[Cite as State v. Williams, 2020-Ohio-378.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 107748
                 v.                                 :

MICHAEL SUELLS WILLIAMS,                            :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: February 3, 2020


                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-17-614402-A
                                 Application for Reopening
                                     Motion No. 531792


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha Forchione, Assistant Prosecuting
                 Attorney, for appellee.

                 Michael Suells Williams, pro se.


PATRICIA ANN BLACKMON, P.J.:

                   Michael Suells Williams (“Suells”) has timely filed an App.R. 26(B)

application for reopening. Suells is attempting to reopen the appellate judgment

that was rendered in State v. Suells Williams, 8th Dist. Cuyahoga No. 107748, 2019-
Ohio-2335, that affirmed his conviction for the offenses of rape (R.C.

2907.02(A)(2)), kidnapping (R.C. 2905.01(A)(4)), having weapons while under

disability (R.C. 2923.13(A)(3)), and aggravated burglary (R.C. 2911.11(A)(1)). For

the following reasons, we deny Suells’s App.R. 26(B) application for reopening.

             I.    Standard of Review Applicable to App.R. 26(B)

                                Application for Reopening

               In order to establish a claim of ineffective assistance of appellate

counsel, Suells is required to establish that the performance of his appellate counsel

was deficient and the deficiency resulted in prejudice. Strickland v. Washington,

466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111

L.Ed.2d 767 (1990).

               In Strickland, the United States Supreme Court held that a court’s

scrutiny of an attorney’s work must be highly deferential. The court further stated

that it is all too tempting for a defendant to second-guess his attorney after

conviction and that it would be too easy for a court to conclude that a specific act or

omission was deficient, especially when examining the matter in hindsight. Thus, a

court must indulge in 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. Strickland.
               Moreover, even if Suells establishes that an error by his appellate

counsel was professionally unreasonable, Suells must further establish that he was

prejudiced; but for the unreasonable error there exists a reasonable probability that

the results of his appeal would have been different. Reasonable probability, with

regard to an application for reopening, is defined as a probability sufficient to

undermine confidence in the outcome of the appeal. State v. May, 8th Dist.

Cuyahoga No. 97354, 2012-Ohio-5504.

                    II. First Proposed Assignment of Error

               Suells’s first proposed assignment of error is that:

      Defendant’s speedy trial rights were violated after defendant filed an
      interstate agreement on detainers and a notice of availability request
      with prosecutors and prosecutor’s office refusal to prosecute the case
      for over 17 months and did not proceed to trial until over 22 months
      had passed.

               Suells, through his first proposed assignment of error, argues that

appellate counsel failed on appeal to raise the claim of a lack of speedy trial.

Specifically, Suells argues that he was not brought to trial within 180 days of his

notice of availability for trial after filing a request for disposition made pursuant to

the interstate agreement on detainers, codified in R.C. 2963.30. Suells also argues

that he was not brought to trial within 270 days of indictment as required by R.C.

2945.71. Suells has failed to demonstrate that his right to a speedy trial was violated

under R.C. 2963.30 or 2945.71.
A. Interstate Agreement On Detainers — Codified In R.C. 2963.30

                Pursuant to R.C. 2963.30, a federal prisoner must be brought to trial

within 180 days following delivery of written notice to the appropriate trial court

and prosecutor’s office accompanied by “a certificate of the appropriate official

having custody of the prisoner, stating the term of commitment under which the

prisoner is being held, the time already served, the time remaining to be served on

the sentence, the amount of good time earned, and the time of parole eligibility of

the prisoner.” R.C. 2963.30, Art. III(a), and Art. III(b) require the prisoner to send

written notice requesting final disposition to the warden, commissioner of

corrections, or other official having custody of him.1 This official is then required to

send written notice to the appropriate locations along with a report listing the

information required by R.C. 2963.30, Art. III(a).

                Substantial compliance with R.C. 2963.30, Art. II(A) is the trigger

that determines whether a prisoner has properly availed himself of the required

disposition of pending charges within 180 days. State v. Mourey, 64 Ohio St.3d 482,

597 N.E.2d 101 (1992); State v. Quinones, 168 Ohio App.3d 425, 2006-Ohio-4096,

860 N.E.2d 793 (8th Dist.). Substantial compliance requires the prisoner to do

everything that could be reasonably expected. State v. Ferguson, 41 Ohio App.3d

306, 535 N.E.2d 708 (10th Dist. 1987). Substantial compliance requires evidence of




       1 R.C. 2963.30, Art. III(a) refers to an inmate filing his request for final disposition
with the prosecutor and the court. R.C. 2963.30, Art. III(b) refers to filing with the warden
who forwards the documents to the prosecutor.
the date of delivery of the request to the court and the prosecutor. State v. Pierce,

8th Dist. Cuyahoga No. 79376, 2002-Ohio-652. This court has also determined that

in order to comply with the substantial compliance requirement set forth in Mourey,

supra, a prisoner must file his request for final disposition by certified mail with the

court and the prosecutor. State v. Levy, 8th Dist. Cuyahoga No. 83114, 2004-Ohio-

4489. Our review of the record fails to disclose that Suells substantially complied

with R.C. 2963.30.

               Herein, there is no evidence in the trial court record to demonstrate

that Suells successfully filed his request for final disposition or notice of availability

with the prosecutor. The request for disposition and notice of availability were filed

with the Cuyahoga County Court of Common Pleas as indicated by the file stamp of

February 22, 2017. There exists no evidence of service upon the prosecutor through

either a certificate of service or a return receipt of service upon the prosecutor.

Substantial compliance with R.C. 2963.30, Art. III(a) was not accomplished by the

filing of the request for disposition and the notice of availability solely upon the

Cuyahoga County Court of Common Pleas. We therefore hold that appellate counsel

was not required to raise the issue of speedy trial based upon the application of R.C.

2963.30, Art. III(a).

B. Speedy Trial Within 270 Days of Indictment — R.C. 2945.71

               Further review of the record clearly indicates that Suells’s right to a

speedy trial was not violated with regard to his indictment and trial in CR-17-

614402.    The Sixth Amendment to the United States Constitution and Ohio
Constitution, Article I, Section 10 guarantee a criminal defendant the right to a

speedy trial. This guarantee is implemented in R.C. 2945.71, which provides the

specific time limits within which a person must be brought to trial. The trial time

tolling provisions are set forth in R.C. 2945.72. R.C. 2945.71 provides that a person

against whom a felony charge is pending shall be brought to trial within two hundred

seventy days after arrest. R.C. 2945.71(C)(2).

               If an accused is in jail in lieu of bail solely on the pending charge, the

statute mandates that each day count as three days for purposes of speedy trial

calculation. R.C. 2945.71(E). If an accused is not brought to trial within the statutory

time limit, the accused must be discharged. R.C. 2945.73(B). However, the R.C.

2945.71 time limits can be extended for any reason set out in R.C. 2945.72, but those

extensions must be strictly construed against the state. State v. Sanders, 8th Dist.

Cuyahoga No. 107253, 2019-Ohio-1524.

               On April 3, 2018, Suells was indicted by the Cuyahoga County Grand

Jury based upon criminal conduct that occurred on two separate dates against the

same victim: October 21, 2016, and October 28, 2016.             Trial commenced on

August 15, 2018. Thus, a period of 134 days lapsed between indictment and

commencement of trial for Suells. Because Suells was incarcerated without making

bail, the triple count provision of R.C. 2945.71(E) applied. However, 66 days were

tolled as a result of two motions for bill of particulars and/or discovery and six

continuances of pretrial and/or trial. Since 66 days of the 134 days before trial

commenced were tolled, only 68 days were chargeable to the speedy trial
calculation. Suells was brought to trial within 204 (68 x 3 = 204) days of indictment

and his right to a speedy trial was not violated. State v. Shepard, 8th Dist. Cuyahoga

No. 97962, 2012-Ohio-5415. We therefore hold that appellate counsel was not

required to raise the issue of speedy trial based upon the application of R.C. 2945.71.

                 III. Second Proposed Assignment of Error

               Suells’s second proposed assignment of error is that:

      Defendant’s conviction must be reversed due to trial court denying
      defendant his right to have a lawyer at all crucial stages of the
      proceedings were in fact violated when trial court held a hearing
      without the defendant present who was proceeding pro se. The hearing
      was very crucial and the turning point for the case and very crucial
      defendant should have been represented.

               Suells, through his second proposed assignment of error, argues that

he was not present when the trial court held a hearing to determine whether to grant

the state a continuance during the victim’s testimony. A review of the transcript

demonstrates that Suells was present when the trial court determined whether to

grant or deny the request of the state for a continuance of the victim’s testimony.

See tr. 149 – 152. The record fails to demonstrate that Suells was excluded from any

hearing held by the trial court.

               In addition, the issue of a continuance during the testimony of the

victim was raised and addressed by this court through the third assignment of error

as raised by Suells on appeal. This court held that:

      In his third assigned error, Suells argues that it was error for the court
      to grant a “recess” to the state during the victim’s testimony and that
      this “recess” effectively turned into a continuance. According to Suells,
      the victim’s testimony initially “decimated the State’s case,” because the
       victim claimed that she did not remember anything. However, after the
       “recess,” the victim’s “testimony was suddenly markedly different than
       it was before.”

       ***

       Upon review of the case at hand, we find that the continuances at issue
       were reasonable in length; outside of wanting his trial to go forward,
       Suells failed to set forth how the continuances may have
       inconvenienced him; and the purpose of the continuances was
       legitimate — one day to allow C.H. time to compose herself prior to
       continuing her testimony; one day to investigate alleged threats made
       to C.H. and her family; and one week for the state to complete
       discovery. Furthermore, Suells asked for and received a one-week
       continuance shortly after the state’s continuances at issue. We cannot
       say that the court abused its discretion in granting the state’s
       continuances, and Suells’s third assigned error is overruled.

Suells at ¶ 51.

                  Because the issue of a continuance during the testimony of the victim

has already been addressed by this court on direct appeal, and found to be without

merit, the doctrine of res judicata prevents further review of the issue through

Suells’s application for reopening. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967). Claims of ineffective assistance of appellate counsel in an application for

reopening may be barred from further review by the doctrine of res judicata unless

circumstances render the application of the doctrine unjust. State v. Murnahan, 63

Ohio St.3d 60, 584 N.E.2d 1204 (1992); State v. Logan, 8th Dist. Cuyahoga No.

88472, 2008-Ohio-1934.

                  Res judicata prevents this court from once again determining whether

Suells was prejudiced through the continuance granted during the victim’s

testimony. State v. Tate, 8th Dist. Cuyahoga No. 81682, 2004-Ohio-973.             We
further find that circumstances do not render the application of the doctrine of res

judicata unjust. Suells has failed to establish any prejudice through his second

proposed assignment of error.

              Accordingly, the application for reopening is denied.



____________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
