[Cite as State v. Castro, 2014-Ohio-2398.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100379




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   THOMAS J. CASTRO
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CR-11-557475-A and CR-13-571484

        BEFORE: S. Gallagher, J., Celebrezze, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: June 5, 2014
ATTORNEYS FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, OH 44113

Scott J. Orille
Kahn & Kruse Co., L.P.A.
Galleria & Towers at Erieview
1301 East Ninth Street, Suite 2200
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Dean Holman
Medina County Prosecutor
72 Public Square
Medina, OH 44256

Matthew A. Kern
Special Assistant Prosecuting Attorney
Office of the Medina County Prosecutor
Medina County Prosecutor
72 Public Square
Medina, OH 44256
SEAN C. GALLAGHER, J.:

       {¶1} Defendant-appellant Thomas Castro appeals from the trial court’s decision to

deny his motion to dismiss the indictment that culminated in Castro’s pleading no contest

to two counts of sexual battery, in violation of R.C. 2907.03(A)(1). For the following

reasons, we affirm.

       {¶2} Castro faced a 14-count indictment stemming from accusations levied against

him for raping two separate victims. In October 2012, Castro pleaded guilty to two

counts of sexual battery and, in exchange, the state dismissed the remaining counts. At

the sentencing hearing, the state moved to vacate the plea because of allegations that prior

to negotiating the plea, Castro and his attorney Marc Doumbas conspired to bribe the

victim witnesses to present favorable testimony at sentencing. Both were charged in

separate and unrelated proceedings. At Castro’s sentencing hearing, Attorney Doumbas

refused to withdraw as counsel of record despite the fact that Attorney McGowan entered

an appearance to represent Castro. At the time, Attorney Doumbas refused to speak on

behalf of Castro; Attorney Doumbas was represented by his own counsel in consideration

of the charges advanced by the state.       Before Attorney McGowan’s appearance as

co-counsel, Attorney Doumbas’s own counsel advised him to remain silent during

Castro’s hearings.

       {¶3} In anticipation that Castro would attempt to question the efficacy of Attorney

Doumbas’s representation if the plea progressed to sentencing, the state requested that the

trial court conduct a colloquy to ascertain whether Castro entered the plea knowingly,
voluntarily, and intelligently in light of the conflict created by the conspiracy between

Castro and Attorney Doumbas.       Attorney McGowan, speaking on behalf of Castro,

refused to answer the state’s inquiry and, instead, asserted that the state had no standing

to seek to vacate the plea agreement.

       {¶4} The trial court vacated the plea, and in the proceedings that followed, Castro

filed a motion to dismiss the indictment on the basis that the reinstated indictment

violated the tenets of the Double Jeopardy Clause of the Fifth Amendment and, in the

alternative, that Castro’s speedy trial rights were violated.      The trial court denied

Castro’s motion to dismiss the indictment. In May 2013, Castro pleaded no contest to

the two sexual battery counts.     The trial court found Castro guilty, and the court

sentenced Castro to an aggregate term of four years and eleven months in Cuyahoga C.P.

Nos. CR-11-557475 and CR-13-571484.

       {¶5} Castro timely appealed, advancing two assignments of error. In his first

assignment of error, Castro claims the trial court erred by failing to grant his motion to

dismiss the indictment, placing him twice in jeopardy for the same offenses, in violation

of the Fifth Amendment. We find no merit to Castro’s first assignment of error and are

compelled to note that Castro has not otherwise challenged the trial court’s decision to

vacate the original plea agreement. The primary focus of Castro’s argument is that

jeopardy attached upon the trial court’s acceptance of the guilty plea and, therefore, the

proceedings thereafter placed Castro twice in jeopardy. Castro’s focus is misplaced.

