Garfield Hts. v. Brisbane

2025 Ohio 47

• Court: Ohio Court of Appeals
• Decided: January 9, 2025
• Docket: 113943
• Status: Published

Opinion

[Cite as Garfield Hts. v. Brisbane, 2025-Ohio-47.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF GARFIELD HEIGHTS, :

Plaintiff-Appellee, : No. 113943 v. :

ALPHONSO S. BRISBANE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 9, 2025

Criminal Appeal from the Garfield Heights Municipal Court Case No. TRC2300584

Appearances:

Edward Fadel, Chief Prosecutor, City of Garfield Heights, for appellee.

Alphonso S. Brisbane, pro se.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant, Alphonso Brisbane, pro se, appeals his

conviction in Garfield Heights Municipal Court for operating a motor vehicle while intoxicated in violation of R.C. 4511.19(A)(1)(a) after he entered a no contest plea.

Because we find no error in the proceedings, we affirm Brisbane’s conviction.

PROCEDURAL HISTORY AND RELEVANT FACTS

On January 31, 2023, the City of Garfield Heights filed charges

against Brisbane for driving under suspension in violation of Garfield City

Ord. 335.07(a) and operating a vehicle while under the influence in violation of

R.C. 4511.19(A)(1)(j)(vii) in two separate cases.

The court docket reflects that Brisbane was arraigned on February 8,

2023. At that time, Brisbane informed the trial court he retained an attorney,

entered a plea of not guilty, and signed a statement of rights form. The statement of

rights form filed with the trial court contained the following waiver of speedy trial

rights that Brisbane affirmatively entered:

I have been informed by the Court that I have a constitutional right to a speedy trial, but, I hereby, In open Court, waive this right and consent to this case being continued, even if it has to be continued Indefinitely. [Sic]

After the arraignment, the trial court held pretrials on March 14,

2023, and April 11, 2023. On April 13, 2023, Brisbane’s counsel filed a motion for

bill of particulars, discovery, a notice of prosecution’s intention to use evidence, and

an administrative license suspension appeal (“ALS Appeal”). On April 19, 2023, the

trial court set the ALS Appeal for hearing on May 30, 2023. On May 30, 2023, neither Brisbane nor his counsel appeared in court and the trial court continued the

case to July 18, 2023.

On August 11, 2023, Brisbane filed pro se a complaint for writ of

mandamus and writ of procedendo against the trial court judge. Brisbane’s

complaint was later dismissed on October 3, 2023. Brisbane v. DiGeronimo, 2023-

Ohio-3636 (8th Dist.). On August 15, 2023, after Brisbane filed his writ action, the

trial court stayed the case pending the outcome of the writ but set a pretrial

conference for September 12, 2023.

On September 12, 2023, neither Brisbane nor his counsel appeared

for the pretrial conference. The trial court set a show cause hearing for September

19, 2023. On September 19, 2023, the trial court held a hearing and addressed trial

counsel for his and Brisbane’s failure to appear, noting that of all the pretrials

scheduled, Brisbane and his attorney had only appeared together for one. The trial

court set the cases for trial on October 3, 2023. On the date of trial, counsel appeared

but Brisbane did not. The trial court issued a capias for Brisbane’s arrest.

On October 18, 2023, Brisbane filed a notice of availability with the

trial court indicating he was incarcerated in the Cuyahoga County Jail on a probation

violation for a period of six months. On November 28, 2023, the trial court held a

pretrial hearing; trial counsel did not appear and the trial court did not order

Brisbane to be transported from jail. The trial court reset the matter for hearing on

December 19, 2023. At that time, Brisbane was transported from jail and his

counsel appeared. The trial court set the matter for a bench trial on January 18, 2024. On December 20, 2023, Brisbane filed a request for a jury trial. On

December 21, 2023, the trial court reset the trial date to February 26, 2024.

On January 30, 2024, Brisbane’s counsel filed a motion to continue

the trial due to a scheduling conflict. On February 12, 2024, the trial court granted

the motion to continue and reset the trial to March 25, 2024. On February 20, 2024,

Brisbane filed a pro se motion asking the trial court to recall the capias. On

February 21, 2024, the trial court granted Brisbane’s counsel a further continuance

and reset the trial for April 22, 2024, stating there would be no further continuances

granted.

On February 27, 2024, Brisbane appeared before the trial court

pursuant to the capias previously issued for his arrest. At that time, the trial court

determined Brisbane had been incarcerated on a probation violation in another case

from August 31, 2023, through February 27, 2024. The trial court recalled the

capias, issued a personal bond, and set the matter for final pretrial on April 9, 2024.

