646 N.E.2d 499 | Ohio Ct. App. | 1994
Lead Opinion
Appellant, Nathan J. Thompson, was indicted May 19, 1993, by a Sandusky County Grand Jury on one count of aggravated robbery, with a firearm specification. As a result of the indictment, appellant was arrested on July 14, 1993 and was arraigned the following day in the Sandusky County Court of Common Pleas. Appellant entered a plea of not guilty and bond was set in the amount of $10,000; the record does not indicate that this bond was posted.
The initial trial date was set for September 21, 1993. That trial date was later reassigned to October 5, 1993, with no explanation included in the record for the change. The trial date was again reassigned to October 13, 1993; this time the reassignment notice contained a notation that the continuance was requested by the court. The case was once more reassigned; the new trial date was set for October 19, 1993. This last reassignment notice did not contain any explanation for the change.
Appellant's trial did commence on October 19, 1993, and appellant was convicted by a jury of aggravated robbery with the specification of possession of a firearm. A judgment entry was journalized on October 25, 1993, accepting the jury verdicts and sentencing appellant to ten to twenty-five years, with three years of additional actual incarceration to be served for the firearm specification. The trial court noted that as of the date of sentencing, appellant was "entitled to 98 DAYS credit against the sentence imposed."
Appellant filed a notice of appeal on October 28, 1993, setting forth the following three assignments of error:
"ASSIGNMENT OF ERROR NUMBER ONE
"The defendant was not brought to trial within 90 days of his arrest and is entitled to be discharged because he was not tried within the time required under the Speedy Trial Statute, Ohio Revised Code Sections
"ASSIGNMENT OF ERROR NUMBER TWO
"Appellant was denied his constitutional right to effective assistance of counsel in that his counsel did not timely move for a discharge of appellant for failure of the State to bring him to trial within 90 days after he was placed in jail under bond in this case, as required by
"ASSIGNMENT OF ERROR NUMBER THREE
"It was reversible error for the jury to find defendant guilty of the specification in the indictment that he had a firearm on or about his person during the commission of the alleged offense."
The right to a speedy trial is guaranteed by the Constitutions of both the United States and the state of Ohio. Sixth Amendment to the Constitution of the United States; Section
In the instant matter, appellant was arrested on July 14, 1993, and not brought to trial until October 19, 1993: a period of ninety-seven days as computed pursuant to R.C.
Appellant's argument is specious in two respects. First, the record contains a document captioned "speedy trial calculations" upon which the notation "7-14-93 holder placed and served on him" appears. Elsewhere on the face of this document is the phrase "prob" and "parole viol. holder from Weaver's court." The words "prob" and "parole" are interlineated. This document appears to be *186
an attachment to the trial court's judgment entry on arraignment. The provisions of R.C.
Appellant argues that the document containing the "speedy trial calculations" is insufficient to show that he was held on a parole or probation "holder" and that, in any event, such a holder was predicated on the same charges for which he was tried in this matter. This, appellant suggests, distinguishes his case from the line of cases following McDonald, supra,
Appellant is correct insofar as the "speedy trial calculations" document does not show the exact nature of the "holder" with which appellant was served. Therefore, we are unable to determine whether the premise of appellant's argument distinguishing McDonald is accurate. Nonetheless, we note that the Supreme Court of Ohio has considered appellant's identical proposition and rejected it. See State v. Martin (1978),
Finally, even were we to determine that the "speedy trial calculation" document is insufficient to establish a probation holder or, for that matter, even if no document whatsoever appeared in the record on this matter, appellant could still not prevail on these assignments. There is no need to reference such a holder unless the defendant properly raises the speedy trial issue.2 The plain language of the statute states that the proper method of raising this issue is "[u]pon motion made at or prior to the commencement of trial * * *." R.C.
Were we to adopt appellant's position, a defendant could simply wait until his direct appeal to initially raise the speedy trial issue. On direct appeal, an appellate court can consider only the evidence to which the trial court was privy. See App.R. 9. Therefore, under such a scenario, the state would be foreclosed from supplementing the record to show that an appellant was being held on a holder from another case.3 Were we to find a failure to dismiss under such circumstances as plain error, justice would not be served. Accordingly, appellant's first assignment of error is not well taken.
With regard to appellant's second assignment of error, as we have discussed above, from the record before us it is not possible to discern whether there was a reasonable probability that a motion to dismiss on speedy trial grounds would have been successful. Therefore, appellant has failed to demonstrate that his trial counsel was ineffective for failing to raise such a motion. See Strickland v. Washington (1984),
R.C.
"(B)(1) * * * any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. `Firearm' includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable.
"(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm." *188
An examination of the record reveals testimony that the robbery participant who wielded the small silver revolver pointed it at the head of a victim and said that he would kill her if she said anything. This clearly is a representation and action of an individual exercising control over the firearm by which a jury could have reasonably inferred that the weapon was loaded and operable. This alone is sufficient to support the jury's verdict on the firearm specification. See State v. Murphy
(1990),
Upon consideration whereof, the judgment of the Sandusky County Court of Common Pleas is affirmed. It is ordered that appellant pay court costs of this appeal.
Judgment affirmed.
GLASSER, J., concurs.
HANDWORK, J., concurs separately.
Concurrence Opinion
As my esteemed colleague, the Honorable James Sherck, recently acknowledged in an opinion he drafted for this court, "`bad facts make bad law.'" Miller v. Miller (1993),
Under the current status of the law, if a defendant is unfortunate enough to be represented by counsel who fails to make a motion to dismiss for failure to provide a speedy trial, the prosecution and trial court have no obligation to show on the record that an exception to the speedy trial deadlines established by statute exist, and the defendant has no available remedy on appeal, even if the defendant was denied a speedy trial, because the defendant cannot prove a *189
negative; that is, the defendant cannot prove that no exception existed to the statutorily established speedy trial time limits. The defendant is therefore estopped from demonstrating ineffective assistance of counsel on appeal. In addition, the doctrine of waiver has been applied to prevent the defendant from first presenting a speedy trial issue on appeal. See,e.g., State v. Baldauf (1990),
I believe that the burden should always rest with the prosecution and the trial court to show on the record if an exception to the statutory speedy trial limits exists in a case, even if no motion to dismiss on speedy trial grounds is filed. I also believe that the doctrine of plain error should be invoked by courts of appeal to bypass the waiver rule when the record shows a prima facie case for failure to provide a speedy trial. See Reichert v. Ingersoll (1985),
My beliefs are based upon my view that the right to a speedy trial is fundamental in nature. The drafters of the Constitutions of our nation and of our state considered the right to a speedy trial vital. The drafters of those two documents believed the state's power to detain and try an individual on criminal charges must be limited by time constraints, to ensure that persons could not be held indefinitely and to ensure that the evidence did not grow stale. I am concerned when an individual who is convicted of a crime must be released from prison, but I am also aware that the courts of this state are bound to enforce the Constitution of the United States and the Constitution of the state of Ohio.
As acknowledged in the majority opinion, under Ohio law, an individual must ordinarily be brought to trial within two hundred seventy days after being arrested. R.C.
I see no reason why that same burden should not be placed on the prosecution and the trial court even when the defendant's counsel fails to file a motion for a speedy trial. The Supreme Court has noted that the state can easily show the existence of a probation holder by filing court records, a journal entry or jail records. State v. Butcher (1986),