[Cite as State v. Wright, 2016-Ohio-7795.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : Case Nos. 15CA3705 

 : 15CA3706 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

DELANIO WRIGHT, : 

 : 

 Defendant-Appellant. : Released: 11/17/16 

_____________________________________________________________ 

APPEARANCES: 

Brian A. Smith, Akron, Ohio, for Appellant. 

Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.1

 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Delanio Wright appeals his convictions for trafficking in 

marijuana in the vicinity of a school in violation of R.C. 

2925.03(A)(2)(C)(3)(6), and possession of heroin, in violation of R.C. 

2925.11(A)(C)(6)(b) after he entered no contest pleas in the Scioto County 

Common Pleas Court. Appellant’s counsel has advised this Court that, after 

reviewing the record, he cannot find a meritorious claim for appeal. 

However, counsel has requested this court to independently review the 

 

1

 The State has not filed a brief or other responsive pleading herein. Delanio Wright, although he was 

served with a copy of the brief on his behalf filed by appellate counsel together with instructions that he 

may file his own brief within certain time constraints, has also elected not to file a brief. 
Scioto App. Nos. 15CA3705 and 15CA3706 2

transcript of proceedings and determine whether the trial court erred by 

overruling Appellant’s motion to dismiss on statutory speedy trial grounds. 

As a result, Appellant’s counsel has moved to withdraw under Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find no merit to the 

potential assignment of error raised in counsel’s brief and, after 

independently reviewing the record, find no additional error prejudicial to 

Appellant’s rights in the trial court proceedings. The motion of counsel for 

Appellant requesting to withdraw as counsel is granted, and this 

consolidated appeal is dismissed for the reason that it is wholly frivolous. 

FACTS 

{¶2} On September 26, 2013, Appellant was indicted on two counts of 

trafficking in drugs in the vicinity of a school, a felony of the fourth degree 

and in violation of sections 2925.03(A)(2), (C)(3)(b) and (C)(6)(c) of the 

Ohio Revised Code; one count of possession of heroin, a felony of the fourth 

degree and in violation of section 2925.11 of the Ohio Revised Code; one 

count of assault on a peace officer, a felony of the fourth degree and in 

violation of section 2903.13 of the Revised Code; and one count of 

possession of marijuana, a minor misdemeanor and in violation of section 

2925.11 of the Revised Code. On April 4, 2014, Appellant pleaded guilty to 

the marijuana trafficking and heroin possession charges and was sentenced 
Scioto App. Nos. 15CA3705 and 15CA3706 3

to twelve months’ imprisonment on each count, to run consecutive to each 

other and his current sentence. 

{¶3} On September 29, 2014, the trial court allowed Appellant to 

withdraw his plea, vacated the judgment of conviction, and set the matter for 

a pretrial. On June 22, 2015, Appellant filed a motion to dismiss the 

indictment on speedy trial grounds, pursuant to R.C. 2945.71. On July 2, 

2015, Appellant pleaded guilty to the same marijuana trafficking and heroin 

possession charges as he did previously. He received the same sentence, 

twelve months of imprisonment on each count, to run consecutive to each 

other and to his current sentence. Appellant has filed a timely notice of 

appeal. 

ANDERS BRIEF 

{¶4} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), 

counsel may ask permission to withdraw from a case when counsel has 

conscientiously examined the record, can discern no meritorious claims for 

appeal, and has determined the case to be wholly frivolous. Id. at 744; State 

v. Adkins, 4th Dist. Gallia No. 03CA27, 2004-Ohio-3627, ¶ 8. Counsel’s 

request to withdraw must be accompanied with a brief identifying anything 

in the record that could arguably support the client’s appeal. Anders at 744; 

Adkins at ¶ 8. Further, counsel must provide the defendant with a copy of 
Scioto App. Nos. 15CA3705 and 15CA3706 4

the brief and allow sufficient time for the defendant to raise any other issues, 

if the defendant chooses to. Id. 

{¶5} Once counsel has satisfied these requirements, the appellate 

court must conduct a full examination of the trial court proceedings to 

determine if meritorious issues exist. If the appellate court determines that 

the appeal is frivolous, it may grant counsel’s request to withdraw and 

address the merits of the case without affording the appellant the assistance 

of counsel. Id. If, however, the court finds the existence of meritorious 

issues, it must afford the appellant assistance of counsel before deciding the 

merits of the case. Anders at 744; State v. Duran, 4th Dist. Ross No. 

