[Cite as State v. Wright, 2017-Ohio-1211.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )           CASE NO. 15 MA 0092
VS.                                              )
                                                 )                  OPINION
KEVIN WRIGHT                                     )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas of Mahoning County,
                                                 Ohio
                                                 Case No. 2013 CR 147

JUDGMENT:                                        Affirm conviction. Reverse and Remand
                                                 in part.
APPEARANCES:
For Plaintiff-Appellee                           Attorney Paul Gains
                                                 Mahoning County Prosecutor
                                                 Attorney Ralph Rivera
                                                 Assistant Prosecutor
                                                 21 West Boardman Street, 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          Attorney Ryan Ingram
                                                 7330 Market Street
                                                 Youngstown, Ohio 44512

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                 Dated: March 29, 2017
[Cite as State v. Wright, 2017-Ohio-1211.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Kevin Wright, appeals the trial court's judgment
contending that there was a speedy trial violation, asserting a Batson challenge and
arguing a sentencing error. We hold that his arguments are meritless and hereby
affirm his conviction and 19 year sentence. However, while the trial court did
sentence Wright to three years on the merged gun specifications at the sentencing
hearing, the sentencing entry omits this order. Accordingly this matter is remanded
to the trial court with instructions to issue a nunc pro tunc order to specify in the
sentencing entry that a component of Wright's sentence was three years on the
firearm specification.
                                 Facts and Procedural History
        {¶2}     On February 7, 2013, Wright was indicted on five counts of felonious
assault and attendant firearm specifications and two counts of improper discharge of
a firearm at or into a habitation with the attendant firearm specifications; all seven
primary offenses are second degree felonies. The charges stemmed from Wright
firing an AK-47 at a vehicle with five passengers, an adult and four children. The
children were unharmed, and the adult sustained three gunshot wounds but survived.
Two adjacent residences sustained damage from the gunfire as well.
        {¶3}     On May 7, 2013, Wright entered a plea of not guilty, was appointed
counsel, and a trial date was set. Within the week that followed, counsel for Wright
filed a request for evidence, demand for discovery, a motion for bill of particulars and
Wright executed a speedy trial waiver. As a result, the trial date was reset.
        {¶4}     On September 18, 2013, Wright filed a pro se "motion to withdraw
defendant's waiver of his right to a speedy trial." Within the motion he stated that he
was never informed of his right to a speedy trial, and did not sign the waiver.
        {¶5}     There were multiple continuances before August 1, 2014, when Wright
filed a motion to dismiss due to pre-indictment delay in excess of one year, which the
State opposed arguing a lack of actual prejudice. The trial court denied the motion.
        {¶6}     After two plea hearings were set and continued, on December 1, 2014,
Wright again filed a "revocation of speedy trial waiver" and requested new counsel.
After being appointed, new counsel filed several motions to gather information about
                                                                                -2-


the case and requested a continuance to have time to prepare for trial.
      {¶7}   Trial commenced on April 20, 2015 over two years after Wright was
indicted. During voir dire Wright's counsel raised a Batson challenge.
      {¶8}   The jury convicted Wright of all charges as indicted and a presentence
investigation was ordered. The trial court sentenced Wright to eight years on one
count of felonious assault, to be served consecutively to the remaining four counts for
which the trial court imposed four-year sentences to be served concurrently to each
other. The trial court also imposed a four-year sentence on both improper discharge
counts, to be served concurrently to each other but consecutively to the other
sentences imposed.      Finally, while the trial court merged Wright's seven gun
specifications for sentencing purposes and imposed a three-year term during the
sentencing hearing, the sentencing entry omits this order; instead the trial court
stated that Wright's total sentence was 19 years.
                                  Batson challenge
      {¶9}   In his first of three assignments of error, Wright asserts:

      THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE A FINDING ON
      APPELLANT'S BATSON CHALLENGE TO THE EXCUSAL OF AN
      AFRICAN-AMERICAN JUROR BASED ON RACE IN VIOLATION OF
      APPELLANT'S        FOURTEENTH         AMENDMENT          RIGHT       TO   EQUAL
      PROTECTION OF THE LAW