Whether jeopardy attached to the proceedings is not dispositive.
       {¶6} The Fifth Amendment to the United States Constitution guarantees that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

The Double Jeopardy Clause protects criminal defendants against reprosecution for the

same offense after an acquittal, against prosecution for the same offense after a

conviction, and against multiple punishments for the same offense. State v. Underwood,

8th Dist. Cuyahoga No. 68321, 1996 Ohio App. LEXIS 144, *16 (Jan. 18, 1996), citing

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Double jeopardy can only protect defendants against further prosecutions if the defendant

was already placed in jeopardy, defined as the single moment that jeopardy attached to the

proceeding. United States v. Patterson, 406 F.3d 1095, 1101 (9th Cir.2005) (Kozinski,

J., dissenting), citing Serfass v. United States, 420 U.S. 377, 388 (1975). There is

currently a split of authority in the federal circuits on whether jeopardy automatically

attaches in every case immediately upon a trial court’s unconditional acceptance of a

guilty plea. Fox v. Ryan, 462 Fed.Appx. 730, 732 (9th Cir.2011), citing Patterson, 406

F.3d 1095, 1100 (9th Cir.2005).

       {¶7} Regardless of the point that jeopardy attaches for guilty or no-contest pleas,

we are cognizant of the overarching premise that the attachment of jeopardy is not

outcome determinative. In fact, and contrary to Castro’s presumption that the attachment

of jeopardy automatically compels reversal of his conviction, the conclusion that jeopardy

has attached begins the inquiry. It is only if jeopardy attaches that a court is called upon

to determine whether placing the defendant in the position of again facing jeopardy due to
termination of commenced proceedings comports with the Double Jeopardy Clause of the

United States Constitution. Illinois v. Somerville, 410 U.S. 458, 467-468, 93 S.Ct. 1066,

35 L.Ed.2d 425 (1973). In determining that the attachment of jeopardy merely begins the

inquiry, the Supreme Court repeatedly emphasized as follows:

              “The double-jeopardy provision of the Fifth Amendment * * * does
       not mean that every time a defendant is put to trial before a competent
       tribunal he is entitled to go free if the trial fails to end in a final judgment.
       Such a rule would create an insuperable obstacle to the administration of
       justice in many cases in which there is no semblance of the type of
       oppressive practices at which the double-jeopardy prohibition is aimed.
       There may be unforeseeable circumstances that arise during a trial making
       its completion impossible, such as the failure of a jury to agree on a verdict.
        In such event the purpose of law to protect society from those guilty of
       crimes frequently would be frustrated by denying courts power to put the
       defendant to trial again. * * * What has been said is enough to show that a
       defendant’s valued right to have his trial completed by a particular tribunal
       must in some instances be subordinated to the public’s interest in fair trials
       designed to end in just judgments.”

Id. at 470, quoting Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 93 L.Ed. 974

(1949).

       {¶8} Even if we assume that jeopardy attached at the moment the trial court

accepted Castro’s guilty plea to the original indictment, the alleged criminal conspiracy

that transpired between Castro and his attorney of record during the plea process

sufficiently tainted the proceedings, thus giving rise to a manifest necessity for vacating

the plea. On this point, the Somerville decision is illustrative.

       {¶9} In Somerville, after a jury was empaneled and sworn, the state determined

that the indictment was defective pursuant to then applicable Illinois law, which not only

prevented an amendment, but also allowed the defendant to pursue reversal of his
conviction in postconviction relief.      In the face of this quintessentially figurative

“catch-22,” the state moved for an immediate mistrial on the basis that any trial

proceedings would be useless.       The defendant sought dismissal of the indictment,

claiming that jeopardy attached to the first proceedings because he never objected to the

defective indictment and wished to proceed with the trial. In keeping with the notion of

avoiding the rigid, over-mechanical application of the double jeopardy principles, the

Supreme Court determined it could not “say that the declaration of a mistrial was not

required by ‘manifest necessity’ or the ‘ends of public justice’” because the trial court had

no leeway to prevent the defendant from asserting the defective indictment after an

unfavorable trial. Somerville, 410 U.S. 458, 469, 93 S.Ct. 1066, 35 L.Ed.2d 425.