06CA2919, 2007-Ohio-2743, ¶ 7. 

{¶6} In the current action, Appellant’s counsel advises that the appeal 

is wholly frivolous and has requested permission to withdraw. Pursuant to 

Anders, counsel has filed a brief raising one potential assignment of error for 

this Court’s review. 

POTENTIAL ASSIGNMENT OF ERROR 

“1. WHETHER THE TRIAL COURT ERRED IN OVERRULING 

DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL 

GROUNDS, PURSUANT TO R.C. 2945.71.” 

A. STANDARD OF REVIEW 

{¶7} “Upon review of a speedy-trial issue, a court is required to count 
Scioto App. Nos. 15CA3705 and 15CA3706 5

the days of delay chargeable to either side and determine whether the case 

was tried within applicable time limits.” State v. Bailey, 4th Dist. Ross No. 

14CA3461, 2015-Ohio-5483, ¶ 15, quoting State v. Bailey, 4th Dist. Scioto 

No. 09CA3287, 2010-Ohio-2229, ¶ 56, quoting State v. Sanchez, 110 Ohio 

St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 8. “Our review of a trial 

court's decision regarding a motion to dismiss based upon a violation of the 

speedy trial provisions involves a mixed question of law and fact.” State v. 

Eldridge, 4th Dist. Scioto No. 02CA2842, 2003-Ohio-1198, at ¶ 5, citing 

State v. Brown, 131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist.1998); 

State v. Kuhn, 4th Dist. Ross No. 97CA2307, 1998 WL 321535. “We 

accord due deference to the trial court's findings of fact if supported by 

competent, credible evidence. However, we independently review whether 

the trial court properly applied the law to the facts of the case.” Eldridge at 

¶ 5, citing Brown at 391, 722 N.E.2d 594. Finally, we must “strictly 

construe the speedy trial statutes against the state[.]” Brecksville v. Cook, 75 

Ohio St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706. 

B. LEGAL ANALYSIS 

{¶8} Appellate counsel’s brief sets forth the only possible issue 

presented for review and argument that the trial court erred in 
Scioto App. Nos. 15CA3705 and 15CA3706 6

overruling his motion to dismiss on speedy trial grounds, pursuant to R.C. 

2945.71. Appellant’s motion to dismiss was filed on June 22, 2015. 

Appellate counsel points out the record before us does not contain a waiver 

of Appellant’s right to a speedy trial. Appellate counsel asserts that the 

record is replete with continuances and delays in bringing Appellant’s case 

to trial within the statutory limits set forth in the Ohio Revised Code. 

{¶9} The Sixth Amendment to the United States Constitution 

guarantees an accused the right to a speedy trial in all criminal prosecutions. 

State v. Bailey, 4th Dist. Ross No. 14CA3461, 2015-Ohio-5483, at ¶ 17; 

State v. Sweat, 4th Dist. Ross No. 14CA3439, 2015-Ohio-2689, ¶ 13. That 

guarantee is applicable to the states through the Fourteenth Amendment Due 

Process Clause. Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 

988, (1967). Similar protection is afforded under Section 10, Article I of the 

Ohio Constitution. See State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589 

(1971), paragraph one of the syllabus (“The provisions of Section 10, Article 

I of the Ohio Constitution and of the Sixth Amendment to the United States 

Constitution, as made applicable to the states by the Fourteenth Amendment, 

guarantee to a defendant in a criminal case the right to a speedy trial.”). 

Furthermore, Ohio law also includes a statutory speedy trial right. See R.C. 

2945.71 et seq. 
Scioto App. Nos. 15CA3705 and 15CA3706 7

{¶10} The United States Supreme Court has recognized that delays 

are unavoidable in the criminal justice system, and has determined that 

whether a prosecution has been constitutionally speedy depends upon the 

particular facts and circumstances of each case. State v. Bailey, 4th Dist. 

Ross No. 14CA3461, 2015-Ohio-5483, at ¶ 18; Sweat, supra at ¶ 14. See

Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, (1972). Appellant has 

limited his argument to an alleged deprivation of a statutory speedy trial. 

