[Cite as State v. Rucker, 2013-Ohio-2493.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                     :   Hon. W. Scott Gwin, J.
                                              :   Hon. John W. Wise, J.
-vs-                                          :
                                              :
EVERETT M. RUCKER                             :   Case No. 12CA39
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Richland County Court
                                                  of Common Pleas, Case No. 2011-CR-
                                                  0770 D



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           June 13, 2013




APPEARANCES:

For Defendant-Appellant:                          For Plaintiff-Appellee:

CHARLES M. BROWN                                  JAMES J. MAYER
76 North Mulberry Street                          RICHLAND CO. PROSECUTOR
Mansfield, OH 44902                               JILL M. COCHRAN
                                                  38 South Park Street
                                                  Mansfield, OH 44902
Richland County, Case No. 12CA39                                                       2



Delaney, P.J.


      {¶1} Appellant Everett M. Rucker appeals from the judgment entry of

conviction and sentence of the Richland County Court of Common Pleas entered on

April 24, 2012. Appellee is the state of Ohio.

                           FACTS AND PROCEDURAL HISTORY

      {¶2} This case arose on October 16, 2011 in Mansfield, Ohio when appellant

was pulled over during a traffic stop and provided the name and social security

number of Demetrius Rucker. Appellant was subsequently arrested for O.V.I. and

signed the name of Demetrius Rucker to the BMV 2255 form when advised of his

rights and responsibilities in submitting to a breath test for alcohol.      That night,

appellant was cited only for misdemeanor offenses.

      {¶3} On November 10, 2011, appellant was charged by indictment with one

count of identity fraud pursuant to R.C. 2913.49(B)(1), a felony of the fifth degree; one

count of forgery pursuant to R.C. 2913.31(A)(2), a felony of the fifth degree; and one

count of tampering with records pursuant to R.C. 2913.42(A)(1), a felony of the third

degree. Appellant was arrested on these felony charges on January 12, 2012, while

incarcerated on the pending misdemeanor violations.

      {¶4} Appellant entered an initial appearance on January 17, 2012 before a

magistrate, was served with the indictment, and entered pleas of not guilty. A notation

in appellant’s file [time-stamped January 17, 2012] notes appellant’s bond is $5000

personal recognizance “+ EM.” The notation further states, “WAIVE THE $100.00 PR
Richland County, Case No. 12CA39                                                      3


FEE UNTIL 1/27/12 BUT MUST PAY FOR THE EM HE IS IN JAIL.” Appellant did not

post bond and remained incarcerated.

      {¶5} Appellant was released on the misdemeanor charges on February 7,

2012, and remained incarcerated on the pending felonies.

      {¶6} On April 18, 2012, appellant filed a Motion for Dismissal asserting

appellee failed to bring him to trial within the period of time specified by law. In the

motion, appellant states “* * * * [Appellant] was first arrested on January 12, 2012.

[Appellant] has been in custody continuously since his arrest on January 12, 2012.* * *

*” Appellee did not respond and the trial court did not rule on the motion.

      {¶7} The case proceeded to jury trial on April 19 and 20, 2012. Before the

trial commenced, the trial court asked defense trial counsel about the speedy trial

motion and stated the issue would be preserved but the trial would go forward. At the

close of appellee’s evidence, the trial court inquired whether appellant would present

any evidence and the following conversation took place:

             * * * *.

             [DEFENSE TRIAL COUNSEL:] First of all, I would like a ruling on

             that time motion that I filed earlier or yesterday, Judge.

             [TRIAL COURT:] I haven’t had a chance to look at it in depth, but

             [the magistrate] did research it, and [appellant] was held up until

             February 7th, I believe it was, on multiple charges, both municipal

             court and the charge here. The municipal court charges he was

             dismissed on those charges or sent a release over on February

             7th (sic). I’m not sure I have that date exactly right.
Richland County, Case No. 12CA39                                                     4


            [DEFENSE TRIAL COUNSEL:] I think that is the correct date.

            [TRIAL COURT:] So I am overruling the motion because he was

            held on multiple charges up until February 7th. So it would run

            one-to-one up until then. If that’s the case, I think we’re only eight

            days shy of having ninety days anyway. I mean, we are clearly

            within the 270 days of trial date.

            [DEFENSE TRIAL COUNSEL:] Can I have a moment to talk with

            my client to see if he wants to testify?

            * * * *.

      {¶8} Appellant thereupon testified in his own defense, was found guilty as

charged, and was sentenced to an aggregate prison term of 15 months.

      {¶9} Appellant now appeals from the judgment entry of conviction and

sentence.

                                ASSIGNMENTS OF ERROR

      {¶10} Appellant raises three Assignments of Error:

      {¶11} “I. THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN

DENYING THE MOTION TO DISMISS FOR VIOLATION OF SPEEDY TRIAL RIGHTS

GRANTED BY OHIO REVISED CODE §2945.71 AND FURTHER BY NOT MAKING

ESSENTIAL FINDINGS OF FACT IN SUPPORT OF ITS DENIAL OF THE MOTION

TO DISCHARGE.”

      {¶12} “II. THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN

DENYING THE MOTION TO DISMISS FOR VIOLATION OF SPEEDY TRIAL RIGHTS

GRANTED BY OHIO REVISED CODE §2945.71 AND FURTHER BY NOT TAKING
Richland County, Case No. 12CA39                                                      5


ANY SWORN TESTIMONY REGARDING THE FACTS UPON WHICH THE

DECISION WAS MADE.”

      {¶13} “III. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL        BY   THE    SIXTH    AMENDMENT         OF    THE    UNITED      STATES

CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION, AS

WELL AS THE DUE PROCESS PROTECTION UNDER THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTITUTION AND IN ARTICLE I,

SECTION 16 OF THE OHIO CONSTITUTION.”

