State v. Cummings

1

2024-Ohio-3356

STATE OF OHIO, Appellee, v. JEFFREY A. CUMMINGS, Appellant.

No. CA2023-12-018

Court of Appeals of Ohio, Twelfth District, Fayette

September 3, 2024

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI 20220249

Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.

Caleb Johnson, and The CMW Law Firm and Anthony D. Maiorano, for appellant.

OPINION

HENDRICKSON, J.

{¶ 1} Appellant, Jeffrey A. Cummings, appeals his conviction in the Fayette County Court of Common Pleas for assault on a peace officer, a fourth-degree felony.

{¶ 2} Cummings, believing his wife was having an affair assaulted his wife's suspected paramour and took his vehicle. The police were called, and they found Cummings on his property intoxicated and yelling. Upon being approached by Deputy Ennis, who is African American, Cummings began threatening Deputy Ennis and spewing racially charged comments. Cummings was subsequently arrested. During transportation to the jail, Cummings cursed profusely and kicked the car door and window.

{¶ 3} Upon arriving at the sheriff's office, a restraint chair was brought out. While several deputies worked to fasten Cummings into the chair, Cummings kicked at Deputy Ennis as Ennis attempted to secure the leg straps. At that point, Deputy Ennis stood up and walked away briefly before returning to the restraint chair to assist the other officers. After Deputy Ennis again reached down and grabbed Cummings' legs, the other officers huddled around the chair, attempting to restrain Cummings. Cummings continued to struggle to varying degrees before forcefully kicking up at Deputy Ennis again. The ensuing struggle between Cummings and the officers resulted in Cummings' chair falling backwards. Cummings' right leg, used to kick at Deputy Ennis, remained in the air until officers grabbed it and strapped it to the chair. Deputy Ennis testified at trial that Cumming's foot scraped his chin and under his chin. Security videos which clearly captured the struggle were admitted into evidence.

{¶ 4} Cummings was indicted for grand theft of a motor vehicle, assault, and assault on a peace officer. His trial was set for June 15, 2023. On June 8, 2023, however, the trial court requested a continuance of the trial date during a phone conference with counsel. The trial court's entry stated only that neither party objected and set a new trial date of August 15, 2024. On August 14, 2024, however, the trial court, again after consulting counsel, continued the jury trial to October 19, 2023 sua sponte. Neither continuance entry indicates the reasons why the continuances took place.

{¶ 5} The case proceeded to trial on October 19, 2023, but the State tried only the assault on a peace officer charge. Cummings was found guilty of that charge, and he was sentenced to fifteen months in prison. Cummings now appeals.

{¶ 6} On appeal, Cummings raises a single assignment of error.

{¶ 7} [CUMMINGS'] TRIAL COUNSEL WAS INEFFECTIVE.^[1]

{¶ 8} To establish ineffective assistance of counsel, a defendant must show (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Courts determine deficient performance by asking whether counsel's conduct "fell below an objective standard of reasonableness." Id. at 688. When making this determination, the reasonableness of counsel's conduct must be judged based on "the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Only when counsel's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" has counsel engaged in deficient performance. Id. at 687.

{¶ 9} To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This requires the errors to be so significant as to "undermine confidence in the outcome." Id. "A defendant's failure to make a sufficient showing of either prong of the Strickland inquiry is fatal to his claim of ineffective assistance." State v. Lloyd, 2022-Ohio-4259, ¶ 31, citing id. at 697.

{¶ 10} Within this assignment of error, Cummings presents two issues for review and argument regarding his trial counsel's performance.

{¶ 11} FIRST ISSUE: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN ATTORNEY SCRANTON FAILED TO FILE A MOTION TO DISMISS FOR SPEEDY TRIAL VIOLATION.

{¶ 12} First, Cummings argues that his trial counsel was ineffective by failing to file a motion to dismiss for a speedy trial violation. Had he done so, Cummings asserts his charges would have been dismissed.^[2]

{¶ 13} The Sixth Amendment to the United States Constitution as well as Article 1, Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. Consistent with these constitutional mandates, R.C. 2945.71(C)(2) states an individual charged with a felony shall be brought to trial within 270 days of their arrest. However, R.C. 2945.72 lists various reasons why the time to bring a defendant to trial may be tolled, including: (1) a defendant's request for a continuance; (2) resolution of motions made by the defendant, and (3) "the period of any reasonable continuance granted other than upon the accused's own motion."

