowledges that before his sentencing in the case at bar he was being held on this charge as well as another charge. At the time of the commission of the offense involved in the instant case, appellant was incarcerated on unrelated charges. Appellant admits that he received jail time credit for those days in another case and he is not entitled to additional jail time credit in this case. SeeRedman. Therefore, had appellant's trial counsel requested jail time credit, the trial court would have had no obligation under these facts to give appellant jail time credit. Thus, appellant cannot demonstrate that counsel's allegedly deficient performance prejudiced his case.
{¶ 13} Second, we disagree with appellant that counsel's allegedly deficient performance in failing to request the court to rule upon his pro se motion to dismiss prejudiced his case. Appellant claims that under C.P.Sup.R. 39(B)(2), he was entitled to a dismissal of the charges. C.P.Sup.R. 39(B)(2) states:
"When an accused has been bound over to a grand jury and no final action is taken by the grand jury within sixty days after the date of the bindover, the court or the administrative judge of the court shall dismiss the charge unless for good cause shown the рrosecuting attorney is granted a continuance for a definite period of time."
{¶ 14} In State v. Tyler (1990),
"Section
* * * The Rules of Superintendence are not designed to alter basic substantive rights of criminal defendants.' State v.Singer (1977),
The court in the instant case was correct in finding C.P.Sup. 8(A) had been violated; however, it was incorrect in the sanction it imposed for the violation. Although the rule calls for a dismissal of the charge, it does not state the dismissal should be with prejudice. Appellee cites no authority for the court's use of the superintendence rules as an absolute bar to criminal prosecution.
In State v. Porter (1976),
The court in State v. Gettys (1976),
`* * * [P]urely internal housekeeping rules which are of concern to the judges of the several courts but create no rights in individual defendants. * * *'"
{¶ 15} Thus, because the rule is not mandatory, the trial court had no obligation to dismiss the charges with prejudice. Furthermore, had the court ordered a dismissal, the state could have simply re-filed the charges. Thus, the under the facts presented in the case at bar, appellant has not demonstrated prejudice that would warrant a reversal of his criminal convictions.
{¶ 16} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.
{¶ 18} Our discussion of appellant's first assignment of error sufficiently disposes of this issue and we need not repeat that discussion here. Appellant is not entitled to jail time credit when he received credit for the days spent in jail in an unrelated case.
{¶ 19} Accordingly, based upon the foregoing reasons, we overrule appellant's second assignment of error.
{¶ 21} "Although the concept is flexible, at its core, procedural due process under both the Ohio and United States Constitutions requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right. Boddie v. Connecticut (1971),
{¶ 22} Crim.R. 12(F) governs pretrial motions and permits the trial court to rule on the motion "upon briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means." The rule does not require the court to hold an evidentiary or oral hearing.
{¶ 23} Additionally, appellant's motion to dismiss contained nothing to suggest that an evidentiary hearing would aid the court in ruling upоn the motion. It appears that the court could examine the written motion and decide the merits based solely upon the motion and the filings in the case. Thus, the trial court did not deprive appellant of his due process rights.
{¶ 24} Accordingly, based upon the fоregoing reasons, we overrule appellant's third assignment of error.
{¶ 26} We have previously noted that "the Rules of Superintendence are internal housekeeping rules and do not give any rights to individual defendants." State v. Brummett,
Highland App. No. 03CA5,
{¶ 27} Accordingly, based upon the foregoing reasons, we overrule appellant's assignments of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into exеcution.
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 Ohiо 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 tеrminate 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.
Harsha, P.J.: Concurs in Judgment Only Kline, J.: Concurs in Judgment Opinion.