COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59364 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LAJON MORRISON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-238840. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Bernard Redfield, Esq. 950 Standard Building Cleveland, OH 44113 -2- MATIA, P.J.: Defendant-appellant, LaJon Morrison, appeals from his conviction for the offenses of carrying concealed weapons and having weapons while under disability with a firearm specification. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT'S ARREST On April 21, 1989, the appellant was operating a motor vehicle on Kinsman Road in the City of Cleveland. The appellant was stopped for a traffic violation by the Cleveland Police which resulted in the discovery of a firearm in the appellant's motor vehicle. The appellant was arrested after the discovery of the firearm. B. THE APPELLANT'S INDICTMENT On June 28, 1989, the appellant was indicted by the grand jury of Cuyahoga County for one count of carrying concealed weapons in violation of R.C. 2923.12 with a prior violence specification and one count of having weapons while under disability in violation of R.C. 2923.13 with a prior violence specification and a firearm specification. C. THE APPELLANT'S ARRAIGNMENT On July 18, 1989, a capias was issued for the appellant's arrest as a result of the failure of the appellant to appear for arraignment. On July 25, 1989, the appellant was arraigned whereupon a plea of not guilty was entered to the two counts of -3- the indictment. The capias, as issued by the trial court, was recalled. D. THE APPELLANT'S JURY TRIAL AND CONVICTION On January 17, 1990, a jury trial was commenced with regard to the two counts of the indictment. At the conclusion of the trial, the jury found the appellant guilty of the offense of carrying concealed weapons and guilty of the offense of having weapons while under disability with a firearm specification. On January 24, 1990, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio for a term of two years to ten years with regard to the offense of carrying concealed weapons, a term of incarceration of two years to five years with regard to the offense of having weapons while under disability and a term of three years of actual incarceration with regard to the firearm specification. Thereafter, the appellant timely brought the instant appeal from his conviction for the offenses of carrying concealed weapons and having weapons while under disability with a firearm specification. II. THE FIRST ASSIGNMENT OF ERROR The appellant's initial assignment of error is that: "THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT'S MOTION TO DISMISS APPELLANT'S INDICTMENT BASED UPON A VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL." -4- A. ISSUE RAISED: APPELLANT DENIED THE RIGHT TO A SPEEDY TRIAL The appellant, in his first assignment of error, argues that he was denied the right to a speedy trial. Specifically, the appellant argues that he was not brought to trial within two hundred and seventy days as mandated by R.C. 2945.71(C)(2). The appellant's first assignment of error is not well taken. B. R.C. 2945.71 AND SPEEDY TRIAL FOR A FELONY OFFENSE R.C. 2945.71(C) which defines the time period in which a felony offense must be tried, to afford a defendant his right to a speedy trial, provides that: "(C) A person against whom a charge of felony is pending: "(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge; "(2) Shall be brought to trial within two hundred seventy days after his arrest." (Emphasis added.) Pursuant to the application of R.C. 2945.71(E) each day of actual incarceration in lieu of bail must be counted as three days. C. THE TOLLING OF THE TWO HUNDRED AND SEVENTY DAY PERIOD FOR TRIAL The running of the statutory time period for a speedy trial of two hundred and seventy days, however, may be tolled pursuant to the application of R.C. 2945.72 which provides that: -5- "The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: "(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability; "(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial; "(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; "(D) Any period of delay occasioned by the neglect or improper act of the accused; "(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; "(F) Any period of delay necessitated by a removal or change of venue pursuant to law; "(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order; "(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; -6- "(I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending." D. HISTORICAL REVIEW OF APPELLANT'S CLAIM OF A LACK OF SPEEDY TRIAL In the case sub judice, a period of two hundred and seventy one actual days elapsed between the appellant's arrest on April 21, 1989 and the commencement of trial which occurred on January 17, 1990. However, pursuant to the application of R.C. 2945.72, the speedy trial tolling statute, only a period of two hundred and twenty-six days of elapsed chargeable time ran between the date of the appellant's arrest and the commencement of trial. Historical Date and Activity Chargeable Elapsed Time 1) April 21, 1989 - appellant arrested and incarcerated in lieu of bond 2) April 22, 1989 - appellant 0 days released on bond 3) June 28, 1989 - the appellant 67 days is indicted for carrying concealed weapons while under disability 4) July 17, 1989 - appellant 19 days fails to appear for arraignment and capias issued for appellant's arrest/1\ /1\ It should be noted that the appellant's failure to appear for his arraignment as scheduled for July 17, 1989, did not automatically result in the termination of the appellant's original speedy trial period of two hundred and seventy days. The failure of the appellant to appear for his arraignment merely tolled the running of the time period for a speedy trial pursuant to the application of R.C. 2945.71(D). Once the appellant appeared for his arraignment, the appellant's original period for -7- 5) July 24, 1989 - appellant 0 days requests a one day continuance (7 days tolled per R.C. 2945.72(D)) 6) July 25, 1989 - appellant is 0 days arraigned (1 day tolled per R.C. 2945.72(H)) 7) December 12, 1989 - appellant 140 days files a motion to suppress 8) January 17, 1990 - trial 0 days commenced (37 days tolled per R.C. 2945.72(E)) Total Elapsed Chargeable Time 226 days E. THE APPELLANT WAS NOT DENIED A SPEEDY TRIAL The record before this court clearly demonstrates that the appellant was brought to trial within two hundred and seventy days as mandated by R.C. 2945.71. The appellant failed to appear for arraignment, requested a continuance and also filed a motion to suppress which tolled the running of the appellant's two hundred and seventy day period for trial. In reality, only two hundred and twenty-six days were chargeable as elapsed time. State v. Bickerstaff (1984), 10 Ohio St. 3d 62; State v. Hudson (1983), 10 Ohio App. 