State v. Nussbaum

[Cite as State v. Nussbaum, 

.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       GALLIA COUNTY


STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         : CASE NO. 23CA20

        v.                                          :

TIMOTHY NUSSBAUM,                                   : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                        :

_________________________________________________________________

                                               APPEARANCES:

Pat Story, Middleport, Ohio, for appellant1.

Andrew Noe, Gallipolis City Solicitor, Gallipolis, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM MUNICIPAL COURT
DATE JOURNALIZED:9-20-24
ABELE, J.

        {¶1}    This is an appeal from a Gallipolis Municipal Court

judgment of conviction and sentence.                     Timothy Nussbaum, defendant

below and appellant herein, assigns two errors for review:

                FIRST ASSIGNMENT OF ERROR:

                “THE TRIAL COURT ERRED BY FAILING TO BRING
                APPELLANT NUSSBAUM TO TRIAL WITHIN NINETY DAYS
                FOR THIS FIRST-DEGREE MISDEMEANOR OFFENSE AS
                REQUIRED BY OHIO’S SPEEDY TRIAL ACT.”


        1
        Different counsel represented appellant during the trial
court proceedings.
GALLIA, 23CA20                                                         2



            SECOND ASSIGNMENT OF ERROR:

            “APPELLANT NUSSBAUM FAILED TO RECEIVE THE
            EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN THAT
            COUNSEL FAILED TO OBJECT TO THE FAILURE TO
            BRING HIM TO TRIAL WITHIN NINETY DAYS AS
            MANDATED BY OHIO’S SPEEDY TRIAL ACT FOR A
            FIRST-DEGREE MISDEMEANOR.”

     {¶2}   On February 14, 2023, a complaint charged appellant with

domestic violence in violation of R.C. 2919.25(A), a first-degree

misdemeanor.     The complaint alleged that appellant struck his

girlfriend Stephanie Cangemi’s child, I.B., “in the abdomen, hip

and upper thigh with a belt, leaving multiple marks and bruising,

causing physical harm.”     On February 17, 2023, appellant waived a

hearing on the motion for a domestic violence temporary protection

order, and the trial court issued a temporary protection order.

     {¶3}   Appellant entered a not guilty plea, and the trial court

charged time to appellant due to a pretrial continuance request.

Appellant requested a court-appointed attorney, and the trial court

appointed counsel on the same day.     On March 6, 2023, appellant

sought a continuance, and the trial court granted the continuance

the same day and rescheduled the matter to April 6, 2023.     On April

6, 2023, the trial court charged time to appellant due to

pretrial/continuance request and set the final pretrial for May 11,

2023 and the trial date for June 15, 2023.     On May 11, 2023, the

trial court set a new trial date of July 6, 2023, checked the box
GALLIA, 23CA20                                                        3



“Time charged to defendant due to pre trial/continuance request,”

and underlined continuance request.

     {¶4}   On July 6, 2023, the trial court’s entry contained a

checked box “Time charged to defendant due to pretrial/continuance

request” and again underlined “continuance request” and reset the

trial for August 17, 2023.    At the bottom of the entry, the court

wrote, “while in the process of taking Def’s plea, he indicated he

was not guilty of the elements of the offense.     Def’s witnesses

were not present requiring a continuance.”

     {¶5}   On July 14, 2023, the State filed a motion to continue

and stated that appellee’s witnesses “are unavailable on this date

[August 17, 2023] due to having to be back to school for mandated

training.    Defense has no objection.”   The same day, the trial

court continued the bench trial to September 14, 2023 and stated,

“this case will now be beyond time limits/no more continuances.”

     {¶6}   At the September 14, 2023 bench trial, Gallia County

Sheriff’s Detective Shallon Schuldt and Gallia County Job and

Family Services Child Protective Services Caseworker Kristen

Browning testified that they met with Rio Grande Elementary

Principal Miranda Fortner on February 8, 2023 and observed bruises

on five-year-old kindergartner I.B.   I.B.’s siblings informed them

that “[I.B.] gets whipped with a belt.”     Later that day, Detective

Schuldt and Browning visited the family’s residence and met with
GALLIA, 23CA20                                                        4



appellant and Ms. Cangemi.    When Schuldt and Browning told

appellant they came to investigate I.B.’s bruises, at first,

appellant “did admit that he whipped him, but denied that he had

used a belt and then Kristen had told him that there were linear

bruises that appeared to be belt marks.    And he admitted um, that

he whipped [the child] with a belt.”

     {¶7}   Rio Grande Elementary Kindergarten Teacher Kelly Mayes

testified that while on lunch duty on February 8, 2023, she

observed I.B. raise his hand and “when his shirt lifted up I saw

bruising.”    Mayes explained, “I asked him what happened and um,

then he said that he got beat with a belt.”   Mayes testified that

if she moved I.B.’s behavior clip from green to yellow, orange, or

red, “he would be very upset and ... would say I don’t want to go

home, I’m going to get in trouble.”    Mayes stated that, “several

times [I.B.] acted like he was scared to go home.”    In the days

before Mayes observed the bruises, Mayes sent a note home because

I.B. threatened to bring a gun to school and shoot another student.