 {¶11} R.C. 2945.71 provides that a person against whom a felony 

charge is pending shall be brought to trial within two hundred seventy days 

after arrest. Id. at (C)(2). State v. Bailey, 4th Dist. Ross No. 14CA3461, 

2015-Ohio-5483, at ¶19. If an accused is not brought to trial within the 

statutory time limit, the accused must be discharged. R.C. 2945.73(B). 

However, R.C. 2945.71 time limits can be extended for any reason set out in 

R.C. 2945.72, but those extensions must be strictly construed against the 

State. See State v. Alexander, 4th Dist. Scioto No. 08CA3221, 2009-Ohio1401, ¶ 17; State v. Monroe, 4th Dist. Scioto No. 05CA3042, 2007-Ohio1492, ¶ 27. The original indictment arose as a result of alleged criminal 

activities occurring at an apartment on Glover Street in Portsmouth, Ohio. 

Appellant was arrested on April 30, 2013. He filed his motion to dismiss on 
Scioto App. Nos. 15CA3705 and 15CA3706 8

June 22, 2015.2

 It appears that because 795 days elapsed during the relevant 

time period, Appellant’s statutory speedy trial rights were violated and that 

Appellant has proven a per se violation of the statute. However, having 

conducted a de novo review of the record, we find Appellant’s statutory 

speedy trial rights were not in fact violated. In analyzing Appellant’s 

argument, we have found State v. Castro, 13 N.E.3d 720, 2014-Ohio-2348 

(8th Dist.) to be instructive. 

{¶12} Castro was indicted and convicted of two counts of sexual 

battery. His guilty plea was subsequently vacated. He later pleaded no 

contest and filed a timely appeal. On appeal, Castro argued his trial counsel 

was ineffective for failing to file a motion to dismiss a reinstated indictment 

on the basis that Castro's statutory and constitutional rights to a speedy trial 

were violated. However, the appellate court found no merit to Castro's 

claims that his right to a speedy trial was violated and, therefore, his 

counsel's performance could be deemed ineffective. 

{¶13} Castro pointed out that over 300 speedy trial days elapsed 

between his arrest in December 2011 and his no-contest plea in May 2013. 

The appellate court observed, however, that Castro originally pleaded guilty 

 

2

 We observe that the trial court did not rule on Appellant’s motion to dismiss when Appellant changed his 

plea on July 6, 2015. A motion that is not expressly ruled upon when a case is concluded is presumed 

overruled. State ex rel. Mender v. Chauncey, 4th Dist. Athens No. 14CA27, 2015-Ohio-3559, ¶ 27; 

Kastelnik v. Helper, 96 Ohio St.3d 1, 3, 2002-Ohio-2985, 770 N.E.2d 58; Physiatrists Associates of 

Youngstown, Inc. v. Saffold, 11th Dist. Trumbull No. 2003–T–0038, 2004-Ohio-2793, at ¶ 18. 
Scioto App. Nos. 15CA3705 and 15CA3706 9

in October 2012. The Eighth District previously considered the effects of a 

defendant's plea and a subsequent order vacating his plea upon the statutory 

right to a speedy trial in State v. McAllister, 53 Ohio App.2d 176, 372 

N.E.2d 1341 (8th Dist.1977). 

{¶14} In McAllister, the court held that “[t]he provisions of Ohio's 

speedy trial statutes, R.C. 2945.71 et seq., are directed solely to an original 

trial following the arrest of a defendant, and have no application to the time 

within which a defendant must be tried following the vacation of a no 

contest plea on his own motion.” Castro, supra, at ¶ 20, quoting McAllister 

at 178, 372 N.E.2d 1341; State v. Hull, 110 Ohio St.3d 183, 2006-Ohio4252, 852 N.E.2d 706, ¶ 20. The Castro court held: 

“This rationale extends to situations, such as the current one, 

where a defendant's guilty plea is vacated, because the guilty 

plea acted as the original trial proceeding satisfying the 

statutory requirement that the defendant be brought to trial 

within the 270-day period. State v. Davis, 2nd Dist. 

Montgomery No. 16050, 1997 WL 435687 (July 18, 1997); 

State v. Johnson, 2nd Dist. Montgomery No. 23908, 2011-

Ohio-1286, 2011 WL 941596. Castro's statutory right to a 

speedy trial was not violated. Castro pleaded guilty to the 

original indictment terminating his statutory right to a speedy 

trial.” Id. at 21. 

