State v. Forrest

2021 Ohio 122

• Court: Ohio Court of Appeals
• Decided: January 21, 2021
• Docket: 10230
• Status: Published

Opinion

[Cite as State v. Forrest, 2021-Ohio-122.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109230 v. :

CHRISTOPHER FORREST, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 21, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-624782-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Debora Brewer, Assistant Prosecuting Attorney, for appellee.

Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for appellant.

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, Christopher Forrest, appeals his conviction

following his guilty plea. Finding no merit to the appeal, we affirm. In 2018, Forrest was named in a five-count, superseding indictment,

charging him with rape, attempted rape, importuning, gross sexual imposition, and

kidnapping with a sexual motivation specification.1 All counts except the

importuning charge carried a sexually violent predator specification. He pleaded

not guilty and the case was set for trial multiple times. During voir dire on the day

of trial, Forrest agreed to accept a plea deal with the state. He pleaded guilty to an

amended count of attempted rape and the importuning offense as charged; the court

imposed the five-year, agreed-recommended sentence.

Forrest now appeals, raising three assignments of error, which we will

address together because they are interrelated, and he combined them in his brief.

In his first, second, and third assignments of error, Forrest contends

that he did not enter a knowing, voluntary, and intelligent plea because of his trial

counsel’s deficient performance in failing to pursue a dismissal based on statutory

and constitutional speedy trial grounds. In these assignments of error, he raises two

issues: (1) his speedy trial rights were violated, and (2) he was denied effective

assistance of counsel because counsel failed to seek dismissal on speedy trial

grounds.

“When a defendant enters a guilty plea, he generally waives all

appealable errors that may have occurred unless such errors are shown to have

1 Forrest was originally indicted under Cuyahoga C.P. No. CR-17-621521 with two counts of rape, and one count each of kidnapping and importuning. The state dismissed the case on July 24, 2019. precluded a defendant from entering a knowing and voluntary plea.” State v.

Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 14, citing

State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the

syllabus.

Moreover, when a defendant enters a guilty plea as part of a plea

bargain, he waives a claim of ineffective assistance of counsel, except to the extent

that the ineffective assistance of counsel caused the defendant’s plea to be less than

knowing and voluntary. State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-

Ohio-1743, ¶ 5; State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415,

¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992).

To prevail on a claim of ineffective assistance of counsel, a defendant

must demonstrate: (1) deficient performance by counsel, i.e., that counsel’s

performance fell below an objective standard of reasonable representation, and (2)

that counsel’s errors prejudiced the defendant, i.e., a reasonable probability that but

for counsel’s errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs

two and three of the syllabus.

In this case, Forrest contends that counsel’s representation fell below

an objective standard of reasonable representation when counsel failed to pursue a

dismissal on speedy trial grounds, thus inducing him into entering an involuntary

plea. We disagree. We initially note that a guilty plea generally waives a defendant’s right

to challenge his or her conviction on statutory speedy trial grounds. Kelley, 57 Ohio

St.3d 127, 566 N.E.2d 658, at paragraph one of the syllabus; State v. Yonkings, 8th

Dist. Cuyahoga No. 98632, 2013-Ohio-1890, ¶ 14-15. Thus, when a defendant

pleads guilty, he also generally waives the right to claim that his or her counsel was

ineffective based upon statutory speedy trial issues. See, e.g., State v. Logan, 8th

Dist. Cuyahoga No. 99471, 2014-Ohio-816, ¶ 20, citing State v. Bohanon, 8th Dist.

Cuyahoga No. 98217, 2013-Ohio-261, ¶ 8.

This court has held, however, that although a defendant generally

waives his statutory right to a speedy trial by pleading guilty, he does not waive his

constitutional right to a speedy trial. See State v. Kutkut, 8th Dist. Cuyahoga No.

