[Cite as State v. Ellison, 2013-Ohio-5455.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.   25638

v.                                                     :            T.C. NO.   12CR751

DWAYNE L. ELLISON                                      :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                              ..........

                                              OPINION

                          Rendered on the       13th       day of        December        , 2013.

                                              ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 E. Fifth Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Dwayne L. Ellison appeals his conviction and sentence

for one count of felony murder, in violation of R.C. 2903.02(B), and one count of felonious
                                                                                            2

assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree.

The preceding counts were both accompanied by firearm specifications. Ellison was also

charged with one count of having a weapon while under disability (prior drug conviction), in

violation of R.C. 2923.13(A)(3), a felony of the third degree. Ellison filed a timely notice

of appeal with this Court on February 19, 2013.

       {¶ 2}    On May 9, 2011, Isaiah West and his half-brother, Dyondre Snowden, went

to Gina’s Party Store located in Dayton, Ohio, at 2229 Germantown Street to purchase

liquor. As the two men walked into the store, they observed two women sitting in a tan

Mercury Marquis just outside the store. West and Snowden stopped to talk to the women,

but as they did so, a male wearing a yellow striped shirt, blue shorts, and a blue fishing hat

walked by and told the two men that the women’s “dude” was in the store. The male, later

identified as Ellison, got into the tan Marquis with the two women and drove away. West

and Snowden went inside the liquor store to make their purchase.

       {¶ 3}    While West and Snowden were in the liquor store, Ellison drove to a nearby

grocery store where he retrieved a loaded handgun he had left with store employees earlier

that day. Upon retrieving the handgun, Ellison drove back to the liquor store and went

inside where he encountered West and Snowden for the second time. While observing

West, Ellison noticed that he had a handgun as well. Ellison left the liquor store and went

out into the parking lot. Shortly thereafter, West also walked outside and went into the

parking lot.   After a brief verbal exchange, Ellison pulled out his handgun and fired

approximately nine shots at West. West was able to retrieve his gun and return fire before

he was hit in the chest. West collapsed in the liquor store parking lot and died a short time
                                                                                         3

later.

         {¶ 4}   After shooting West, Ellison returned to the tan Marquis and drove back to

the grocery store where he left the handgun with store employee Fahed Saleh. Saleh put the

handgun under the front counter where the police discovered it the next day. Police located

and arrested Ellison for the shooting of West approximately ten months later. While being

interviewed by detectives, Ellison admitted that on May 9, 2011, he was at Gina’s Party

Store in a tan Marquis with two females. Ellison further admitted that he got into an

argument with West and Snowden. Ellison, however, denied that he was armed and denied

that he shot at anyone.

         {¶ 5}   On June 14, 2012, Ellison was indicted for one count of felony murder and

one count of felonious assault, both counts accompanied by a firearm specification. Ellison

was also indicted for one count of having a weapon while under disability.          At his

arraignment on June 19, 2012, Ellison stood mute, and the trial court entered a plea of not

guilty on his behalf.

         {¶ 6}   On September 12, 2012, Ellison’s counsel requested a continuance of the

trial date. The trial court granted the continuance and moved the trial date from September

12, 2012, to December 17, 2012. After further scheduling changes, a jury was empaneled

on December 14, 2012. Prior to the beginning of the jury trial on December 17, 2012,

Ellison requested a mistrial in light of the shootings of multiple children and teachers at

Sandy Hook Elementary School located in Newtown, Connecticut. Specifically, Ellison

orally moved the court to continue the jury trial for ninety days in order to avoid any

prejudice or bias resulting from the shooting. The trial court overruled Ellison’s motion,
                                                                                            4

and the trial commenced.

       {¶ 7}    On December 20, 2012, the jury found Ellison guilty on all counts. On

December 24, 2012, Ellison filed a written motion “nunc pro tunc” for a ninety day

continuance of the trial based on the shootings at Sandy Hook Elementary School. At the

sentencing hearing on January 16, 2012, Ellison filed news articles about the Connecticut

shootings and orally argued his motion for a continuance.            The trial court overruled

Ellison’s motion and sentenced him to an aggregate prison term of twenty-one years.

       {¶ 8}    It is from this judgment that Ellison now appeals.

