[Cite as State v. Saultz , 2011-Ohio-2018.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : Plaintiff-Appellee, Case No. 09CA3133 : vs. : CARL SAULTZ DECISION AND JUDGMENT ENTRY Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: James E. Barrington, James E. Barrington Co., L.P.A., 41 East Fourth Street, Chillicothe, Ohio 45601 1

COUNSEL FOR APPELLEE: Matthew Schmidt 2 , Ross County Prosecuting Attorney, and Jeffrey Marks, Ross County Assistant Prosecuting Attorney, 72 North Paint Street, Chillicothe, Ohio 45601

______________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 4-26-11 ABELE, J. {¶ 1} This is an appeal from a Ross Count y Common Pleas Court judgment of

conviction and sentence. Carl Sa ultz, defendant below and appellant herein, pled no contest to five counts of non-support of dependents in violation of R.C. 2919.21. {¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

1 Different counsel represen ted appellant during the trial court proceedings.

2 Michael M. Ater, former Ross County Prosecuting Attorn ey, now serves as a Ross County Common Pleas judge.ROSS, 09CA3133 2

“THE TRIAL COURT ERRED TO THE MANIFEST PREJUDICE OF APPELLANT BY NOT DISMISSING THE CHARGES AS BEING BEYOND THE PROSECUTABLE (sic ) TIME LIMITS ALLOWED BY LAW.”

SECOND ASSIGNMENT OF ERROR:

“APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, TO HIS MANIFEST PREJUDICE, WHEN HIS TRIAL COUNSEL FAILED TO EITHER IMMEDIATELY RESPOND TO THE STATE’S REQUEST FOR RECIPROCAL DISCOVERY OR TIMELY ADVISE THE STATE THAT NO RESPONSE WAS NECESSARY AND WOULD NOT BE FORTHCOMING (DELAY TIME WOULD NOT HAVE BEEN CHARGED AGAINST DEFENDANT IF HIS COUNSEL HAD TAKEN EITHER STEP).” {¶ 3} On July 27, 2007 the Ross County Grand Jury returned an indictment that charged appellant with five c ounts of non-support of depe ndents. Apparently, a ppellant was arrested, spent the night in jail in Franklin County and was released. The Franklin County authorities instructed appellant to report to the Ross Count y Clerk of Courts in five days. Appellant, however, failed to report to the Clerk as instructed. 3 {¶ 4} On November 13, 2007, the tria l court arraigne d appellant. At that time the prosecution requested reciprocal discovery from defense counsel. The record also suggests that appellant could not satisfy the bond requirement and that he was incarcerated at that time. {¶ 5} Subsequently, appellant filed a motion to dismiss the charges based upon a violation of his statutory speedy trial rights. The trial court denied appellant's motion on the

3 We observe that the procedural posture of this case is so mewhat convoluted. The case is made more difficult by the paucity of evidence to explain the relevant time periods when appella nt was incarcerated.ROSS, 09CA3133 3 grounds that he did not respond within a reasonabl e time to the prosecution’s reciprocal recovery request and that his failure to respond tolled the speedy trial time until he did, in fact, respond to the request. On March 18, 2008 a ppellant filed his response. Although not clear from the record, it appears that appellant was released from jail on his own recognizance on that day. {¶ 6} On August 15, 2008, a new indictment was f iled that restated the five non-support charges. 4 In response, appellant file d another motion to dismiss. The trial court, once again,

overruled that motion. {¶ 7} On December 18, 2008, appellant entered no contest pleas to all five counts. The trial court accepted a ppellant's pleas, found him guilty as char ged and sentenced him to serve six months on each count, with the sentences to be served concurrently. This appeal followed.