3d 52. a speedy trial again began to run. The termination of the appellant's original period for a speedy trial and the commencement of a new period of two hundred and seventy days for speedy trial would occur only upon the issuance of a capias for the appellant's arrest and the actual rearrest of the appellant. Such was not the case herein. The capias for the appellant's arrest was recalled by the trial court and the appellant did voluntarily appear for his arraignment. State v. Bauer (1980), 61 Ohio St. 2d 85; State v. Haynes (1982), 8 Ohio App. 3d 119; State v. Lockett (Feb. 18, 1988), Cuyahoga App. No. 53334, unreported; State v. Williams (June 18, 1987), Cuyahoga App. Nos. 52297, 52298, 52299, 52300, 52301, unreported. -8- Thus, the appellant was not denied a speedy trial as required by R.C. 2945.71 and the appellant's first assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO THE CONSTITUTION." A. ISSUE RAISED: APPELLANT DENIED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL The appellant, in his second assignment of error, argues that he was denied effective assistance of counsel during the course of trial. Specifically, the appellant argues that the failure of defense counsel to prevent or object to the introduction at trial of the appellant's prior conviction for the offense of attempted robbery was prejudicial and thus constituted ineffective assistance of counsel. The appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL An appellant, in order to demonstrate a claim of ineffective assistance of counsel, must show that he was deprived of a fair trial as a result of the conduct of defense counsel. The appellant must specifically demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial would have been different had defense counsel provided proper representation -9- to the appellant during the course of trial. Strickland v. Washington (1984), 466 U.S. 688; State v. Brooks (1986), 25 Ohio St. 3d 144. C. PROOF OF APPELLANT'S PRIOR CONVICTION WAS NECESSARY TO SUPPORT CONVICTION FOR OFFENSE OF HAVING WEAPONS WHILE UNDER DISABILITY Herein, the revelation of the appellant's prior conviction for the offense of attempted robbery did not constitute ineffective assistance of counsel nor was it prejudicial to the appellant. The second count of indictment involved the offense of having weapons while under disability which required proof that the appellant had formerly been convicted of a felony of violence. "In order to prove all of the elements of the crime [having weapons while under disability] with which appellant was charged, the prosecution had a right to introduce evidence of appellant's former conviction. Defense counsel could not force a stipulation on this or any other element of the crime. The crime of having a weapon under a disability cannot be proven without proving the disability. State v. James Doremus (Dec. 16, 1976), Cuy. App. No. 35353, unreported. The state properly relied on the journal when it presented its evidence." (Emphasis added.) State v. Pircio (Feb. 2, 1989), Cuyahoga App. No. 54983, unreported, at 5. D. APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL As can be, it was necessary for the prosecution to introduce evidence of the appellant's prior conviction in order to prove each and every element of the offense of having weapons while under disability. Defense counsel was not ineffective as a -10- result of the introduction of the jury of the appellant's prior conviction for the offense of attempted robbery. State v. Bradley (1989), 42 Ohio St. 3d 133. Thus, the appellant's second assignment of error is not well taken and the appellant's conviction is affirmed. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., CONCURS; HARPER, J., CONCURS WITH CONCURRING OPINION. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59364 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION LAJON MORRISON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 HARPER, J., CONCURRING: I concur in the majority opinion that this case be affirmed. However, I write further on appellant's first assignment of error. I disagree with the majority's position that appellant's speedy trial time should be calculated from the day of his arrest and not the day he appeared in court. The majority's position is a misinterpretation of the Ohio Supreme Court's holding in State v. Bauer (1980), 61 Ohio St. 2d 83. The Bauer court held that when a defendant fails to appear on a scheduled trial date, a right to speedy trial is waived from the date of the original arrest to the date of rearrest. - 2 - The record in the within case shows that appellant was arrested on April 22, 1989 and was brought to trial on January 17, 1990, bringing the total to 271 days. However, the record shows that appellant did not appear for arraignment scheduled for July 17, 1989, and the trial court issued a capias for his arrest. Appellant subsequently appeared voluntarily for arraignment on July 24, 1989. The majority, in its calculation, reasons that appellant did not waive his right to a speedy trial for those days that he failed to appear in court because he appeared voluntarily and was not rearrested. Such interpretation is inconsistent with the proper application of R.C. 2945.71 as given by the Bauer court, supra. The moment appellant failed to appear for his arraignment and the trial court issued a capias for his arrest, he became a fugitive from justice and his right to a speedy trial is waived until he is back in court to answer to the charges against him. The nucleus of the Bauer decision is that a defendant who fails to appear on his court appointed date without excuse waives his right to a speedy trial irrespective of whether he later appeared voluntarily or is rearrested. After all, a defendant can only appear for arraignment in only two ways; voluntarily or by arrest. If the majority's calculation is to be accepted, a defendant who fails to appear for arraignment or trial can voluntarily show up on the 271st day and move for a dismissal for failure to bring him to trial within 270 days. - 3 - While I agree that the speedy trial statute must be strictly construed against the state, State v. Singer (1977), 50 Ohio St. 2d 103; Cleveland v. Austin (1978), 55 Ohio App. 2d 369; State v. Geraldo (1983), 13 Ohio App. 3d 27; State v. Ball (Feb. 15, 1990), Cuyahoga App. No. 57903, unreported, it cannot be so construed as to lose its purpose and case law interpretations. Accordingly, appellant waived his right to a speedy trial due to his inexcusable failure to appear for his arraignment on July 17, 1989 when the trial court issued a capias for his arrest. His voluntary appearance is of no consequence to the application of the rule. Therefore, his right to a speedy trial should have been calculated from July 24, 1989 when he first appeared in court after a capias was issued for his arrest, and not from the date of his original arrest as calculated by the majority. .