[Cite as State v. James, 2014-Ohio-1702.]

 

IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 ROSS COUNTY 

STATE OF OHIO, : 

Plaintiff-Appellee, : Case No. 13CA3393 

vs. : 

KEITH JAMES, : DECISION AND JUDGMENT ENTRY 

 

 

Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT: Chase B. Bunstine, 32 South Paint Street, Chillicothe, Ohio 

45601 

COUNSEL FOR APPELLEE: Matthew S. Schmidt, Ross County Prosecuting Attorney, and 

Jeffrey C. Marks, Ross County Assistant Prosecuting 

Attorney, 72 North Paint Street, Chillicothe, Ohio 45601 

CRIMINAL CASE FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 4-11-14 

ABELE, P.J. 

{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of conviction 

and sentence. The court found Keith James, defendant below and appellee herein, guilty of 

complicity to illegal conveyance of prohibited items onto grounds of a specified governmental 

facility in violation of R.C. 2923.03. 

{¶ 2} Appellant assigns the following errors for review: 

FIRST ASSIGNMENT OF ERROR: 
“APPELLANT’S SPEEDY TRIAL RIGHTS UNDER R.C. 2941.401 WERE 

VIOLATED DUE TO THE WARDEN FAILING TO PROMPTLY 

FORWARD APPELLANT’S REQUEST FOR FINAL DISPOSITION TO 

THE PROSECUTING ATTORNEY AND COURT.” 

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S PRO SE

NOVEMBER 19, 2012 MOTION TO DISMISS FOR A FAILURE TO 

OBSERVE DEFENDANT’S RIGHTS UNDER R.C. 2941.401.” 

THIRD ASSIGNMENT OF ERROR: 

“THE APPELLANT WAS SUBJECTED TO INEFFECTIVE ASSISTANCE 

OF COUNSEL DUE TO THE TRIAL ATTORNEY’S FAILURE TO FILE A 

MOTION TO DISMISS AFTER CONSIDERING APPELLANT’S PRO SE

MOTION AND ACCOMPANYING DOCUMENTS.” 

{¶ 3} On March 23, 2012, a Ross County Grand Jury returned an indictment that charged 

appellant with complicity to illegal conveyance of prohibited items onto grounds of a specified 

governmental facility. Appellant pled not guilty. 

{¶ 4} The trial court scheduled the trial for September 18, 2012. On August 21, 2012, the 

state filed a motion to continue the trial date due to the unavailability of a witness and noted that 

appellant’s counsel did not oppose the continuance. On August 28, 2012, the court granted the 

state’s motion to continue and scheduled the trial for November 6, 2012. The court further stated 

that “the speedy trial provisions * * * are tolled pursuant to [R.C.] 2945.72(H).” 

{¶ 5} On October 31, 2012, appellant filed a motion to continue the trial date and noted that 

the state did not object. The court continued the trial to February 26, 2013 and stated that “[t]ime is 

tolled during said continuance.” 

{¶ 6} On November 19, 2012, appellant filed a pro se motion to dismiss, even though 

counsel represented him. Appellant asserted that the state failed to bring him to trial within the 
R.C. 2941.401 one hundred eighty day time period. Appellant attached a letter bearing a “Bureau 

of Records Management” time stamp dated October 19, 2012 and addressed to “Mr. Moore.” The 

letter stated: 

“On or about 9/18/2012 I requested [a] certificate from the warden pertaining to 

detainer on pending charge from Ross County. It nearly [sic] 30 days and I have 

not received certificate of custody from you, per 2941.401. This certificate is 

required to implement speedy trial of the pending charge and need to cause to be 

delivered to prosecuting attorney in Ross County [sic]. 

Please forward certificate of custody as soon as possible to enable me to have final 

disposition in this case * * *.” 

{¶ 7} Appellant also attached an October 10, 2012 letter that the Ohio Department of 

Rehabilitation and Correction sent to the Ross County Sheriff’s Department. This letter stated: 

“The Record Office has received information from the above inmate at Lebanon Correctional 

Institution that he may have pending/open charges with your department. Please advise if you 

wish for us to place a notify/detainer on this subject.” The Sheriff’s Department responded: 

“There is no record at this time of any pending charges against [appellant].” 