       {¶ 9}    Initially, we note that the State argues that Ellison failed to file a timely

notice of appeal pursuant to App. R. 4(A). App. R. 4(A) provides in pertinent part:

       (A) Time for appeal

       A party shall file notice of appeal required by App. R. 4 within thirty days of

       the later of entry of the judgment or order appealed ***.

       {¶ 10} In the instant case, Ellison filed a notice of appeal on February 19, 2013,

from the judgment entry of conviction issued by the trial court on January 18, 2013. Thirty

days from January 18, 2013, fell on Sunday, February 17, 2013. Since the thirtieth day was

a Sunday and the next day was President’s Day, Ellison’s appeal was timely filed on

February 19, 2013, the next available business day. Thus, we conclude that Ellison’s appeal

was timely filed, and the State’s argument in this regard is not well taken.

       {¶ 11} Ellison’s first assignment of error is as follows:

       {¶ 12} “THE TRIAL COURT ERRED BY OVERRULING MR. ELLISON’S

MOTION TO CONTINUE HIS TRIAL.”
[Cite as State v. Ellison, 2013-Ohio-5455.]
        {¶ 13} In his first assignment, Ellison contends that the trial court abused its

discretion when it denied his motion for a ninety day continuance made at the beginning of

the trial. Ellison argues that the trial court should have granted the continuance “to ensure

the trial would not be conducted in a prejudicial atmosphere tainted by the outrage and

sorrow spawned by the tragic events at Sandy Hook Elementary on December 14, 2012.”

        {¶ 14} We note that although the first assignment states that it was error for the trial

court to overrule his motion for a continuance, Ellison requested a mistrial rather than a

continuance. We further note that a jury had already been empaneled. Specifically, Ellison

was requesting that the existing jury be discharged and new one empaneled in approximately

ninety days, or enough time “for his case to be tried in a less hysterical, less total immersion

of sadness and appall hanging over the proceedings.” The trial court overruled Ellison’s

motion for a mistrial, and the case proceeded to trial.

        {¶ 15} Mistrials need to be declared only when the ends of justice so require, and a

fair trial is no longer possible. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995).

 The decision whether to grant a mistrial lies within the trial court's sound discretion. Id.

As the Supreme Court of Ohio determined:

                 “Abuse of discretion” has been defined as an attitude that is

        unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

        to be expected that most instances of abuse of discretion will result in

        decisions that are simply unreasonable, rather than decisions that are

        unconscionable or arbitrary.

                 A decision is unreasonable if there is no sound reasoning process that

        would support that decision. It is not enough that the reviewing court, were
                                                                                             6

        it deciding the issue de novo, would not have found that reasoning process to

        be persuasive, perhaps in view of countervailing reasoning processes that

        would support a contrary result.     AAAA Enterprises, Inc. v. River Place

        Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

        {¶ 16} Normally, in determining whether the trial court properly exercised its

discretion, reviewing courts look to whether (1) “there [was] a ‘manifest necessity’ or a

‘high degree’ of necessity for ordering a mistrial, or (2) ‘the ends of public justice would

otherwise be defeated.’” State v. Widner, 68 Ohio St.2d 188, 189-190, 429 N.E.2d 1065

(1981), citing Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

A “manifest necessity” for a mistrial does not mean that a mistrial was absolutely necessary

or that there was no other alternative. Arizona v. Washington, 434 U.S. at 511. In order to

exercise “sound discretion” in determining that a mistrial is necessary, the trial judge should

allow the defense and prosecution to state their positions on the issue, consider their

competing interests, and explore some reasonable alternatives before declaring a mistrial. Id.

at 514-516.

        {¶ 17} On the morning of December 17, 2012, immediately before opening

statements and outside the hearing of the jury, Ellison made the following motion before the

trial court:

               Defense Counsel: All right. Judge, respectfully at this time, I would

        like to move for a judgment – for a mistrial in this case for reasons that have

        nothing to do actually with what’s going on in the courtroom, but what’s

        going on outside the courtroom.
                                                                                    7

        We have – for the purposes of the court of appeals if this motion is

overruled, we are at the first day of a trial where there has been a very tragic

tragedy that has occurred in the State of Connecticut that has received

worldwide attention, that has caused the President of the United States to

break down on television and cry. It involves a shooting incident in the State

of Connecticut in which many young people and older people died. It has

been covered twenty-four hours a day, seven days a week.              And again

speaking to the court of appeals here, you’ll have to go back in your memory

to remember the weekend after the tragedy.          But in any event, there is

nothing going on since Friday evening that does not involve the total

immersion of the press, TV, cable television, regular television, twenty-four

hours a day, seven days – or I’ll say three days up to this point in time, but it

doesn’t look like it’s going to let up.