98479, 2013-Ohio-1442, ¶ 9, citing State v. Carmon, 8th Dist. Cuyahoga No. 75377,

1999 Ohio App. LEXIS 5458, 4 (Nov. 18, 1999), citing State v. Branch, 9 Ohio

App.3d 160, 162, 458 N.E.2d 1287 (8th Dist.1983).2

The Sixth and Fourteenth Amendments of the United States

Constitution and Section 10, Article I of the Ohio Constitution guarantee a defendant

the constitutional right to speedy trial. State v. Taylor, 98 Ohio St.3d 27, 2002-

Ohio-7017, 781 N.E.2d 72, ¶ 32.

2 This court recognizes that both the First and Second Appellate Districts have reached different conclusions as to whether a guilty plea waives an alleged constitutional speedy trial violation. See, e.g., State v. Watson, 2018-Ohio-4971, 126 N.E.3d 289 (1st Dist.), and State v. Johnson, 2d Dist. Greene No. 2013-CA-1, 2013-Ohio-4077. To determine whether there has been a denial of a defendant’s

constitutional right to a speedy trial, the court balances the four factors identified in

Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State

v. Long, Slip Opinion No. 2020-Ohio-5363, ¶ 14. Those factors are: “‘(1) the length

of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his speedy

trial right; and (4) prejudice to the defendant.’” Id., quoting State v. Hull, 110 Ohio

St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 22, citing Barker at 530.

A defendant must meet the “threshold requirement” of a

“presumptively prejudicial” delay to trigger a Barker analysis. State v. Duncan, 8th

Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 8. “‘Until there is some delay which

is presumptively prejudicial, there is no necessity for inquiry into the other factors

that go into the balance.’” Long at id., quoting Barker at 530. Courts have generally

held that a delay approaching one year becomes “presumptively prejudicial.” Long

at id., citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d

520 (1992), fn. 1.

A. Length of the Delay

In this case, Forrest was arrested on September 18, 2017, and

remained in jail until the time he entered his guilty plea on July 23, 2019. The length

of delay was approximately two years, thus satisfying the threshold requirement of

a presumptively prejudicial delay, which would weigh in Forrest’s favor. B. Reason for the Delay

The second factor under Barker is the reason for the delay. A review

of the record reveals that Forrest’s actions contributed to much of the delay. During

the pendency of the case, discovery was ongoing regarding offenses that carried a

potential penalty of life in prison. On April 23, 2018, the case was called for trial and

immediately prior to voir dire, Forrest requested a continuance due to an

unexpected family tragedy that prevented some of his witnesses from appearing at

trial. The trial was continued until June. However, in May 2018, Forrest filed a

motion to disqualify counsel. Following a hearing on the motion, the court

appointed new counsel, who then sought discovery and a continuance of trial. We

find that Forrest’s request to change counsel at this stage of the proceedings

effectively caused his defense to start anew.

Additionally, during the pendency of the case, Forrest underwent two

psychological evaluations, one of which occurred after he submitted a series of pro

se filings three months prior to trial. Additionally, two weeks prior to trial where he

entered his plea, Forrest filed a “Notice of Issue of Mental Incompetence” suggesting

that he was incompetent. In fact, from the time new counsel was appointed and

until Forrest submitted these multiple pro se filings causing further delay, less than

12 months had passed.

Finally, we recognize that the trial court entered short and general

continuances of trial from July 2018 until April 2019. However, the continuances

were recorded as being “at the defendant’s request,” and there is no evidence in the record that the continuances or delay in trial were deliberate attempts by the state

to prejudice Forrest’s defense or induce a plea. See Long, Slip Opinion No. 2020-

Ohio-5363, at ¶ 56 (DeWine, J., dissenting), citing Barker, 407 U.S. at 531, 92 S.Ct.

2182, 33 L.Ed.2d 101 (deliberate attempts to hamper the defense weigh against the

government).

Based on the record before this court, we find that Forrest caused most

of the delay in this case; thus the second Barker factor weighs against him.