{¶ 8} On February 19, 2013, the state filed a motion to continue the trial date due to the 

unavailability of a witness and noted that appellant’s counsel did not oppose. The court again 

continued the trial to May 8, 2013 and tolled the speedy trial clock. 

{¶ 9} On May 6, 2013, the court held a change of plea hearing. Before the hearing began, 

however, appellant’s counsel pointed out that appellant’s pro se motion to dismiss remained 

pending. The prosecutor asserted that appellant’s motion lacked merit because “there’s no 

indication with the clerk’s office or with our office there was any 180 day demand for speedy trial 

that was filed by this defendant.” Appellant’s counsel stated: “* * * This was a motion that was 

filed pro se, and I did not see any merit in the arguments that were in the motion[;] however my 
client still believes there are.” The court observed that it could overrule the motion simply on the 

basis that appellant filed it pro se when counsel represented him. Nevertheless, the court 

overruled the motion because “there has been no demand for 180 days for the trial.” 

{¶ 10} On May 7, 2013, appellant entered a no contest plea. The trial court sentenced 

appellant to serve twelve months in prison. This appeal followed. 

I 

{¶ 11} Appellant’s first two assignments of error challenge the trial court’s denial of his 

motion to dismiss. Appellant contends that because the state failed to bring him to trial within the 

R.C. 2941.401 one hundred eighty day time period, the trial court lacked jurisdiction and was 

required to dismiss the indictment. 

{¶ 12} Initially, we observe that appellant filed his motion to dismiss on a pro se basis, 

even though counsel represented him. It is well-established that although a defendant has the right 

to counsel or the right to act pro se, a defendant does not have any right to “hybrid representation.” 

 State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the 

syllabus; State v. Thompson, 33 Ohio St.3d 1, 6–7, 514 N.E.2d 407 (1987). The right to counsel 

and the right to act pro se “are independent of each other and may not be asserted simultaneously.” 

 Martin, paragraph one of the syllabus. 

{¶ 13} Appellate courts have determined that when counsel represents a criminal 

defendant, a trial court may not entertain a defendant’s pro se motion. State v. Washington, 8th

Dist. Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531), ¶11 (“Because [defendant] chose to 

proceed with legal representation, the court could not consider [defendant]’s motion to withdraw 

his plea, which his appointed counsel did not agree with.”); State v. Pizzarro, 8th Dist. Cuyahoga 
No. 94849, 2011–Ohio–611, ¶9 (“Had the trial court entertained defendant’s pro se motion while 

defendant was simultaneously being represented by appointed counsel, this would have effectively 

constituted hybrid representation in violation of the established law.”); State v. Smith, 4th Dist. 

Highland No. 09CA29, 2010-Ohio-4507, ¶100, quoting Thompson, 33 Ohio St.3d at 6-7 

(concluding that trial court did not err by refusing to consider criminal defendant’s pro se motions 

when counsel represented defendant, because criminal defendant “‘has no corresponding right to 

act as co-counsel on his own behalf’”); State v. Davis, 10th Dist. Franklin No. 05AP–193, 

2006–Ohio–193, ¶12 (“[W]here a defendant who is represented by counsel files pro se motions and 

there is no indication that defense counsel joins in those motions or indicates a need for the relief 

sought by the defendant pro se, such motions are not proper and the trial court may strike them 

from the record.”); State v. Greenleaf, 11th Dist. Portage No. 2005–P–0017, 2006–Ohio–4317, ¶70, 

quoting Thompson, 33 Ohio St.3d at 6-7 (“Once appellant accepts counsel’s assistance and does 

not move the court to proceed pro se, he may not ‘act as co-counsel on his own behalf.’”). 

