State v. Bishop

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[Cite as State v. Bishop, 2003-Ohio-1385.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY STATE OF OHIO, : : Case No. 02CA573 Plaintiff-Appellee, : : v. : : GREGORY W. BISHOP, : DECISION AND JUDGMENT ENTRY : Defendant-Appellant. : Released 3/12/03 ________________________________________________________________ APPEARANCES: David J. Winkelmann, Logan, Ohio, for Appellant. Timothy P. Gleeson, Prosecuting Attorney, McArthur, Ohio, for Appellee. ________________________________________________________________ Harsha, J. {¶1} from his Bishop Following a conviction argues that guilty on the a plea, charge trial court Gregory of W. breaking committed Bishop and plain appeals entering. error by failing to sua sponte dismiss the case against him on speedy trial grounds and that trial counsel was ineffective because he did not file a motion to dismiss on speedy trial grounds. Since the state complied with Bishop's statutory and constitutional rights, trial counsel was not ineffective when he failed to file a motion to dismiss based on speedy trial grounds. Likewise, the trial court could not have committed error in this regard. Moreover, a defendant must assert his right to a speedy trial, thus the trial court would not err by failing to sua sponte dismiss the case against Bishop even if it had expired. Thus, we affirm Bishop's conviction. The state filed its initial complaint against Bishop {¶2} in the Vinton County Court on June 22, 2001. The Vinton County Grand Jury returned an indictment against him on October 23, 2001, for breaking and entering under aggravated theft under R.C. 2913.02(A). R.C. 2911.13(A) and At his arraignment, Bishop pled not guilty and the court released him on a $10,000 recognizance bond. The court set a change of plea hearing for January 30, 2002, but Bishop failed to appear for it. Due to his failure to appear, the court issued a warrant for Bishop's arrest. The Vinton County Sheriff's Office executed the warrant by arresting Bishop on April 2, 2002. Then, the court rescheduled the change of plea hearing {¶3} for April 8, 2002, but, on the day of the hearing Bishop filed a motion for continuance. hearing for continuance. April 24, After the court rescheduled the plea 2002, the state filed hearings. for However, Bishop requested new counsel, which the court appointed on April 29, 2002. and motion The court again rescheduled the plea hearing, this time for April 26, 2002. 2002, a May 16, 2002, the trial court Then, on May 8, held two pre-trial Following the May 16, 2002, hearing, the trial court scheduled a final pre-trial hearing for May 30, 2002. On May 20, 2002, Bishop filed a motion to suppress certain statements based upon a purported failure to Mirandize him. Therefore, the court changed the May 30, 2002, date from a final pre-trial hearing to a suppression forward on the motion hearing. to But, suppress, breaking and entering at that time. rather Bishop than pled going guilty to In exchange for his plea, the state agreed to drop the aggravated theft charge and agreed not to prosecute Bishop for failure to appear. Moreover, Bishop agreed to a joint recommendation for a twelve-month sentence. After {¶4} the court sentenced him to a twelve-month sentence, Bishop filed this appeal and assigns the following errors: plain FIRST ASSIGNMENT OF ERROR - The trial court committed error 01CR7281 for by failing failure to to sua comply sponte with the Revised Code Sections 2945.71 and 2945.72. ERROR speedy - Defendant trial due was to denied his ineffective dismiss case provisions number of Ohio SECOND ASSIGNMENT OF constitutional assistance of right to counsel, a who failed to file a motion to dismiss on speedy trial grounds. {¶5} Because of the waiver implications of Bishop's guilty plea, we will address his second assignment of error initially. There, Bishop argues his trial counsel was ineffective because he failed to file a motion to statutory speedy trial grounds. dismiss on constitutional or Generally, a guilty plea waives the defendant's right to raise the statutory right to a speedy trial on appeal. N.E.2d 658, Montpelier paragraph v. N.E.2d 581. State v. Kelley (1991), 57 Ohio St.3d 127, 566 one of Greeno (1986), 25 the Ohio syllabus; St.3d Village 170, of 171-72, 495 See, also, State v. Wilhelm (Dec. 9, 1996), Stark App. No. 1996CA00089, and State v. Hiatt (July 15, 1996), Adams App. No. 94CA578 (stating that a guilty plea waives the right to challenge the denial of both the statutory and constitutional right to a speedy trial). But, see, State v. Ellis (Jan. 12, 2001), Montgomery App. No. 18092 (stating that a guilty plea does not waive the right to challenge constitutional right to a speedy trial). the denial of the In Greeno, the Court indicated that a "more colorable claim would be made if issues of ineffective counsel * * * were present." St.3d at 172. Greeno, 25 Ohio Because of the apparent uncertainty of the effect of Bishop's guilty plea, we will consider whether