I {¶ 8} In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to dismiss for a speedy trial violation. {¶ 9} R.C. 2945.71(C)(2) states that a person agai nst whom a felony charge is pending shall be brought to tria l within two hundred seventy days af ter arrest. If an accused remains incarcerated in lieu of bail solely on the pending charge, the statute further mandates that each day count as three days for purposes of speedy tria l computation. Id. at (E). If an accused is not brought to trial within the st atutory time limit, the accused must be discharged. R.C. 2945.73(B). However, R.C. 2945.71 time limits may be exte nded for reasons set out in R.C. 2945.72. {¶ 10} In the case sub judice, the parties agree that appellant was arrested in Franklin

4 The 2007 case was later dismissed.ROSS, 09CA3133 4 County on August 2, 2007. The prosecution claims th at appellant was releas ed the next day and instructed to report within five days to the Ross County Clerk of Cour ts. Appellant does not challenge that contention. Thus, we accept the pr osecution’s calculation that by the end of the fifth day, a total of eight days had elapsed fo r speedy trial purposes. Appellant also does not challenge the prosecution’s argument that due to his failure to appear w ithin those five days, speedy trial time tolled until appe llant's November 13, 2007 arraig nment. The parties also stipulated that the reciprocal di scovery request was made at arra ignment and that appellant failed to respond. It also appears that appellant c ould not satisfy the bond requirement and spent the next few months in jail. During this time, the triple count mechanism applied. {¶ 11} Generally, the failure to respond within a reasonable time to a reciprocal discovery request tolls the running of speedy-tr ial time. See R.C. 2945.72. State v. Palmer , 112 Ohio St.3d 457, 860 N.E.2d 1011, 2007-Ohio- 374, at paragra ph one of the syllabus. Citing Palmer , the trial court in the case sub judice determined that defense counsel should have responded to the prosecution’s request within th irty days, and thus, held that appellant's speedy trial deadline tolled as of December 14, 2007 and the time conti nued to toll until appella nt filed a response. {¶ 12} Appellant, however, ar gues that Palmer should not control. We disagree with appellant, albeit with some reservation. Although it may be true, as appe llant contends in his brief, that Palmer “has not been greeted by the bench or bar as a bastion of fairness," the fact

remains that this Court and th e trial court are both bound by Ohio Supreme Court decisions. See State v. Hardesty , Pickaway App. No. 07CA2, 2007-Ohio -3889, at ¶14; State v. Richardson , Pickaway App. No. 05CA29, 2006-Ohio-386, at ¶ 16. We cannot simply disregard Palmer

. {¶ 13} We are also not persuaded that Palmer is inapplicable because appellant did notROSS, 09CA3133 5 believe that the case would go to trial or because he had no discovery materials to disclose. The Ohio Supreme Court did not car ve out any such an exception, and we may not do so here. {¶ 14} Appellant cites State v. Hawk , Knox App. No. 08CA05, 2009-Ohio-1955, as an example of how courts ha ve distinguished Palmer . However, our view of that case is that the Fifth District Court of Appeals remanded the matter to the trial court to determine what is a “reasonable” amount of time to respond to a recipr ocal discovery request. Id at ¶¶31-35. We do

not construe Hawk in its current form as an attempt to distinguish Palmer

. 5 {¶ 15} Thus, for these reasons, we agree with the trial court's conclusion that Palmer applies to the instant case and that thirty days is an appropriate time to respond to the reciprocal discovery request. Therefore, appellant's statutory speedy trial time did not expire. {¶ 16} Our review of the record reveals that appellant's tr ial counsel responded to the reciprocal discovery request on March 18, 2008. This event re-s tarted the speedy trial time clock. The parties also apparently agree that appellant was not in jail when the time started again. Thus, between the time of appellant’s discovery response and his second motion to dismiss (filed on September 5, 2008) , one hundred fifty nine days elapsed. However, the filing of a second motion to dismiss again tolled sp eedy trial time. See R.C. 2945.72(E). At this point, two hundred fifty seven sp eedy trial days had elapsed.