{¶ 14} In the case sub judice, counsel represented appellant when he filed his pro se

motion to dismiss. Before the change of plea hearing, appellant’s counsel indicated that she did 

not believe that the motion had merit. Consequently, appellant’s pro se motion was not properly 

before the trial court. “[E]ntertaining [appellant]’s pro se motion while [appellant] was 

simultaneously being represented by appointed counsel * * * would have effectively constituted 

hybrid representation in violation of the established law.” Pizzarro at ¶9. For this reason alone, 

the trial court did not err by overruling appellant’s pro se motion to dismiss. 

{¶ 15} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s 

first and second assignments of error. 
II 

{¶ 16} In his third assignment of error, appellant contends that trial counsel was 

ineffective for failing to file a motion to dismiss. Appellant asserts: “If trial counsel would have 

taken [the documents appellant attached to his pro se motion] in conjunction with the facts and 

Appellant’s Pro Se Motion to Dismiss, trial counsel should have deduced Appellant’s R.C. 

2941.401 rights had been violated.” We do not agree. 

A 

INEFFECTIVE ASSISTANCE OF COUNSEL 

{¶ 17} Criminal defendants have a right to counsel, including a right to the effective 

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 

(1970); State v. Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶39 (4th Dist.). 

To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his 

counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense 

and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶85. 

{¶ 18} “In order to show deficient performance, the defendant must prove that counsel’s 

performance fell below an objective level of reasonable representation. To show prejudice, the 

defendant must show a reasonable probability that, but for counsel’s errors, the result of the 

proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 

848 N.E.2d 810, ¶95 (citations omitted); accord State v. Wesson, 137 Ohio St.3d 309, 

2013-Ohio-4575, 999 N.E.2d 557, 81. “Failure to establish either element is fatal to the claim.” 

State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶14. Therefore, if one element is 
dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 

52 (2000) (stating that a defendant’s failure to satisfy one of the elements “negates a court’s need 

to consider the other”). 

{¶ 19} When considering whether trial counsel’s representation amounts to deficient 

performance, “a court must indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, “the 

defendant must overcome the presumption that, under the circumstances, the challenged action 

might be considered sound trial strategy.” Id. “A properly licensed attorney is presumed to 

execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington No. 

07CA11, 2008–Ohio–482, ¶10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 

(1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that 

counsel’s errors were so serious that he or she failed to function as the counsel guaranteed by the 

Sixth Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶62; 

State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988). 

{¶ 20} To establish prejudice, a defendant must demonstrate that a reasonable probability 

exists that but for counsel’s errors, the result of the trial would have been different. State v. Short, 

129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶113; State v. White, 82 Ohio St.3d 16, 

23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph 

three of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but 

must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 

02CA684, 2003–Ohio–1707, ¶22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002). 

{¶ 21} To show that counsel provided ineffective assistance of counsel by failing to file a 
motion to dismiss, a defendant must demonstrate that the motion would have been successful. 

Cleveland v. White, 8th Dist. Cuyahoga No. 99375, 2013-Ohio-5423, ¶7; State v. Cottrell, 4th Dist. 

Ross Nos. 11CA3241 and 11CA3242, 2012-Ohio-4583, ¶8. “Counsel cannot be [ineffective] for 

failing to file a fruitless motion.” Id. at ¶8. 

{¶ 22} In the case sub judice, we do not believe that appellant can demonstrate that a 

properly filed motion to dismiss would have been successful. Thus, he cannot show that trial 

counsel provided ineffective assistance of counsel. 

B 

MOTION TO DISMISS 

{¶ 23} Appellate 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. E.g., 

State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, ¶12; State v. Brown, 131 Ohio 

App.3d 387, 391, 722 N.E.2d 594 (4th Dist., 1998). Thus, appellate courts will defer to a trial 

court’s findings of fact as long as competent, credible evidence supports them. Brown, 131 Ohio 

App.3d at 391. Appellate courts then independently review whether the trial court properly 

applied the law to the facts. Id. “Furthermore, when reviewing the legal issues presented in a 

speedy trial claim, we must strictly construe the relevant statutes against the state.” Id., citing 

Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 709. 

