[Cite as In re P.D.R., 2011-Ohio-1036.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: P.D.R. : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. : : : Case No. 2010-CA-00268 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Juvenile Division, Case Nos. 2010JCR366 & 2010JCR00781
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO ALLYSON J. BLAKE PROSECUTING ATTORNEY 122 Central Plaza North By: Kathleen O. Tatarsky Suite 101 110 Central Plaza S., Ste. 510 Canton, OH 44702 Canton, OH 44702-0049 [Cite as In re P.D.R., 2011-Ohio-1036.]
Gwin, P.J.
{¶1} Defendant-appellant P.D.R., a juvenile, appeals the judgment of the Stark
County Court of Common Pleas, Juvenile Division, adjudicating her a delinquent child
by reason of having committed the offenses of assault, and two counts of disorderly
conduct1.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 20, 2010, a complaint was filed in Case No. 2010JCR00366
against the appellant, P.D.R., age 17, charging her with assault a misdemeanor of the
first degree in violation of R.C. 2903.13, resisting arrest, a misdemeanor of the second
degree in violation of R.C. 2921.33 and disorderly conduct, a misdemeanor of the
fourth degree in violation of R.C. 2917.11(A). In April 2010, an additional complaint
was filed in Case No. 2010JCR00781 against appellant for assault. All charges
stemmed from the same incident and were combined for judicial economy, by
Judgment Entry filed April 30, 2010.
{¶3} By Judgment Entry filed April 30, 2010, appellant’s case was scheduled
for trial on May 18, 2010. However, due to a medical emergency involving defense
counsel, appellant’s trial was continued until May 28, 2010.
{¶4} On May 21, 2010, retained counsel filed his notice of appearance and a
request to continue the trial date. Counsel requested a continuance because he
needed additional time to prepare and further requested a pre-trial conference be
scheduled in an attempt to resolve the cases. The trial court granted counsel’s request
1 One count of disorderly conduct related to Case No 2010CR00366; the other count related to Case No. 2010JR00781. Stark County, Case No. 2010-CA-00268 3
and scheduled a pre-trial conference for July 1, 2010. By Judgment Entry filed July 2,
2010 the court scheduled appellant’s trial to commence on July 16, 2010.
{¶5} On July 15, 2010, the state requested a continuance due to the
unavailability of the alleged victim. By Judgment Entry filed July 15, 2010, the trial
court re-scheduled appellant’s trial for July 22, 2010.
{¶6} The events that give rise to this appeal are as follows.
{¶7} Canton Police Officer Anthony Ankrom was working the afternoon shift on
February 20, 2010 when he was dispatched to the scene of the McKinley-Glen Oak
basketball game at the Canton Civic Center. He parked his patrol car in front of the
building and was taking a report from a female who was complaining of an earlier
assault. The female was in the back seat of the patrol car. A friend of the female was
standing outside the patrol car holding the female's toddler on her hip.
{¶8} Officer Ankrom was told by the friend that appellant was approaching her
and that she thought appellant was going to assault her. When Officer Ankrom saw
the appellant approaching the victim, he rolled down the window of his patrol car and
told appellant to "get away from her.” Appellant continued to approach the victim, who
was holding the toddler and struck her in the face, hitting her ear. The toddler began
crying. Officer Ankrom got out of his patrol car, went over to appellant and told her to
“get over there.” Instead of complying, appellant sprinted back towards the victim and
shoved her. Officer Ankrom wrestled appellant to the ground, handcuffed her and
arrested her. Appellant was still verbally abusing the victim until she was told by
Officer Ankrom to stop or more charges would be lodged against her. Stark County, Case No. 2010-CA-00268 4
{¶9} Appellant was charged with assault, resisting arrest and disorderly
conduct. She was taken to Faircrest Attention Center and released three days later.
{¶10} When injuries to the toddler were discovered later that day, including
bruising and swelling to her eye, an additional charge of assault was lodged against
appellant.
{¶11} At trial, appellant admitted to the assault on the victim claiming it was
prompted by a call she received earlier that evening that her sister had been assaulted
in the bathroom during halftime. Appellant admitted to hitting the victim but claimed it
was done because she thought the victim had assaulted her sister. She denied,
however, hitting the toddler who was in the arms of the victim at the time of the assault.