{¶15} Here, we begin by setting forth the following timeline: 

 April 30, 2013 Appellant arrested on pertinent 

 charges. 
Scioto App. Nos. 15CA3705 and 15CA3706 10

 June 4, 2013 Case dismissed.3

 

 September 26, 2013 Appellant indicted. 

 November 15, 2013 Appellant arraigned. The pleadings appear 

 to indicate Appellant was served the 

indictment in open court at arraignment. At 

this point, 164 days had elapsed between the 

date Appellant’s charges were dismissed in 

June and he was served with the indictment. 

4

 

 November 21, 2013 Defendant’s request for discovery. 

 December 9, 2013 State’s response to discovery. 18 days 

 had elapsed between Defendant’s 

 request and the State’s response. 

 December 11, 2013 Defendant’s motion to continue trial. 

 

 December 20, 2013 Defendant’s motion granted. 9 days had 

 elapsed. 

 January 13, 2014 Defendant’s pro se request for 

 independent testing. 

 January 14, 2014 Defendant’s motion denied. One day 

 elapsed between Defendant’s motion and 

 the court’s denial. 

 

3

 An October 17, 2013 entry in the trial court proceedings indicates Appellant’s case was re-filed, having 

previously been dismissed in case numbers 13CR390 and 13CR420. According to the Scioto County 

Common Pleas Court website, 13CR390 was the case number assigned to Appellant’s co-defendant, Dawn 

Bissell, and 13CR420 was the case number assigned to Appellant. These cases were dismissed on June 4, 

2013. Therefore, Appellant was not being held on the Scioto County charges after June 4, 2013. Both trial 

courts and appellate courts can take judicial notice of filings readily accessible from a court's website. In re 

Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933, ¶ 35; State ex rel. Everhart v. McIntosh, 115 

Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial 

opinions and public records accessible from the internet). 

4

 The pleading docket accompanying the appellate file indicates Appellant was brought to Scioto County 

from the Ross Correctional Institute for arraignment and subsequent court appearances. Service of 

summons on the indictment is not indicated prior to arraignment on November 15, 2013. 
Scioto App. Nos. 15CA3705 and 15CA3706 11

 January 27, 2014 Superseding indictment filed. 

 (Forfeiture specification) 

 January 30, 2014 State’s supplemental response to discovery. 

 January 30, 2014 State’s response to request for discovery. 

 February 4, 2014 Defendant’s request for new counsel. 

 Counsel’s motion to withdraw. 

 February 4, 2014 State’s motion for continuance of trial. 

 February 20, 2014 State’s motion to continue granted. Time to 

be tolled and charged against defendant.5

 

The time elapsed between the date of the 

motion to continue and its grant was 16 

days. 

 April 4, 2014 Appellant entered plea of guilty. 

{¶16} Here, Appellant was arrested on April 30, 2013. He entered a 

plea on April 4, 2014. During that time, 339 days had elapsed. As 

previously discussed in Castro, the Ohio speedy trial statutes are directed 

solely to the original trial following arrest. The statutory speedy trial 

provisions have no application to the time within which a defendant must 

be tried following vacation of a no contest plea on one’s own motion. 

Castro, supra, at ¶ 20, quoting McAllister at 178, 372 N.E.2d 1341. 

 

5

 The State’s motion to continue trial was filed on the same day as a defense motion to withdraw as 

counsel. New counsel was subsequently appointed and the relevant time tolled would have been 9 days. 

However, the State’s (simultaneous) motion to continue was not granted until February 20, 2014. We 

perceive the entry granting continuance which states the time is to be charged against the defendant to be a 

scrivener’s error. 
Scioto App. Nos. 15CA3705 and 15CA3706 12

Appellant’s motion to vacate his plea terminated his right to statutory 

speedy trial after his April 4, 2014 plea to the original indictment.6

{¶17} Therefore, counting the number of days tolled due to the case 

being dismissed once, the failure to serve Appellant until November 2013, 

Appellant’s discovery requests, the parties’ motions to continue, and the 

defendant’s request for new counsel (filed on the same day as the State’s 

motion to continue), we arrive at 208 days in total. As such, subtracting 

208 from 339 indicates Appellant was tried within 131 days, well within 

the 270-day statutory limit. As in Castro, we find no statutory violation. 

{¶18} Normally, due to the fact Appellant did not raise a 

constitutional argument, as well as our above resolution of Appellant’s 

statutory argument, further analysis would be foreclosed. However, in the 

context of an Anders review, where we fully examine the trial court 

proceedings, we have also analyzed Appellant’s speedy trial claim within 

the constitutional realm. We also find no constitutional violation. 

