Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Knox

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL KNOX, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case No. CR-16-611757-A Application for Reopening Motion No. 530102

         JUDGMENT: APPLICATION DENIED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Oscar Albores, Assistant Prosecuting Attorney, for appellee.

          Michael Knox, pro se.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, JUDGE

         {¶1} Michael Knox timely seeks to reopen his appeal pursuant to App.R. 26(B), claiming that appellate counsel was ineffective for failing to raise a number of issues on appeal. For the following reasons, the application is denied.

         I. Background

         {¶ 2} According to Knox, in 2017 he was incarcerated in the state of Michigan when he caused a notice of availability to be sent to officials in Cuyahoga County pursuant to the Interstate Agreement on Detainers ("IAD"). He was subsequently extradited to Ohio to face charges related to the rape of two women that occurred in 1999. State v. Knox, 8th Dist. Cuyahoga No. 107414, 2019-Ohio-1246, ¶ 2. He was found guilty of numerous counts, but after the merger of allied offenses he was sentenced to 8 years to life for each of two counts of rape - for an aggregate prison term of 16 years to life. That aggregate term was ordered to be served consecutive to the existing prison sentence he was serving in Michigan.

         {¶ 3} Knox appealed his convictions to this court, raising four assignments of error. This court overruled each assigned error and affirmed the convictions, but remanded the matter for Knox to be classified as a Tier III sex offender pursuant to a stipulation Knox entered on the record before the trial court. Id. at ¶ 72-73.

         {¶4} On June 4, 2019, Knox timely filed an application for reopening.[1] There, he did not specifically set forth any proposed assignments of error, but did include a number of issues that appellate counsel should have raised in the direct appeal. The state did not respond in opposition.

         II. Standard Applicable to Applications for Reopening

         {¶5} App.R. 26(B) allows a criminal defendant to assert a claim of ineffective assistance of appellate counsel following the disposition of the direct appeal. The rule states, "[A] defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel." App.R. 26(B)(1). The rule goes on to provide that "[a]n application for reopening shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." A claim of ineffective assistance of appellate counsel is analyzed under the same standard for a claim of ineffective assistance of trial counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. Therefore, the applicant must establish that appellate counsel was deficient for failing to raise a claim or issue, and there is a reasonable probability of success had it been raised in the appeal. Further, the applicant "bears the burden of establishing that there was a 'genuine issue' as to whether he has a 'colorable claim' of ineffective assistance of counsel on appeal." State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).

         {¶ 6} The rule further requires the applicant to assert "[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation[.]" App.R. 26(B)(2)(c). Knox's application fails to set forth any proposed assignments of error. This is sufficient grounds to deny the application. State v. Lewis, 8th Dist. Cuyahoga Nos. 88627, 88628, and 88629, 2008-Ohio-679, ¶ 17. However, this court will address the arguments that can be gleaned from the application to the extent that they can be discerned.

         III. The Interstate Agreement on Detainers

         {¶ 7} R.C. 2963.30 implements the IAD in Ohio. The statute provides one imprisoned in a state (the "holding state") and accused of a crime in another state (the "receiving state") the opportunity to have charges adjudicated in a timely fashion. It provides that once initiated by the prisoner, the receiving state must bring the individual to trial within 180 days of the request. Id., Article III(a).

Under the prisoner-initiated procedure outlined in the statute, the "warden, commissioner of corrections or other officials having custody of the prisoner" must promptly inform the prisoner of any detainer as well as the prisoner's rights in making a request for final disposition. R.C. 2963.30, Article III(c). The prisoner may then provide a written notice for final disposition to the warden, commissioner of corrections, or other official having custody of him, who must forward it to the "appropriate prosecuting official and court" in the receiving state, that is, the state where the detainer is pending. Id., Article II(c) and III(b). The receiving state must bring the prisoner to trial within 180 days of receiving the prisoner's request for disposition, or the charges will be dismissed with prejudice for good cause shown. Id., Article III(a) and (d). A prisoner invoking the IAD also waives any objection to extradition. Id., Article III(e). Because a prisoner's request under the statute operates as a request for final disposition of any untried indictments on which a detainer from the receiving state is based, the authorities with custody of the prisoner must notify all the prosecuting officers and courts in the receiving state of any request for final disposition by the prisoner. Id., Article III(d).

