COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA Nos. 70827 & 70828 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : ERNEST RIEVES-BEY : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case Nos. CR.-331911 and CR.-335603 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DANIEL SCULLY, ESQ. CUYAHOGA COUNTY PROSECUTOR ASST. PUBLIC DEFENDER BY: RICHARD A. BELL, ESQ. 100 Lakeside Place ASSISTANT COUNTY PROSECUTOR 1200 West Third Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 2 DYKE, J.: In these consolidated appeals, defendant Ernest Rieves-Bey appeals from his convictions, following pleas of no contest, for aggravated arson, kidnaping, and felonious assault. For the reasons set forth below, we affirm. The record reflects that defendant was arrested on October 2, 1995, in connection with charges that on October 1, 1995, he poured gasoline on Eloise Knuckles and set her on fire. On October 4, 1995, Cleveland Police Detective Barbara McCoy filed a complaint against defendant for aggravated arson and kidnaping. Defendant could not make bond (Tr. 75) and remained in custody. At defendant's initial court appearance on October 5, 1995, he demanded an examination or preliminary hearing. The preliminary hearing was set for October 17, 1995 and was later reset for October 31, 1995, because Knuckles was in the Intensive Care Burn Unit at MetroHealth Medical Center. As a result of the preliminary hearing, there was a finding of probable cause and defendant was bound over to the grand jury. On December 27, 1995, defendant was indicted in case no. 331911 for one count of aggravated arson with a violence specification and one count of kidnaping with a violence specification. Attorney Jeffrey Zucco was subsequently appointed to represent him. On January 4, 1996, defendant filed a pro se motion to dismiss the aggravated arson and kidnaping charges for violation of his right to a speedy trial. The trial court held a pretrial in the matter on January 10, 1996, and set the matter for hearing on 3 January 16, 1996. Following the hearing and arguments by both parties, the trial court denied the motion. Also on January 16, 1996, defense counsel moved to have defendant referred to the court psychiatric clinic for an evaluation of competency and sanity. On the same day, the trial court issued an order which provided as follows: Defendant moves for evaluation for competency and sanity evaluation; defendant's motion is granted; time tolled while psychiatric evaluation is performed. (Note: defendant has 5 days remaining of speedy trial time). Defendant referred to court psychiatric clinic *** The record next reflects that on February 28, 1996, the court noted that for good cause shown, the period of time for performance of evaluation for competency and sanity was extended to March 15, 1996. Thereafter, the court journalized an entry which noted that defendant was unavailable for the evaluation as scheduled. The court rescheduled the evaluation for March 27, 1996 and the hearing for April 3, 1996. Defense counsel and the state subsequently stipulated to defendant's competency and sanity at the time of the act and defendant waived his right to a speedy trial from April 3, 1996 through April 11, 1996, and again through April 18, 1996. On April 23, 1996, defendant appeared in court. On recommendation of the prosecuting attorney, the violence specifications were deleted from the indictment and defendant entered a plea of no contest to the charges. The court subsequently found defendant guilty and sentenced him to concurrent terms of ten to twenty-five years incarceration on the charges. 4 With regard to the felonious assault charge, the record reveals that on March 7, 1996, defendant was indicted in case no. 335603 for one count of felonious assault with two violence specifications. This indictment alleged that on September 16, 1993, defendant knowingly caused or attempted to cause serious physical harm to Eloise Knuckles by means of a knife. Attorney Bernard Nosan was assigned to represent defendant in this matter. Also with regard to the felonious assault charge, the record reflects that the trial court referred defendant for competency and sanity evaluations on March 12, 1996. On April 10, 1996, defendant filed a request for discovery. The parties appeared in court on April 3, 1996, and defense counsel indicated that he would not stipulate to sanity at the time of the offense or to the findings of the court psychiatric clinic going to this issue. The trial court then indicated that it would hold a hearing on the matter and the parties selected April 11, 1996 for the date of the hearing. A separate entry indicates that defendant waived his speedy trial rights from April 11, 1996 through April 18, 1996. Finally, on April 23, 1996, the trial court deleted the violence specifications upon the recommendation of the prosecuting attorney and defendant entered a plea of no contest to the charge of felonious assault. The trial court subsequently found defendant guilty of felonious assault as amended and sentenced him to eight to fifteen years incarceration on that charge. Defendant now appeals both convictions and assigns three 5 errors for our review. Defendant's first assignment of error states as follows: THE APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO AND R.C. 2945.71, 