STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEFFREY R. SERGENT, II, DEFENDANT-APPELLANT.
CASE NO. 13-19-20
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
November 18, 2019
2019-Ohio-4717
Appeal from Seneca County Common Pleas Court, Trial Court No. 18 CR 0267; Judgment Affirmed
Brian A. Smith for Appellant
Angela M. Boes for Appellee
{¶1} Defendant-appellant, Jeffery R. Sergent, (“Sergent“), appeals the June 4, 2019 Judgment Entry of Sentence issued by the Seneca County Common Pleas Court journalizing his conviction for one count of Assault on a Peace Officer and one count of Resisting Arrest, and sentencing him to serve sixteen months in prison. On appeal, Sergent claims that the prosecutor failed to bring him to trial within the appropriate timeframe set forth in
Relevant Facts
{¶2} On November 22, 2018, Thanksgiving Day, Sergent‘s adult stepson contacted local law enforcement to disclose Sergent‘s location at a residence in Bloomville, Seneca County, Ohio. The record indicates that Sergent was wanted on an active warrant issued in the State of Tennessee. Sheriff‘s Deputies Mark Lawson and Keegan Walter arrived at the residence to execute the Tennessee warrant for Sergent‘s arrest. The deputies were let into the home by Sergent‘s stepson and were given permission to kick down the locked door to the bedroom where Sergent was resting. Sergent attempted to flee upon encountering the Deputies. Deputy Lawson deployed his taser with one prong lodging in Sergent‘s
{¶3} Deputy Walter and Sergent‘s stepson ran after Sergent a short distance until Sergent tired. Sergent refused to comply with Deputy Walter‘s commands to surrender. Deputy Walter tackled Sergent onto his back and a struggle ensued. Sergent was alleged to have struck Deputy Walter with a closed fist and to have attempted to gain control over Deputy Walter‘s firearm during the altercation. Shortly thereafter, other law enforcement officers arrived on the scene. Sergent was eventually subdued and placed under arrest.
Procedural History
{¶4} On December 3, 2018, the Seneca County Sheriff‘s Office filed a complaint against Sergent alleging that he committed the offense of Aggravated Robbery, in violation of
{¶5} On December 19, 2018, Sergent was formally indicted on the charges by the Seneca County Grand Jury. Sergent appeared for arraignment. The trial court noted in its January 16, 2019 judgment entry that “[t]he defendant waived all of defendant‘s rights, excluding the waiver of trial by jury and the right to a speedy
{¶6} The case proceeded to a two-day jury trial on June 3, 2019. The State presented the testimony of Deputies Lawson and Walter. Sergent presented the testimony of his stepson, Peter Maier. Sergent also testified on his own behalf. The jury returned a verdict of not guilty on the Aggravated Robbery charge and verdicts of guilty on the Assault on Peace Officer and Resisting Arrest charges.1
{¶7} On June 4, 2019, the trial court issued a judgment entry sentencing Sergent to a sixteen-month prison term on his Assault on a Peace officer conviction and to 150 days of local jail time for his Resisting Arrest conviction, to be served concurrently. The trial court also granted Sergent 195 days of jail time credit.
{¶8} It is from this judgment entry that Sergent now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
BECAUSE APPELLANT WAS NOT BROUGHT TO TRIAL WITHIN THE STATUTORILY REQUIRED TIME ENUMERATED IN
BECAUSE APPELLANT‘S TRIAL COUNSEL FAILED TO FILE A MOTION TO DISMISS, ON SPEEDY TRIAL GROUNDS, AT OR PRIOR TO THE COMMENCEMENT OF APPELLANT‘S TRIAL, THE PERFORMANCE OF APPELLANT‘S TRIAL COUNSEL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
ASSIGNMENT OF ERROR NO. 3
BECAUSE THE JURY LOST ITS WAY AND CREATED A MANIFEST MISCARRIAGE OF JUSTICE IN FINDING APPELLANT GUILTY OF ASSAULT ON A PEACE OFFICER, APPELLANT‘S CONVICTION FOR ASSAULT ON A PEACE OFFICER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
First Assignment of Error
{¶9} In his first assignment of error, Sergent argues that his right to a speedy trial was violated because he was not brought to trial within the timeframe prescribed by
Legal Authority
{¶10} The right to a speedy trial is guaranteed by the
{¶11} Once the statutory time limit has expired, the defendant has established a prima facie case for dismissal. At that point, the burden shifts to the State to demonstrate that sufficient time was tolled pursuant to
Discussion
{¶12} On appeal, Sergent claims that his right to a speedy trial was violated because he was being held solely on the charges in the case sub judice, and therefore he was entitled to the triple-count provision enumerated under
{¶13} The record indicates Sergent failed to file a motion to be discharged for lack of speedy trial.
{¶14} On this basis, numerous courts, including the Supreme Court of Ohio have held that the issue of speedy trial cannot be raised for the first time on appeal and that the failure to file an appropriately timed motion on speedy trial grounds constitutes a waiver of the issue. State v. Taylor, 98 Ohio St. 3d 27, 33, 2002-Ohio-7017, ¶ 37 (stating that “appellant‘s failure to file a motion to dismiss on speedy trial grounds prior to trial and pursuant to
{¶15} However, in some cases courts have elected to address the failure to file such a motion under the plain error doctrine. City of Cleveland v. Dancy, 8th Dist. Cuyahoga No. 107241, 2019-Ohio-2433, ¶ 11; State v. Simms, 10th Dist. Franklin Nos. 05AP-806 and 05AP-807, 2006-Ohio-2960; State v. Burgess, 11th Dist. Lake No. 2003-L-069, 2004-Ohio-4395 (trial counsel‘s failure to object waived review of the speedy trial claim absent plain error); State v. Griffin, 9th Dist. Medina No. 2440-M (Dec. 20, 1995). But see, State v. Turner, 5th Dist. Licking No. 05CA108, 2006-Ohio-3786, ¶ 22 (stating “the failure to raise the question of such a violation denies the appellee the opportunity to establish that tolling of the statute occurred. The proper approach is the filing of a postconviction-relief petition alleging ineffective assistance of counsel. In such a procedure, both the appellant and the appellee could develop the issue of whether tolling occurred.“).
{¶16} This notwithstanding, under the application of either standard our resolution of this issue would be the same under the facts presented. It is undisputed by the parties that Sergent was arrested on November 22, 2018, upon the execution of an arrest warrant issued by a Tennessee Court for criminal charges pending in that state. It is not evident from the record at what point, if ever, Sergent‘s out of state charges were resolved. It is therefore not clear that Sergent was ever held without bail solely on the pending charges in the instant case. Therefore, the record does not support Sergent‘s argument that he was entitled to the triple-count provision under
Second Assignment of Error
{¶17} In his second assignment of error, Sergent claims that his trial counsel was ineffective for failing to file a motion to discharge on speedy trial grounds prior to the trial. Sergent premises his argument upon the contention that the triple-count provision under
Legal Standard
{¶18} To prove an allegation of ineffective assistance of counsel, Sergent must satisfy a two-prong test. First, Sergent must establish that his trial counsel‘s performance has fallen below an objective standard of reasonable representation. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. Second, Sergent must demonstrate that he was prejudiced by counsel‘s performance. Strickland, 466 U.S. at 687. To show that he has been prejudiced by counsel‘s deficient performance, Sergent must prove that, but for counsel‘s errors, the result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
{¶20} Given our resolution of the first assignment of error that Sergent failed to establish that the triple-count provision in
Third Assignment of Error
{¶21} In his third assignment of error, Sergent argues that his conviction for Assault on a Peace Officer is against the manifest weight of the evidence. Specifically, Sergent claims that the State failed to prove beyond a reasonable doubt that he knowingly caused or attempted to cause physical harm to Deputy Walter.
{¶22} In reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.
{¶23} Nevertheless, a reviewing court must allow the trier of fact appropriate discretion on matters relating to the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Controlling Statute
{¶24} Sergent was convicted of Assault on a Peace Officer, in violation of
(A) No person shall knowingly cause or attempt to cause physical harm to another or to another‘s unborn.
* * *
(C)(5) If the victim of the offense is a peace officer or an investigator of the bureau of criminal identification and investigation, a firefighter, or a person performing emergency medical service, while in the performance of their official duties, assault is a felony of the fourth degree.
{¶25}
{¶26} On appeal, Sergent acknowledges that Deputy Walter was in the performance of his officials duties during the physical altercation. However, Sergent disputes the jury‘s finding that the State proved beyond a reasonable doubt that he knowingly caused or attempted to cause physical harm to Deputy Walter.
Evidence Adduced at Trial
{¶27} At trial, the prosecution presented the testimony of Deputy Keegan Walter who testified about his physical struggle with Sergent after Sergent fled from
I then continued trying to circle him to keep him maintained in that area until my back up arrived. And at that same time I was radioing, trying to give him (backup) my location. And then made an attempt to subdue Mr. Sergent. Attempted to serve the warrant. And at that time, he turned and swung at me with closed fist and hit me on the top of head and down the face. And then he backed up into a fighting stance with closed fists. And he continued to back off after that. I continued to give him commands. Numerous commands. Get on the ground. Get on the ground. He was not complying. I started to be able to hear my back or back-up coming. And I felt as Mr. Sergent, Sergent was getting his wind back and I felt if there was another chase that we would not be able to execute the warrant. And so I, he did turn slightly and I went for another attempt. At that time, he also swung at me again, but missed. I ducked under, took him to the ground. At that time, he reached over my back and was yanking up on my gun. And that, in an attempt to, I believe, to protrude from my holster. I then put my left forearm into his face area to push him back and my right hand back at my gun to attempt to stop him from pulling it. And I did numerous times yell he‘s going for my gun. He‘s going for my gun. At that time, shortly after, Sergeant Beier arrived, along with Deputy Lawson, and we were able to subdue Mr. Sergent without further incident.
(Tr. at 116-17).
{¶28} Deputy Walter‘s testimony was corroborated by the testimony of Deputy Mark Lawson who observed Sergent hit and kick Deputy Walter before he
{¶29} Deputy Walter testified about injuries he received as a result of the altercation with Sergent. He explained that he had bruising on his left bicep as well as pain and temporary loss of strength in his shoulder, which required him to take time off of work because he could not lift anything with that arm. Deputy Walter also recalled feeling pain on his forehead, eye, lip, and cheek from where Sergent had struck him with a closed fist. Deputy Lawson further testified to observing bruises on Deputy Walter‘s face and chin after the incident. He recalled that Deputy Walter showed him “injuries to [Deputy Walter‘s] left forearm, bicep the next day.” (Tr. at 102). Deputy Lawson advised Deputy Walter to take photographs of his injuries. The State submitted a photo of Deputy Walter‘s bruised bicep as an exhibit, which was admitted for the jury to review.
{¶30} Sergent presented the testimony of his step-son, Peter Maier, who stated that he followed Deputy Walter when the foot pursuit began after Sergent fled from the residence. Peter testified he was also present with Sergent and Deputy
{¶31} Sergent also testified and acknowledged that he ignored Deputy Walter‘s commands at the water treatment plant. He explained that he was attempting to talk to Peter when Deputy Walter tackled him from behind. Sergent stated that he gave up resisting shortly after being tackled to the ground and was handcuffed. Sergent denied ever swinging at Deputy Walter or attempting to strike him with his fists.
{¶32} After reviewing the record, weighing inferences, and examining the credibility of the witnesses, we find that Sergent‘s conviction for Assault on a Peace Officer is not against the manifest weight of the evidence. The trier of fact was presented with two different versions of events, and the jury found the State‘s
{¶33} Based on the foregoing, the assignments of error are overruled and the judgment and sentence of the trial court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and PRESTON, J., concur.
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