State v. Johnson, 4th Dist. Scioto No. 16CA3733, 2016-Ohio-7036, ¶ 16, citing State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 9.

         {¶ 8} An indictment was filed charging Knox with several offenses on November 28, 2016. Knox asserts that he complied with the IAD when he caused a notice of availability to be sent to Cuyahoga County on March 23, 2017. Knox did not point to any evidence in the record to support this, but included attachments to his application that do not indicate where in the record this information can be found. An independent review of the record reveals that the only evidence relating to Knox's IAD claim is an unauthenticated attachment to a pro se motion to dismiss Knox filed early in the case. Knox asserts that this shows he was not brought to trial within 180 days.

         {¶ 9} Assuming Knox's assertions about the timing of his notice of availability are accurate, the record indicates that Knox's refusal to accept the delivery of paperwork resulted in significant delay. The IAD provides that when inmates initiate this process they waive any objection to extradition to the receiving state. R.C. 2963.30, Article III(e). Knox did not do so in the present case. The information provided by Knox in support of his IAD claim indicates that Knox refused paperwork that would have resulted in his transportation to Ohio. As a result, Knox had to be extradited to Ohio through Michigan's court system. Knox sets forth that extradition proceedings were conducted by a Michigan court that did not conclude until October 6, 2017.

         {¶ 10} Even whn validly invoked, delay in bringing a defendant to trial caused by defendants tolls the period the receiving state has to bring them to trial.

IAD speedy trial time tolls in the same manner as time tolls under the Federal Speedy Trial Act, 18 U.S.C. §3161. U.S. v. Collins (C.A. 9, 1996), 90 F.3d 1420, 1426-27; U.S. v. Cephas (C.A. 2, 1991), 937 F.3d 816, 819, cert. denied, (1992), 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788; U.S. v. Odom (C.A. 4, 1982), 674 F.2d 228, 231, cert. denied, (1982), 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341; U.S. v. Robinson (E.D. Mich. 2003), 290 F.Supp.2d 808, 817, aff d by, U.S. v. Robinson (C.A. 6, 2006), 455 F.3d 602; U.S. v. Ellerbe (C.A. D.C., 2004), 362 U.S.App.D.C. 95, 372 F.3d 462, 468 (IAD speedy trial time tolls for periods of delay caused by defendant's own actions, including defendant's motions as provided in Speedy Trial Act). See also, Young v. Mabry (C.A. 8, 1979), 596 F.2d 339, 343 (IAD speedy trial time tolls when defendant is "legally or administratively" unavailable for trial); U.S. v. Roy (C.A. 7, 1987), 830 F.2d 628, 635 (same). Under the Speedy Trial Act, time is tolled for "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion[.]" 18 U.S.C. 3161(h)(1)(F).

State v. Golden, 177 Ohio App.3d 771, 2008-Ohio-3227, 896 N.E.2d 170, ¶ 18 (3d Dist.).

         {¶ 11} The delay caused by Knox's refusal to accept service and waive extradition proceedings is properly attributable to him. This tolls the time Ohio had to bring Knox to trial. Ellerbe (IAD speedy trial time tolls for periods of delay caused by defendant's own actions, including defendant's motions as provided in Speedy Trial Act); Mabry (IAD speedy trial time tolls when defendant is "legally or administratively" unavailable for trial). Knox's IAD calculations set forth in his application fail to account for this tolling.

         {¶ 12} Further, Knox's assertions rely on information not contained within the appellate record on appeal.

Appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). Thus, "a reviewing court cannot add matter to the record that was not part of the trial court's proceedings and then decide the appeal on the basis of the new matter." State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. "Nor can the effectiveness of appellate counsel be judged by adding new matter to the record and then arguing that counsel should have raised these new issues revealed by the newly added material." State v. Moore, 93 Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. "Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel." State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 10.

State v. Stefan, 8th Dist. Cuyahoga No. 104979, 2018-Ohio-3493, ΒΆ 6. Therefore, Knox has not demonstrated that appellate counsel was ineffective for failing to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.