State v. Clary4/9/1991
PETREE, Judge.
Defendant Charles Clary was convicted by a jury in the Franklin County Court of Common Pleas of the crime of rape. Defendant asserts the following assignments of error:
"I. Appellant was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and by Article I, Section 10 of the Constitution of the State of Ohisthrough counsel's failure to move to dismiss on the grounds that appellant was denied his right to a speedy trial.
"II. The trial court erred by permitting the state to introduce hearsay testimony through a physician when the testimony was not pertinent to a medical diagnosis or treatment.
"III. Appellant's conviction was not supported by sufficient credible evidence and was against the manifest weight of the evidence. This deprived appellant of Due Process of Law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution."
In his first assignment of error, defendant maintains that he was denied effective assistance of counsel because his appointed attorney failed to file a motion to dismiss on speedy trial grounds.
Both the Sixth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution guarantee criminal defendants the right to counsel. Moreover, as courts have long recognized, the right to counsel is in fact the right to effective assistance of counsel. Powell v. Alabama (1932), 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158, 162. This right thus ensures that, under all the circumstances, the accused had a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, 79, 74 O.O.2d 156, 160, 341 N.E.2d 304, 309.
To determine whether a defendant has been denied effective assistance of counsel, the courts have fashioned a two-pronged test. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Lytle (1976), 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154. The first prong of the test requires an analysis of whether "* * * there has been a substantial violation of any of defense counsel's essential duties to his client. * * *" Lytle, supra, 48 Ohio St.2d at 396, 2 O.O.3d at 498, 358 N.E.2d at 627. If there was such a violation, then the second prong of the test requires an inquiry into "* * * whether the defense was prejudiced by counsel's ineffectiveness." Id. at 397, 2 O.O.3d at 498, 358 N.E.2d at 627.
Hence, the threshold question presented is whether defense counsel substantially violated an essential duty to defendant by refraining from filing a motion to dismiss on speedy trial grounds.
The defendant's speedy trial rights emanate from constitutional and statutory law. The Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution contain similar speedy trial guarantees. In addition, in an effort to prescribe reasonable speedy trial periods, thsGeneral Assembly has enacted R.C. 2945.71 et seq. See State v. O'Brien (1987), 34 Ohio St.3d 7, 8, 516 N.E.2d 218, 219.
In the present case, the parties do not dispute that, pursuant to R.C. 2945.71(C)(2) and (E), defendant was entitled to be brought to trial on the charges in question within ninety days of his arrest, but this did not occur. The dispute herein involves the legal effect of several continuances which delayed the commencement of defendant's trial.
The record reveals that defendant was arrested on
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