COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73008 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JEROME WALKER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 1, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-349,720 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor SCOTT ROGER HURLEY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender LANCE T. MASON, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44ll3-1569 KENNETH A. ROCCO, J.: -2- Appellant appeals his conviction in the lower court on the grounds that his right to a speedy trial was violated and that he received ineffective assistance of counsel. Since the record indi- cates that a four-day extension beyond the statutorily mandated time period was reasonable and there is no indication that appellant's counsel was ineffective, we affirm. Appellant Jerome Walker was arrested on March 8, 1997. He was indicted on April 14, 1997 on one charge of felonious assault in violation of R.C. 2903.11. On June 3, 1997, appellant, his attorney and the prosecutor appeared before the trial judge. The trial judge first ascertained that appellant effectively waived his right to a jury trial. The state then proceeded with its opening statement; appellant reserved his opening statement. Immediately thereafter, the trial judge stated: Let the record indicate that the Court is in the midst of a in the second week of a trial that it's been hearing the last week and a half, consequently the Court is going to recess this trial until June 10th at one o'clock. On June 10, 1997, the trial continued. Appellant, through his attorney, indicated that he objected to the manner in which the court had convened the trial and moved to dismiss the action on the grounds that his right to a speedy trial had been violated. Appellant also moved to discharge his attorney. In the event the court denied appellant's request to discharge his attorney, appellant's attorney requested permission to withdraw as counsel for appellant. The trial court denied all motions. -3- The trial court then began to hear the evidence in this matter. First to testify was Jeffrey T. Schaub. At the time of the incident, Mr. Schaub resided at 1411 West 112th Street in the City of Cleveland. On March 7, 1997, at approximately 11:30 p.m., Mr. Schaub heard loud music coming from 11111 Detroit Avenue, the building next door to his own, and called the Cleveland Police Department to report the disturbance. He witnessed a police vehicle arrive close to midnight, but the music remained at the same volume. Just after midnight on March 8, 1997, Mr. Schaub again contacted the police. He learned that the front door to the 11111 Detroit Avenue building had been locked and, therefore, the police were unable to gain access. Mr. Schaub then proceeded to the building and discovered that the front door had been propped open. He entered the building in order to determine from which apartment the noise was emanating so that he could report the information to the police. He again called the police to report the apartment number. Soon thereafter, the music stopped and Mr. Schaub fell asleep. At approximately 4:15 a.m., Mr. Schaub was again awakened by loud music. He determined that the music was coming from a dif- ferent apartment than it had been earlier in the evening and again called the police. Mr. Schaub testified that he then proceeded to the steps of 11111 Detroit Avenue, where he planned to sit until the police arrived. -4- A man, whom Mr. Schaub later identified as appellant, exited the building and asked Mr. Schaub what he was doing on the steps. Mr. Schaub replied that he was waiting for the police. Appellant replied that he, too, was going to call the police and returned inside the building. According to Mr. Schaub, approximately one or two minutes later, he heard the door of the building close. As he started to turn towards the building, he was struck in the head. He received a gash to his forehead that required seventeen stitches. After Mr. Schaub was struck, he fell to the ground and saw appellant approach him with what appeared to be a pipe in his hand. At this point, Mr. Schaub brandished a container of pepper spray that he had been carrying in his coat and said, You m*** f***r, I can't believe you hit me. When appellant continued to advance towards him, Mr. Schaub sprayed appellant with pepper spray. Appellant retreated into the building. The police officers arrived soon after the incident, and appellant reported what had occurred. A few hours later, Mr. Schaub went to speak with a detective regarding the incident. He identified appellant from a selection of five photographs. Officer Kevin Callahan with the Cleveland Police Department then testified that he arrived at the scene shortly after the incident had occurred. When he arrived, he saw Mr. Schaub bleeding profusely. He and his partner then proceeded into the building located at 11111 Detroit Avenue and to a basement apartment, where they encountered appellant. Officer Callahan saw appellant wiping -5- his face with a towel, and appellant informed the officers that he was wiping mace from his eyes. Officer Callahan also testified that he found a table leg inside the door of appellant's apartment that fit the description of the object which Mr. Schaub reported had struck him. The officers arrested appellant. Detective Henry Veverka then testified that he took a state- ment from Mr. Schaub and presented the photographs from which Mr. Schaub identified appellant. Following Mr. Schaub's identifica- tion, appellant was charged with felonious assault. Finally, appellant testified. He was the manager-custodian of the building located at 11111 Detroit Avenue at the time of the incident. He reported that he was returning to his apartment from another apartment in the building at approximately 5:00 a.m. when he saw an individual, later determined to be Mr. Schaub, sitting on the steps of the building. Appellant asked Mr. Schaub what he was doing on the steps, and Mr. Schaub told appellant he was waiting for the police. Appellant asked Mr. Schaub, Would you mind waiting for the police wherever you called them from? Appellant then pronounced that he was returning to the building to put on his jacket and told Mr. Schaub that if he was still on the steps when he returned, appellant would call the police. According to appellant, he went into the building and put on another