     {¶8}   Rio Grande Elementary School Nurse Mary Phoenix testified

that Mayes brought I.B. to the clinic on February 8, 2023, and she

observed “wrap around bruises ... wrapped around his body and in

several places it looked like finger marks.    You could put your

fingers there and match them up with fingerprints... [t]hey were

various colorations too and I asked [I.B.] when this happened, he
GALLIA, 23CA20                                                          5



said two days ago, which would have been the Monday before.      That

would explain the different colors... Some of that was deep tissue

bruising.”     Phoenix stated that when she inquired about the

bruising, I.B. stated, “[appellant] gave him a butt whipping

because he got a yellow at school.”

     {¶9}   Appellant testified in his defense and stated that he and

I.B.’s mother had been together for nearly five years, and I.B.

lives with them most of the time.     Initially, appellant denied that

he disciplined I.B., but after appellant learned that I.B.

threatened another student, he took no action other than discuss

the situation with Stephanie and go to the gym and discuss the

situation with his friend, Devon Stroop.     Later that night,

appellant “took [I.B.] to the bedroom and I bent him over my knee

and I gave him a spanking.”    Appellant acknowledged that he used a

belt “[t]o teach [I.B.] a lesson.”

     {¶10} Devon Stroop testified that he is a friend of appellant

and spoke with him on February 6 at the gym.     Appellant told Stroop

that I.B. “threatened to bring a gun to school and kill another

little kid.”     Stroop said appellant did not say how he planned to

handle the behavior, but described appellant as “calm,” and said he

saw no signs that appellant intended to hurt I.B.

     {¶11} The trial court’s September 14, 2023 entry states

“Defendant enters a plea of “not guilty.”     “Verdict Trial Date
GALLIA, 23CA20                                                        6



October 26, 2023, 10:15 a.m.”    At the bottom, the court wrote,

“State’s Exs. A, B & C admitted without objection.     The court takes

the matter under advisement & the parties may submit briefs, if

desired, by 9-28-23.”

     {¶12} On October 26, 2023, the trial court found appellant

guilty of domestic violence in violation of R.C. 2919.25(A), a

first-degree misdemeanor.    A separate October 26, 2023 entry states

that: (1) the court found appellant guilty, (2) appellant is able

to pay financial sanctions/costs, (3) appellant earned 4 days jail

credit, and (4) at the bottom, the court wrote “The court

considered all R.C. 2929.21 & .22 factors prior to sentencing

extensive DML Recons.   Def. advised of rights of appeal regarding

the verdict & sentencing.”   The trial court sentenced appellant to

(1) serve a 180-day jail term, (2) a domestic violence sentencing

enhancement, and (3) 4 days credit for jail served.     This appeal

followed.

                                  I.

     {¶13} In his first assignment of error, appellant asserts the

trial court erred when it failed to bring him to trial within 90

days for this first-degree misdemeanor offense.    Specifically,

appellant contends that he did not waive his speedy trial rights,

and the trial court granted a crucial extension of the trial date

after the expiration of the R.C. 2945.71 time limit.     In his second
GALLIA, 23CA20                                                        7



assignment of error, appellant contends that counsel performed

deficiently when he failed to file a motion to dismiss based upon a

speedy trial violation.   Because the two assignments of error are

interrelated, we address them together.

     {¶14} In general, a reversal of a conviction for ineffective

assistance of counsel requires an appellant to show that (1)

counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense.    Strickland v. Washington, 

 (1984); State v. Myers, 

; State

v. Powell, 

.   “Failure to establish either

element is fatal to the claim.”    State v. Jones, 

 (4th Dist.).   Moreover, if one element is dispositive, a court

need not analyze both.    State v. Madrigal, 

(2000).

     {¶15} In the case sub judice, we believe that appellant cannot

establish that counsel’s performance in failing to file a motion to

dismiss based on a speedy trial violation was deficient because the

filing of such a motion would have proven fruitless.   In State v.

Ross, 

, (4th Dist.), this court examined this issue

and held that defense counsel’s failure to raise meritless issues

does not constitute ineffective assistance of counsel.    

, citing In re Carter, 

 (4th Dist.), citing State v.

Hill, 

 (1995), and State v. Close, 2004-Ohio-
GALLIA, 23CA20                                                        8



1764, ¶ 34 (4th Dist.); see also State v. Sessom, 

 (3d Dist.), State v. Brown, 

 (12th Dist.).

     {¶16} In Ross, the defendant claimed that his trial counsel

performed deficiently by failing to file a motion to dismiss based

upon a speedy trial violation.   Id. at ