2006 Ohio 2960 | Ohio Ct. App. | 2006
{¶ 2} On December 16, 2004, the Franklin County Municipal Court issued a temporary protection order against appellant in case No. 2004 CRB 30917. The protected party was Jessica Lundberg. The protection order was in force from the date of issuance through March 28, 2005. Under the terms of the order, appellant was prohibited from initiating or having any contact with the protected party.
{¶ 3} On December 16, 2004, within hours of the issuance of the temporary protection order, appellant began telephoning the victim.1 Affidavits charging appellant with two counts of violating a protection order were filed on December 30, 2004 in Municipal case numbers 04 32797-1 and 04 32797-2 and warrants were issued for appellant's arrest.
{¶ 4} On March 7, 2005, four additional affidavits were filed charging appellant with violation of the same protection order. The violations alleged appellant contacted the victim on February 3, 2005, twice on February 17, 2005, and once on February 22, 2005.
{¶ 5} Appellant was arrested on February 22, 2005 on the first set of warrants and again on March 3, 2005 on the remaining warrants. A pretrial was held on March 1, 2005. Trial on both cases were scheduled for March 28, 2005. On that date, the trial court filed a journal entry that continued trial to April 26, 2005 at the request of the defendant. On April 26, 2005, the cases were continued to May 23, 2005 at the defendant's request. Defense counsel was unavailable on May 23 and requested a continuance to May 24, 2005.
{¶ 6} On May 24, 2005, trial was continued to July 6, 2005 for the stated reason that the defendant had "fired his attorney/withdrawn." The court appointed private counsel to represent appellant.
{¶ 7} On July 6, 2005, the date scheduled for trial, appellant waived trial by jury and elected to be tried by the court. Appellant was found guilty and was sentenced.
{¶ 8} Appellant raises five assignments of error:
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING THE APPELLANT HIS RIGHT TO SPEEDY TRIAL UNDER O.R.C.
II. THE COURT ERRED IN FAILING TO CONSIDER ALL OF THE FACTORS LISTED IN O.R.C.
III. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM, CONSECUTIVE SENTENCES.
IV. THE TRIAL COURT ERRED AND THEREBY DEPRIVED THE APPELLANT, MARLON SIMMS, OF DUE PROCESS OF LAW AS GUARANTEED BY THE
V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 9} In his first assignment of error, appellant claims denial of his right to a speedy trial under both the
{¶ 10} First, appellant failed to raise his claim in the trial court. See R.C.
{¶ 11} We begin with an analysis of appellant's statutory speedy trial claim. Appellant was charged with multiple violations of R.C.
{¶ 12} The time for trial may be extended for reasons set out in R.C.
The time within which an accused must be brought to trial * * * may be extended only by the following:
* * *
(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
* * *
(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion[.]
{¶ 13} The record on appeal shows that the case was initially scheduled for trial on March 28, 2005. Appellant asserts that his cases were "continued four times against his wishes." (Brief, at 1.) However, a review of the record on appeal does not support this claim. The journal entries for the four continuances following the initial trial date indicate the continuances were granted at the request of the defendant.4 Pursuant to R.C.
{¶ 14} Appellant's claims under the
{¶ 15} Under Barker, a
{¶ 16} In this case, applying the Barker balancing test, there is nothing to support appellant's constitutional speedy trial claim. Appellant was tried within four and one-half months of his arrest during which time appellant either requested or created the need for every continuance of trial. Appellant demonstrates no prejudice to his case as a result of this minimal delay. The first assignment of error is overruled.
{¶ 17} In his second assignment of error, appellant states the trial court failed to consider various statutory sentencing criteria. In the absence of some contrary showing, a court is presumed to have considered statutory sentencing criteria. Statev. Adams (1988),
{¶ 18} Appellant's third assignment of error asserts that the imposition of maximum sentences to be served consecutively violates the provisions of R.C.
{¶ 19} In State v. Foster,
{¶ 20} While Foster reviewed sentencing in felony cases, the same reasoning applies to sentencing in misdemeanor cases. With respect to maximum sentences, R.C.
{¶ 21} Foster applies to cases pending on direct review when that decision was announced. The question remains whether all cases pending on direct appeal and involving sentencing determinations based on fact-finding must be remanded for re-sentencing or whether "ordinary prudential doctrines," such as waiver, may be applied. See United States v. Booker (2005),
{¶ 22} Foster did not announce a new constitutional rule. As noted above, Foster applied Apprendi and Blakely to Ohio statutes. None of the litigants in Foster raised their
{¶ 23} In Booker, the Supreme Court of Ohio provided guidance to federal appellate courts when applying that decision:
As these dispositions indicate, we must apply today's holdings-both the
Id. at 268. (Emphasis added.)