5 Likewise, we question appellant’s citation to State v. Halbisen , Sandusky App. No. S-08-1, 2008-Ohio-3699. We note that there is no longer any reported opinion in that case as, according to Westlaw, the Ohio Supreme Court ordered the “[r]ecords sealed and or dered expunged [as of] December 12, 2009." Even if we consider the proposition for which appellant cites it – that Palmer would not apply if reciprocal discovery was not a journa lized part of the record - the parties stipulated that discovery was requested at the November 13, 2007 arraignment. Appellant cannot now un-stipulate that fact.ROSS, 09CA3133 6 {¶ 17} In sum, we agree with the trial court's conclusion that the statutory speedy trial time had not expired when the trial court overruled the appellant's two motions to dismiss. Thus, we find no merit in the first assign ment of error and it is hereby overruled.

II {¶ 18} Appellant asserts in hi s second assignment of error that he received constitutionally ineffective assistance from his trial counsel. In particular, he cont ends that trial counsel was negligent by not responding to the reciprocal discovery request. {¶ 19} Our analysis begins with the settled premise that a criminal defendant has a constitutional right to counsel, and this right in cludes the right to the effective assistance from

counsel. McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Lytle (Mar. 10, 1997), Ross App. No. 96CA2182. To establish ineffective assistance of counsel, a defendant must show that (1) his c ounsel's performance was de ficient, and (2) such deficient performance prejudiced the defense and deprived him of a fa ir trial. See e.g. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see State v.

Perez , 124 Ohio St.3d 122, 920 N.E.2d 104, 2009-Ohio-6179, at ¶200. However, both prongs of

the “Strickland test” need not be analyzed if a claim can be resolved under one prong. State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. To establish the existence of prejudice, a defendant must show that a reasonable probability ex ists, but for counsel's alleged error, the result of the trial woul d have been different. State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus. {¶ 20} In State v. Miller , Medina App. No. 07CA0037- M, 2008-Ohio-1002, at ¶¶14-15,ROSS, 09CA3133 7 our Ninth District colleagues cons idered and rejected the same argument that appellant makes

here. The Miller court opined that to conc lude that counsel was ineffective for not filing a response to a reciprocal discovery reque st, and thereby toll the time limit under Palmer , required an underlying presumption that neither the Stat e nor the trial court w ould have realized the defendant’s speedy trial rights we re about to be violated and ta ken action. Id. “[W]e decline to

presume ,” the court ruled, "that [the defendant’s] speedy trial rights would have been violated but for his counsel's failure to respond to discovery.” Id. at ¶15 (Emphasis added.) 6 {¶ 21} We find this reasoning persuasive. Fo r purposes of an ineffective assistance claim, prejudice must not be pres umed, but rather must be affirm atively shown. See e.g. State v. Hughes , Athens App. No. 08CA19, 2010-Ohio -2969, at ¶27; State v. Clark , Pike App. No. 02CA684, 2003-Ohio- 1707, at ¶ 22; State v. Tucker (Apr. 2, 2002), Ross App. No. 01 CA2592. To hold as appellant invites us to do requires some degree of speculation. {¶ 22} Additionally, other practical c onsiderations trouble us in this scenario. First, to reverse appellant's convi ction on ineffective assistance of c ounsel grounds appears to give an unfair advantage to the defense over the prosecuti on. Some defense counsel , through inaction or otherwise, may never respond to a reciprocal discovery request and, by merely sitting on his hands, obtain a dismissal or a reve rsal of the conviction. Furtherm ore, we are not inclined to place even greater burdens on an already overburde ned trial court. As appellant noted in his brief, the reciprocal discovery request was not jour nalized. Thus, how c ould the trial court

6 The Ninth District considered the same issue again in State v. Howes , Summit App. No. 24665, 2010-Ohio-421, but did not reach its “presumption” argument because the trial occurred within the speedy trial deadline due to other tolling events. Id. at ¶¶16-17.ROSS, 09CA3133 8 monitor the discovery process to ensure that trial counsel fulfilled his responsibilities?

{¶ 23} For all these reasons, we overrule appella nt's second assignment of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted, it is continued for a period of sixty days upon the bail pr eviously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five da y period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Oh io Supreme Court dismisse s the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Harsha, P.J. & Kline, J.: C oncur in Judgment & Opinion

For the Court

BY:ROSS, 09CA3133 9 Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.