{¶12} At the conclusion of the evidence, the magistrate found appellant guilty of
resisting arrest, assault on one of the victims and disorderly conduct. The magistrate,
however, found appellant not guilty of the offense of assault as to the toddler victim but
guilty of the lesser-included offense of disorderly conduct. As to the not guilty finding,
the Magistrate explained she did not find the element of "knowing" necessary for the
assault offense.
{¶13} Appellant was sentenced to fifteen days in jail for the assault, disorderly
conduct and resisting arrest with ten days suspended and credit for three days at
Faircrest Detention Center. As to the disorderly conduct charge for the toddler victim,
appellant was ordered to pay restitution.
{¶14} Appellant was reminded at the close of the trial to file objections to the
Magistrate's report if she wished to appeal.
{¶15} Appellant has timely appealed raising the following assignments of error: Stark County, Case No. 2010-CA-00268 5
{¶16} “I. APPELLANT WAS DENTED HER DUE PROCESS RIGHTS WHEN
THE COURT GRANTED THE STATE'S MOTION TO CONTINUE WHEN THE
APPELLANT AND HER COUNSEL HAD NEVER BEEN PROPERLY SERVED WITH
SAID MOTION AND HAD NO PRIOR NOTICE OF THE TRIAL DATE.
{¶17} “II. THE MAGISTRATE COMMITTED PLAIN ERROR IN PROCEEDING
WITH THE TRIAL OF APPELLANT WHEN NEITHER DEFENSE COUNSEL NOR
APPELLANT HAD PROPER NOTICE OF THE TRIAL DATE.
{¶18} “III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.”
I.& II.
{¶19} At the outset, we note that appellant did not object to the decision of the
Magistrate nor did she request Findings of Fact and Conclusions of Law from the trial
court. Further, appellant failed to file the transcript of the proceedings with the trial
court prior to the trial judge accepting the magistrate’s recommendation.
{¶20} Juv.R. 40(E) (3) (b) provides: " * * * A party shall not assign as error on
appeal the court's adoption of any finding of fact or conclusion of law unless the party
has objected to that finding or conclusion under this rule."
{¶21} In appellant's Third Assignment of Error, infra, appellant argues that, trial
counsel was ineffective for failing to file objections to the decision of the magistrate,
and further that the magistrate’s failure to grant a continuance rises to the level of plain
error.
{¶22} In In re: Comer (Sept. 23, 1997), 10th Dist. No. 96 APF11-1571, the court
faced a similar situation and therein noted: “[a]ppellant's effort to show that the trial Stark County, Case No. 2010-CA-00268 6
judge would have found in his favor but for the errors would be thwarted by the fact that
appellant failed to make the transcript of the proceedings before the magistrate part of
the record in the trial court ... This court generally will not consider evidence not part of
the record before the trial court. We do so in this case for two reasons.
{¶23} “First, we presume that the failure to file a transcript for review by the trial
judge is associated with the failure to request findings of fact and the failure to object to
the magistrate's report.
{¶24} “Second, because of the nature of the alleged errors, it would be
impossible to apply the second prong of the Strickland test without considering the
evidence presented to the magistrate. A somewhat similar situation was presented in
In re: Raymond R. (Oct. 25, 1996), Erie App. No. E-96-022, unreported. In Raymond
R., the juvenile court adopted the magistrate's recommendation that the appellant be
adjudicated a delinquent child for committing what would have been the crime of rape if
committed by an adult. On appeal, the appellant alleged error based on the weight of
the evidence and ineffective assistance of counsel for counsel's failure to timely file
objections to the magistrate's decision. After deciding that the judgment was not
contrary to the manifest weight of the evidence, the court of appeals noted that failure
to file the objections timely did not work to the appellant's prejudice because the only
argument raised in the objections was the weight of the evidence, which the court of
appeals was rejecting. Just as the court in Raymond R. looked beyond the record to
the untimely objections for the purpose of determining whether appellant was
prejudiced by counsel's failures, we have examined the evidence presented to the
magistrate, the trial transcript and exhibits, despite the fact that they were not available Stark County, Case No. 2010-CA-00268 7
to the trial judge.” See also, In re: Oliver, Licking App. No.2005-CA-40, 2005-Ohio-
5792.
{¶25} “[A]n appellate court may, in its discretion, correct an error not raised at
trial only where the appellant demonstrates that (1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,
2010), 560 U.S. __, 2010 WL 2025203 at 4. (Internal quotation marks and citations
omitted). See also, In re Lemon, Stark App. No.2002 CA 00098, 2002-Ohio-6263 at
¶29.
{¶26} In the interest of justice, this court will examine the evidence presented to
the magistrate, the trial transcript and exhibits, despite the fact that they were not
available to the trial judge. In re: Oliver, supra at ¶24.
{¶27} In her First Assignment of Error appellant maintains she was denied due
process of law by the magistrate’s failure to grant her trial counsel a continuance upon
the ground that he was not prepared to go forward with her trial because he did not
receive notice of the re-scheduled trial date. In her Second Assignment of Error
appellant contends that the magistrate committed plain error in proceeding with the trial
of appellant when neither defense counsel nor appellant had proper notice of the trial
date.
{¶28} The basic requirements of procedural due process are stated as follows: Stark County, Case No. 2010-CA-00268 8
{¶29} “A fundamental requirement of due process is the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo (1965), 380
U.S. 545, 552 * * *. As the Supreme Court of Ohio has stated in Williams v. Dollison
(1980), 62 Ohio St.2d 297 * * *, ‘due process of law implies, in its most comprehensive
sense, the right of the person affected (* * *) to be heard, by testimony or otherwise,
and to have the right of controverting, by proof, every material fact which bears on the
question of right in the matter involved.’ * * *” (Citation omitted.) Schoettle v. Bering
(Apr. 22, 1996), Brown App. No. CA95-07-011 at 8.
{¶30} In the case at bar, the magistrate continued appellant’s portion of the case
to allow her counsel time to subpoena witnesses and prepare her defense. Counsel
called the investigator who had worked on the case to impeach Kara Garner and
Ashley Hardy. The magistrate allowed appellant to question the investigator
concerning statements Ms. Garner and Ms. Hardy had made which differed from their
testimony at trial. (2T. at 4; 6-7).
{¶31} Both appellant and her trial counsel were present and participated in both
phases of the trial. Additionally appellant failed to proffer the identity of any witness
other than the investigator who, as previously noted was permitted to offer
impeachment evidence over the state’s objections. In addition, appellant’s trial counsel
conceded appellant struck Ashley and that appellant was only contesting the assault
charge concerning the toddler. (T. at 6; 9-10; 14; 15; 20-22). Appellant was found not
delinquent by virtue of the assault of the child, but delinquent by virtue of the lesser
included offense of disorderly conduct pursuant to R.C. 2917.11(A)(5). (2T. at 24-25).
R.C. 2917.11, provides in relevant part, Stark County, Case No. 2010-CA-00268 9
{¶32} “A) No person shall recklessly cause inconvenience, annoyance, or alarm
to another by doing any of the following:
{¶33} “* * *
{¶34} “(5) Creating a condition that is physically offensive to persons or that
presents a risk of physical harm to persons or property, by any act that serves no
lawful and reasonable purpose of the offender.”
{¶35} Appellant does not contest that finding on appeal.
{¶36} There is no question that appellant in the instant case had actual notice of
the proceedings, appeared, defended, and was given a full opportunity to be heard.
Appellant does not argue that she was unaware of the nature of the proceedings.
Further, appellant was represented by counsel throughout the proceedings. See, Ross
v. Saros, 99 Ohio St.3d 412, 792 N.E.2d 1126, 2003-Ohio-4128 at ¶17.
{¶37} Accordingly, we find that appellant received all the process to which she
was entitled and was not denied her due process rights. Traditional notions of fair play
and substantial justice were not offended by the procedure employed by the magistrate
which allowed defense counsel additional time to present prepare and present
appellant’s defense. Appellant cannot point with any specificity to any prejudice she
suffered as a result of the conduct of her trial.