C. Assertion of Speedy Trial Right

The third factor to consider is the defendant’s assertion of his right to

a speedy trial. Forrest contends on appeal that he “repeatedly demanded his speedy

trial rights in written pro se motions and other filings.” The record reflects that

Forrest submitted multiple filings to the court in which he questioned the length of

delay of his trial. See Correspondence dated April 2, 2019; pro se Motion for

Discharge for Delay of Trial dated April 2, 2019; and pro se Motion for dismissal

dated June 4, 2019. Notwithstanding these pro se filings, Forrest was represented

by counsel at all times, and Ohio does not recognize hybrid representation. State v.

Thompson, 33 Ohio St.3d 1, 6, 514 N.E.2d 407 (1987) (neither the United States

Constitution nor the Ohio Constitution require hybrid representation).

Even considering his pro se filings, Forrest’s initial assertion of his

right to a speedy trial occurred after he received new counsel and only three months

prior to him accepting a plea deal. By this time, the days he now complains of on

appeal — the “rote” continuances of trial from July 2018 to April 2019 — occurred prior to his assertion. Accordingly, the timeliness of his assertion is questionable.

See State v. Doggett, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)

(assertion of speedy trial must be in due course and timely).

Additionally, his second request for a speedy trial occurred right

before he presented the court with concerns about his competency to stand trial.

Thus, although he was demanding a speedy trial, he was also causing additional

delay by professing incompetence and making pro se requests. Forrest’s differing

actions did “not convey an earnest desire to have his case move quickly.” See Long,

Slip Opinion No. 2020-Ohio-5363, at ¶ 66 (DeWine, J., dissenting).

Accordingly, we find that this factor weighs against Forrest.

D. Prejudice from the Delay

The fourth Barker factor is prejudice to the defendant. Recently, the

Ohio Supreme Court reiterated that “[t]he prejudice factor in the analysis ‘should be

assessed in the light of the interests of defendants[,] which the speedy trial right was

designed to protect.’” Long at ¶ 22, quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182,

33 L.Ed.2d 101. The three interests are: “(i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit

the possibility that the defense will be impaired.” Id. The third interest — the impact

of the delay on the ability of the defendant to prepare his defense — is the greatest

concern because it “‘skews the fairness of the entire system.’” Id.

Forrest summarily contends that he was prejudiced because his

pretrial incarceration of nearly two years was oppressive and caused him an increase in anxiety and concern. In support, he directs this court to the competency

evaluation performed in June 2019, which was submitted to this court under seal.3

Our review of the report reveals that Forrest has a history of depression. He received

mental health treatment in 2016 while he was in prison and continued to receive

services for depression following his release. The report noted that while he waited

for trial in the present case, Forrest continued to suffer from mild depression and

was taking antidepressant and antianxiety medications. Despite his diagnosis, the

report indicated that he was able to understand the risk of trial, and capable of

evaluating information to make a rational choice to either take a plea deal or go to

trial.

He further argues that the long passage of time presented “grave risks

that his defense would be impaired” because the allegations were “of a very young

teen, whose mother was strongly supportive of Forrest and did not want to pursue

the charges.” It appears that Forrest is suggesting that the support of the victim’s

mother was crucial to his defense, and the delay jeopardized that support.

Nevertheless, Forrest does not identify how his pretrial incarceration or delay in trial

hindered his ability gather evidence, contact witnesses, or prepare for his defense.

See Barker at 533. Accordingly, we find that Forrest has failed to show any

reasonable prejudice sufficient to suggest that this Barker factor should weigh in his

favor.

3 This court granted Forrest’s request to supplement the appellate record with the competency evaluation dated June 14, 2019. Balancing the Barker factors, we find that no violation of Forrest’s

constitutional speedy trial right. Accordingly, a motion to dismiss based on a claim

of a speedy-trial violation would have been meritless; therefore, his counsel did not

provide ineffective assistance by failing to pursue dismissal on this basis. Our review

of the record demonstrates that Forrest entered a knowing, intelligent, and

voluntary plea to the offenses of attempted rape and importuning. The assignments

of error are overruled.

Judgment affirmed.

It is ordered that appellee recover from 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

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending 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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR