City of S. Euclid v. Schutt

154 N.E.3d 1184

2020 Ohio 3661

City of SOUTH EUCLID, Plaintiff-Appellee,

v.Caleb SCHUTT, Defendant-Appellant.

No. 108510

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 9, 2020

Michael P. Lograsso, Law Director, City of South Euclid, and Brian M. Fallon, Assistant Prosecuting Attorney, for appellee.

Rick L. Ferrara, Cleveland, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant, Caleb Schutt, appeals from his conviction following a jury trial in the South Euclid Municipal Court. He raises the following assignments of error for review:

1. Defense counsel rendered ineffective assistance of counsel by failing to move to dismiss for speedy trial violations, failing to demand discovery, failing to object to prejudicial testimony, and failing to object to the police report and complaint as evidence at trial.

2. The trial court denied Schutt's due process rights by making impermissible statements and in allowing impermissible testimony at trial that overcame the presumption of Schutt's innocence.

{¶ 2} After careful review of the record and relevant case law, we find merit to the appeal and vacate Schutt's conviction and sentence.

I. Procedural and Factual History

{¶ 3} On October 17, 2017, Schutt was issued a ticket and summons, charging him with theft in violation of R.C. 2913.02, a misdemeanor of the first degree. The charge stemmed from allegations that Schutt switched the price tags on an electronic device in a Walmart store "to make [the device] cheaper."

{¶ 4} Following several pretrial hearings and continuances, the matter proceeded to a jury trial on March 8, 2019. At trial, Walmart security employee, Jonathan Moore, testified that on October 17, 2017, he observed Schutt take possession of a GPS device while shopping in the store's electronics department. Schutt then took the device to the toy department, where Moore observed Schutt remove the security wrap from the GPS device and place it on a shelf. Thereafter, Moore witnessed Schutt place a sticker over the Universal Product Code ("UPC") sticker that was located on the GPS device. When Schutt purchased the GPS device at the self-checkout station, he paid $9.00.

{¶ 5} Based on his observations, Moore approached Schutt before he exited the store. Moore testified that he examined the GPS device and confirmed that there was a barcode sticker placed over the item's UPC sticker. When the sticker was removed from the GPS device, it was scanned and it reflected a price of $9.00. However, when the previously covered UPC sticker was scanned, it reflected a purchase price of $119.00. Upon confirming the actual purchase price of the item, Moore escorted Schutt to the store's security office to contact the police. Video footage of the incident was captured by the Walmart security cameras. The video was identified by Moore and was played for the jury.

{¶ 6} Officer Shauna McCann of the South Euclid Police Department testified that she responded to the scene of the reported theft and viewed the surveillance video footage captured by the store. Following her investigation, Officer McCann issued Schutt a citation ticket in lieu of a physical arrest.

{¶ 7} At the close of the city's case, the defense moved for an acquittal of all charges. The trial court denied the motion, and the defense rested without presenting its own witnesses.

{¶ 8} At the conclusion of trial, Schutt was found guilty of the theft offense and was sentence to 180 days in county jail. In addition, he was fined $175, plus costs.

{¶ 9} Schutt now appeals from his conviction and sentence.

II. Law and Analysis

A. Ineffective Assistance of Counsel

{¶ 10} In his first assignment of error, Schutt argues defense counsel rendered ineffective assistance of counsel by (1) failing to move to dismiss for speedy trial violations, (2) failing to object to prejudicial testimony, and (3) failing to object to the police report and complaint as evidence.

{¶ 11} To establish a claim of ineffective assistance of counsel, Schutt must demonstrate (1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, "the failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel." State v. Davenport , 8th Dist. Cuyahoga No. 106143, 2018-Ohio-2933, 2018 WL 3601847, ¶ 25, citing Strickland at 697, 466 U.S. 668, 104 S.Ct. 2052.