{¶ 14} The "burden" of bringing a defendant to trial within the speedy trial period lies with the State. State v. Singer, 50 Ohio St.2d 103, 106 (1977), State v. Ramey, 2012-Ohio-2904, ¶ 14. However, under R.C. 2945.73, a defendant must file a motion to dismiss at or before the beginning of trial to assert the right to a speedy trial has been violated. We note that an amended version of R.C. 2945.73 became effective on April 4, 2023 and requires the State to bring a defendant to trial within 14 days from the time a defendant files a motion to dismiss on speedy trial grounds whereas the prior version of the statute required immediate dismissal if, upon filing the motion, it was determined that the defendant's speedy trial time had run. While the parties devote some of their argument to whether the amended or prior version of the statute applies to this case, we conclude that we need not reach this issue due to our analysis below.

{¶ 15} Importantly, the right to a speedy trial is not "self-executing," and an "[a]ffirmative action on the part of an accused in the nature of a demand to be tried is necessary . . . In other words, there can be no denial where there has been no demand." Partsch v. Haskins, 175 Ohio St. 139, 140 (1963). See also State v. Hamilton, 2002 WL 205489 (12th Dist. Feb. 11, 2002); State v. Roy, 2010-Ohio-5528 (12th Dist.).

{¶ 16} Once a demand has been made, a defendant makes a prima facie case that he has been denied a speedy trial by showing the calendar days since his arrest exceed the statutory time limit to be tried. See State v. Butcher, 27 Ohio St.3d 28, 30-31 (1986). At that point, the State may produce evidence demonstrating the deadline to bring the defendant to trial was tolled or extended by various pretrial events. Id. Ultimately, it is a motion from a defendant that "affords the trial court the opportunity to determine . . . [the existence of undue delay] to ensure that the defendant's speedy-trial rights are protected." State v. Belville, 2022-Ohio-3879, ¶ 22.^[3]

{¶ 17} In cases where a motion to dismiss was not made at the trial level, a defendant must demonstrate "a reasonable probability that a motion to dismiss on speedy trial grounds would have been successful." State v. Roy, 12th Dist. Butler No. CA2009-12-305, 2010-Ohio-5528, ¶ 22; S. Euclid v. Schutt, 2020-Ohio-3661, ¶ 13 (8th Dist.) ("[I]n 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"). However, appellate courts are strictly limited to the record available to the trial court. Id. at ¶ 9, Ohio App. R. 9.

{¶ 18} Whether or not a motion to dismiss was filed, the "imperfect handling of continuances" by a trial court can often complicate the determination of whether a defendant's speedy trial rights were violated. Ramey, 2012-Ohio-2904 at ¶ 33. When a trial court orders the continuance of a jury trial sua sponte, the reason for the continuance must be stated in the order so that, if necessary, it can be determined whether the continuance was reasonable and if it should toll a defendant's speedy trial time. Id. at ¶ 32-33. "[Scheduling conflicts, crowded dockets, or the lack of an available courtroom, are reasonable bases necessitating a [sua sponte] continuance . . . ." State v. Redelman, 2013-Ohio-657, ¶ 24 (12th Dist.) (finding a 39-day continuance due to a crowded docket and the defense's need for further trial preparation was reasonable). See also State v. Agostini, 2017-Ohio-4042, ¶ 68-74 (trial court entered multiple continuances due to defendant's repeated dishonesty about whether he had hired private counsel as well as his disputes with multiple appointed attorneys regarding trial scheduling and preparation).

{¶ 19} Nonetheless, "appellate court[s] may affirm a conviction challenged on speedy-trial grounds even if the trial court did not expressly enumerate any reasons justifying the delay when the reasonableness of the continuance is otherwise affirmatively demonstrated by the record." Ramey at ¶ 33. When, after reviewing the record, it is "not clear who requested [a] continuance or the reason behind it" a delay must be charged to the...