STATE OF OHIO, Plaintiff-Appellee, vs. DELANIO WRIGHT, Defendant-Appellant.
Case Nos. 15CA3705, 15CA3706
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: 11/17/16
2016-Ohio-7795
McFarland, J.
DECISION AND JUDGMENT ENTRY
Brian A. Smith, Akron, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.1
McFarland, J.
{¶1} Delanio Wright appeals his convictions for trafficking in marijuana in the vicinity of a school in violation of
FACTS
{¶2} On September 26, 2013, Appellant was indicted on two counts of trafficking in drugs in the vicinity of a school, a felony of the fourth degree and in violation of sections
{¶3} On September 29, 2014, the trial court allowed Appellant to withdraw his plea, vacated the judgment of conviction, and set the matter for a pretrial. On June 22, 2015, Appellant filed a motion to dismiss the indictment on speedy trial grounds, pursuant to
ANDERS BRIEF
{¶4} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), counsel may ask permission to withdraw from a case when counsel has conscientiously examined the record, can discern no meritorious claims for appeal, and has determined the case to be wholly frivolous. Id. at 744; State v. Adkins, 4th Dist. Gallia No. 03CA27, 2004-Ohio-3627, ¶ 8. Counsel‘s request to withdraw must be accompanied with a brief identifying anything in the record that could arguably support the client‘s appeal. Anders at 744; Adkins at ¶ 8. Further, counsel must provide the defendant with a copy of
{¶5} Once counsel has satisfied these requirements, the appellate court must conduct a full examination of the trial court proceedings to determine if meritorious issues exist. If the appellate court determines that the appeal is frivolous, it may grant counsel‘s request to withdraw and address the merits of the case without affording the appellant the assistance of counsel. Id. If, however, the court finds the existence of meritorious issues, it must afford the appellant assistance of counsel before deciding the merits of the case. Anders at 744; State v. Duran, 4th Dist. Ross No. 06CA2919, 2007-Ohio-2743, ¶ 7.
{¶6} In the current action, Appellant‘s counsel advises that the appeal is wholly frivolous and has requested permission to withdraw. Pursuant to Anders, counsel has filed a brief raising one potential assignment of error for this Court‘s review.
POTENTIAL ASSIGNMENT OF ERROR
“1. WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT‘S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS, PURSUANT TO
A. STANDARD OF REVIEW
{¶7} “Upon review of a speedy-trial issue, a court is required to count
B. LEGAL ANALYSIS
{¶8} Appellate counsel‘s brief sets forth the only possible issue presented for review and argument that the trial court erred in
{¶9} The
{¶11}
{¶12} Castro was indicted and convicted of two counts of sexual battery. His guilty plea was subsequently vacated. He later pleaded no contest and filed a timely appeal. On appeal, Castro argued his trial counsel was ineffective for failing to file a motion to dismiss a reinstated indictment on the basis that Castro‘s statutory and constitutional rights to a speedy trial were violated. However, the appellate court found no merit to Castro‘s claims that his right to a speedy trial was violated and, therefore, his counsel‘s performance could be deemed ineffective.
{¶13} Castro pointed out that over 300 speedy trial days elapsed between his arrest in December 2011 and his no-contest plea in May 2013. The appellate court observed, however, that Castro originally pleaded guilty
{¶14} In McAllister, the court held that “[t]he provisions of Ohio‘s speedy trial statutes,
“This rationale extends to situations, such as the current one, where a defendant‘s guilty plea is vacated, because the guilty plea acted as the original trial proceeding satisfying the statutory requirement that the defendant be brought to trial within the 270-day period. State v. Davis, 2nd Dist. Montgomery No. 16050, 1997 WL 435687 (July 18, 1997); State v. Johnson, 2nd Dist. Montgomery No. 23908, 2011-Ohio-1286, 2011 WL 941596. Castro‘s statutory right to a speedy trial was not violated. Castro pleaded guilty to the original indictment terminating his statutory right to a speedy trial.”
Id. at 21.
{¶15} Here, we begin by setting forth the following timeline:
April 30, 2013 Appellant arrested on pertinent charges.
September 26, 2013 Appellant indicted.
November 15, 2013 Appellant arraigned. The pleadings appear to indicate Appellant was served the indictment in open court at arraignment. At this point, 164 days had elapsed between the date Appellant‘s charges were dismissed in June and he was served with the indictment.4
November 21, 2013 Defendant‘s request for discovery.