{¶38} Nor do we find error in the trial court’s denial of appellant’s request for a
continuance. Ordinarily a reviewing court analyzes a denial of a continuance in terms
of whether the court has abused its discretion. Ungar v. Sarafite (1964), 376 U.S. 575,
589, 84 S.Ct. 841, 11 L.Ed.2d 921. If, however, the denial of a continuance is directly
linked to the deprivation of a specific constitutional right, some courts analyze the Stark County, Case No. 2010-CA-00268 10
denial in terms of whether there has been a denial of due process. Bennett v. Scroggy
(6th Cir.1986), 793 F.2d 772. A defendant has an absolute right to prepare an
adequate defense under the Sixth Amendment of the United States Constitution and a
right to due process under the Fifth and Fourteenth Amendments. United States v.
Crossley (6th Cir.2000), 224 F.3d 847, 854. The United States Supreme Court has
recognized that the right to offer the testimony of witnesses and compel their
attendance is constitutionally protected. Washington v. Texas (1967), 388 U.S. 14, 19,
87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019. The Ohio Supreme Court recognized that the
right to present a witness to establish a defense is a fundamental element of due
process of law. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138.
A trial court's failure to grant a continuance to enable a defendant to exercise his
constitutionally protected right to offer the testimony of witnesses and compel their
attendance may, in some circumstances, constitute a denial of due process. Mackey
v. Dutton (6th Cir.2000), 217 F.3d 399, 408; Bennett v. Scroggy, supra, 793 F.2d at
774. See also, State v. Wheat, Licking App. No. 2003-CA-00057, 2004-Ohio-2088 at ¶
16.
{¶39} Among the factors to be considered by the court in determining whether
the continuance was properly denied are: (1) the length of the requested delay, (2)
whether other continuances had been requested and granted, (3) the convenience or
inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was
for legitimate reasons or whether it was “dilatory, purposeful or contrived”, (5) whether
the defendant contributed to the circumstances giving rise to the request, (6) whether
denying the continuance will result in an identifiable prejudice to the defendant's case, Stark County, Case No. 2010-CA-00268 11
and (7) the complexity of the case. Powell v. Collins (6th Cir.2003), 332 F.3d 376, 396;
State v. Unger (1981), 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078, 1080; State v.
Wheat, supra at ¶ 17.
{¶40} On a petition for habeas corpus relief, the federal courts have enumerated
a slightly different set of factors that a reviewing court should consider in determining
whether an accused was deprived of his rights to compulsory process and due process
of law by denial of a motion for continuance: “[1] the diligence of the defense in
interviewing witnesses and procuring their testimony within a reasonable time, [2] the
specificity with which the defense is able to describe their expected knowledge or
testimony, [3] the degree to which such testimony is expected to be favorable to the
accused and [4] the unique or cumulative nature of the testimony.” Hicks v. Wainwright
(5th Cir.1981), 633 F.2d 1146, 1149 (quoting United States v. Uptain [5th Cir.1976],
531 F.2d 1281, 1287); see, also, Bennett v. Scroggy, supra, 793 F.2d at 774; State v.
Wheat, supra at ¶18.
{¶41} In Wheat, supra, the appellant argued that the trial court erred when it
failed to continue his trial to secure witnesses he had subpoenaed. This Court found
no abuse of discretion because the request for a continuance did not demonstrate the
amount of time necessary to secure the attendance of the witnesses, or the nature of
their testimony. 2004-Ohio-2088 at ¶ 21. Citing State v. Brooks (1989), 44 Ohio St.3d
185, 542 N.E.2d 636, we held that because defense counsel failed to proffer what the
desired testimony of the absent witnesses would have been and how it was relevant to
the defense, we could not find prejudice from the denial of the motion to continue. Id.
at ¶ 22-24, 542 N.E.2d 636. Stark County, Case No. 2010-CA-00268 12
{¶42} In the case at bar, the magistrate continued appellant’s portion of the case
to allow her counsel time to subpoena witnesses and prepare her defense. Counsel
called the investigator who had worked on the case to impeach Kara Garner and
Ashley Hardy. The magistrate allowed appellant to question the investigator concerning
statements Ms. Garner and Ms. Hardy had made which differed from their testimony at
trial. (2T. at 4; 6-7). Appellant did not proffer any other witness or evidence that he
was not able to present. Wheat, supra.
