State v. Ursic

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[Cite as State v. Ursic, 2020-Ohio-3620.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT HARRISON COUNTY STATE OF OHIO, Plaintiff-Appellee, v. BENJAMIN URSIC, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 18 HA 0006 Application to Reopen Appeal BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges. JUDGMENT: Denied. Atty. T. Owen Beetham, Harrison County Prosecutor and Atty. Jeffrey J. Bruzzese, Assistant Prosecuting Attorney, 111 W. Warren Street, P.O. Box 248, Cadiz, Ohio 43907, for Plaintiff-Appellee Benjamin Ursic, Pro se, #749-008, Belmont Correctional Institution, 68518 Bannock Road, P.O. Box 540, St. Clairsville, Ohio 43950, for Defendant-Appellant. Dated: June 29, 2020 –2– PER CURIAM. {¶1} Appellant Benjamin Ursic has filed an application to reopen his appeal based on ineffective assistance of appellate counsel for failing to raise as an issue that there was a defect in his indictment and failing to raise the ineffectiveness of trial counsel. For the reasons provided, Appellant’s application for reopening is denied. Factual and Procedural History {¶2} Appellant was indicted on December 11, 2017 on two counts of felony assault on a police officer in violation of R.C. 2903.11(A)(2) and (D)(1)(a), felonies of the first degree, and one count of felony failure to comply with an order of a police officer in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree. The charges stemmed from an altercation between Appellant and two deputies from the Harrison County Sheriff’s Department. Appellant had fled from his residence after a neighbor notified the police that there were the sound of gunshots coming from Appellant’s house. The deputies searched the area for Appellant, which led to an extended high-speed car chase, ultimately called off by the deputies when it proved fruitless. The deputies were later informed that a vehicle matching the description of Appellant’s vehicle was sitting atop a nearby hill with its headlights on. The deputies approached the vehicle on foot, drew their weapons and ordered Appellant to exit the vehicle. Instead, Appellant drove his vehicle directly towards the deputies, causing them to dive for cover behind trees to avoid being struck by Appellant’s vehicle. {¶3} A jury trial commenced on October 4, 2018, wherein Appellant was found guilty on all counts. Appellant was sentenced to four years of incarceration on each Case No. 18 HA 0006 –3– conviction for felony assault on a police officer and one year for failure to comply with an order of a police officer, to be served consecutively, for a total stated prison term of nine years. {¶4} We affirmed Appellant’s conviction in State v. Ursic, 7th Dist. Harrison No. 18 HA 0006, 2019-Ohio-5088. Appellant filed this timely application to reopen his appeal on March 9, 2020. The state did not file a response brief. Reopening {¶5} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective of appellate counsel to be filed within ninety days from journalization of the appellate decision. App.R. 26(B)(1), (2)(b); State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. The ninety-day requirement applies to all appellants. State v. Buggs, 7th Dist. Mahoning No. 06 MA 28, 07 MA 187, 2009-Ohio-6628, ¶ 5. {¶6} Pursuant to App.R. 26(B)(2): (2) An application for reopening shall contain all of the following: (a) The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken; (b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment. (c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in Case No. 18 HA 0006 –4– the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation; (d) A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record; (e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies. {¶7} Although Appellant has filed a timely application for reopening that includes a sworn statement, Appellant has failed to provide citations or references to the portions of the record on which he relies in his application. “App.R. 26(B)(2)(e) places the responsibility squarely upon the applicant to provide the court of appeals with such portions of the record as are available to him.” State v. McNeil, 83 Ohio St.3d 457, 459, 700 N.E.2d 613 (1998). Where an applicant has failed to provide those portions of the record, “his application [is] properly denied.” Id. Thus, as Appellant has not met the requirements of App.R. 26(B), we need not reach the merits of his arguments. Even if Appellant had complied with App.R. 26, his application does not present the “colorable claim of ineffective assistance of appellate counsel” necessary to demonstrate a genuine issue that merits a reopening. State v. Sanders, 75 Ohio St.3d 607, 665 N.E.2d 199 (1996). Case No. 18 HA 0006 –5– {¶8} Appellant’s direct appeal contained two assignments of error arguing that his convictions should have merged for sentencing purposes and attacking the sufficiency and weight of the evidence. Appellant now presents two additional issues in his application for reopening which he claims were not considered on appeal and which he refers to as “assignments of error.” ASSIGNMENT OF ERROR NO. 1 APPELLANT’S INDICTMENT STANDS IN VIOLATION OF APPELLANT’S FEDERALLY PROTECTED CONSTITUTIONAL RIGHT TO NATURE OF THE CHARGES AGAINST HIM. ASSIGNMENT OF ERROR NO. 2 APPELLANT’S STATE AND FEDERALLY PROTECTED CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL HAVE BEEN VIOLATED. {¶9} In reviewing the effectiveness of appellate counsel, we must determine whether counsel’s performance fell below an objective standard of reasonableness and whether there is a reasonable probability the result of the appeal would have been different but for serious error. State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5227, 896 N.E.2d 699, ¶ 10-11, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 80 L.Ed.2d 674 (1984). Appellant has the burden of demonstrating a “genuine issue” and establishing a “colorable claim” of ineffective assistance of counsel. Id. at ¶ 11. Appellate counsel has the discretion to choose the issues to be addressed Case No. 18 HA 0006 –6– and counsel need not raise every possible issue in order to provide constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d. 987 (1983). Appellate counsel is entitled to strong deference in determining which issues to pursue when determining whether he or she has provided reasonable assistance. State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, ¶ 8. {¶10} An indictment that charges an offense by tracking the language of the criminal statute is not defective and does not rise to the level of structural error. State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, paragraph one of the syllabus. In his application, Appellant concedes that the indictment under which he was charged sets forth all the elements of the offense. He contends that this was not sufficient to apprise him of “what he must [have been] prepared to meet” and would not protect him from double jeopardy. (Appellant’s Application for Reopening, p. 2.) As Appellant has failed to comply with App.R. 26(B) and has not provided this Court with the indictment in question, but acknowledges that all of the elements of each offense were contained in the indictment, we find this argument unpersuasive. {¶11} Appellant also states that he was not brought to trial within the time required by law. Even if Appellant had provided the necessary material in his application, his second assignment of error is also not properly supported. Appellant argues that, even considering any tolling events, he was not brought to trial within a 90-day time period. R.C. 2945.71 sets forth the time within which a matter must be brought to trial. R.C. 2945.71(C)(2) requires the defendant to be brought to trial within 270 days after the arrest. When the defendant is in jail in lieu of bail that time is reduced to 90 days. R.C. Case No. 18 HA 0006 –7– 2945.71(E). Appellant does not present any dates or tolling events on which he bases his calculations in order to assert that there was a speedy trial violation in this case. His failure to provide an argument in support of the issue he has presented, coupled with his failure to provide this Court with the portion of the record on which he bases his assignment, precludes Appellant from presenting a colorable claim as to the ineffective assistance of appellate counsel or that there are any substantive grounds for reopening this appeal. {¶12} Appellant has failed to comply with the requirements set forth in App.R. 26(B) and has failed to present issues that establish a colorable claim of ineffective assistance of counsel. Therefore, Appellant’s application for reopening is denied. JUDGE CHERYL L. WAITE JUDGE GENE DONOFRIO JUDGE DAVID A. D’APOLITO NOTICE TO COUNSEL This document constitutes a final judgment entry. Case No. 18 HA 0006 [Cite as State v. Ursic, 2020-Ohio-3620.]

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