shirt. Appellant reported that he then came back out the apartment and came up through the foyer that exits the building, -6- and when I got ready to come out the building, [Mr. Schaub] turned around on me, with, I don't know, he had something in his hand. I couldn't tell what it was at first. Mr. Schaub was standing on about this third step from the top, and appellant pushed him down the stairs. At the same time he pushed Mr. Schaub, appellant testified that Mr. Schaub sprayed him with the pepper spray. Appellant returned to his apartment where he began flushing his face with water when the police arrived. Appellant insisted that he did not strike Mr. Schaub with any object and that the table leg was off of the table because he had moved the table earlier in the day and the legs had to be removed in order to fit the table through the doorway. At the conclusion of the trial, the lower court found appellant guilty and referred him to the Probation Department. On July 14, 1997, the trial court proceeded with appellant's sentencing hearing. Appellant addressed the court and asserted that he had acted in self-defense. The trial court sentenced appellant to a term of four years incarceration at the Lorain Correctional Institution.Appellant had remained in jail following his arrest and throughout the proceedings in the lower court. Appellant timely filed his notice of appeal. Appellant's first assignment of error alleges: APPELLANT WAS DENIED HIS STATUTORY RIGHT TO A SPEEDY TRIAL WITHIN NINETY (90) DAYS OF HIS ARREST, IN VIOLATION OF R.C. 2945.71, WHEN THE TRIAL COURT BEGAN HEARING EVIDENCE ON THE NINETY-FOURTH (94) DAYS OF APPELLANT'S INCAR- CERATION. R.C. 2945.71 provides, in pertinent part: -7- * * * (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. Pursuant to the triple-count provision, R.C. 2345.71(E), each day that an accused is held in jail in lieu of bail on a pending charge shall be counted as three days. R.C. 2945.72 provides possible extensions of time for trial, including: * * * (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; * * * The trial judge heard the state's opening statement on June 3, eighty-seven days following appellant's arrest; however, also on June 3, she continued the trial and did not hear any evidence until June 10. It has been held that a bench trial does not begin until the judge begins to hear evidence. See State v. Gustafson (1996), 76 Ohio St.3d 425, 435, citing Serfass v. United States (1975), 420 U.S. 377 (in bench trial, jeopardy attaches when court begins to hear evidence). Therefore, it is appellant's position that the trial court violated the statutory requirement when the court did not actually hear evidence in the matter until four days following the expiration of the ninety-day period. -8- In the instant case, a pre-trial was held on April 30, 1997 and a final pre-trial was scheduled for May 7, 1997 at appellant's request. On May 7, at appellant's request, the final pre-trial was re-scheduled for May 14, 1997. On May 14, 1997, again at appel- lant's request, the final pre-trial was continued until May 19. At the May 19 final pre-trial, the matter was scheduled for trial to commence June 3. Thus, although the issue was not addressed by either appellant or appellee, pursuant to R.C. 2945.72(H), appellant's requests for continuances of the final pre-trial extended the time within which the trial court could timely commence trial. The final pretrial was continued at appellant's request from May 7, 1997 to May 14, 1997, a period of seven days, and from May 14, 1997 to May 19, 1997, a period of five days. Therefore, the trial court was required to commence trial by June 18, 1997. Since the trial court, at the latest, commenced trial on June 10, 1997, appellant's right to a speedy trial was not violated. See, e.g. State v. Baker (1993) 92 Ohio App.3d 516, 530 (defendant's request to continue pre-trial tolled speedy trial statute.) Appellant's first assignment of error is overruled. Appellant's second assignment of error contends: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO ASSERT, OR PROVIDE EVIDENCE OF, THE AFFIRMA- TIVE DEFENSE OF SELF-DEFENSE DURING TRIAL. -9- The Ohio Supreme Court devised a two-step process that should be employed when a court considers an allegation of ineffective assistance of counsel. State v. Nicholas (1993), 66 Ohio St.3d 431, citing State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically sepa- rate from the question of whether the defen- dant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's inef- fectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910 [98 S.Ct. 3135, 57 L.Ed.2d 1154}. Id.The above standard is essentially the same as the test devised by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. 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 Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that coun- sel'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 con- viction or death sentence resulted from a breakdown in the adversary process that ren- ders the result unreliable. Id. at 687. The elements required to establish self-defense are: -10- (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. (State v. Melchior [1978], 56 Ohio St.2d 15 [10 O.O.3d 8, 381 N.E.2d 195], approved and followed.) State v. Palmer (1997), 80 Ohio St.3d 543, 563-564, quoting State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. Our review of the record indicates that self-defense was not applicable to the within action; therefore, appellant's counsel was not defective by failing to submit evidence on this issue and appellant could not have been prejudiced by such an omission. Moreover, appellant's counsel chose to argue that appellant did not knowinglycause serious physical harm to Mr. Schaub. Thus, appellant's argument was inconsistent with a claim of self-defense. It is well settled that the trial tactics chosen by an attorney generally will not support a claim of ineffective assistance of counsel. State v. Riffle (1996), 110 Ohio App.3d 554, 557, citing State v. Carrion (1992), 84 Ohio App.3d 27, 32. Appellant's second assignment of error is overruled. 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 Cuyahoga County Court of Common Pleas 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. TERRENCE O'DONNELL, P.J. and JOHN T. PATTON, J. CONCUR JUDGE KENNETH A. ROCCO 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 .