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State v. Wright

Court of Appeals of Ohio, Seventh District, Mahoning

March 29, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KEVIN WRIGHT DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2013 CR 147

          For Plaintiff-Appellee Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera Assistant Prosecutor

          For Defendant-Appellant Attorney Ryan Ingram

          JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          DeGENARO, J.

         {¶1} Defendant-Appellant, Kevin Wright, appeals the trial court's judgment contending that there was a speedy trial violation, asserting a Batson challenge and arguing a sentencing error. We hold that his arguments are meritless and hereby affirm his conviction and 19 year sentence. However, while the trial court did sentence Wright to three years on the merged gun specifications at the sentencing hearing, the sentencing entry omits this order. Accordingly this matter is remanded to the trial court with instructions to issue a nunc pro tunc order to specify in the sentencing entry that a component of Wright's sentence was three years on the firearm specification.

         Facts and Procedural History

         {¶2} On February 7, 2013, Wright was indicted on five counts of felonious assault and attendant firearm specifications and two counts of improper discharge of a firearm at or into a habitation with the attendant firearm specifications; all seven primary offenses are second degree felonies. The charges stemmed from Wright firing an AK-47 at a vehicle with five passengers, an adult and four children. The children were unharmed, and the adult sustained three gunshot wounds but survived. Two adjacent residences sustained damage from the gunfire as well.

         {¶3} On May 7, 2013, Wright entered a plea of not guilty, was appointed counsel, and a trial date was set. Within the week that followed, counsel for Wright filed a request for evidence, demand for discovery, a motion for bill of particulars and Wright executed a speedy trial waiver. As a result, the trial date was reset.

         {¶4} On September 18, 2013, Wright filed a pro se "motion to withdraw defendant's waiver of his right to a speedy trial." Within the motion he stated that he was never informed of his right to a speedy trial, and did not sign the waiver.

         {¶5} There were multiple continuances before August 1, 2014, when Wright filed a motion to dismiss due to pre-indictment delay in excess of one year, which the State opposed arguing a lack of actual prejudice. The trial court denied the motion.

         {¶6} After two plea hearings were set and continued, on December 1, 2014, Wright again filed a "revocation of speedy trial waiver" and requested new counsel. After being appointed, new counsel filed several motions to gather information about the case and requested a continuance to have time to prepare for trial.

         {¶7} Trial commenced on April 20, 2015 over two years after Wright was indicted. During voir dire Wright's counsel raised a Batson challenge.

         {¶8} The jury convicted Wright of all charges as indicted and a presentence investigation was ordered. The trial court sentenced Wright to eight years on one count of felonious assault, to be served consecutively to the remaining four counts for which the trial court imposed four-year sentences to be served concurrently to each other. The trial court also imposed a four-year sentence on both improper discharge counts, to be served concurrently to each other but consecutively to the other sentences imposed. Finally, while the trial court merged Wright's seven gun specifications for sentencing purposes and imposed a three-year term during the sentencing hearing, the sentencing entry omits this order; instead the trial court stated that Wright's total sentence was 19 years.

         Batson challenge

         {¶9} In his first of three assignments of error, Wright asserts:

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE A FINDING ON APPELLANT'S BATSON CHALLENGE TO THE EXCUSAL OF AN AFRICAN-AMERICAN JUROR BASED ON RACE IN VIOLATION OF APPELLANT'S FOURTEENTH AMENDMENT RIGHT TO EQUAL PROTECTION OF THE LAW

         {¶10} The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination in the exercise of a peremptory challenge to excuse a juror on account of his race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L .Ed.2d 69 (1986). In Batson, the United States Supreme Court outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. Id. at 96-98. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98. An appellate court will not reverse the trial court's decision of no discrimination unless it is clearly erroneous. See State v. Hernandez, 63 Ohio St.3d 577, 583, 589 N.E.2d 1310 (1992).

         {¶11} Wright satisfied the first step of demonstrating a prima facie case of racial discrimination; counsel objected immediately after the prospective juror-who was African-American-was dismissed. Consequently, the burden shifts to the prosecutor to articulate a race-neutral ...


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