[Cite as State v. Meadows, 2020-Ohio-3888.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                Plaintiff-Appellee,                 :
                                                             No. 108452
                v.                                  :

ISAIAH S. MEADOWS,                                  :

                Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: APPLICATION DENIED
                RELEASED AND JOURNALIZED: July 28, 2020


                          Cuyahoga County Court of Common Pleas
                                Case No. CR-16-607612-A
                                Application for Reopening
                                    Motion No. 537933


                                              Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Gregory Ochocki, Assistant Prosecuting
                Attorney, for appellee.

                Isaiah S. Meadows, pro se.


MARY J. BOYLE, P.J.:

                  Applicant, Isaiah S. Meadows, timely seeks to reopen his appeal in

State v. Meadows, 8th Dist. Cuyahoga No. 108452, 2020-Ohio-802. He claims
appellate counsel was ineffective for failing to raise eight proposed assignments of

error:

         I. The trial court violated appellant’s federal and state constitutional
         rights to due process of law when it failed to allow appellant the
         opp[o]rtunity to submit evidence on his behalf during the bifurcated
         hearings on the sexual violent predator specifications and the repeat
         violent offender specification before he was found guilty by the trial
         judge.

         II. The trial court violated appellant’s constitutional and statutory
         right to a speedy trial under R.C. 2945.71 through R.C. 2945.73 when
         it failed to try appellant within the 90[-]day time limit prescribed by
         R.C. 2945.71(C)(2) and (E) upon revers[al] and remand.

         III. The trial court violated appellant’s federal and state constitutional
         rights to due process of law when it erred by creating improper and
         defective journal entries that unfairly charged appellant for every
         continuance listed in the file.

         IV. The trial court violated appellant’s federal and state constitutional
         rights to due process of law when it violated R.C. 2953.08(A) and
         (A)(3).

         V. The trial court violated appellant’s federal and state constitutional
         rights to due process of law when it failed to reindict, reinstate, or
         refile charges against him before trial upon reverse and remand.

         VI. The trial court violated appellant’s federal and state constitutional
         rights to due process of law when it imposed harsher sentences on
         appellant upon reverse and remand without judge’s reasons for doing
         so affirmatively appearing on the record, therefore displaying
         vindictiveness towards appellant for successfully attacking his
         previous conviction.

         VII. The trial court violated appellant’s federal and state
         constitutional rights to due process of law when he left the courtroom
         during trial and allowed the state to show portions of a video
         interrogation to the jury that were not agreed upon or stipulated to by
         both parties before trial and that prejudiced the defendant.

         VIII. Appellant’s trial counsel displayed ineffective assistance of
         counsel when he failed to file a motion to suppress all evidence for lack
         of probable cause or evidence to substantiate probable cause for lack
         of 911 tape.

                For the reasons that follow, the application is denied.

I. Procedural and Factual History

                In March 2017, Meadows pleaded guilty to charges as part of a plea

agreement. He was initially charged with rape, attempted rape, kidnapping, grand

theft, criminal damaging, failure to comply, having weapons while under disability,

carrying concealed weapons, and improperly handling firearms in a motor vehicle.

The plea agreement called for the state to dismiss the criminal damaging charge,

one of two counts of failure to comply, and sexually violent predator specifications.

Other charges and specifications in the indictment were also amended. Meadows

pleaded guilty to eight counts, and was sentenced to an aggregate prison term of 33

years. He appealed his convictions arguing that the trial court failed to comply with

Crim.R. 11 prior to accepting his guilty pleas. The state conceded the error. State v.

Meadows, 8th Dist. Cuyahoga No. 105753, 2017-Ohio-8407, ¶ 2. On November 2,

2017, a panel of this court vacated his convictions and remanded the case to the trial

court.

                On remand, Meadows was appointed counsel and the case proceeded

to trial on February 12, 2019. At the conclusion of trial, Meadows was found guilty

of one count of rape with one- and three-year firearm specifications, one count of

kidnapping with one- and three-year firearm specifications, one count of grand

theft with one- and three-year firearm specifications, two counts of failure to
comply, one count of improperly handling firearms in a motor vehicle, and the

court found Meadows guilty of having weapons while under disability. The court

also found Meadows guilty of repeat violent offender, sexually violent predator,

and sexual motivation specifications. Meadows was sentenced to a prison term

of life in prison with parole eligibility after 29 years.

