STATE OF OHIO v. TERRELL PONYARD
No. 101266
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 29, 2015
[Cite as State v. Ponyard, 2015-Ohio-311.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-578715-A; BEFORE: E.A. Gallagher, J., Celebrezze, A.J., and S. Gallagher, J.
Timothy Young
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Norman Schroth Daniel T. Van Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113
{¶1} Terrell Ponyard appeals the mandatory bindover that removed his case from the Cuyahoga County Juvenile Court to the Common Pleas Court, General Division. Ponyard argues that the mandatory transfer provisions in
{¶2} On June 28, 2013, a complaint was filed in the Cuyahoga County Juvenile Court alleging that then 16-year old Ponyard was delinquent of aggravated robbery with one-and three-year firearm specificatiоns. The state sought to have Ponyard’s case transferred to the Cuyahoga County Common Pleas Court, General Division, to have him tried as an adult pursuant to
{¶3} At a hearing on September 26, 2013, Ponyard stipulated that there was sufficient probable cause for the court to find that he committed the offenses charged in the complaint and he waived his right to a probable cause hearing. The juvenile court transferred the case to the Common Pleas Court General Division.
{¶4} The Cuyahoga County Grand Jury indicted Ponyard with the following charges: Count 1, aggravated robbery, a first-degree felony, Count 2, kidnapping, a first-degree felony, Count 3, theft, a fifth-degree felony and Count 4, theft, a first-degree misdemeanor. Counts 1, 2 and 3 all contained one-and three-year firearm specifications as well as a forfeiture
{¶5} Ponyard appeals, raising the following assigned errors:
The juvenile court erred when it transferrеd Terrell Ponyard’s case to criminal court because the mandatory transfer provisions in
R.C. 2152.10(A)(2)(b) and2152.12(A)(1)(b) are unconstitutional in violation of a child’s right to due process as guaranteed by the Fourteenth Amendment to thе U.S. Constitution andArticle I, Section 16, Ohio Constitution .The juvenile court erred when it transferred Terrell Ponyard’s case to criminal court because the mandatory transfer provisions in
R.C. 2152.10(A)(2)(b) and2152.12(A)(1)(b) violate a child’s right to equal protection as guarantеed by the Fourteenth Amendment to the U.S. Constitution andArticle I, Section 2, Ohio Constitution .The juvenile court erred when it transferred Terrell Ponyard’s case to criminal court because the mandatory transfer provisions in
R.C. 2151.10(A)(2)(b) and2152.12(A)(1)(b) violate the prohibition аgainst cruel and unusual punishments as guaranteed by the Eighth and Fourteenth Amendments to the U.S. Constitution andArticle I, Section 9, Ohio Constitution .The trial court erred when it failed to grant Terrell Ponyard jail time credit to reflect the total number of days he was сonfined in connection with this case.
R.C. 2967.191 ;2929.12(B)(2)(g)(ii) .Terrell Ponyard was denied the effective assistance of counsel. Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution;
Ohio Constitution, Article I, Sections 9 and10 .
The recent Ohio Supreme Court decision of State v. Qauarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, resolves Ponyard’s first, second and third assigned errors.
{¶6} Alexander Quarterman appealed from a judgment of the Ninth District Court of
{¶7} In affirming the Ninth District, the Ohio Supreme Court held as follows:
The failure to challenge the constitutionality of a statute in the trial court forfeits all but plain errоr on appeal, and the burden of demonstrating plain error is on the party asserting it. Not only has Quarterman forfeited his constitutional challenge to Ohio’s mandatory bindover procedure by failing to assеrt it either in the juvenile court or the general division of the common pleas court, but also he has failed to address the application of the plain-error rule to this case and has not given any basis for us to decide that the juvenile court’s transfer of his case to adult court amounts to plain error in these circumstances. Because Quarterman failed to engage these dispositive questions, we decline to reach the merits of his constitutional claims.