        In this atmosphere, where we are immersed in an aura of sadness

about a gun death and requests being made by the President, members of

congress for now gun control rules, changing them while this case is in fact

starting, that involves a shooting – actually double shooting I would say. But

there’s no way at all that we can – I think my client can get a fair trial.

        I’m reminded of the fact that I have a fiancé and she was in tears for

thirty-six hours about this particular incident. And that’s what called it to

my attention that every place we went everybody was just – it looked like

Christmas had been stolen from the people because of this particular incident.
                                                                                     8

 And now we’re being confronted with having to go to trial in the Christmas

season, that the Court has told the jury that they may even go over through

Christmas.

       Again it reminds me of the Sam Shepherd case, the reversal of which

came from the Southern District Court of Ohio here, but these are

circumstances that I would not want to be tried in. I can’t believe anybody

would want to be tried in. I want the record to show that in addition to this

wall to wall coverage, there’s no place that anybody can go that this topic

isn’t the only topic, literally, that’s being discussed at this point in time. And

more than my fiancé are in tears about the mere discussion of the issue.

       I want the record to show the Defense is entitled to a fair trial. The

Defendant, fair trial under the Sixth Amendment and the Defendant is

offering to waive any statutory speedy trial rights for a period of up to ninety

days in order for his case to be tried in a less hysterical, less total immersion

of sadness and appall (sic) hanging over the proceedings. And we’re in

Dayton, Ohio, and this happened in Connecticut, but this literally involves

the whole world from what I can see on the television.

       The Court: Thank you. Any response?

       The State: Yes, Your Honor. State’s understanding that no juror has

come in today asking for a mistrial. No juror has come in today saying that

one of their family members or friends was involved in the Connecticut

shooting.
                                                                                   9

       It is without a doubt a tragedy. But the reality is that we have to try

these cases. This is when this case was scheduled and as long as no juror is

asking to be let off because of it, I don’t think we have any grounds for a

mistrial. Even if a juror asked, we would tap an alternate. So it would be

an extreme remedy to something that’s happening in the world that the State

and the Defense have no control over. And the reality is, regardless of

what’s happening in Connecticut, the Court is going to give these jurors

instructions of law and they’re going to be presumed to follow them.

***

       Defense Counsel: The same arguments made in the Shepherd case.

       The Court: I understand that. I understand. There’s a difference.

If I remember the Shepherd case – and I wasn’t around there, but I read some

of it. That talked about the circus like atmosphere around the trial. The trial

only. There wasn’t another tragedy going somewhere else on (sic). There

was a circus going on with Mr. Shepherd’s trial. That’s what got it reversed.

       In this case, I would note that while Connecticut was a tragedy, it was

in Connecticut and it involved a totally different situation. While guns are

involved, there are shootings all the time.

       There was a shooting in a mall in Oregon last week.             I believe

someone shot something up in California last night.          The Connecticut

tragedy involved a twenty-year old who appeared to be have some kind of

problems shooting his mother in the face, then taking three guns and a high
                                                                                    10

powered rifle with the magazines that held thirty bullets, going to a grammar

school, going to the Kindergarten killing six teachers and twenty children, six

and seven-year olds. And while I believe that is – I know it’s a tragedy and

I’m sorry your fiancé is taking it as hard as she is.

         Defense Counsel: I’m not the only one, Your Honor.

         The Court: I understand, but actually I’ve been out and about this

weekend and I’ve talked to people and a lot of people haven’t brought it up.

People have watched it, but I think the facts themselves are different enough.

There are gun shootings every day in probably every state or almost every

state in this union.

         What happened in Connecticut was a tragedy, but it is not connected

by space. In other words, it wasn’t like in Greene County, thank God.

There are no children involved in this case as far as I know. And so in light

of that, plus this date was set, Mr. O’Brien [defense counsel], to

accommodate your schedule. Last week I wanted to try it on the tenth, you

had something and because you pulled the time waiver, this is the only date

we had.