Bishop's trial counsel was ineffective in failing to file a motion to dismiss based on speedy trial violations. We {¶6} apply the test for ineffective assistance of counsel outlined by the Ohio Supreme Court in State v. Ballew, 76 Ohio St.3d 244, 255, 1996-Ohio-81, 667 N.E.2d 369. This two- part test requires a showing that (1) counsel's performance was defective, result. and (2) the deficient performance prejudiced the Id. citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. To prevail, Bishop must show that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Id. at 256-57. Thus, if one component of the Strickland test disposes of an ineffective assistance of counsel claim, it is not necessary to address both components. Since {¶7} Bishop s claim of ineffectiveness depends on whether the state violated his right to a speedy trial, we begin our inquiry with an analysis of that issue. Ohio recognizes both a constitutional and statutory right to a speedy trial. See, generally, State v. King, 70 Ohio St.3d 158, 1994-Ohio-412, 637 N.E.2d 903, syllabus. R.C. 2945.71 embodies the statutory right to a speedy trial and states in part, "a person against whom a charge of felony is pending shall be brought to trial within two hundred 2945.71(C)(2). Constitution seventy Moreover, and the days Section Sixth after 10, Amendment his arrest." Article to the I of R.C. the United Ohio States Constitution embody the constitutional right to a speedy trial. State v. Selvage, 80 Ohio St.3d 465, 466, 1997-Ohio-287, 687 N.E.2d 433. See, also, Klopfer v. North Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (applying the Sixth Amendment to the states through application of the Fourteenth Amendment). Bishop argues the state deprived him of both his constitutional and statutory right to a speedy trial. {¶8} The state must bring a person arrested and charged with a felony to trial within two hundred seventy days. 2945.71(C)(2). R.C. But if the accused remains in jail in lieu of bail solely on the pending charge, the statute mandates that each day count as three days. R.C. 2945.71(E). This is known as the triple-count provision. The determination of whether the state holds an accused solely on the pending charges is a legal conclusion dependent upon the underlying facts. State v. Howard (Mar. 4, 1994), Scioto App. No. 93CA2136. {¶9} Generally when computing how much time has run against the state under R.C. 2945.71, we begin with the date the state initially arrested the accused. R.C. 2945.71(C)(2); State v. Bauer (1980), 61 Ohio St.2d 83, 84, 399 N.E.2d 555. However, if the accused fails to appear for a scheduled court appearance, he waives his right to assert a violation of his statutory speedy trial rights for the period of time from his initial arrest to the date that he is rearrested. State v. Russell (June 30, 1998), Athens App. No. 97CA37 citing State v. Bauer (1980), 61 Ohio St.2d 83, 85, 399 N.E.2d 555. See, also, State v. Smith, 140 Ohio App.3d 81, 89, 2000-Ohio-1777, 746 N.E.2d 678; State v. Gibson (1992), 75 Ohio App.3d 388, 391, 599 N.E.2d 438. {¶10} Here, the state initially filed its complaint against Bishop in June 2001, and the grand jury indicted him in October 2001. However, on January 30, 2002, Bishop failed to appear for his change of plea hearing and the state did not re-arrest him until April 1, 2002. that the Bauer state and statutory initial There is nothing in the record to suggest lacked diligence its progeny, Bishop speedy arrest trial and in waived violation his re-arresting for subsequent his right the him. period arrest on to Under assert between April 1, a his 2002. Therefore, we begin our speedy trial computation with Bishop s re-arrest on April 1, 2002. remained in Therefore, jail until assuming the he Following his re-arrest, Bishop pled guilty triple-count on May provision 30, 2002. applies and tolling no time for continuances, fifty-nine actual days and one hundred seventy-seven statutory days elapsed1. Thus, the state did a not violate Bishop's statutory right to speedy trial because it concluded his case within two hundred seventy days. {¶11} The United States Supreme has recognized that we must make four separate inquiries when deciding if the delay violated the constitutional involves, (1) right whether the to a delay speedy before trial. trial This was inquiry uncommonly long; (2) whether the government or the criminal defendant is 1 Since the state has concluded the case against Bishop within two hundred seventy days, we have not considered whether the state is entitled to credit more to blame for that delay; (3) whether the defendant asserted his right suffered to a speedy prejudice trial; because and of (4) the whether delay. the Doggett defendant v. United States (1992), 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520. None of these individual factors is determinative of whether the state violated the defendant's constitutional right to a speedy trial. collectively. Instead, we must consider the four factors Barker v. Wingo (1972), 