{¶8} Like Quarterman, Ponyard failed to preserve any objection to the mandatory bindover in either the juvenile or the general division courts. As such, he has forfeited his constitutional challenge to Ohio’s mandatory bindover procedure. Ponyard further failed to address the application of the plain-error rule to his case and, like Quarterman, has not given any basis for this court to decide that the juvenile court’s transfer of his case to adult court amounts to plain error.
{¶9} Accordingly, we decline to reach the merits of his constitutional claims. Ponyard’s first, second and third assigned еrrors are overruled.
{¶10} In his fourth assigned error, Ponyard argues the trial court erred when it failed to credit him with the total number of days he was confined in connection with his case. This
{¶11} During his sentencing hearing, the trial court stated that “[c]redit for time served shall be given. At this point the defendant has been in jail since October 21, 2013.” However, this calculation of time did not include the time Ponyard spent in custody prior his case being transferrеd to the general division. As such, this case is remanded to the trial court to journalize the appropriate calculation of jail-time credit pursuant to
{¶12} Ponyard’s fourth assigned error is sustained.
{¶13} In his fifth and final assigned error, Ponyard argues his trial counsel rendered ineffective assistance in failing to object to the mandatory bindover and in failing to ensure that he received the correct amount of credit for time served. This assigned error lacks merit.
{¶14} We review allegations of ineffective assistance of trial counsel under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim, appellant must establish that his trial counsel’s performance was deficient and that the deficient performance prejudiced him. Strickland at paragraph two of the syllabus. A trial counsel’s performance is deficient if the conduct complained of fell below an objective standard of reasonableness. Id.
{¶15} “Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. As for prejudice, a trial counsel’s deficient performance is prejudicial when counsel’s errors are serious enough to create a reasonable probability that, but for the errors, the result of trial would have been different.” State v. Mays, 8th Dist. Cuyahoga No. 100265, 2014-Ohio-3815.
{¶17} Lastly, although the Ohio Supreme Court did not address the merits of the constitutional issues in Quarterman, this court did address the constitutionality of Ohio’s mandatory bindover provision in State v. Mays, 8th Dist. Cuyahoga No. 100265, 2014-Ohio-3815. In Mays, this court, citing precedent from other Ohio appellate districts, found no merit to appellant’s argument that the statute violated his due process or equal protection rights under the Fourteenth Amendment, nor did it violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
{¶18} Absent contrary authority from the Ohio Supreme Court on the constitutionality of Ohio’s mandatory bindover statute, this court follows its precedent. As such, we cannot say that Ponyard’s trial counsel provided ineffective assistance in failing to object to the constitutionality of the mandatory bindover provisions contained in
{¶19} Ponyard’s fifth and final assignmеnt of error is overruled.
{¶20} The judgment of the trial court is affirmed in part, reversed in part and remanded for a calculation of all jail-time credit.
It is ordered that appellant and appallee shаre the 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 common pleas court tо carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., A.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION ATTACHED)
STATE OF OHIO v. TERRELL PONYARD
No. 101266
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶21} I dissent in part from the decision of the majority with respect to the handling of the fourth assignment of error. I concur with the remaining portions of the decision. I agree that the trial court failed to adhere to
{¶22} The majority’s dеcision that the trial court erred by failing to include the appropriate calculation of jail-time credit presumes error, subverting the trial court’s discretion and grant of jurisdiction to correct cаlculations pursuant to
Under the amended statute, an “inaccurate”
R.C. 2929.19(B)(2)(g)(i) determination does not provide a basis for setting aside a conviction or render a conviction void or voidable.R.C. 2929.19(B)(2)(g)(iv) . Nor may an erroneous determination be challenged in a new-trial motion or postconviction petition.R.C. 2929.19(B)(2)(g)(iii) .
Id. The defendant’s remedy is to file a motion with the trial court to raise the issue about the appropriate jail-time credit calculation.
{¶23} In light of the foregoing, Ponyard’s fourth assignment of error is without merit.