2945.72, [AND] 2945.73 WHEN HE WAS CONFINED IN JAIL IN LIEU OF BAIL SOLELY ON THE CHARGES PENDING IN [CASE NO.] 331911 FOR NINETY FOUR DAYS. Within this assignment of error defendant asserts that the statutory time limit within which to try him expired by January 4, 1996. Specifically, defendant asserts that time must be calculated commencing upon the first day following defendant's arrest, that time was not tolled prior to the preliminary hearing in this matter, and that a defense motion for psychiatric evaluation only tolls speedy trial time for a maximum of forty days. The statutory time limits within which to commence trial are set forth in R.C. 2945.71 which provides in relevant part as follows: (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 is arrest. * * * (E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This 6 division does not apply for purposes of computing time under division (C)(1) of this section. 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: (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; (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; (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. R.C. 2945.72. Thus, once the two-hundred-seventy day statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Howard (1992), 79 Ohio App.3d 705, 707; State v. Geraldo (1983), 13 Ohio App.3d 27, 28. At that point, the burden is upon the state to demonstrate any tolling or extension of the time limit. State v. Howard, supra, at 707; State v. Bowman (1987), 41 Ohio App.3d 318, 319. A failure of the state to comply with the mandates of the Ohio speedy trial statute requires discharge of the defendant. State v. Benson (1985) 29 Ohio App.3d 321, 324; State v. Mays (1996), 108 Ohio App.3d 598, 609. With regard to the initial question of the precise point at which speedy trial time commences to run, defendant asserts that it is the arrest of an individual which triggers the speedy trial protection, and while this day is not actually counted, counting 7 must commence on the following day. Thus, defendant asserts that time commenced to run on October 3, 1995, and therefore disputes the trial court's determination that time did not commence to run until October 5, 1995, or the day after which the defendant was both arrested and subject to the charges set forth in the complaint filed by police. In evaluating this question, we note that the state concedes that October 3, 1995 is the point at which counting must commence. We further note that it is well-settled that in calculating statutory speedy trial time, the date of arrest is not included. State v. McCornell (1993), 91 Ohio App.3d 141, 145; State v. Steiner(1991), 71 Ohio App.3d 249, 251-252; State v. Lautenslager (1996), 112 Ohio App.3d 108, 109-110. With regard to the scheduling of the preliminary hearing, it is clear that continuances taken on the defendant's motion and other reasonable continuances toll the speedy trial time. R.C. 2945.72(H). Accord Statev. Collins (1993), 91 Ohio App.3d 10, 15; State v. Terra (1991), 74 Ohio App.3d 189, 195-196. The reasonableness of a continuance may not be presumed from a silent record. Cleveland v. Austin (1978), 55 Ohio App.2d 215, 228. Nonetheless, in State v. Lee (1976), 48 Ohio St.2d 208, the Supreme Court recognized a trial court's crowded docket as a reasonable basis necessitating a continuance under R.C. 2945.72(H). Accord State v. Harr (1992), 81 Ohio App.3d 244, 247. With particular regard to extensions of time within which the preliminary hearing must be held, we further note that Crim.R. 8 5(B)(1) provides in part that, [w]ith the consent of the defendant and upon a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subsection may be extended. In State v. Martin (1978), 56 Ohio St.2d 289, the Supreme Court considered this provision with reference to the docket entries filed in the matter. The supplemental journal entry provided in relevant part as follows: Due to crowded docket in the Municipal Court and due to the expected length of the preliminary hearing the case was set September 21, 1976, at 9:30 a.m. On August 23, 1976, upon request of Defendant's counsel, Attorney Robert Lisotto, the case was re-set for preliminary hearing on September 27, 1976. The Court further notes that it was physically impossible to have heard the case earlier. In evaluating whether the statutory time limits for commencing trial had been met, the Supreme Court stated: Applying the aforementioned standards to the record in Municipal Court, as supplemented pursuant to App.R. 9(E), the extension of the preliminary hearing to September 30, 1976, satisfied both the `good cause' requirement of Crim. R. 5(B)(1), as well as the `reasonableness' mandated by R.C. 2945.72(H). On August 18, 1976, the appellee consented to an extension of the five-day time period and the court set the date for hearing as September 21, 1976, due to the crowded state of its docket and the expected length of the hearing. The state urges us to apply the holding of State v. Martin, supra, to this matter and asserts, as it did below, that the preliminary hearing was continued from October 5, 1995 until October 17, 1995 with the consent of defendant's attorney. The state further asserts that the continuance was reasonable and necessitated by the crowded docket of the Cleveland Municipal 