       {¶10} It was apparent, had the principles of double jeopardy been rigidly applied,

that the defendant would have had the functional equivalent of a penalty-free chance to

try his case without fear of the ultimate penalty. For example, the defendant could

advance an all-or-nothing defense theory, knowing that should the jury find him guilty

and he faced a heavy penalty, all could be undone because of the defect in the indictment,

and the state would be forced to reprosecute.

       {¶11} In this case, Castro placed the state in a similar position. Castro colluded

with his attorney to bribe witnesses in an attempt to garner a favorable sentencing

decision from the court. At the sentencing hearing, the state conceded it had no basis to

withdraw the plea agreement already accepted by the court. However, the state rightfully

concluded that to proceed straight to sentencing placed the original guilty plea in a
precarious position in light of the conflict created by Castro’s co-conspirator relationship

with his attorney. Had the sentencing not gone in Castro’s favor, he could have mounted

an attack against the efficacy of Attorney Doumbas’s representation in light of the fact

that Attorney Doumbas conspired to commit a crime with Castro, severely tainting the

effectiveness of Attorney Doumbas’s representation.

       {¶12} In an attempt to ensure that Castro entered the plea knowingly, voluntarily,

and intelligently in light of this newly discovered evidence, the state sought a second

colloquy between the trial court and Castro to ensure that the plea remained on firm

footing. Rather than allowing this colloquy, Castro, through his co-counsel of record

Attorney McGowan, failed to respond and solely relied on the nonresponsive assertion

that the state had no authority to move to vacate the plea. It is clear from the transcript of

proceedings that the state’s hesitation with proceeding with the sentencing was its

inability to prevent Castro from claiming that Attorney Doumbas was ineffective should

the sentencing not comport with Castro’s sense of justice.

       {¶13} In light of these specific facts, the trial court denied Castro’s motion to

dismiss the reinstated indictment. In the context of double jeopardy, the trial court’s

original decision to vacate the guilty plea functioned the same as granting a mistrial after

the empaneling and swearing in of a jury. Both terminated proceedings after a tenable

point when jeopardy attached to the proceedings. As the Supreme Court noted, however,

       where the declaration of a mistrial implements a reasonable state policy and
       aborts a proceeding that at best would have produced a verdict that could
       have been upset at will by one of the parties, the defendant’s interest in
       proceeding to verdict is outweighed by the competing and equally
       legitimate demand for public justice.

Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 35 L.Ed.2d 425. Regardless of Castro’s

arguments, after the fact, that he would not have challenged his plea after being

sentenced, the fact remains that had the original sentencing proceeded, Castro could have

upset the final conviction at will based on the conflict created by the criminal conspiracy

with Attorney Doumbas during the plea process, effectively giving Castro a free pass to

see whether the court would render a harsh or lenient sentence before having to decide the

efficacy of his trial counsel.    Again, at no time has Castro challenged the court’s

authority to vacate his original guilty plea.      Thus, Castro’s arguments as to when

jeopardy attached are misplaced. The crux of the argument must focus on whether a

manifest necessity existed to circumvent the prohibition against placing Castro twice in

jeopardy founded upon the Fifth Amendment. The state established a manifest necessity

to reset the trial proceedings in light of the discovered criminal conspiracy between

Castro and his attorney tainting the plea proceedings. In this specific case based on the

unforeseen, criminal conspiracy between Castro and his attorney, Castro’s valued right to

have his trial completed by a particular tribunal must be subordinated to the public’s

interest in fair trial proceedings designed to end in just judgments.