      {¶10} The Equal Protection Clause of the United States Constitution prohibits
purposeful discrimination in the exercise of a peremptory challenge to excuse a juror
on account of his race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719,
90 L .Ed.2d 69 (1986). In Batson, the United States Supreme Court outlined a three-
step process for evaluating claims that a prosecutor has used peremptory challenges
in a manner violating the Equal Protection Clause. Id. at 96–98. First, the defendant
must make a prima facie showing that the prosecutor has exercised peremptory
challenges on the basis of race. Id. at 96–97. Second, if the requisite showing has
been made, the burden shifts to the prosecutor to articulate a race-neutral
                                                                                   -3-


explanation for striking the jurors in question. Id. at 97–98. Finally, the trial court must
determine whether the defendant has carried his burden of proving purposeful
discrimination. Id. at 98. An appellate court will not reverse the trial court's decision of
no discrimination unless it is clearly erroneous. See State v. Hernandez, 63 Ohio
St.3d 577, 583, 589 N.E.2d 1310 (1992).
       {¶11} Wright satisfied the first step of demonstrating a prima facie case of
racial discrimination; counsel objected immediately after the prospective juror—who
was African-American—was dismissed. Consequently, the burden shifts to the
prosecutor to articulate a race-neutral explanation for striking the juror in question.
The State responded as follows:

       PROSECUTOR: First of all, I would state that the victims in this case
       are also black. The state has excused also a white juror. This particular
       juror seemed very disinterested during our questioning. It appeared that
       she even fell asleep at one point, and just her attitude towards the
       whole process seemed to be very disinterested and antagonistic.

       {¶12} The trial court did not make an express finding regarding the challenge,
but proceeded with voir dire and replaced the dismissed juror:

       THE COURT: I believe it's the state's peremptory.

       PROSECUTOR: Your Honor, at this time the state would thank and
       excuse Juror No. 12, Ms. Gurley.

       THE COURT:        Ma'am, you're excused.       Please report back to Mr.
       Jackson for further instruction.

       {¶13} The bailiff then called the name of the next person from the potential
juror panel. After she was seated, counsel requested a side bar outside the hearing
of the jury pool and argued the Batson challenge. In response, the trial court denied
the challenge by merely stating "Okay."
                                                                                -4-


       {¶14} At that point the proceedings were recommenced in the presence of the
prospective jurors and the trial court continued with voir dire with the newly seated
prospective juror.
       {¶15} Wright argues that this is error in violation of the third prong of Batson.
The State contends that the reason given by the prosecutor was race-neutral, but
does not directly respond to Wright's argument that it was error for the trial court to
fail to say more regarding a finding.
       {¶16} The State gave two racially-neutral reasons for using a peremptory
challenge against the prospective juror: being disinterested and appearing to fall
asleep. It is not a heavy burden for the State to meet to articulate a racially-neutral
reason for using a peremptory strike. However, the third element of Batson states
that the trial court must determine whether the defendant has carried his burden of
proving purposeful discrimination, Batson.
       {¶17} A similar argument arose in State v. Frazier, 115 Ohio St.3d 139, 2007-
Ohio-5048, 873 N.E.2d 1263, ¶ 98, which the Ohio Supreme Court rejected:

       Frazier contends that the trial court's failure to make findings in
       connection with its ruling requires reversal. Certainly, more thorough
       findings by the trial court in denying the defense Batson objections
       would have been helpful. However, the trial court is not compelled to
       make detailed factual findings to comply with Batson. See Miller–El v.
       Cockrell (2003), 537 U.S. 322, 347, 123 S.Ct. 1029, 154 L.Ed.2d 931
       ("a state court need not make detailed findings addressing all the
       evidence before it" to render a proper Batson ruling). "As long as a trial
       judge affords the parties a reasonable opportunity to make their
       respective records, he may express his Batson ruling on the credibility
       of a proffered race-neutral explanation in the form of a clear rejection or
       acceptance of a Batson challenge." Messiah v. Duncan (C.A.2, 2006),
       435 F.3d 186, 198. Thus, no error was committed in ruling on Frazier's
       two Batson challenges, because the trial court clearly rejected them.
                                                                                -5-


       {¶18} Given the record before us, the trial court rejected the challenge after
giving the parties the opportunity to make their arguments. While the better practice
would be for the trial court to be more expansive in the denial, the prospective juror
was sent back to the jury commissioner's office; she was not seated for this case.
Thus Wright's Batson challenge was rejected by the trial court. More important for
our review of the Batson challenge, we have the arguments of defense counsel and
the prosecutor to review. As the reasoning offered by the State was race-neutral, the
trial court did not err in granting the peremptory challenge. Accordingly, Wright's first
assignment of error is meritless.
                                        Merger
       {¶19} In his second of three assignments of error, Wright asserts:

       THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
       SENTENCES FOR IMPROPERLY DISCHARGING A FIREARM INTO
       OR AT A HABITATION AND FELONIOUS ASSAULT, ALLIED
       OFFENSES OF SIMILAR IMPORT.