9 Court. These claims were never refuted and indeed, defendant's trial counsel stated that an expedited procedure was implemented in the municipal court "because of the number of cases on its docket." (Tr. 35). The next docket entry, which continued the matter from October 17, 1995 until October 31, 1995, indicates, in relevant part, victim in Metro Burn Unit Intensive Care. This is obviously a reasonable continuance within the meaning of R.C. 2945.72(H) and therefore tolled the time for commencing trial. Cf. State v. McRae (1978), 55 Ohio St.2d 149, 153. With regard to the court's competency referral, defendant maintains that pursuant to R.C. 2945.37 and 2945.371, only a total of forty days may be tolled for such evaluation. We note that these statutory provisions do set forth certain time requirements, as R.C. 2945.37 states in relevant part as follows, ***The court shall conduct the hearing within thirty days after the issue is raised, unless the defendant has been referred for examination under section 2945.371 [2945.37.1] of the Revised Code, in which case the court shall conduct the hearing within ten days after the filing of the report required by that section. R.C. 2945.371(D) in turn requires the examiner to file the report within thirty days after the order for examination. Nonetheless, these provisions do not reference the speedy trial provisions in any way or purport to divest the trial court of jurisdiction in the event the time provisions are not met. Conversely, R.C. 2945.72(B) specifically states that time is extended during [a]ny period during which the accused is incompetent to stand trial or his mental competence to stand trial is being determined ***. Thus, 10 as this court noted in State v. Foley (June 17, 1982), Cuyahoga App. No. 43843, unreported, the time periods set forth in R.C. 2945.37 and 2945.371 are directory, not mandatory or jurisdictional. Accord State v. Jones (April 4, 1997), Portage App. No. 96-P-0177, unreported. The Jones Court explained: *** speedy trial time is tolled from the date of filing of the motion until the motion is actually ruled upon by the trial court. *** [W]e held in State v. Hickman (September 27, 1985), Ashtabula App. No. 1201, unreported ***: *** R.C. 2945.37(D) and 2945.37(E) *** are directed at the examination proceedings and hearings thereon, not the speedy trial provisions. This statutory section was obviously included by the General Assembly to accommodate many realities of the workings of public and private forensic centers, psychiatrists, and clinical psychologists. Appellant's position here expressly ignores these verities. See, also, State v. Kotnik (Mar. 31, 1989), Lake App. No. 13-015, unreported; Fetzer; Hudson, State v. Simpson (Sept. 30, 1994), Lake App. No. 93-L-014, unreported; State v. Taylor (Dec. 23, 1994), Ashtabula App. No. 93-A- 1812, unreported; and, State v. Dingess (Sept. 29, 1995), Ashtabula App. No. 94-A-0058, unreported. These decisions have relied on the clause in R.C. 2945.72(B) which provides that the time is extended by any period during which the accused's mental competence to stand trial is being determined. See, also, State v. Israfil (March 10, 1995), Montgomery App. No. 14573, unreported. Cf. State v. Bowman (1987), 41 Ohio App.3d 318, 319 (court determined that tolling ceases when report is never prepared). Finally, it is axiomatic that statutory time is tolled upon the filing of a motion to dismiss for violation of speedy trial rights. State v. Bunyon (1988), 51 Ohio App.3d 190, 193-194. Applying the foregoing with regard to aggravated arson and 11 kidnaping conviction at issue herein, the parties concede that defendant was arrested on October 2, 1995. The next successive day is the first day of our calculations. We therefore find that three actual days or nine statutory days, pursuant to R.C. 2945.72(E), elapsed until the matter was continued due to the crowded docket of the municipal court until October 17, 1995. Time was then tolled until October 31, 1995. Resuming calculations, an additional sixty-five actual days, or one hundred ninety-five statutory days, (thus, a sub-total of sixty-eight actual days or one hundred ninety -eight statutory days), elapsed until January 4, 1996, the date on which defendant filed his pro se motion to dismiss. Time was then tolled pursuant to R.C. 2945.72(E) until the trial court denied this motion on January 16, 1996. Time was again tolled on this date however, as the defense requested, and the trial court ordered, defendant to be referred for a psychiatric evaluation. Despite the directives of R.C. 2945.37 and 2945.371, the tolling continued after the forty day period which defendant asks us to impose. We next note that on March 7, 1996, or during the time within which competency was still being determined, defendant was indicted on the felonious assault charge. Thus, as of this date, he was no longer being held solely on the pending charge. Time is therefore calculated on a one to one basis after this date. R.C. 2945.71(E). Thereafter, defendant waived his speedy trial rights for the time period from April 3, 1996 until April 11, 1996, and again until April 18, 1996. Thereafter, five additional actual 12 days e edyand five statutory days, for a total of two hundred threspe trial da pleas on April 23, 1996. In accordance with all of the