         So if later on during the week if any juror brings anything up to one of

my staff or you want some limiting instruction later on in the week, I would

be happy to consider it, but I don’t think that the factual situation as far as

Connecticut and here are close enough that they would have one come on the

other.
                                                                                            11

                 So I understand your motion, I overrule it. I find no basis for it under

        the circumstances as I laid them out. But I note your continuing objection.

        {¶ 18} Although not argued or briefed by Ellison, we conclude that the trial court

did not err when it denied Ellison’s motion for a mistrial. Other than pure speculation,

Ellison provides no support from the record that the jury was in any way prejudiced towards

him as a result of the Sandy Hook shootings. Simply put, the shootings in Connecticut,

while tragic, did not provide a legitimate reason for declaring a mistrial after the jury had

already been empaneled. Other than the fact that a gun was used to carry out both crimes,

there were no similarities between the Sandy Hook shooting and Ellison’s conduct. Thus,

the trial court’s decision to overrule Ellison’s motion for a mistrial was not an abuse of

discretion as the record lacks any evidentiary support for the argument that he could not

receive a fair trial.

        {¶ 19} Regarding Ellison’s motion “nunc pro tunc” for a ninety-day continuance,

the motion was filed on December 24, 2012, four days after the trial had ended. By that

time, the jury had been empaneled, the State and the defense had presented their respective

cases in chief, and the jury had returned guilty verdicts as to all counts against Ellison.

Except as to the sentencing, the motion for continuance was untimely. “An appellate court

must not reverse denial of a continuance unless an abuse of discretion has been

demonstrated. * * *.” State v. Parks, 69 Ohio App.3d 150, 154, 590 N.E.2d 300 (2d Dist.

1990). Where a plaintiff failed to move for a continuance until two days after the trial had

been concluded and judgment rendered, the trial court did not abuse its discretion when it

denied the motion because it was untimely filed. Schaefer v. Stephenson, 2d Dist. Miami No.
                                                                                               12

2001-CA-46, 2002-Ohio-398.

       {¶ 20} Here, Ellison’s “nunc pro tunc” motion for continuance of the trial was not

only untimely, but also an improper use of the nunc pro tunc mechanism. It is well settled

that a nunc pro tunc entry can be used only to reflect what a trial court actually decided, not

what it might have decided or should have decided. State v. Miller, 127 Ohio St.3d 407,

2010-Ohio-5705, 940 N.E.2d 924, ¶ 15. Stated differently, a nunc pro tunc entry may be

used to “reflect what the trial court did decide but recorded improperly.” Id. An improper

nunc pro tunc entry is void. Plymouth Park Tax Services v. Papa, 6th Dist. Lucas No.

L-08-1277, 2009-Ohio-3224, ¶18, citing Natl. Life Ins. Co. v Kohn, 133 Ohio St. 111, 11

N.E.2d 1020 (1937), paragraph three of the syllabus.

       {¶ 21} Although Ellison entitled his motion “Written Motion Nunc Pro Tunc to

Monday, December 17, 2012,” it cannot serve as a substitute for an oral or written motion

for continuance that was not made on December 17, 2012. More importantly, “the power to

file an entry nunc pro tunc is restricted to placing on the record a judicial action that has

already been taken but was omitted due to some mechanical mistake.” State v. Arnold, 2d

Dist. Montgomery No. 22856, 2009-Ohio-3636, at ¶ 57. Accordingly, Ellison’s attempted

use of the nunc pro tunc mechanism is improper because he is a defendant to a criminal

action, and not the trial court correcting an earlier clerical error in a judicial action that has

already been taken.

       {¶ 22} Ellison’s first assignment of error is overruled.

       {¶ 23} Ellison’s second and final assignment of error is as follows:

       {¶ 24} “THE TRIAL COURT ERRED BY OVERRULING MR. ELLISON’S
                                                                                          13

MOTION TO VOIR DIRE THE JURY ON ISSUES RELATING TO THE SANDY HOOK

ELEMENTARY SCHOOL SHOOTING OR IN THE ALTERNATIVE, MR. ELLISON

SUFFERED FROM INEFFECTIVE ASSISTANCE OF COUNSEL.”

       {¶ 25} In his final assignment, Ellison argues that the trial court erred when it

refused to question or allow defense counsel to question the empaneled jury regarding any

potential bias or prejudice arising as a result of the shootings at Sandy Hook Elementary

School.