Brisbane appeared for the final pretrial, but his counsel did not. The trial court

rescheduled the final pretrial for April 17, 2024. On April 17, 2024, Brisbane filed a

pro se motion to dismiss the case for speedy trial violations.

On April 18, 2024, Brisbane entered a no contest plea to operating a

vehicle while under the influence in violation of R.C. 4511.019(A)(1)(a), as amended,

and the city dismissed the driving under suspension charge. During the plea

hearing, Brisbane stated that he was voluntarily entering the plea and that no threats

or promises were made to him to induce the plea. He also stated that he was satisfied with trial counsel’s representation. The city informed the trial court that the charge

arose from police responding to an accident on December 20, 2022, and observing

Brisbane staggering from the vehicle and noting that he had slurred speech, an odor

of alcohol, and glassy and bloodshot eyes. Brisbane failed a field sobriety test and

later refused a breath alcohol test.

The trial court accepted the no contest plea and sentenced Brisbane

to 365 days in jail, suspended 335 days, granted jail-time credit for 30 days, placed

Brisbane on community-control sanctions for three years, imposed a four year

driver’s license suspension, terminated the ALS, and imposed a $1,000 fine.

LAW AND ARGUMENT

Brisbane raises six assignments of error. In three assignments of

error, he argues that the trial court erred by 1) failing to hold a hearing on his ALS

appeal, 2) failing to rule upon his pro se motions, and 3) abused its discretion by

scheduling the matter while he was incarcerated on a separate matter. Brisbane

further alleges in his remaining assignments of error that he was denied the effective

assistance of counsel and his sentence violated the prohibition against double

jeopardy.

The trial court was without jurisdiction to hold a hearing on the untimely filed ALS appeal

Within his first assignment of error, Brisbane alleges that the trial

court erred when it denied his ALS appeal without a hearing. The city argues that the trial court did not err by failing to hold a hearing because the ALS appeal was

untimely filed.

R.C. 4511.197(A) reads in relevant part that a “person may appeal the

suspension at the person’s initial appearance on the charge resulting from the arrest

or within the period ending thirty days after the person’s initial appearance on that

charge, in the court in which the person will appear on that charge.” Brisbane filed

an ALS appeal more than 30 days after his initial appearance. Because of this, the

trial court did not have jurisdiction to hear the untimely appeal and did err by failing

to hold a hearing. Westlake v. Pesta, 2009-Ohio-4713, ¶ 5 (8th Dist.) (“If an

administrative license suspension is not timely appealed, the court has no

jurisdiction to consider the appeal.”).

The first assignment of error is overruled.

The trial court did not err by not ruling on pro se motions filed while Brisbane was represented by counsel

Within his second, third, and fourth assignments of error, Brisbane

alleges that the trial court erred when it did not rule on his pro se motions to recall

his capias, to compel discovery, and to dismiss the charges. As to the motion to recall

the capias, he argues the trial court’s decision was deliberately made to avoid speedy

trial time from running because he would not enter a plea bargain. As to the motion

to compel evidence, Brisbane filed that motion in his companion case. Nevertheless,

Brisbane argues that a booking video would show that he did not refuse a

breathalyzer test. As to the motion to dismiss, Brisbane argues that his right to a speedy trial was violated. The city argues that the trial court did not err because it

had no obligation to address Brisbane’s pro se motions because he was represented

by counsel.

A trial court may not entertain a pro se criminal defendant’s motion

when that defendant was represented by counsel because a criminal defendant does

not have a right to “‘hybrid representation.’” State v. Mongo, 2015-Ohio-1139, ¶ 13

(8th Dist.), quoting State v. Martin, 2004-Ohio-5471, paragraph one of the syllabus.

Accordingly, the issues raised in Brisbane’s pro se motions were not properly before

the trial court and, as such, the trial court did not abuse its discretion by failing to

rule upon these motions. Further, as to the motion to dismiss based on speedy trial

grounds, even had the issue been raised by counsel, Brisbane waived his right to a

speedy trial in writing. Cleveland Hts. v. Brisbane, 2016-Ohio-4564, ¶ 39 (8th Dist.)

The second, third, and fourth assignments of error are overruled.

The trial court did not abuse its discretion in its scheduling of the case

Within his fifth assignment of error, Brisbane alleges that the trial

court abused its discretion when it continued to schedule pretrial hearings while he

was serving a six-month sentence imposed in another case. The city argues that this

assignment of error was not preserved below and Brisbane cannot complain of the

trial court scheduling matters after he filed a notice of availability.