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101. However, in order to trigger this analysis, the defendant must allege that the interval between accusation and trial is "presumptively prejudicial." Doggett, 505 U.S. at 651-52, citing Barker, 407 U.S. at 530-31. Doggett Court also noted that a delay becomes "presumptively prejudicial." approaching one The year Doggett, 505 U.S. at 652 fn. 1. {¶12} Here, Bishop does not allege the delay was presumptively prejudicial, even though just over eleven months elapsed between the state's initial complaint in county court and his guilty plea. Nevertheless, since the delay in concluding Bishop's case is approaching one year, we will assume without deciding that it is presumptively prejudicial.2 for its continuance, Bishop's continuance or Bishop's request for new counsel. 2 One might reasonably question whether a delay that is caused by the defendant absconding should be considered presumptively prejudicial. Therefore, we will complete the analysis to determine if the state violated Bishop's constitutional right to a speedy trial. {¶13} Our review of the record does not indicate uncommonly long delay in concluding Bishop's case. scheduled a plea hearing two months after the an The court grand jury returned its indictment and six months after the state initially filed its complaint in county court. If Bishop had appeared for this plea hearing the court would have concluded this case at that time; however, due to Bishop's failure to appear the court was required to continue the case. for the defendant delay following himself causes his the Bishop is clearly to blame failure to appear. delay by Where the absconding and the government uses reasonable diligence in pursuing him, a speedy trial claim rings hollow. Doggett, 505 U.S. at 656. Moreover, Bishop did not assert his right to a speedy trial before the trial court. indicate delay. that Finally, there is Bishop has suffered Therefore, the state nothing in prejudice did not the record because of violate to this Bishop's constitutional right to a speedy trial. {¶14} Now, we apply our finding on speedy trial to Bishop's claim of ineffective assistance of counsel. Bishop argues his trial counsel was ineffective because he did not file a motion to dismiss based on speedy trial violations. But, Bishop is not entitled to discharge based on a statutory or constitutional right to a speedy trial. Since counsel does not have a duty to raise nonmeritous issues, see, generally, State v. Nields, 93 Ohio St.3d 6, 34, 2001-Ohio-1291, 752 N.E.2d 859; State v. Tibbetts, 92 Ohio St.3d 146, 164-65, 2001-Ohio-132, 749 N.E.2d 226, trial counsel's performance did not fall below an objective standard of reasonableness. Bishop's second assignment of error is overruled. {¶15} In his first assignment of error, Bishop argues the trial court committed plain error when it failed to sua sponte dismiss the charges against him because of violations of his rights to a speedy trial. {¶16} Our analysis of the second assignment of error concluded that Bishop was not entitled to dismissal on speedy trial grounds in any event. have acted 2945.73(B) to sua states, sponte "[u]pon Thus, the trial court could not dismiss motion the case. made at Moreover, or prior to R.C. the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code." Thus, the statute requires the accused to make a motion. In addition, before an accused may assert his constitutional or statutory speedy trial rights, Ohio courts require affirmative action on the part of an accused. Partsch v. Haskins (1963), 175 Ohio St. 139, 140, 191 N.E.2d 922 (requiring affirmative action on the part of the accused before a constitutional speedy trial challenge may be made); State v. Trummer (1996), 114 Ohio App.3d 456, 470-71, 683 N.E.2d 392 (applying Partsch and requiring affirmative action on the part of the accused before a statutory speedy trial challenge may be made). Since the constitutional and statutory rights to a speedy trial are not self-executing rights, the trial court had no obligation or duty to sua sponte dismiss the charges against Bishop on speedy trial grounds. Id. In short, in order to invoke his constitutional or statutory right to a speedy trial, Bishop was required to make a motion or otherwise assert his right. Bishop s first assignment of error is overruled. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed. The appeal. Court finds there were reasonable grounds for this It is ordered that a special mandate issue out of this Court directing the Vinton 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 Ohio Supreme Court 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 Ohio Supreme Court in the forty-five day appeal 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 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. Exceptions. Evans, P.J. & Abele, J.: Concur in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, 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.

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