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State v. Barnes

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RICHARD BARNES DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-09-524053-A, CR-16-604841-A

          ATTORNEY FOR APPELLANT Gregory T. Stralka

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Melissa Riley Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1.

         {¶2} Defendant-appellant, Richard Barnes ("Barnes"), brings this appeal challenging his conviction for sexual battery. Specifically, Barnes argues that he was denied the effective assistance of counsel because his trial counsel failed to file a motion to dismiss based on preindictment delay. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶3} The instant appeal arose from incidents that occurred between Barnes and a former coworker, J.K.[1] The two had worked together at a nursing home in North Royalton, Ohio. J.K. alleged that Barnes raped her on two separate occasions between 2006 and 2007.

         {¶4} On March 30, 2016, in Cuyahoga C.P. No. CR-16-604841-A, the Cuyahoga County Grand Jury returned an eight-count indictment charging Barnes with (1) rape, in violation of R.C. 2907.02(A)(2); (2) rape, in violation of 2907.02(A)(1)(c); (3) kidnapping, in violation of R.C. 2905.01(A)(4); (4) rape, in violation of R.C. 2907.02(A)(2); (5) rape, in violation of R.C. 2907.02(A)(1)(c); (6) gross sexual imposition, in violation of R.C. 2907.05(A)(1); (7) gross sexual imposition, in violation of R.C. 2907.05(A)(5); and (8) kidnapping, in violation of R.C. 2905.01(A)(4). All eight counts contained a sexually violent predator specification; Counts 3 and 8 also contained a sexual motivation specification. The indictment alleged that the offenses were committed between January 1, 2006, and November 13, 2007. Barnes pled not guilty to the indictment during his April 15, 2016 arraignment.

         {¶5} The parties reached a plea agreement under which the state amended Count 1 to sexual battery, a third-degree felony in violation of R.C. 2907.03(A)(1), and deleted the underlying sexually violent predator specification. On June 28, 2016, Barnes pled guilty to sexual battery as amended in Count 1. The remaining counts and specifications were nolled.

         {¶6} On August 2, 2016, the trial court sentenced Barnes to a prison term of three years. The trial court designated Barnes a habitual sex offender and advised him of his reporting requirements under R.C. Chapter 2950.

         {¶7} Barnes, acting pro se, filed notices of appeal on September 1, 2016 (8th Dist. Cuyahoga No. 104910) and September 2, 2016 (8th Dist. Cuyahoga No. 104913). On September 9, 2016, this court, sua sponte, dismissed App. No. 104913 as a duplicate of App. No. 104910. On May 15, 2017, this court appointed appellate counsel to represent Barnes.

         {¶8} In this appeal, Barnes challenges his sexual battery conviction. ...


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