{¶ 12} In Ohio, every properly licensed attorney is presumed to be competent and, therefore, a defendant claiming ineffective assistance of counsel bears the burden of proof. State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Counsel's tactical decisions or trial strategy cannot form the basis for a claim of ineffective counsel. State v. Foster , 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, 2010 WL 2682207, ¶ 23, citing State v. Clayton , 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

B. Speedy Trial Rights

{¶ 13} Generally, the failure to raise the violation of speedy trial rights in the trial court constitutes a waiver of the defense on appeal. However, a defendant may raise a speedy trial claim in the context of a claim of ineffective assistance of counsel. Cleveland v. White , 8th Dist. Cuyahoga No. 99375, 2013-Ohio-5423, 2013 WL 6571832, ¶ 7. And in order to demonstrate that counsel provided ineffective assistance of counsel by failing to file a motion to dismiss for speedy trial violations, the defendant must show that the motion would have been successful and the case would likely have been dismissed. Id. "Counsel cannot be [ineffective] for failing to file a fruitless motion." State v. Cottrell , 4th Dist. Ross Nos. 11CA3241 and 11CA3242, 2012-Ohio-4583, 2012 WL 4713899, ¶ 8.

{¶ 14} A defendant is guaranteed the constitutional right to a speedy trial pursuant to the Sixth and Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution. See, e.g., State v. Williams , 8th Dist. Cuyahoga No. 100898, 2014-Ohio-4475, 2014 WL 5089065, ¶ 51, citing State v. Taylor , 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 32. Pursuant to its authority to prescribe reasonable periods in which a trial must be held that are consistent with these constitutional requirements, Ohio enacted R.C. 2945.71, which sets forth the specific time requirements within which the state must bring a defendant to trial. State v. Ramey , 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 14.

{¶ 15} R.C. 2945.71(B)(2) provides that a defendant charged with a first-degree misdemeanor must be brought to trial within 90 days after arrest or service of summons. However, speedy trial time may be tolled by either a valid waiver of the defendant's right to speedy trial or any of the circumstances enumerated in R.C. 2945.72. When an accused waives his or her speedy trial rights, those days for which the accused waives the right do not count toward the state's deadline. State v. Brown , 10th Dist. Franklin No. 19AP-40, 2019-Ohio-4753, 2019 WL 6131069, ¶ 28.

{¶ 16} Regarding tolling, R.C. 2945.72 contains an exhaustive list of events and circumstances that extend the time within which a defendant must be brought to trial. These tolling events include:

(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;

(D) Any period of delay occasioned by the neglect or improper act of the accused;

(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;

* * *

(H) The period of 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.

{¶ 17} Extensions of the speedy trial time limits under R.C. 2945.72 are strictly construed against the state. State v. Brown , 2016-Ohio-1453, 63 N.E.3d 509, ¶ 6 (4th Dist.) ; see also State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 81 ("Speedy-trial provisions are mandatory, and courts must strictly enforce them."); State v. Linder , 8th Dist. Cuyahoga No. 106600, 2018-Ohio-3951, 2018 WL 4705597, ¶ 80 (when reviewing legal issues presented in a speedy trial claim, the appellate court must strictly construe the relevant statutes against the state), citing Brecksville v. Cook , 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996).

{¶ 18} Once the statutory time limit has expired, the defendant has established a prima facie case for dismissal. State v. Willis , 8th Dist. Cuyahoga No. 107070, 2019-Ohio-537, 2019 WL 647636, ¶ 25, citing State v. Butcher , 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986) ; State v. Steele , 8th Dist. Cuyahoga Nos. 101139 and 101140, 2014-Ohio-5431, 2014 WL 6983321, ¶ 18. The burden then shifts to the state to demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. Id.

When reviewing a speedy trial issue, the appellate court counts the days and determines whether the number of days not tolled exceeds the time limits for bringing the defendant to trial as set forth in R.C. 2945.71. See, e.g., State v. Shepherd , 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415 [2012 WL 5877553], ¶¶ 14-16. If the state has violated a defendant's right to a speedy trial, then, upon motion made at or prior to trial, the defendant "shall be discharged," and further criminal proceedings based on the same conduct are barred. R.C. 2945.73(B).

State v. Sanders , 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524, 2019 WL 1858880, ¶ 19.

{¶ 19} In this case, Schutt was served with the summons on October 17, 2017. Accordingly, Schutt's speedy trial time would have expired, if not...