C 

R.C. 2941.401 

{¶ 24} R.C. 2941.401 governs the time within which the state must bring an incarcerated 

defendant to trial. State v. Williams, 4th Dist. Highland No. 12CA12, 2013-Ohio-950, ¶9; State v. 
Hawes, 2nd Dist. Montgomery No. 24986, 2012-Ohio-5409, ¶9. The statute provides: 

 When a person has entered upon a term of imprisonment in a correctional 

institution of this state, and when during the continuance of the term of 

imprisonment there is pending in this state any untried indictment, information, or 

complaint against the prisoner, he shall be brought to trial within one hundred 

eighty days after he causes to be delivered to the prosecuting attorney and the 

appropriate court in which the matter is pending, written notice of the place of his 

imprisonment and a request for a final disposition to be made of the matter, except 

that for good cause shown in open court, with the prisoner or his counsel present, 

the court may grant any necessary or reasonable continuance. The request of the 

prisoner shall be accompanied by a certificate of the warden or superintendent 

having custody of the prisoner, stating the term of commitment under which the 

prisoner is being held, the time served and remaining to be served on the sentence, 

the amount of good time earned, the time of parole eligibility of the prisoner, and 

any decisions of the adult parole authority relating to the prisoner. 

 The written notice and request for final disposition shall be given or sent by 

the prisoner to the warden or superintendent having custody of him, who shall 

promptly forward it with the certificate to the appropriate prosecuting attorney and 

court by registered or certified mail, return receipt requested. 

 The warden or superintendent having custody of the prisoner shall promptly 

inform him in writing of the source and contents of any untried indictment, 

information, or complaint against him, concerning which the warden or 

superintendent has knowledge, and of his right to make a request for final 

disposition thereof. Escape from custody by the prisoner, subsequent to his 

execution of the request for final disposition, voids the request. 

 If the action is not brought to trial within the time provided, subject to 

continuance allowed pursuant to this section, no court any longer has jurisdiction 

thereof, the indictment, information, or complaint is void, and the court shall enter 

an order dismissing the action with prejudice. 

{¶ 25} “In its plainest language, R.C. 2941.401 grants an incarcerated defendant a chance 

to have all pending charges resolved in a timely manner, thereby preventing the state from delaying 

prosecution until after the defendant has been released from his prison term.” State v. Hairston, 

101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶25. The statute thus “requires a warden or 

prison superintendent to notify a prisoner ‘in writing of the source and contents of any untried 

indictment’ and of his right ‘to make a request for final disposition thereof.’” State v. Dillon, 114 
Ohio St.3d 154, 2007-Ohio-3617, 870 N.E.2d 1149, syllabus. 

{¶ 26} In the case at bar, assuming, arguendo, that the warden or superintendent having 

custody over appellant failed to promptly inform appellant of the pending charge, or that the 

warden or superintendent failed to forward appellant’s request for final disposition to the 

appropriate prosecuting attorney and court, appellant’s right to have the matter resolved within one 

hundred eighty days was not violated. Instead, the trial court continued the trial in accordance 

with R.C. 2941.401 and tolled the one hundred eighty day time period. 

{¶ 27} “The tolling provisions of R.C. 2945.72 apply to the 180–day speedy trial time 

limit of R.C. 2941.401.” State v. Taylor, 7th Dist. Columbiana No. 08CO36, 2011-Ohio-1001, 

¶15, citing State v. Skorvanek, 9th Dist. Lorain No. 08CA009400, 2010–Ohio–1079; State v. 

Shepherd, 11th Dist. Ashtabula No.2003–A–0028, 2006–Ohio–4315; State v. Ray, 2nd Dist. Greene 

No.2004–CA–64, 2005–Ohio–2771; State v. Nero, 4th Dist. Athens No. 1392 (Apr. 4, 1990). In 

Nero, we discussed whether the tolling provisions contained in R.C. 2945.72 apply to R.C. 

