STATE OF OHIO, Plaintiff-Appellee, vs. CARL SAULTZ Defendant-Appellant.
Case No. 09CA3133
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
DATE JOURNALIZED: 4-26-11
[Cite as State v. Saultz, 2011-Ohio-2018.]
ABELE, J.
DECISION AND JUDGMENT ENTRY
COUNSEL FOR APPELLANT: James E. Barrington, James E. Barrington Co., L.P.A., 41 East Fourth Street, Chillicothe, Ohio 456011
COUNSEL FOR APPELLEE: Matthew Schmidt2, Ross County Prosecuting Attorney, and Jeffrey Marks, Ross County Assistant Prosecuting Attorney, 72 North Paint Street, Chillicothe, Ohio 45601
CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, J.
{1} This is an appeal from a Ross County Common Pleas Court judgment of conviction and sentence. Carl Saultz, defendant below and appellant herein, pled no contest to five counts of non-support of dependents in violation of
{2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE MANIFEST PREJUDICE OF APPELLANT BY NOT DISMISSING THE CHARGES AS BEING BEYOND THE PROSECUTABLE (sic) TIME LIMITS ALLOWED BY LAW.”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, TO HIS MANIFEST PREJUDICE, WHEN HIS TRIAL COUNSEL FAILED TO EITHER IMMEDIATELY RESPOND TO THE STATE‘S REQUEST FOR RECIPROCAL DISCOVERY OR TIMELY ADVISE THE STATE THAT NO RESPONSE WAS NECESSARY AND WOULD NOT BE FORTHCOMING (DELAY TIME WOULD NOT HAVE BEEN CHARGED AGAINST DEFENDANT IF HIS COUNSEL HAD TAKEN EITHER STEP).”
{3} On July 27, 2007 the Ross County Grand Jury returned an indictment that charged appellant with five counts of non-support of dependents. Apparently, appellant was arrested, spent the night in jail in Franklin County and was released. The Franklin County authorities instructed appellant to report to the Ross County Clerk of Courts in five days. Appellant, however, failed to report to the Clerk as instructed.3
{4} On November 13, 2007, the trial court arraigned appellant. At that time the prosecution requested reciprocal discovery from defense counsel. The record also suggests that appellant could not satisfy the bond requirement and that he was incarcerated at that time.
{5} Subsequently, appellant filed a motion to dismiss the charges based upon a violation of his statutory speedy trial rights. The trial court denied appellant‘s motion on the
{6} On August 15, 2008, a new indictment was filed that restated the five non-support charges.4 In response, appellant filed another motion to dismiss. The trial court, once again, overruled that motion.
{7} On December 18, 2008, appellant entered no contest pleas to all five counts. The trial court accepted appellant‘s pleas, found him guilty as charged and sentenced him to serve six months on each count, with the sentences to be served concurrently. This appeal followed.
I
{8} In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to dismiss for a speedy trial violation.
{9}
{10} In the case sub judice, the parties agree that appellant was arrested in Franklin
{11} Generally, the failure to respond within a reasonable time to a reciprocal discovery request tolls the running of speedy-trial time. See
{12} Appellant, however, argues that Palmer should not control. We disagree with appellant, albeit with some reservation. Although it may be true, as appellant contends in his brief, that Palmer “has not been greeted by the bench or bar as a bastion of fairness,” the fact remains that this Court and the trial court are both bound by Ohio Supreme Court decisions. See State v. Hardesty, Pickaway App. No. 07CA2, 2007-Ohio-3889, at ¶14; State v. Richardson, Pickaway App. No. 05CA29, 2006-Ohio-386, at ¶16. We cannot simply disregard Palmer.
{13} We are also not persuaded that Palmer is inapplicable because appellant did not
{14} Appellant cites State v. Hawk, Knox App. No. 08CA05, 2009-Ohio-1955, as an example of how courts have distinguished Palmer. However, our view of that case is that the Fifth District Court of Appeals remanded the matter to the trial court to determine what is a “reasonable” amount of time to respond to a reciprocal discovery request. Id at ¶¶31-35. We do not construe Hawk in its current form as an attempt to distinguish Palmer.5
{15} Thus, for these reasons, we agree with the trial court‘s conclusion that Palmer applies to the instant case and that thirty days is an appropriate time to respond to the reciprocal discovery request. Therefore, appellant‘s statutory speedy trial time did not expire.
{16} Our review of the record reveals that appellant‘s trial counsel responded to the reciprocal discovery request on March 18, 2008. This event re-started the speedy trial time clock. The parties also apparently agree that appellant was not in jail when the time started again. Thus, between the time of appellant‘s discovery response and his second motion to dismiss (filed on September 5, 2008), one hundred fifty nine days elapsed. However, the filing of a second motion to dismiss again tolled speedy trial time. See
II
{18} Appellant asserts in his second assignment of error that he received constitutionally ineffective assistance from his trial counsel. In particular, he contends that trial counsel was negligent by not responding to the reciprocal discovery request.
{19} Our analysis begins with the settled premise that a criminal defendant has a constitutional right to counsel, and this right includes the right to the effective assistance from counsel. McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Lytle (Mar. 10, 1997), Ross App. No. 96CA2182. To establish ineffective assistance of counsel, a defendant must show that (1) his counsel‘s performance was deficient, and (2) such deficient performance prejudiced the defense and deprived him of a fair trial. See e.g. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009-Ohio-6179, at ¶200. However, both prongs of the “Strickland test” need not be analyzed if a claim can be resolved under one prong. State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. To establish the existence of prejudice, a defendant must show that a reasonable probability exists, but for counsel‘s alleged error, the result of the trial would have been different. State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus.
{20} In State v. Miller, Medina App. No. 07CA0037-M, 2008-Ohio-1002, at ¶¶14-15,
{21} We find this reasoning persuasive. For purposes of an ineffective assistance claim, prejudice must not be presumed, but rather must be affirmatively shown. See e.g. State v. Hughes, Athens App. No. 08CA19, 2010-Ohio-2969, at ¶27; State v. Clark, Pike App. No. 02CA684, 2003-Ohio-1707, at ¶22; State v. Tucker (Apr. 2, 2002), Ross App. No. 01 CA2592. To hold as appellant invites us to do requires some degree of speculation.
{22} Additionally, other practical considerations trouble us in this scenario. First, to reverse appellant‘s conviction on ineffective assistance of counsel grounds appears to give an unfair advantage to the defense over the prosecution. Some defense counsel, through inaction or otherwise, may never respond to a reciprocal discovery request and, by merely sitting on his hands, obtain a dismissal or a reversal of the conviction. Furthermore, we are not inclined to place even greater burdens on an already overburdened trial court. As appellant noted in his brief, the reciprocal discovery request was not journalized. Thus, how could the trial court
{23} For all these reasons, we overrule appellant‘s second assignment 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 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 Ross 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, 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 Ohio 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 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.
Harsha, P.J. & Kline, 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 commences from the date of filing with the clerk.