                 Meadows appealed from his convictions.               Meadows, 8th Dist.

Cuyahoga No. 108452, 2020-Ohio-802.1 There, he raised two assignments of error

challenging the manifest weight of the evidence of his rape conviction and the way

in which the trial court journalized costs in the action. Id. at ¶ 1. In a decision issued

on March 5, 2020, this court affirmed the convictions, but remanded the case to the

trial court to issue a nunc pro tunc entry regarding costs. Id.

                 On April 16, 2020, Meadows filed a timely application to reopen his

appeal where he raised eight proposed assignments of error. The state timely

opposed the application.

II. Law and Analysis

A. Standards for Reopening

                 “The clear intent of App.R. 26(B) is for the appellate court to function

as the trier of fact in determining whether the defendant has demonstrated a

genuine issue as to the ineffectiveness of his appellate counsel.” State v. Davis, 119

Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 21. The rule provides that



      1   See this case for a more detailed recitation of the facts underlying the convictions.
“[a]n application for reopening shall be granted if there is a genuine issue as to

whether the applicant was deprived of the effective assistance of counsel on appeal.”

Ineffectiveness of appellate counsel is judged using the same standard that applies

to claims of ineffectiveness of trial counsel found in Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Spivey, 84 Ohio

St.3d 24, 25, 701 N.E.2d 696 (1998). State v. Were, 120 Ohio St.3d 85, 2008-Ohio-

5277, 896 N.E.2d 699, ¶ 10.

               In order to demonstrate ineffective assistance of appellate counsel,

Meadows must prove that counsel was “‘deficient for failing to raise the issues he

now presents and that there was a reasonable probability of success had he

presented those claims on appeal.’” Id. at ¶ 11, quoting State v. Sheppard, 91 Ohio

St.3d 329, 333, 744 N.E.2d 770 (2001). Further, Meadows “‘bears the burden of

establishing that there was a “genuine issue” as to whether he has a “colorable claim”

of ineffective assistance of counsel on appeal.’” Id., quoting Spivey at 25.

B. Right to Present a Defense

               Meadows first asserts appellate counsel was ineffective for not

arguing an assignment of error claiming that Meadows’s right to due process was

violated when the trial court failed to allow him the opportunity to submit

evidence regarding the sexually violent predator and repeat violent offender

specifications.

               “The right of an accused in a criminal trial to due process is, in

essence, the right to a fair opportunity to defend against the State’s accusations.”
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

“Few rights are more fundamental than that of an accused to present witnesses in

his own defense.” Id. at 302. Meadows claims this fundamental right was violated

during his trial. The record in this case does not support his claim.

               After the announcement of the jury’s findings, the court proceeded

directly to find Meadows guilty of the charge and specifications tried to the bench.

(Tr. 748.) However, prior to that, Meadows’s attorney stipulated to a certified copy

of the journal entry for a prior conviction in Georgia in reference to the notice of

prior conviction and repeat violent offender specifications. (Tr. 122-123.)

Additionally, after the state rested its case, and outside the presence of the jury, the

court asked defense counsel if they were going to present any evidence. One of

Meadows’s attorneys responded that they did not intend to present any evidence.

(Tr. 628.)

               Finally, just prior to the sentencing hearing, the state made sure the

following was part of the record:

      [Prosecutor 1]: First, your Honor, with regard to the sexually violent
      predator specification on Count 1, that determination was made by the
      Court at the conclusion of the trial. The State did present, if the Court
      recalls, a certified journal entry with regard to that specification
      [prosecutor 2] has spoken with [defense counsel 2] prior to today’s
      hearing who indicated that the defense did not have any additional
      evidence that they will put on with regard to that specification. I did
      want to make a record of that.

      The Court: Is that correct, [defense counsel 1]?

      [Defense counsel 1]: That’s my understanding of the discussion
      between [defense counsel 2] and [prosecutor 2], your Honor.
(Tr. 759-760.)

                 Defense counsel chose not to present evidence with regard to the

specifications or charge tried to the bench. It is apparent from the record that an

opportunity was afforded to Meadows to present evidence, but defense counsel

made a conscious decision to decline to do so. Therefore, the trial court did not

deprive Meadows of his right to present evidence or a defense, and appellate counsel

was not ineffective for failing to assign such an error on appeal.