       {¶14} In the context of dispelling the manifest necessity with which the trial court

acted in vacating his plea, Castro claims that the state’s motion to vacate the plea was

pretextual. Castro claims the state intended to bring additional charges based on the

bribery allegations and another victim of sexual assault completely unrelated to the two
victims named in Cuyahoga C.P. CR-11-557475-A. Castro, however, does not argue that

either the bribery or additional allegations for an unrelated victim would have been

precluded by a conviction in CR-11-557475-A in order to even claim the reinstated

indictment in CR-11-557475-A was pretextual. Further, inasmuch as Castro vaguely

argued in this appeal that the state attempted to introduce the bribery charges as evidence

of guilt for the sexual assault charges in CR-11-557475-A and that the 2013 indictment in

Cuyahoga C.P. CR-13-571484 for the unrelated victim served to “enhance a potential

sentence,” Castro failed to provide citations to the record or relevant authority

substantiating those claims.      Castro conceded that the reinstated indictment in

CR-11-557475-A mirrored the original indictment.

       {¶15} Castro relies heavily on the Seventh District’s decision in State v. Heslop,

7th Dist. Belmont No. 11-BE-19, 2012-Ohio-5118, in which the court held the trial court

acted without authority in vacating a plea entered upon the mutual mistake of the parties.

Castro argues this decision compels the reversal of the trial court’s decision to vacate his

plea. Castro’s reliance is misplaced. He is not challenging the trial court’s decision to

vacate his plea, so we need not determine the validity of the Heslop court’s stated

proposition of law. We also note that any references to double jeopardy were merely in

passing, the court admitting that the facts in Heslop may involve a “ potential violation of

the right against double jeopardy.” Id. at ¶ 25. In short, the Seventh District’s decision

is either inapplicable or sufficiently vague as to prevent any meaningful insight into our

current decision.
       {¶16} Finally, Castro cites several cases for the proposition that in order to

reinstate an indictment against a defendant after vacating a guilty plea over the

defendant’s objection, the state must prove the defendant breached the plea agreement.

Underwood, 8th Dist. Cuyahoga No. 68321, 1996 Ohio App. LEXIS 144; State v. Taylor,

9th Dist. Lorain No. 92CA005469, 1993 Ohio App. LEXIS 2585 (May 19, 1993).

Neither case stands for the proposition Castro advances, that a plea may be vacated over

the defendant’s objection only if he breached the terms of the agreement. Rather, both

cases merely hold that a defendant’s breach of a plea agreement authorizes the trial court

to vacate his plea and reinstate the indictment without violating any notion of double

jeopardy, if jeopardy already attached. Again, Castro’s reliance is misplaced.

       {¶17} Accordingly, Castro’s first assignment of error is overruled. Castro failed

to substantiate the basis of his claim that no manifest necessity existed to circumvent the

implications of the Double Jeopardy Clause of the United States Constitution. Based

on the specific facts presented in the record — that Castro conspired with his attorney to

taint the sentencing proceedings before pleading guilty — the trial court’s order vacating

the guilty plea did not violate the notion of double jeopardy because a manifest necessity

existed warranting the intercession.

       {¶18} In Castro’s second assignment of error, Castro claims his trial counsel was

ineffective for failing to file a motion to dismiss the reinstated indictment on the basis that

Castro’s statutory and constitutional rights to a speedy trial were violated.
       {¶19} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).               Judicial

scrutiny of defense counsel’s performance must be highly deferential. Strickland at 689.

 The defendant has the burden of proving his counsel rendered ineffective assistance.

State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223. We find no

merit to Castro’s claims that his right to a speedy trial was violated and, therefore, his

counsel’s performance cannot be deemed ineffective.

       {¶20} Castro claims that over 300 speedy trial days elapsed between his arrest in

December 2011 and his no-contest plea in May 2013.            Castro, however, originally

pleaded guilty in October 2012.      This court previously considered the effects of a

defendant’s plea and a subsequent order vacating his plea upon the statutory right to a

speedy trial. State v. McAllister, 53 Ohio App.2d 176, 372 N.E.2d 1341 (8th Dist.1977).

 This court held that “[t]he provisions of Ohio’s speedy trial statutes, R.C. 2945.71 et

seq., are directed solely to an original trial following the arrest of a defendant, and have

no application to the time within which a defendant must be tried following the vacation

of a no contest plea on his own motion.” Id. at 178; State v. Hull, 110 Ohio St.3d 183,

2006-Ohio-4252, 852 N.E.2d 706, ¶ 20 (“In situations where the legislature has not
expressed its intent for R.C. 2945.71 to apply, the time limitation for bringing the

appellant to trial is governed by the Sixth Amendment to the United States Constitution”).