       {¶20} Wright asserts that his sentences for the felonious assault and the
improper discharge offenses should have merged because it was part of a single
continuous course of conduct, and when comparing the elements of both offenses
they can be committed with the same conduct.
       {¶21} Ohio's merger statute provides as follows: "Where the defendant's
conduct constitutes two or more offenses of dissimilar import, or where his conduct
results in two or more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them." R.C.
2941.14. Appellate review of an alleged merger error is de novo. State v. Williams,
134 Ohio St.3d 482, 2012–Ohio–5699, 983 N.E.2d 1245, ¶ 28; State v. Johnson, 7th
Dist. No. 12MA137, 2014-Ohio-4253, ¶ 109.
                                                                            -6-


       {¶22} Although Wright relies upon State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892 controls. Regarding Johnson, the Court stated:


       In Johnson, we emphasized that abstract analysis of the elements
       of a crime was insufficient and that the defendant's conduct must be
       considered when evaluating whether offenses are allied. Id. at ¶ 44.
       While it is true that the syllabus in Johnson says that "[w]hen
       determining whether two offenses are allied offenses of similar
       import subject to merger under R.C. 2941.25, the conduct of the
       accused must be considered," this language does not offer the
       complete analysis necessary to determine whether offenses are
       subject to merger rather than multiple convictions and cumulative
       punishment. We agree with the state that our decision in Johnson
       was incomplete because R.C. 2941.25(B) provides that when a
       defendant's conduct constitutes two or more offenses of dissimilar
       import, the defendant may be convicted of all of the offenses.

Ruff at ¶ 16.
       {¶23} The Ruff Court continued: "two or more offenses of dissimilar import
exist within the meaning of R.C. 2941.25(B) when the defendant's conduct
constitutes offenses involving separate victims or if the harm that results from each
offense is separate and identifiable." Id. at ¶ 26.
       {¶24} Wright fired an AK-47 at a vehicle with five passengers, an adult and
four children in a residential area; during the incident two separate residences
sustained damage from the gunfire. As such, Wright's convictions for the five
felonious assault counts and the two improper discharge counts do not merge
because they involve separate victims and separate, identifiable harm. Ruff.
Accordingly, the trial court correctly did not merge these seven convictions, and
Wright's second assignment of error is meritless.
                                                                                 -7-


        {¶25} However, our review of this assignment of error reveals an error in
Wright's sentencing entry, specifically, his sentence for the gun specifications. The
trial court imposed 16 years for Wright's felonious assault and improper discharge
convictions through a combination of concurrent and consecutive sentences for these
seven counts. The trial court then merged Wright's seven gun specifications for
sentencing purposes, but did not impose a specific sentence for those offenses.
Instead, the trial court stated that Wright's aggregate sentence was 19 years.
        {¶26} While the trial court imposed three years on the gun specification during
the sentencing hearing, and we can glean from the sentencing entry that the trial
court imposed that three-year term by subtracting the sentences imposed for the
other convictions from his aggregate sentence, this does not comport with Ohio
sentencing jurisprudence. Accordingly, we are remanding Wright's case to the trial
court with instructions to issue a nunc pro tunc sentencing judgment entry specifically
referencing and incorporating the firearm specification as part of the 19-year prison
term.
                                     Speedy Trial
        {¶27} In his third of three assignments of error, Wright asserts:

        THE TRIAL COURT ERRED WHEN IT FAILED TO RULE ON
        APPELLANT'S MOTION TO WITHDRAW HIS SPEEDY TRIAL
        WAIVER AND WHEN IT DENIED HIS MOTION TO DISMISS BASED
        ON PRE-INDICTIMENT DELAY IN VIOLATION OF HIS SIXTH
        AMENDMENT AND STATUTORY RIGHTS TO A SPEEDY TRIAL AND
        HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF
        LAW.

        {¶28} The Sixth Amendment to the United States Constitution provides that
an "accused shall enjoy the right to a speedy and public trial." Section 10, Article I of
the Ohio Constitution also provides a criminal defendant the right to a speedy public
trial by an impartial jury.
        {¶29} R.C. 2945.73(B) further addresses a criminal defendant's statutory right
                                                                                   -8-


to a speedy trial: "Upon motion made at or prior to the commencement of trial, a
person charged with an offense shall be discharged if he is not brought to trial within
the time required by sections 2945.71 and 2945.72 of the Revised Code." A
defendant charged with a felony must be brought to trial within 270 days of his or her
arrest. R.C. 2945.71(C)(2). However, "each day during which the accused is held in
jail in lieu of bail on the pending charge shall be counted as three days." R.C.
2945.71(E). This is also referred to as the triple count provision.