C. Speedy Trial and Improper Continuances

                 Meadows asserts in this second proposed assignment of error that his

right to a speedy trial, as set forth in R.C. 2945.71 through 2945.73, was violated

when he was not brought to trial within 90 days. He further claims in his third

proposed assignment of error that the trial court improperly indicated that each

request for continuance was at Meadows’s request.            As these two proposed

assignments of error are interrelated, they will be addressed together.

                 A right to a speedy trial is guaranteed by the United States and Ohio

Constitutions. That right is further codified in R.C. 2945.71 through 2945.73.

However, the statutory right to a speedy trial does not apply to Meadows’s retrial

after successful appeal. State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852

N.E.2d 706, paragraph one of the syllabus. In such cases, the right to speedy trial

is governed by the Sixth Amendment and Section 10, Article I of the Ohio

Constitution. Id. at paragraph two of the syllabus.
       In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101,
       the court identified four factors to be assessed in determining whether
       an accused had been constitutionally denied a speedy trial: (1) the
       length of the delay, (2) the reason for the delay, (3) the defendant’s
       assertion of his right to a speedy trial, and (4) the prejudice to the
       defendant. Id. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101.

Id. at ¶ 22.

               Although Meadows’s proposed assignment of error includes an

allusion to his constitutional right to speedy trial, his arguments in support of this

assignment of error are limited to reliance on the statutory provisions. These are

not applicable. Therefore, Meadows’s arguments are inapplicable to his case.

               Appellate counsel could not have been ineffective for failing to raise

and argue an assignment of error based on the statutory right to a speedy trial.

               Meadows also claims the continuances entered on the docket in his

case improperly indicated each was at his request. Because Meadows has not set

forth a proper argument about a violation of his speedy trial rights under the Sixth

Amendment or the Ohio Constitution, he has failed to show any prejudice in his

allegation that continuances were improperly charged to him. But in an abundance

of caution, this court will analyze whether Meadows was brought to trial within a

reasonable time under the test set forth above.

               The length of delay becomes a triggering event for the Barker

analysis. “Before a court engages in a balancing test under Barker, the court must

make a threshold determination concerning the length of delay. ‘“Until there is

some delay which is presumptively prejudicial, there is no necessity for inquiry into
the other factors that go into the balance.”’” State v. Williams, 8th Dist. Cuyahoga

No. 108275, 2020-Ohio-269, ¶ 49, quoting Hull, 110 Ohio St.3d 183, 2006-Ohio-

4252, 852 N.E.2d 706, at ¶ 23, quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182, 33

L.Ed.2d 101. The length of delay becomes presumptively prejudicial as it approaches

one year in length. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120

L.Ed.2d 520 (1992), fn. 1.

              Here, Meadows was brought to trial approximately 15 months after

remand from successful appeal.       Therefore, the Barker analysis is triggered.

Williams at ¶ 49. However, a review of the record indicates that Meadows was

brought to trial within a reasonable time.

              The second factor directs the court to examine the reasons for the

delay. The journal entries in the record documenting the continuances that exist in

this case do indicate that each one was at Meadows’s request; even two continuances

that were necessitated by the unavailability of the trial judge and the prosecutor.

However, those are the only continuances that evidence an improper charge to

Meadows.

              The docket is replete with instances of proper continuances charged

to Meadows that came at defense counsel’s request. On November 2, 2017, this

court vacated Meadows’s guilty pleas and remanded the case to the trial court.

The record was returned to the trial court and the case was returned to the active

docket of the trial court by order of the administrative judge of the common pleas

court on January 3, 2018. On January 17, 2018, the trial court assigned new
counsel and set a pretrial date of January 22, 2018. A pretrial was held on

January 22, 2018, and the case was continued at the defendant’s request to

conduct discovery. This was followed with continuances caused by discovery

requests, plea negotiations, a motion filed by Meadows to disqualify counsel, a

motion to continue the trial date filed by Meadows’s counsel, a continuance by

the court necessitated by another trial the judge was overseeing, and a

continuance necessitated by the state because the prosecutor was engaged in

trial. Except for the last two continuances, the reasons for much of the delay in

this case can properly be attributed to Meadows.