       {¶21} This rationale extends to situations, such as the current one, where a

defendant’s guilty plea is vacated, because the guilty plea acted as the original trial

proceeding satisfying the statutory requirement that the defendant be brought to trial

within the 270-day period. State v. Davis, 2d Dist. Montgomery No. 16050, 1997 Ohio

App. LEXIS 3407 (July 18, 1997); State v. Johnson, 2d Dist. Montgomery No. 23908,

2011-Ohio-1286. Castro’s statutory right to a speedy trial was not violated. Castro

pleaded guilty to the original indictment terminating his statutory right to a speedy trial.

       {¶22} We also find that Castro’s constitutional speedy trial rights were not

violated. There are four broad factors within the framework for analyzing constitutional

speedy-trial claims: the length of delay, the reason for the delay, the defendant’s assertion

of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92

S.Ct. 2182, 33 L.Ed.2d 101. The length of delay is the triggering mechanism. State v.

Kraus, 2d Dist. Greene No. 2011-CA-35, 2013-Ohio-393, ¶ 23, citing Barker. “‘Until

there is some delay which is presumptively prejudicial, there is no necessity for inquiry

into the other factors that go into the balance.’” Id., quoting Barker. “Generally, courts

have found that a delay approaching one year becomes ‘presumptively prejudicial.’”

State v. Winn, 8th Dist. Cuyahoga No. 98172, 2012-Ohio-5888, ¶ 44, citing Doggett v.

United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1.
       {¶23} In Winn, this court determined that over a year and a half between the arrest

and the defendant’s trial was not presumptively prejudicial because the defendant

“requested numerous continuances, filed many motions, changed counsel, and underwent

competency evaluations[,]” and was arrested pursuant to a capias issued when he failed to

appear for pretrial hearings. Winn at ¶ 44. This court found that all of these delays were

for the defendant’s benefit and thus contributed to the delay in timely prosecuting. Id.

       {¶24} Similarly, this case was pending for less than one and a half years from

Castro’s arrest to his no-contest plea in May 2013. During that time, Castro requested

numerous continuances, filed many motions, and criminally conspired with his counsel —

causing the trial court to vacate his original guilty plea. In light of these specific sets of

circumstances, we are not persuaded that the delay was so presumptively prejudicial as to

trigger consideration of the Barker factors.        Further, even if we found the delay

presumptively prejudicial, Castro is unable to demonstrate any prejudice. His sole claim

of prejudice assumes that he was somehow incapable of mounting an effective defense

because of the year-and-a-half delay between his arrest and his no-contest plea. Castro

failed to substantiate any such prejudice in the record presented on appeal, and our

independent review finds no such prejudice.

       {¶25} Finding that Castro was not denied his right to a speedy trial pursuant to the

United States and Ohio Constitutions and R.C. 2941.401, we find that his trial counsel

was not ineffective for failing to file a motion to dismiss the indictment because of a

speedy trial violation. Castro’s second and final assignment of error is overruled.
       {¶26} The decision of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MELODY J. STEWART, J., CONCUR
KEY WORDS:
Appeal No. 100379 State of Ohio v. Thomas J. Castro

Double jeopardy; attachment of jeopardy to guilty plea; manifest necessity; speedy trial;
effect of guilty plea on speedy trial. The trial court did not err in denying defendant’s
motion to dismiss because although jeopardy attached to the court’s acceptance of his
guilty plea, a manifest necessity warranted the re-indictment stemming from the
defendant’s criminal conspiracy entered prior to the guilty plea. The trial court also did
not err in denying the motion to dismiss based on the ineffectiveness of his trial counsel
in failing to assert defendant’s speedy trial rights because the defendant’s rights were not
violated.