       {¶ 26} Initially, we note that the record establishes that at no time did Ellison ask

the court to voir dire the jurors regarding any potential bias they may have had against him

due to the wholly unrelated Sandy Hook shootings. Defense counsel did not raise the issue

of the trial court questioning the jury about the Sandy Hook shootings until the untimely

motion to continue was filed on December 24, 2012.

       {¶ 27} Because Ellison failed to make a timely request to voir dire the jury or have

the trial court do so, he has waived all but plain error with regard to the issue. Crim. R.

52(B) allows a reviewing court to consider errors committed at trial, upon which appellant

did not object, only if such errors affected the substantial rights of the appellant.      A

reviewing court should use the utmost caution in taking notice of plain error and should do

so only if it is clear that, but for the error, the result in the trial court would have been

different. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of

syllabus. Notice of plain error should be taken only in exceptional circumstances and only

to prevent a manifest miscarriage of justice. Id., paragraph three of syllabus.

       {¶ 28} The failure of the trial court to make individual inquiry of the jury does not
                                                                                             14

of itself constitute an abuse of discretion. U.S. v. Larry, 536 F.2d 1149, 1153 (6th Cir.1976),

citing U.S. ex rel. Stewart v. Hewitt, 517 F.2d 993, 996 (3rd Cir.1975). Whether to sua

sponte reopen voir dire and what questions to ask or permit to be asked is largely within the

discretion of the trial court. See U.S. v. Brown, 938 F.2d 1482, 1485 (1st Cir.1991), cert.

denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 633 (1991). In Ohio, the scope and

necessity of voir dire is within a trial court’s discretion and varies with the circumstances.

State v. Mason, 82 Ohio St.3d 144, 156, 694 N.E.2d 932 (1998).

         {¶ 29} Upon review, we conclude that the trial court did not err, plainly or

otherwise, when it failed to sua sponte inquire of the jury in order to ascertain whether any of

them were unable to impartially decide the merits of Ellison’s case. As noted by the trial

court, there was no nexus or similarity between the Sandy Hook shootings and Ellison’s

crime.

         {¶ 30} Finally, Ellison argues that his counsel was ineffective for failing to request

a voir dire of the jury regarding the Sandy Hook shootings.          In order to demonstrate

ineffective assistance of trial counsel, a defendant must demonstrate that counsel’s

performance was deficient and fell below an objective standard of reasonable representation,

and that the defendant was prejudiced by counsel’s performance; that is, there is a reasonable

probability that but for counsel’s unprofessional errors, the result of the defendant’s trial or

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

“Hindsight is not permitted to distort the assessment of what was reasonable in light of

counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot
                                                                                            15

form the basis of a finding of ineffective assistance of counsel.” State v. Hill, 2d Dist.

Greene No. 2004 CA 79, 2005-Ohio-3176. “When the evidence [a defendant] relies upon

dehors the record that evidence must meet a threshold of cogency.” Id. “Cogent evidence is

that which is more than ‘marginally significant’ and advances a claim ‘beyond mere

hypothesis and desire for further discovery.’” Id.

       {¶ 31} In the instant case, Ellison’s failure to request an inquiry of the jury

regarding Sandy Hook does not amount to ineffective assistance of counsel. It would have

been well within the discretion of the trial court to deny defense counsel the opportunity to

question the jury (already empaneled) about the Sandy Hook shootings. The trial court

noted the lack of a nexus between Ellison’s case and the shootings in Connecticut. It is

highly unlikely that the trial court would have allowed defense counsel to question the jury

on that topic had such a request been made. The trial court offered to provide a limiting

instruction or reconsider defense counsel’s motion for mistrial if one or more of the jurors

brought up the Sandy Hook shootings, but none did. The record is devoid of any evidence

suggesting that the jury was improperly influenced or biased against Ellison in light of the

shootings at Sandy Hook Elementary.          Given the strong presumption that counsel’s

performance constituted reasonable assistance, Ellison’s trial counsel was not required to

perform a futile act. State v. Lodge, 2d Dist. Greene No. 2004CA43, 2005-Ohio-1908.

Moreover, Ellison has failed to demonstrate that there is a reasonable probability that but for

his counsel’s failure to request an inquiry of the jury, the result of the case would have been

any different.

       {¶ 32} Ellison’s second assignment of error is overruled.
                                                                                        16

        {¶ 33} All of Ellison’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                        ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Kirsten A. Brandt
Lori R. Cicero
Hon. Barbara P. Gorman