              Under the third factor, Meadows argues in his application that no

continuances could be properly charged to him after he filed pro se motions

attempting to limit his counsel’s ability to request continuances and assert his

speedy trial rights. However, defense counsel must have the prerogative to control

the pace of judicial proceedings in order to mount a proper defense. State v.

McBreen, 54 Ohio St.2d 315, 319, 376 N.E.2d 593 (1978). Therefore, a defendant is

bound by counsel’s waiver of speedy trial rights even if the defendant does not

assent. Id. at 320; State v. Winn, 8th Dist. Cuyahoga No. 98172, 2012-Ohio-5888,

¶ 31.

              Meadows could not effectively prohibit his counsel from requesting

continuances. Therefore, those delays in prosecution that resulted from defense

counsel’s actions and motions can properly be charged to Meadows.
               Finally, no prejudice appears in the record and Meadows does not

assert any in his application.

               While a presumption of unreasonableness may arise after one year,

numerous continuances in this case were properly charged to Meadows. Ineffective

assistance of appellate counsel requires a reasonable probability that the appellant

is prejudiced by counsel’s failure to raise the issue on appeal. Here, because the

speedy trial statute found in R.C. 2945.71 does not apply and Meadows has not

demonstrated that he was not brought to trial within a reasonable time, Meadows

has not demonstrated a colorable claim of ineffective assistance of appellate counsel.

D. R.C. 2953.08

               Meadows asserts that “[t]he trial court violated [his] federal and state

constitutional rights to due process of law when it violated R.C. 2953.08(A) and

(A)(3).” Within this proposed assignment of error, Meadows argues that the trial

court violated this statutory provision because he received a life sentence for his rape

conviction with a sexually violent predator specification rather than an 11-year term.

               R.C. 2953.08 is not a sentencing statute. This statute governs the

right of a defendant or prosecutor to appeal a criminal sentence. It does not place

any limits on a trial judge’s ability to impose sentence, which is governed by other

statutes. Therefore, the trial court could not violate a provision of that statute by

sentencing Meadows. Appellate counsel was not ineffective for failing to raise this

issue on appeal.
E. Refiling Charges After Reversal on Appeal

               Meadows argues that the state was required to “reindict, reinstate, or

refile” charges that were dismissed or amended as part of the plea agreement in

order to revive those charges. Meadows does not cite any law to support his position.

The order that amended and dismissed certain charges was vacated by this court

when Meadows successfully argued that his guilty pleas were invalid. As a result,

this court remanded the case to the trial court at the stage before the guilty pleas

were entered. The state was not required to reindict, reinstate, or refile charges that

were included in the original indictment, because that was the charging instrument

on which Meadows was tried after remand.

               Appellate counsel was not ineffective for failing to advance such an

argument on appeal.

F. Imposition of a Different Sentence

               Meadows claims the trial court violated his rights to due process when

it imposed a harsher sentence after successful appeal and retrial without the judge

specifically stating reasons for the harsher sentence, and “therefore displaying

vindictiveness towards [Meadows] for successfully attacking his previous

conviction.”

               Due process is violated when a defendant is penalized for successfully

pursuing an appeal when a harsher penalty is imposed on a defendant. North

Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). In such a

case, a presumption of vindictiveness arises.        However, this presumption of
vindictiveness is quite narrow. State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401,

80 N.E.3d 431, ¶ 13. For instance, the presumption does not apply to cases where a

defendant’s pleas are vacated and a harsher penalty is imposed after trial. Id. at ¶

14. This is because “more information bearing on sentencing will be available to the

judge after trial.” Id., citing Alabama v. Smith, 490 U.S. 794, 801, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989). The presumption also does not arise when the sentencing

judge is not confined to “roughly the same sentencing considerations” that existed

at the time of the original sentencing. Smith at 802.

              Meadows relies on this presumption of vindictiveness to assert that

the trial judge was required to affirmatively state reasons for the variation in

sentence after successful appeal. However, the case Meadows relies on, Smith, holds

that the presumption does not apply to cases like his. Smith at 801-802.