December 9, 2013 State‘s response to discovery. 18 days had elapsed between Defendant‘s request and the State‘s response.
December 11, 2013 Defendant‘s motion to continue trial.
December 20, 2013 Defendant‘s motion granted. 9 days had elapsed.
January 13, 2014 Defendant‘s pro se request for independent testing.
January 14, 2014 Defendant‘s motion denied. One day elapsed between Defendant‘s motion and the court‘s denial.
January 30, 2014 State‘s supplemental response to discovery.
January 30, 2014 State‘s response to request for discovery.
February 4, 2014 Defendant‘s request for new counsel. Counsel‘s motion to withdraw.
February 4, 2014 State‘s motion for continuance of trial.
February 20, 2014 State‘s motion to continue granted. Time to be tolled and charged against defendant.5 The time elapsed between the date of the motion to continue and its grant was 16 days.
April 4, 2014 Appellant entered plea of guilty.
{¶16} Here, Appellant was arrested on April 30, 2013. He entered a plea on April 4, 2014. During that time, 339 days had elapsed. As previously discussed in Castro, the Ohio speedy trial statutes are directed solely to the original trial following arrest. The statutory speedy trial provisions have no application to the time within which a defendant must be tried following vacation of a no contest plea on one‘s own motion. Castro, supra, at ¶ 20, quoting McAllister at 178, 372 N.E.2d 1341.
{¶17} Therefore, counting the number of days tolled due to the case being dismissed once, the failure to serve Appellant until November 2013, Appellant‘s discovery requests, the parties’ motions to continue, and the defendant‘s request for new counsel (filed on the same day as the State‘s motion to continue), we arrive at 208 days in total. As such, subtracting 208 from 339 indicates Appellant was tried within 131 days, well within the 270-day statutory limit. As in Castro, we find no statutory violation.
{¶18} Normally, due to the fact Appellant did not raise a constitutional argument, as well as our above resolution of Appellant‘s statutory argument, further analysis would be foreclosed. However, in the context of an Anders review, where we fully examine the trial court proceedings, we have also analyzed Appellant‘s speedy trial claim within the constitutional realm. We also find no constitutional violation.
{¶19} In Castro, the appellate court also found Castro‘s constitutional speedy trial rights were not violated. In analyzing Castro‘s claim, the appellate court recognized there are four broad factors within the framework for analyzing constitutional speedy-trial claims: the length of delay, the
{¶20} In Winn, the appellate court determined that over a year and a half between the arrest and the defendant‘s trial was not presumptively prejudicial because the defendant “requested numerous continuances, filed many motions, changed counsel, and underwent competency evaluations[,]” and was arrested pursuant to a capias issued when he failed to appear for pretrial hearings. Winn at ¶ 44. This court found that all of these delays were for the defendant‘s benefit and thus contributed to the delay in timely prosecuting. Id.; Castro at 23. Castro states at ¶ 24:
“Similarly, this case was pending for less than one and a half years from Castro‘s arrest to his no-contest plea in May 2013.
During that time, Castro requested numerous continuances, filed many motions, and criminally conspired with his counsel - causing the trial court to vacate his original guilty plea. In light of these specific sets of circumstances, we are not persuaded that the delay was so presumptively prejudicial as to trigger consideration of the Barker factors. Further, even if we found the delay presumptively prejudicial, Castro is unable to demonstrate any prejudice. His sole claim of prejudice assumes that he was somehow incapable of mounting an effective defense because of the year-and-a-half delay between his arrest and his no-contest plea. Castro failed to substantiate any such prejudice in the record presented on appeal, and our independent review finds no such prejudice.”
{¶21} Again, in this case, Appellant‘s arrest date is April 30, 2013 and he entered a plea on April 4, 2014. This is not quite one year. However, as in Castro, we do not find the approach of one year presumptively prejudicial so as to trigger consideration of the remaining Barker factors. Appellant filed a request for discovery, a motion to continue, a pro se motion, and a request for new counsel. In addition, further delays were caused by Appellant‘s pro se motion to vacate or set aside judgment of conviction of sentence, a pro se motion for summary judgment, a request to represent himself, and the request of two subsequently appointed attorneys to withdraw from representation of him.
{¶22} As in Castro, Appellant contributed to the delays in bringing him to trial. Appellant herein has not substantiated any prejudice in the record. We find no constitutional violation of his speedy trial guarantees.
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED. Costs are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto 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 BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: ____________________________
Matthew W. McFarland, 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.