“It is axiomatic that a trial court has inherent authority to manage

its docket and the progress of the proceedings before it.” In re A.Z., 2020-Ohio- 2941, ¶ 57 (8th Dist.). The record reflects that the trial court set the case for pretrial

hearings but that Brisbane, his trial counsel, or both failed to appear. After Brisbane

entered a notice of availability, the trial court scheduled pretrial hearings, set the

matter for trial, and granted continuances at trial counsel’s request. We cannot say

the scheduling of the matter was an abuse of the trial court’s discretion, especially

where Brisbane, his counsel, or both had failed to appear at scheduled pretrials or

hearings.

The fifth assignment of error is overruled.

Brisbane did not show he received ineffective assistance of counsel

Within his sixth assignment of error, Brisbane claims he received

ineffective assistance of counsel due to counsel’s failure to appear in court, counsel’s

filing of motions for continuance, and the failure of counsel to file motions that he

requested be filed. The city argues that Brisbane has not shown he would not have

otherwise entered his no contest plea due to counsel’s alleged deficiencies.

A criminal defendant has a right to the effective assistance of counsel

when deciding whether to enter a plea. State v. Ayesta, 2015-Ohio-1695, ¶ 14 (8th

Dist.), citing Padilla v. Kentucky, 559 U.S. 356, 364 (2010). When arguing

ineffective assistance of counsel, a defendant has to satisfy the two-part test

enunciated in Strickland v Washington, 466 U.S. 668 (1984), which requires the

defendant to show that counsel’s performance fell below an objective standard of reasonableness and he was prejudiced by counsel’s deficient performance. Padilla

at 366-367.

“In the context of constitutional challenges to guilty pleas, the

prejudice prong of the test requires that the defendant show that there is a

reasonable probability that were it not for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Ayesta, 2015-Ohio-1695,

¶ 14, citing Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[W]hen a defendant claims

that his counsel’s deficient performance deprived him of a trial by causing him to

accept a plea, the defendant can show prejudice by demonstrating a ‘reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.’” Lee v. United States, 582 U.S. 357, 364-365

(2017), quoting Hill at 59.

When entering his no contest plea, Brisbane indicated to the trial

court that he was doing so voluntarily and that no threats or promises had been

made to him to induce his change of plea. Further, Brisbane stated he was satisfied

with the representation he received. In his briefing to the court, Brisbane lists

alleged deficiencies with trial counsel but has not argued within the assignment of

error or shown that but for counsel’s alleged deficiencies in representation, he would

not have entered his no contest plea. The sixth assignment of error is overruled.

Brisbane’s conviction is not barred by the prohibition against double jeopardy

In the conclusion of his brief, Brisbane raises an additional argument

in which he argues that because he received a six-month sentence for a probation

violation in another matter after his arrest, this case was subject to dismissal as a

violation of the prohibition against double jeopardy. The Double Jeopardy Clause,

contained in the Fifth Amendment of the United States Constitution, states that no

person shall “be subject for the same offence to be twice put in jeopardy of life or

limb.” Double jeopardy principles protect an offender against the imposition of

multiple punishments for the same offense. State v. Martello, 2002-Ohio-6661, ¶ 8.

Although not raised as a separate assignment of error, we consider

and overrule Brisbane’s argument. Sanctions imposed for violating community

control or probation are not considered punishment for purposes of double

jeopardy. State v. English, 2021-Ohio-850, ¶ 25 (8th Dist.), citing State v. Peters,

2009-Ohio-5836, ¶ 13-14 (8th Dist.). As such, “double jeopardy does not preclude

a defendant who was sanctioned for violating post-release control from being

prosecuted for the same conduct.” State v. Black, 2011-Ohio-1273, ¶ 14 (2d Dist.),

citing Martello.

CONCLUSION

Brisbane filed an untimely ALS appeal, and the trial court did not

have jurisdiction to hear the ALS appeal. Additionally, the trial court was without jurisdiction to hear Brisbane’s pro se motions filed while he was represented by an

attorney. Further, the trial court did not abuse its discretion in continuing to

schedule pretrial conferences and hearings in light of Brisbane’s and trial counsel’s

failure to appear during the pendency of the case. Although Brisbane alleged

deficiencies in the representation he received from trial counsel, he has not shown

that in light of the alleged deficiencies he would not have entered his no contest plea.

Finally, Brisbane’s conviction did not violate the prohibition against double

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

municipal court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the

trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________ MICHELLE J. SHEEHAN, JUDGE

KATHLEEN ANN KEOUGH, P.J., and LISA B. FORBES, J., CONCUR