                                         ANALYSIS

                                         I., II.


      {¶14} Appellant’s first and second assignments of error are related and shall

be considered together. Appellant summarily asserts the trial court erred in overruling

his motion to dismiss on speedy trial grounds, and further argues the trial court was

required to make findings of fact and take sworn testimony in consideration thereof.

We disagree.

      {¶15} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to

a person accused of a crime is a fundamental right made obligatory on the states

through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 383 N.E.2d

579 (1978); State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980).

      {¶16} Our review of the trial court's decision regarding a motion to dismiss

based upon a violation of the speedy trial provisions involves a mixed question of law

and fact. State v. Larkin, 5th Dist. No. 2004-CA-103, 2005-Ohio-3122, ¶ 11. Due
Richland County, Case No. 12CA39                                                           6


deference must be given to the trial court's findings of fact if supported by competent,

credible evidence. Id. However, we must independently review whether the trial court

properly applied the law to the facts of the case. Id. Furthermore, when reviewing the

legal issues presented in a speedy trial claim, an appellate court must strictly construe

the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57,

1996-Ohio-171, 661 N.E.2d 706.

       {¶17} A person charged with a felony must be brought to trial within 270 days

unless they waived that right to a speedy trial. If a person is held in jail in lieu of bond,

then each day that the suspect is in custody counts as three days. R.C. 2945.71(E).

This “triple count” provision is applied only when the defendant is being held in jail

solely on the pending charge. State v. MacDonald, 48 Ohio St.2d 66, 357 N.E.2d 40

(1976), paragraph one of the syllabus. The triple count provision does not apply when

a defendant is being held in custody pursuant to other charges. MacDonald, supra.

Pursuant to R.C. 2945.73, a person who is not brought to trial within the proscribed

time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged” and further

criminal proceedings based on the same conduct are barred.

       {¶18} “When reviewing a speedy-trial issue, an appellate court must calculate

the number of days chargeable to either party and determine whether the appellant

was properly brought to trial within the time limits set forth in R.C. 2945.71.” State v.

Riley, 162 Ohio App.3d 730, 2005–Ohio–4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).

       {¶19} Appellant’s argument before us is different than his argument before the

trial court. His motion before the trial court argued time began running from the date

of arrest on the felony charges, or January 12, 2012. Before us, he argues time
Richland County, Case No. 12CA39                                                       7


began running from the date of his arraignment on November 29, 2011 (sic). The

record before us indicates appellant was arrested on the felonies on January 12,

2012, and arraigned, or entered an initial appearance, on January 17, 2012.

       {¶20} Appellant’s argument is summary; however, certain conclusions may be

drawn from the record before us, which indicates appellant was brought before the

court for trial on April 19, 2012, or 98 days after arrest. Appellant was also being held

on misdemeanors, however, until his release upon the misdemeanors on February 7,

2012. We infer from appellant’s argument, although he does not explicitly say so, that

he asserts he is entitled to a triple count from the date of his arrest on the felonies.

We disagree. As the trial court found, appellant was being held on multiple charges

until February 7. R.C. 2945.71(E) explains that each day a defendant is held in jail in

lieu of bail shall be counted as three; however, this provision applies only when a

defendant is held solely on the pending charges in a case. State v. Kaiser, 56 Ohio

St.2d 29, 381 N.E.2d 633 (1978), paragraph two of the syllabus.

       {¶21} We calculate the time chargeable to appellee, therefore, as follows: from

January 12 until February 7: 27 days; from February 8 until April 19, 2012: 72 days.

The latter are counted against appellee as 216 days by means of the triple-count

provision.   Appellant was held, therefore, for a total of 243 days, which is not in

violation of his right to a speedy trial. R.C. 2945.71(C)(2).

       {¶22} Appellant further argues the trial court should have held an evidentiary

hearing on the motion to dismiss, but we disagree. As appellee has pointed out, there

is no statute, Rule of Criminal Procedure or case law which requires a trial court to

conduct an evidentiary hearing on a motion to dismiss for want of speedy trial, and a
Richland County, Case No. 12CA39                                                      8


number of courts have found that the trial court need not hold an evidentiary hearing

on a speedy trial motion if the court is able to determine the issue from the record.

State v. Freeman, 8th Dist. No. 85137, 2005-Ohio-3480, ¶ 62, reversed on other

grounds in In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-

Ohio-2109, 847 N.E.2d 1174, citing Whitehall v. Rovnak, 10th Dist. No. 92AP-919,

1992 WL 385944 (Dec. 24, 1990); State v. Wilson, 5th Dist. No. 323, 1981 WL 6089

(Jan. 22, 1981).

      {¶23} Appellant’s first and second assignments of error are overruled.

                                              III.

      {¶24} In his third assignment of error, appellant argues he received ineffective

assistance of counsel because counsel did not somehow “make certain the essential

findings of fact are set forth in a judgment entry.” We disagree.

      {¶25} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, “a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective

assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.” Strickland, 466 U.S. at 689. The question
Richland County, Case No. 12CA39                                                      9


is whether counsel acted “outside the wide range of professionally competent

assistance.” Id. at 690.

       {¶26} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶27} In light of our rulings upon appellant’s first and second assignments of

error, we are unable to find that counsel acted incompetently. We note that counsel

filed the motion to dismiss and requested a ruling from the trial court. Having found

the motion was properly overruled, we decline to find counsel was ineffective.

       {¶28} Appellant’s third assignment of error is overruled.
Richland County, Case No. 12CA39                                                 10


                                     CONCLUSION

      {¶29} Having overruled appellant’s three assignments of error, the judgment of

the Richland County Court of Common Pleas is affirmed.


By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. JOHN W. WISE


PAD:kgb