       A review of a trial court's decision regarding a motion to dismiss based
       on statutory speedy trial grounds involves a mixed question of law and
       fact. Deference is given to the trial court's findings of fact, but the
       appellate court independently reviews whether the trial court properly
       applied the law to the facts of the case. When reviewing the legal
       issues regarding a statutory speedy trial case, the statutes are strictly
       construed against the state.

State v. Fant, 2016-Ohio-7429, --N.E.3d --, ¶35 (7th Dist.) (internal citations
omitted).
       {¶30} There are two arguments being made in this single assignment of error.
Wright contends that his case should have been dismissed due to pre-indictment
delay and also that his try by time had expired. Both will be discussed in turn.
                                 Pre-Indictment Delay
       {¶31} The Ohio Supreme Court recently considered preindictment delay:

       [O]n its face, the Sixth Amendment provides no protection to those who
       have not yet been accused; it does not "require the Government to
       discover, investigate, and accuse any person within any particular
       period of time." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct.
       455, 30 L.Ed.2d 468 (1971). Statutes of limitations provide the ultimate
       time limit within which the government must prosecute a defendant—a
       definite point "beyond which there is an irrebuttable presumption that a
                                                                                -9-


      defendant's right to a fair trial would be prejudiced." Id. at 322, 92 S.Ct.
      455. See also United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct.
      2044, 52 L.Ed.2d 752 (1977) (stating that statutes of limitations provide
      predictable limits to prevent initiation of overly stale charges). But when
      unjustifiable preindictment delay causes actual prejudice to a
      defendant's right to a fair trial, despite the state's initiation of
      prosecution within the statutorily defined limitations period, the Due
      Process Clause affords the defendant additional protection. Id.

      This court has stated succinctly that preindictment delay violates due
      process only when it is unjustifiable and causes actual prejudice: "An
      unjustifiable delay between the commission of an offense and a
      defendant's indictment therefor, which results in actual prejudice to the
      defendant, is a violation of the right to due process of law" under the
      United States and Ohio Constitutions. State v. Luck, 15 Ohio St.3d 150,
      472 N.E.2d 1097 (1984), paragraph two of the syllabus.

      And we have firmly established a burden-shifting framework for
      analyzing a due-process claim based on preindictment delay. Once a
      defendant presents evidence of actual prejudice, the burden shifts to
      the state to produce evidence of a justifiable reason for the delay. State
      v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State v.
      Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99.

State v. Jones, 2016-Ohio-5105, -- N.E.3d --, ¶ 11-13.
      {¶32} Wright's two-page motion to dismiss states that he was substantially
prejudiced but provides no details or examples of how he was actually prejudiced.
Further, if a hearing was held on this motion, Wright has failed to provide a copy of
the transcript for this Court to conduct an independent review. As Wright did not
prove actual prejudice, the burden never shifted to the State to prove justifiable
reason for the delay.
                                                                                - 10 -


                                      Try-By Time
       {¶33} Wright also asserts that he was not brought to trial within the statutorily
mandated time. Wright was indicted February 7, 2013, arrested and arraigned on
May 3rd, 2013, and on May 10th executed a speedy trial waiver. Wright attempted to
rescind his waiver of speedy trial arguing that he had not signed the waiver.
       {¶34} The trial court's judgment entries memorialized Wright's waiver. As the
waiver was valid, it was in full force and effect during the pendency of these
proceedings. "Following an express, written waiver of unlimited duration by an
accused of his right to a speedy trial, the accused is not entitled to a discharge for
delay in bringing him to trial unless the accused files a formal written objection and
demand for trial, following which the state must bring the accused to trial within a
reasonable time."    State v. O'Brien, 34 Ohio St. 3d 7, 516 N.E.2d 218 (1987),
syllabus.
       {¶35} Accordingly, as there was no preindictment delay and Wright waived his
speedy trial time, his third assignment of error is meritless.
       {¶36} In sum, Wright's assignments of error are meritless. However, while
the trial court did sentence Wright to three years on the specification at the
sentencing hearing the entry omits this order. Accordingly, this matter is remanded
to the trial court with instructions to issue a nunc pro tunc sentencing judgment entry
specifically referencing and incorporating the firearm specification as part of the 19-
year prison term.

Donofrio, J., concurs.

Robb, P. J., concurs.