{¶43} Nor do we find that the magistrate committed plain error in proceeding
with the trial of appellant. The defendant bears the burden of demonstrating that a
plain error affected her substantial rights and, in addition that the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings. United
States v. Olano (1993), 507 U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004),
101 Ohio St.3d 118, 120 802 N.E.2d 643, 646. Even if the defendant satisfies this
burden, an appellate court has discretion to disregard the error. State v. Barnes
(2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Long (1978), 53 Ohio St.2d
91, 372 N.E.2d 804, paragraph three of the syllabus; Perry, supra, at 118, 802 N.E.2d
at 646.
{¶44} Appellant in the case at bar failed to establish such compelling, specific,
and actual prejudice.
{¶45} Appellant’s First and Second Assignments of Error are overruled.
III.
{¶46} In her Third Assignment of Error, appellant claims that her trial counsel
was ineffective. Appellant points to the following alleged deficiencies: failure to use Stark County, Case No. 2010-CA-00268 13
transcript of witness for impeachment; failure to file objections to magistrate's report;
and addressing appellant during disposition.
{¶47} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was
prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113
S.Ct. 838; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶48} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and
Bradley. Knowles v. Mirzayance (2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173
L.Ed.2d 251.
{¶49} To show deficient performance, appellant must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge
as will render the trial a reliable adversarial testing process. Strickland v. Washington,
466 U.S. at 688, 104 S.Ct. 2052 at 2065.
{¶50} “Thus, a court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the facts of the particular case, Stark County, Case No. 2010-CA-00268 14
viewed as of the time of counsel's conduct. A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent assistance. In making that
determination, the court should keep in mind that counsel's function, as elaborated in
prevailing professional norms, is to make the adversarial testing process work in the
particular case. At the same time, the court should recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S.
668 at 689,104 S.Ct. at 2064.
{¶51} In light of “the variety of circumstances faced by defense counsel [and] the
range of legitimate decisions regarding how best to represent a criminal defendant,”
the performance inquiry necessarily turns on “whether counsel’s assistance was
reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S. 668
at 689,104 S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance
must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at
2064.
{¶52} Appellant must further demonstrate that he suffered prejudice from his
counsel’s performance. See Strickland, 466 U. S., at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s Stark County, Case No. 2010-CA-00268 15
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. To prevail on his ineffective-assistance claim, appellant must
show, therefore, that there is a “reasonable probability” that the trier of fact would not
have found him guilty.
{¶53} None of the instances raised by appellant rise to the level of prejudicial
error necessary to find that she was deprived of a fair trial. Having reviewed the record
that appellant cites in support of her claim that she was denied effective assistance of
counsel, we find appellant was not prejudiced by defense counsel’s representation of
her. The result of the trial was not unreliable nor were the proceedings fundamentally
unfair because of the performance of defense counsel. Appellant was permitted to
impeach the state witnesses through the testimony of the investigator, we have
reviewed the transcript and appellant’s assignments of errors and the case was tried to
a magistrate not a jury. We are to presume, in cases tried to the bench, that in
reaching its decision, the trial court did not rely on anything that it should not have
relied upon. Columbus v. Guthmann (1963), 175 Ohio St. 282, 194 N.E.2d 143,
paragraph three of the syllabus. Appellant does not elucidate on how counsel
comments during deposition prejudiced her or denied her a fair trial.
{¶54} Accordingly, appellant has failed to demonstrate that there exists a
reasonable probability that the result of his case would have been different.
{¶55} Because we have found no instances of error in this case, we find
appellant has not demonstrated that she was prejudiced by trial counsel’s
performance. Stark County, Case No. 2010-CA-00268 16
{¶56} Appellant’s third assignment of error is overruled.
{¶57} For the foregoing reasons, the judgment of the Stark County Court of
Common Pleas, Juvenile Division, Ohio, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. SHEILA G. FARMER
_________________________________ HON. JOHN W. WISE
WSG:clw 0216 [Cite as In re P.D.R., 2011-Ohio-1036.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: P.D.R. : : : : : : JUDGMENT ENTRY : : : : CASE NO. 2010-CA-00268
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas, Juvenile Division, Ohio, is affirmed. Costs to