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State v. Haney

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES A. HANEY, JR., Defendant-Appellant.

Criminal Appeal from the Lake County Court of Common Pleas. Case No. 11 CR 000690.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).

Matthew C. Bangerter, (For Defendant-Appellant).

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, James A. Haney, Jr., appeals the jury verdict finding him guilty of the following: identity fraud, a first-degree felony in violation of R.C. 2913.49(B)(1); theft from an elderly person, a first-degree felony in violation of R.C. 2913.02(A)(3); forgery, a second-degree felony in violation of R.C. 2913.02(A)(3); telecommunications fraud, a third-degree felony in violation of R.C. 2913.05; and aggravated theft, a second-degree felony in violation of R.C. 2913.02(A)(3). Each count contained forfeiture specifications under R.C. 2941.1417 and R.C. 2981.04. For the following reasons, we affirm the trial court's judgment.

{¶2} The facts of this case are relatively undisputed. During the jury trial, appellant did not dispute his conduct, i.e., that he utilized his father's personal identifying information to obtain and cash monies from his father's annuities during the last months of his father's life. However, appellant claimed that although he was disinherited from his father's will, his father, prior to his death, had given him permission to engage in such acts.

{¶3} The jury heard that appellant's father, James A. Haney, Sr., changed his will in 2009 disinheriting appellant due to his criminal past and the fact that he owed a significant sum in child support. Appellant admitted he was upset by this change. Appellant testified that while his father was in the hospital, he took his father's "dinner bucket, " the place where his father stored all of his personal paperwork. Appellant took the original paperwork contained in the "dinner bucket, " made copies of the paperwork, and put the copies back into the "dinner bucket."

{¶4} The two annuities at issue are from Lincoln Financial Group and Western National Life Insurance Company, neither of which named appellant as a beneficiary. Beginning when appellant's father was in the hospital, appellant called Lincoln Financial and indicated that he was James Haney, Sr. Appellant provided Lincoln Financial with his father's personal identifying information, including his date of birth and social security number. Appellant then completed paperwork from Lincoln Financial to cause a distribution; appellant received a check in the amount of $193, 975. Appellant deposited this check in a Fifth Third Bank Account in appellant's name; these funds were later transferred to KeyBank.

{¶5} Appellant also called Western National Life Insurance Company identifying himself as James A. Haney, Sr. Again, utilizing his father's personal identifying information, appellant completed documentation to obtain a check in the amount of $80, 027.73 from Western National Life Insurance from his father's account. Appellant also deposited this check in his Fifth Third Bank Account. Appellant then moved some of the monies to KeyBank. Appellant eventually withdrew $182, 000 in cash from KeyBank. Appellant testified that with the money he obtained from his father's annuities, he bought a boat, gambled, gave some to his cousin to buy a Harley, distributed an amount to his girlfriend, then took the rest to North Carolina and buried it in a hole.

{¶6} At trial, appellant, during his testimony, acknowledged that he made the telephone calls, utilized his father's personal information, signed the forms as James Haney, Sr., and deposited the checks into appellant's personal account. Appellant maintained, however, that his father had given him permission prior to his death.

{¶7} Appellant was found guilty of all the aforementioned counts. At sentencing, the trial court merged Counts 2 and 4 (identity fraud and forgery) with Count 1 (identity fraud) and merged Count 3 (theft from an elderly person) with Count 6 (aggravated theft). Appellant was sentenced to a total term of 8 years imprisonment: four years on Count 1 (identity fraud), two years on Count 5 (telecommunications fraud), and two years on Count 6 (aggravated theft), to run consecutively.

{¶8} Appellant filed a notice of appeal and, as his first assignment of error, alleges:

{¶9} "Defendant-appellant was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution."

{¶10} In order to prevail on an ineffective assistance of counsel claim, appellant must demonstrate from the record that trial counsel's performance fell below an objective standard of reasonable representation, and there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus, adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). If a claim can be disposed of by showing a lack of sufficient prejudice, there is no need to consider the first prong, i.e., whether trial counsel's performance was deficient. Id. at 142, citing Strickland at 695-696. There is a general presumption that trial counsel's conduct is within the broad range of professional assistance. Id. at 142-143.

{¶11} Furthermore, decisions on strategy and trial tactics are generally granted a wide latitude of professional judgment, and it is not the duty of a reviewing court to analyze the trial counsel's legal tactics and maneuvers. State v. Gau, 11th Dist. No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85 (1995).

{¶12} Under this assigned error, appellant presents this court with five issues for review. First, appellant claims his trial counsel was ineffective for failing to make a motion with the trial court to dismiss his case for violation of his right to a speedy trial.

{¶13} Here, the record indicates that appellant was incarcerated in North Carolina on October 2, 2011. The indictment in this case was filed on November 17, 2011, along with an arrest warrant on the indictment. Appellant arrived in Ohio on January 16, 2012.

{¶14} At the sentencing hearing, there was discussion regarding appellant's jail-time credit. The state indicated appellant was to receive 184 days credit for time served, which totaled the number of days from the time appellant was returned to Ohio, January 16, 2012, until the sentencing hearing of July 18, 2012. In its sentencing entry, however, the trial court granted appellant 290 days-the total number of days from when appellant was first incarcerated in North Carolina on October 2, 2011, until the sentencing hearing of July 18, 2012.

{¶15} Appellant argues that because the trial court granted him jail-time credit for the time served in North Carolina, his term of confinement in North Carolina should count toward his speedy trial calculation. Appellant maintains he is entitled to discharge because he was not brought to trial within the statutory time period. Conversely, the state maintains that appellant's speedy trial calculation did not begin until January 16, 2012-the date appellant arrived in Ohio. Therefore, the issue is ...


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