Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-16-602878-A
Application for Reopening Motion No. 519793
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Katherine E. Mullin, Assistant Prosecuting
Attorney, for appellee.
Gregory Baxter, pro se.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
1} Gregory Baxter, pursuant to App.R. 26(B), timely
applied to reopen this court's judgment in State v.
Baxter, 8th Dist. Cuyahoga No. 106187, 2018-Ohio-2237,
which affirmed his convictions for kidnapping, felonious
assault, and voluntary manslaughter. The state of Ohio has
filed a brief in opposition. For the following reasons, this
court denies the application.
2} To reopen the appeal Baxter must establish a
claim of ineffective assistance of appellate counsel
consistent with the two requirements of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Baxter must show (1) that his counsel's
performance was deficient, and (2) that the deficient
performance prejudiced him. Id.
In the application, Baxter insists that his appellate counsel
was ineffective because he failed to argue ineffective
assistance of trial counsel, by allowing Baxter to plead
guilty despite a speedy trial right violation. Baxter
properly identifies that he has a right to a speedy trial,
and that where that right is violated an effective appellate
counsel ought to raise the error. However, Baxter's claim
is based on his misunderstanding of speedy trial provisions
and how time is calculated.
4} In Ohio, R.C. 2945.71 and 2945.72 codify a
defendant's speedy trial rights in felony cases. R.C.
2945.71(C)(2) dictates that the state only has 270 days from
the arrest until the case must be brought to trial. Under
R.C. 2945.71(E) each day a person is held in jail counts as
three days. Thus, when the defendant is in jail awaiting
trial, as Baxter was, trial must commence within 90 days of
the arrest. Over a year elapsed between Baxter's arrest
and his trial date at which time he entered a plea deal,
resolving the case without a full trial. Thus, Baxter argues
that his trial attorney was ineffective for not raising the
speedy trial violation. However, Baxter fails to acknowledge
that (1) the plea waived speedy trial objections, and (2)
R.C. 2945.72(E) and 2945.72(H) tolled Baxter's time. R.C.
2945.72(E) tolls due to "delay necessitated by reason of
a plea in bar or abatement, motion, proceeding, or action
made or instituted by the accused." R.C. 2945.72(H)
provides that "any continuance granted on the
accused's own motion, and the period of any reasonable
continuance granted other than upon the accused's own
motion" tolls the time period allowed for trial. The
defendant's counsel waiving time is attributed to the
defendant even if the defendant did not consent to the
waiver. State v. McBreen, 54 Ohio St.2d 315, 376,
376 N.E.2d 593 (1978). After subtracting the time tolled due
to continuances requested by Baxter's attorney and
reasonable continuances granted to parties, the total time
lapsed is no more than 33 days, less than the 90-day period.
5} Baxter was arrested on January 20, 2016. A
Cuyahoga County Grand Jury indicted Baxter on February 9,
2016, for two counts of murder, one count of felonious
assault, one count of voluntary manslaughter, and one count
of grand theft.
6} Baxter's arraignment took place on February
12, 2016. Defense counsel requested discovery February 15,
2016. Thus, 26 speedy trial days had run. The first pretrial
was set for February 18, 2016. That pretrial was continued at
the defendant's request, because discovery was ongoing.
Because discovery was not complete, the defense requested
continuance of pretrial proceedings on six occasions before
the original trial date. The defense also requested five
other continuances during that time, four of which were due
to a conflict in the defense counsel's schedule. When a
pretrial was finally held on June 8, 2016, trial was set for
June 22, 2016, at the request of the defendant. The June 22,
2016 trial date was also rescheduled based on the
defense's request because defendant's attorney was
preoccupied with another unrelated matter in a different
jurisdiction. Based on the defense's request for
continuance the case was again set for pretrial, in part to
set a new trial date. The defense rescheduled that June 28,
2016 pretrial because the defense's discovery was
ongoing. Pretrial was rescheduled five more times on the
defense counsel's request either because defense counsel
was otherwise engaged or because the defense's discovery
was not yet complete. Eventually, the final pretrial was
scheduled for November 4, 2016. Because the delay from
February 15, 2016, to November 4, 2016, was based on
defendant's request according to R.C. 2945.72(E) and
2945.72(H), none of those days count against the 90-day
7} On November 4, 2016, a final pretrial was held.
Trial was scheduled for November 28, 2016, per defense
request. On November 28, 2016, the court was engaged in
another trial. Parties waited on standby. Eventually, the
court rescheduled for December 5, 2016. Seven days of the
90-day period did lapse here, because it was the court, not
defendant, who rescheduled. Defense counsel rescheduled the
December 5, 2016 trial date due to a personal concern. The
court granted the continuance and set the case for pretrial
to schedule a new trial date. Trial was set for January 23,
2017, at defendant's request. That trial was also
rescheduled; based on a joint-party request, a new trial date
was set for February 13, 2017. The defense asked for a
continuance on this third scheduled trial date, because the
defense did not want to be put on standby because the court
was involved in another criminal trial. At defendant's
request, trial was set for March 15, 2017.
8} On March 15, 2017, over a year after Baxter's
arrest and indictment and on the scheduled trial date, the
parties entered into a plea agreement. The state amended the
charges to kidnapping, felonious assault, and one count of
voluntary manslaughter. Baxter expressly waived grand jury
indictment of the new charge, was informed of all of his
constitutional rights, and pled guilty to these charges. The
trial court confirmed that Baxter knowingly and voluntarily
entered into the plea. The trial court sentenced him to
22-years imprisonment on March 20, 2017. Thus, no more speedy
trial time elapsed.
9} Baxter's delayed appeal alleged a single
assignment of error for review: "[t]he trial court
abused its discretion by accepting the appellant's guilty
plea without ensuring that the appellant knowingly,
intelligently, and voluntarily waived his right to a grand
jury to determine whether a sufficient factual basis existed
to charge him with kidnapping, R.C. 2905.01." This court
found that Baxter waived his right to a grand jury indictment
in the plea agreement and affirmed.
10} The delay in reaching trial was largely due to
continuances requested by defense counsel, thus all but 33 of
90 jail days or 99 of 270 actual days were tolled. There was
no violation of Baxter's speedy trial rights. Appellate
counsel was not ineffective in failing to raise the issue.
Accordingly, Baxter fails to demonstrate the ...