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State v. Asadi-Ousley

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 16, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ASA J. ASADI-OUSLEY DEFENDANT-APPELLANT

         Criminal Appeals from the Cuyahoga County Court of Common Pleas Case No. CR-15-597885-A

          FOR APPELLANT Asa J. Asadi-Ousley, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Daniel T. Van Assistant Prosecuting Attorney.

          BEFORE: E.A. Gallagher, J., Keough, A.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, J.

         {¶1} In this consolidated appeal, defendant-appellant Asa Asadi-Ousley, pro se, appeals from (1) the trial court's order denying his petition for postconviction relief pursuant to R.C. 2953.21 (Appeal No. 104714) and (2) the trial court's order denying his motion for relief from judgment pursuant to Civ.R. 60(B) (Appeal No. 105103). Asadi-Ousley contends that his convictions should be vacated because (1) his speedy trial rights under R.C. 2941.401 were violated, and (2) he was denied effective assistance of counsel based on trial counsel's failure to seek a dismissal of the indictment due to the alleged violation of his speedy trial rights. For the reasons that follow, we affirm the trial court's rulings.

         Factual and Procedural Background

         {¶2} On March 23, 2015, while Asadi-Ousley was serving a six-year prison term arising out of his convictions in three unrelated Cuyahoga County Common Pleas Court cases (Case Nos. CR-10-537412, CR-10-537780 and CR-10-540397), he filed, pro se, a "motion for speedy disposition of (all) outstanding criminal charges; indictments; informations; or complaints via R.C. § 2941.401" ("motion for speedy disposition") in Case No. CR-10-537412. In his motion, Asadi-Ousley "demand[ed] speedy disposition of any criminal charges per 2941.401" and stated that he did not consent to the waiver of his R.C. 2941.401 rights by any attorney.

         {¶3} On July 29, 2015, a Cuyahoga County Grand Jury indicted Asadi-Ousley in CR-15-537412 on two counts of rape with sexual predator specifications, two counts of aggravated robbery, one count of felonious assault and two counts of kidnapping - one of which included a sexual motivation specification and sexual predator specification. The charges arose out of a December 31, 2008 sexual assault in which Asadi-Ousley allegedly held a knife to the victim's neck, pushed her into an alley, hit her on the head and raped her. Asadi-Ousley was arraigned on August 11, 2015 and pled not guilty to the charges against him.

         {¶4} The case proceeded to a jury trial that commenced on January 4, 2016. The jury was impaneled and sworn on January 5, 2016.[1] The following day, the parties presented opening statements and the state began calling its witnesses. On or about January 11, 2016, the jury returned its verdict. The jury found Asadi-Ousley guilty on the two rape counts, the felonious assault count and the two kidnapping counts, including the accompanying sexual motivation specification. The jury found him not guilty on the two aggravated robbery counts. Asadi-Ousley waived a jury trial on the sexual predator specifications and the trial court found him guilty.

         {¶5} The convictions on the two rape counts and the convictions on the two kidnapping counts merged for sentencing. On February 17, 2016, the trial court conducted a sentencing hearing at which it sentenced Asadi-Ousley to life with the possibility of parole after 15 years for rape, 8 years for felonious assault and life with the possibility of parole after 15 years for kidnapping. The trial court ordered all of the sentences to be served concurrently to each other and concurrently to the six-year prison sentence Asadi-Ousley was already serving. Asadi-Ousley was also sentenced to five years mandatory postrelease control. The trial court entered its sentencing journal entry imposing these sentences on February 22, 2016. Asadi-Ousley appealed his convictions and sentences (Appeal No. 104267).

         {¶6} On April 5, 2016, Asadi-Ousley filed, pro se, a "petition for post conviction relief via R.C. 2953.21-.23." Asadi-Ousley argued that his speedy trial rights under R.C. 2941.401 had been violated because 335 days had elapsed between the date he allegedly mailed his motion for speedy disposition (March 19, 2015) and the date the trial court entered its sentencing journal entry (February 22, 2016). He argued that as a result of the violation of his speedy trial rights, the trial court lacked jurisdiction to convict him and that his judgment of conviction was void. Asadi-Ousley also claimed that he was denied effective assistance of trial counsel because trial counsel allegedly advised Asadi-Ousley that he could not file a motion to dismiss the indictment in this case because Asadi-Ousley had filed his motion for speedy disposition under the wrong case number. In support of his petition, Asadi-Ousley attached copies of his motion for speedy disposition and a certified mail receipt reflecting service on the Cuyahoga County Prosecutor's office dated March 25, 2016. He also attached an affidavit in which he attested to the facts set forth in his petition and claimed that trial counsel had told him that it was "not wise to file a motion to dismiss the indictment for lack of speedy disposition, because the Judge would be mad and would go hard on me during sentencing." Asadi-Ousley claimed that he told trial counsel to file the motion to dismiss anyway but that trial counsel failed to do so.

         {¶7} On June 10, 2016, the trial court denied Asadi-Ousley's petition for postconviction relief. As set forth in its findings of fact and conclusions of law, the trial court determined that - not including any tolling events - less than 180 days[2] had elapsed between the date of Asadi-Ousley's indictment in this case and the commencement of trial and that, therefore, Asadi-Ousley's speedy trial rights under R.C. 2941.401 had not been violated.

         {¶8} Asadi-Ousley appealed the trial court's denial of his petition for postconviction relief (Appeal No. 104714), raising ...


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