2941.401 and explained: 

 “R.C. 2945.71 does not specifically state that the tolling provisions therein 

are applicable to R.C. 2941.401. However, R.C. 2941.401 states, in pertinent part, 

‘except that for good cause shown in open court, with the prisoner or his counsel 

present, the court may grant any necessary or reasonable continuance.’ The 

General Assembly, in enacting R.C. 2945.72, has legislated what are reasonable 

continuances. We therefore conclude that the factors set forth in R.C. 2945.72 are 

applicable to R.C. 2941.401.” 

Id. at fn. 1; accord State v. Curry, 4th Dist. Scioto No. 95CA2339 (Sept. 30, 1997). 

{¶ 28} R.C. 2945.72(H) provides that the time within which an accused must be brought 

to trial is extended by “[t]he period of any continuance granted on the accused’s own motion, and 

the period of any reasonable continuance granted other than upon the accused’s own motion.” 
{¶ 29} In the case at bar, assuming, arguendo, that the one hundred eighty day time period 

began to run when appellant requested the warden for a certificate of custody, appellant did not 

suffer a violation of his speedy trial right under R.C. 2941.401. The one hundred eighty day time 

period began to run “after [appellant] cause[d] to be delivered” his written request for a final 

disposition. If we construe the letter appellant sent to “Mr. Moore,” time-stamped October 19, 

2012, as appellant’s request, then one hundred eighty days would have expired on April 18, 2013. 

As such, appellant established a prima facie case for dismissal due to a R.C. 2941.401 speedy trial 

violation. 

{¶ 30} The trial court, however, granted several continuances, none of which appellant’s 

counsel opposed. The court specifically and explicitly tolled the running of appellant’s speedy 

trial rights during the continuances. Thus, from the trial court’s August 28, 2012 first 

continuance, time was tolled until the November 6, 2012 scheduled trial date. Then, when the 

court granted the next continuance on November 2, 2012, time was tolled until the February 26, 

2013 scheduled trial date. The court granted another continuance on February 27, 2013 that tolled 

the time until the scheduled trial date of May 8, 2013. Consequently, between August 28, 2012 

and May 8, 2013, speedy trial time was tolled. If appellant’s October 19, 2012 letter was the event 

that triggered the one hundred eighty day time period, then as of the May 6, 2013 change of plea 

hearing, zero days had expired for speedy trial purposes. Appellant filed his motion to dismiss 

during the tolling period and the case ultimately was resolved during the tolling period. 

Appellant, therefore, did not suffer a violation of his right to be tried within the one hundred eighty 

day time period set forth in R.C. 2941.401. State v. Sellers, 10th Dist. Franklin No. 08AP-810, 

2009-Ohio-2231, ¶11 (concluding that granting continuances did not violate defendant’s speedy 
trial right under R.C. 2941.401). 

{¶ 31} Moreover, even if we were to start the one hundred eighty day period at the earliest 

possible moment (i.e., the date of appellant’s indictment–March 23, 2012), appellant did not suffer 

a violation of his right to be tried within the R.C. 2941.401 one hundred eighty day time period. 

The trial court originally scheduled the trial for September 18, 2012, before one hundred eighty 

actual days elapsed. As we indicated above, the trial court granted three continuances that tolled 

the speedy trial time, at least between September 18, 2012 and May 8, 2013. Thus, between those 

two dates, zero speedy trial days elapsed. Consequently, when appellant entered his no contest 

plea on May 6, 2013, the one hundred eighty day speedy trial clock had yet to expire. Taking the 

three continuances that tolled the speedy trial time into account, appellant’s May 6, 2013 final 

disposition fell within the one hundred eighty day time period set forth in R.C. 2941.401. 

Therefore, had trial counsel filed a motion to dismiss, it would not have been successful and 

counsel was not ineffective for failing to file a motion to dismiss. 

{¶ 32} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s 

third 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 reasonable 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 release upon bail has been previously granted, it is 

continued for a period of sixty days upon the bail previously 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 day period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses 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 Appellate Procedure. 

Harsha, J. & Hoover, J.: Concur in Judgment & Opinion 

For the Court 

BY: 

 Peter B. Abele 

 Presiding 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.