{¶19} In Castro, the appellate court also found Castro’s constitutional 

speedy trial rights were not violated. In analyzing Castro’s claim, the 

appellate court recognized there are four broad factors within the framework 

for analyzing constitutional speedy-trial claims: the length of delay, the 

 

6

 We note the principal established in the case law does not differentiate between the guilty plea in Castro 

and the no contest plea in McAllister.
Scioto App. Nos. 15CA3705 and 15CA3706 13

reason for the delay, the defendant's assertion of his right, and prejudice to 

the defendant. Id. at 22; Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182. 

The length of delay is the triggering mechanism. State v. Kraus, 2nd Dist. 

Greene No. 2011-CA-35, 2013-Ohio-393, 2013 WL 492850, ¶ 23, citing 

Barker. “ ‘Until there is some delay which is presumptively prejudicial, 

there is no necessity for inquiry into the other factors that go into the 

balance.’ ” Id., quoting Barker. “Generally, courts have found that a delay 

approaching one year becomes ‘presumptively prejudicial.’ ” State v. Winn, 

8th Dist. Cuyahoga No. 98172, 2012-Ohio-5889, 2012 WL 6513616, ¶ 44, 

citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, (1992), 

fn. 1. 

{¶20} In Winn, the appellate court determined that over a year and a 

half between the arrest and the defendant's trial was not presumptively 

prejudicial because the defendant “requested numerous continuances, filed 

many motions, changed counsel, and underwent competency evaluations[,]” 

and was arrested pursuant to a capias issued when he failed to appear for 

pretrial hearings. Winn at ¶ 44. This court found that all of these delays 

were for the defendant's benefit and thus contributed to the delay in timely 

prosecuting. Id.; Castro at 23. Castro states at ¶ 24: 

“Similarly, this case was pending for less than one and a half 

years from Castro's arrest to his no-contest plea in May 2013. 
Scioto App. Nos. 15CA3705 and 15CA3706 14

During that time, Castro requested numerous continuances, 

filed many motions, and criminally conspired with his counsel - 

causing the trial court to vacate his original guilty plea. In light 

of these specific sets of circumstances, we are not persuaded 

that the delay was so presumptively prejudicial as to trigger 

consideration of the Barker factors. Further, even if we found 

the delay presumptively prejudicial, Castro is unable to 

demonstrate any prejudice. His sole claim of prejudice assumes 

that he was somehow incapable of mounting an effective 

defense because of the year-and-a-half delay between his arrest 

and his no-contest plea. Castro failed to substantiate any such 

prejudice in the record presented on appeal, and our 

independent review finds no such prejudice.” 

{¶21} Again, in this case, Appellant’s arrest date is April 30, 2013 and 

he entered a plea on April 4, 2014. This is not quite one year. However, as 

in Castro, we do not find the approach of one year presumptively prejudicial 

so as to trigger consideration of the remaining Barker factors. Appellant 

filed a request for discovery, a motion to continue, a pro se motion, and a 

request for new counsel. In addition, further delays were caused by 

Appellant’s pro se motion to vacate or set aside judgment of conviction of 

sentence, a pro se motion for summary judgment, a request to represent 

himself, and the request of two subsequently appointed attorneys to 

withdraw from representation of him. 

{¶22} As in Castro, Appellant contributed to the delays in bringing 

him to trial. Appellant herein has not substantiated any prejudice in the 

record. We find no constitutional violation of his speedy trial guarantees. 
Scioto App. Nos. 15CA3705 and 15CA3706 15

{¶23} We have reviewed the record in its entirety and find no error 

which resulted in prejudice to Appellant. As such, we conclude that the 

potential assignment of error advanced by appellate counsel is wholly 

without merit. The motion of counsel for Appellant requesting to withdraw 

as counsel is granted. This appeal is dismissed for the reason that it is 

wholly frivolous. 

 APPEAL DISMISSED. 
Scioto App. Nos. 15CA3705 and 15CA3706 16

JUDGMENT ENTRY 

 It is ordered that the APPEAL BE DISMISSED. Costs are assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

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

the Scioto County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

Harsha, J.: Concurs in Judgment Only. 

For the Court, 

 BY: ____________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.