{¶ 24} Foster followed the remedial path set out inBooker. The language in Booker fits squarely with prior holdings of Ohio courts that have routinely applied the doctrine of waiver. See, e.g., State v. Comen (1990),
{¶ 25} There appears to be no reason why the traditional doctrine of waiver should not apply to claims that the Ohio sentencing statutes violate the principles of Blakely where the sentencing took place after the announcement of that decision. The Ninth Appellate District so held in State v. Dudukovich,
Lorain App. No. 05CA008729,
{¶ 26} Blakely was decided June 24, 2004. Appellant was sentenced on July 18, 2005, over one year after Blakely was decided. Appellant could have, but did not raise a
{¶ 27} Appellant's fourth assignment of error asserts that the verdict of the trial court was against the manifest weight of the evidence. Appellant correctly states that, on review, an appellate court sits as a "thirteenth juror" on issues of weight of the evidence. The reviewing court examines the entire record, weighs the evidence and all reasonable inferences to be drawn therefrom, considers the credibility of the witnesses and resolves conflicts in the evidence to determine if the trier of fact lost its way. State v. Thompkins (1997),
{¶ 28} Having done so, we cannot say that the trial court lost its way or that the court should have believed the defendant and rejected the victim's testimony. In fact, appellant admitted during cross-examination that he was aware of and understood the terms of the protection order, but contacted the victim anyway. In this case, it is clear that appellant acted knowingly, a higher culpable mental state than the element of recklessness required for a violation of R.C.
{¶ 29} In his final assignment of error, appellant claims he received ineffective assistance of trial counsel in violation of the
{¶ 30} Appellant first claims his attorney(s) ignored his requests for a prompt trial and insisted that he plead guilty. Appellant does not identify any portion of the record that supports his claim that he opposed the several continuances that the record shows were granted on the request of the defense. Moreover, counsel can waive the time within which trial is to be held and that waiver binds the accused even though it is without his consent. State v. McBreen (1978),
{¶ 31} Appellant argues that his attorney was ineffective because his attorney insisted that he plead guilty. Again, the record does not bear this out. Instead, the record includes a document filed on July 6, 2005, signed by appellant, appellant's counsel, and the trial judge in which appellant acknowledged the advice of his attorney, the nature of the state's plea offer and proposed sentencing recommendation.7 The written acknowledgment included defense counsel's professional opinion of what was in the best interests of his client and his professional view that the evidence appellant wished to present at trial went to mitigation, rather than to a defense. Nevertheless, appellant wished to exercise his right to put the state on its proof. Counsel respected that choice. Counsel vigorously cross-examined the prosecution's witness and argued on behalf of his client. There is no basis to conclude that, by giving professional advice as to what counsel felt was in the best interests of his client, that counsel was derelict in his performance.
{¶ 32} Appellant argues that, if trial counsel had not committed what he perceives to be errors, appellant "would not have become frustrated with the court system and developed a reputation as a malcontent." Appellant believes that counsel's deficiencies caused him to be sentenced to jail rather than probation. Again, the record does not bear out this claim. The trial court discussed probation with appellant. Appellant flatly rejected that option and indicated that, if placed on probation, he would not comply and would not appear at the probation office. It appears that appellant could not get along with more than one attorney assigned to his case. Neither counsel nor counsel's performance created appellant's attitude. There is no basis to find that counsel was ineffective in this matter.
{¶ 33} Appellant argues that trial counsel should have objected to the playing of the telephone tapes on grounds that they were hearsay, not properly authenticated, lacked a foundation, that there was a failure of the "chain of custody," and that their prejudicial impact outweighed their probative value. None of these proposed objections has merit.
{¶ 34} The statement of a party opponent is, by definition, not hearsay. Evid.R. 801(D)(2)(a). Once the victim identified appellant's voice on the recordings, any objection on hearsay grounds would have been frivolous.
{¶ 35} The tapes were authenticated when the victim identified them as telephone calls from appellant and identified his voice on the tapes. Evid.R. 901(A), (B)(5) and (6). The tapes were not merely presented in court without explanation. The victim testified that the calls were made to her telephone and when they occurred. Ample foundation for their admission exists. Counsel could not be ineffective in failing to object to properly authenticated and identified, non-hearsay.
{¶ 36} Finally, as a general matter, "the state [is] not required to prove a perfect, unbroken chain of custody." Statev. Keene (1998),
{¶ 37} There is no basis to find that trial counsel was ineffective. The fifth assignment of error is overruled.
{¶ 38} Having overruled each assignment of error, the judgment of the Franklin County Municipal Court is affirmed.
Judgment affirmed.
Petree and Whiteside, JJ., concur.
WHITESIDE, J., retired of the Tenth Appellate District, assigned to active duty under the authority of Section