              In this instance, the trial court did not resentence Meadows after

remand as in Pearce, but sentenced Meadows after additional facts and

considerations were adduced at trial, and based on specifications and charges that

were dismissed under the former plea agreement ─ including sexually violent

predator specifications that resulted in a life sentence. Meadows was not sentenced

based on the same general considerations that existed at the time of his first

sentencing. No presumption of vindictiveness arises in such a case.

              Therefore, Meadows must show actual vindictiveness in the record.

Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, at ¶ 13. Meadows has
failed to advance any argument to support a claim of actual vindictiveness, and on

review, the record does not disclose any indication of vindictiveness.

              Meadows has not shown a colorable claim of ineffective assistance of

appellate counsel regarding this issue.

G. Attendance of the Trial Judge

              Meadows next argues that “the trial court violated [Meadows’s]

federal and state constitutional rights to due process of law when he left the

courtroom during trial and allowed the state to show portions of a video

interrogation to the jury that was not agreed upon or stipulated to by both parties

before trial and that prejudiced the defendant.”

              During trial, the state played a stipulated portion of an interview of

Meadows conducted by police. During the interview, Meadows discussed instances

of past conduct in Georgia. These instances were redacted from the video that was

played for the jury. After the state questioned a police detective, during which

portions of the redacted video were played, defense counsel cross-examined the

witness regarding the interview. After that, the state argued to the trial judge that

during cross-examination, defense counsel intimated that the state only played

certain portions of the video and that other portions were not played. As a result, a

lengthy discussion was had about whether defense counsel opened the door to

have the entire video interview played to the jury. Extensive arguments were

made to the trial judge, and the court reviewed the entire video in camera. After

a review of the video, the trial court heard additional arguments from each side,
and ruled that the state could recall the detective and play the entire video for the

jury. The court ordered that the state could not stop the video and ask questions

of the witness. The video was to be played through in its entirety. (Tr. 563-596.)

               Contrary to the state’s arguments in its brief in opposition to the

application for reopening, the transcript indicates that the trial judge left the

courtroom while the video was being played. (Tr. 603.) However, Meadows failed

to cite to any portion of the record in support of this proposed assignment of error.

               Meadows argues this was improper because he could not object while

the video was played. This argument is contrary to the extensive discussion of the

video that was had on the record prior to it being played for the jury, and the

numerous objections that were raised at that time. Outside the presence of the jury,

the trial court had already overruled Meadows’s objections to having the entire video

played.

               While it would have been a better practice for the trial judge to

oversee the entire proceedings, this court finds no possibility of prejudicial error in

this case. If it was error for the trial judge to leave the courtroom while the video

was played, Meadows cannot point to any prejudice that resulted. No questioning

was allowed during the playback of the video and the court heard and overruled

multiple objections to the video being played prior to leaving the courtroom.

Meadows does not allege any instance of misconduct occurred while the video

played, only that he was unable to lodge objections to the video while it played.
Therefore, Meadows has not demonstrated a colorable claim of ineffective

assistance of appellate counsel for failing to raise this issue on appeal.

H. Motion to Suppress

               Meadows argues that his “trial counsel displayed ineffective

assistance of counsel when he failed to file a motion to suppress all evidence for lack

of probable cause or evidence to substantiate probable cause for lack of 911 tape.”

               This is the extent of Meadows’s argument regarding this proposed

assignment of error. There are no citations to the record or argument included that

would elucidate to what Meadows is referring. A police officer testified about a 911

call placed by the victim, but no 911 call was introduced at trial. The transcript

indicates that there was a 911 call that was stipulated to by defense counsel that was

discussed prior to Meadows’s acceptance of a plea deal, which was later vacated. (Tr.

28-29.) However, at trial no 911 call was played for the jury. The victim did testify

that she called police. (Tr. 289, 292-293.) It is unclear what Meadows is attempting

to argue in this proposed assignment of error.

               The bald assertion of a proposed assignment of error does not meet

the applicant’s burden of demonstrating a colorable claim of ineffective assistance

of appellate counsel. State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2015-Ohio-

1946, ¶ 6. Meadows has not demonstrated that appellate counsel was ineffective in

relation to this proposed assignment of error.

               For these reasons, the application for reopening is denied.
           Application denied.



____________________________________
MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
EILEEN A. GALLAGHER, J., CONCUR