foregoing, the state did not exceed the time period allotted in R.C. 2945.71, in its prosecution of the aggravated arson and kidnaping charges, and this assignment of error is without merit. Defendant's second assignment of error states: THE UNJUSTIFIABLE DELAY OF TWENTY-NINE MONTHS IN COM- MENCING PROSECUTION IN [CASE NO.] 335603 RESULTED IN ACTUAL PREJUDICE TO THE APPELLANT AND THUS, VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED BY ARTICLE 1, SECTION 16 OF THE CONSTITUTION OF OHIO AND THE FIFTH AND FIFTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Within this assignment of error defendant asserts that since he was arrested in connection with the assault on September 16, 1993, but was not indicted for this offense until March 7, 1996, there was an unconstitutional1 delay in commencing prosecution. The state indicates that defendant was in fact arrested on this date. Defendant did not assert this issue before the trial court, however, and the record is therefore poorly developed as to this issue. As an initial matter, we note that [i]nvocation of the speedy 1It is clear that no violation of the statutory right to a speedy trial will be recognized in the connection with this delay as R.C. 2945.71(C)(2) requires both a pending felony charge and an arrest in order to come under the two-hundred-seventy-day time period within which the state must bring a criminal defendant to trial. State v. Lewis (1990), 70 Ohio App.3d 624, 631. 13 trial provision *** need not await indictment, information, or other formal charge. Dillingham v. United States (1975), 423 U.S. 64, 65. We further note that in determining whether the defendant's constitutional rights to a speedy trial have been violated we must balance four factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530; see, also, State v. Mintz (1991), 71 Ohio App.3d 62, 70; State v. Packard (1988), 52 Ohio App.3d 99, 101. The Barker Court explained: The length of the delay is to some extent a triggering mechanism. Until there is a delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, *** the length of the delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstancesof the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defendant's responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most 14 particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court had identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. Id., at 531-523. In this instance, the delay between the initial arrest and the indictment was, as set forth by the parties herein, thirty months. This is a significant delay. We are mindful, however, that this matter is more in the nature of an ordinary street crime than a serious, complex conspiracy charge. Cf. Barker v. Wingo, supra. Moreover, as explained by the prosecuting attorney, Knuckles, the stated victim of the felonious assault, was living with defendant and observed him during the attack. The record therefore suggests that issues such as the reliability of the identification were not present in this matter. Defendant did not assert his speedy trial right below. Accordingly, the state has not been called upon to provide a justification for the delay. We are therefore precluded from ascribing any reason to the government's action and cannot designate its conduct as deliberate, neutral or valid. As to the 15 issue of prejudice resulting from the delay, there is no indication that defendant was incarcerated or that he suffered anxiety and concern over whether charges would be filed. It is clear that competency was an issue in this matter, but the record indicates that defendant was ultimately determined to be competent and legally sane in connection with this matter, despite the delay in bringing the indictment. There is no indication that potential witnesses could not be located due to the delay. Thus, from the sparse record which has been presented herein, we are unable to conclude that defendant's constitutional speedy trial rights were violated herein. The second assignment of error is overruled. Defendant's third assignment of error states: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO WHEN HIS TRIAL COUNSEL DID NOT OBJECT TO THE UNJUSTIFIED DELAY IN COMMENCING PROSECUTION IN [CASE. NO.] 335603. Within this assignment of error defendant maintains that his trial counsel was ineffective in failing to assert the pre- indictment delay in bringing the felonious assault charge as a basis for dismissing that charge. In order to establish a claim of ineffective assistance of counsel, a defendant must make a two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth 16 Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington (1986), 466 U.S. 668, 687. As we have been unable to conclude that defendant's constitutional speedy trial rights were violated in connection with defendant's arrest and indictment for felonious assault in case no. 335603, we are likewise precluded from determining that defense counsel's performance was deficient. The claim of ineffective assistance of counsel must therefore be rejected. See, also, State v. Henderson (1989), 39 Ohio St.3d 24, 33. Defendant's third assignment of error is overruled. Affirmed. 17 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. BLACKMON, P.J., AND ROCCO, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .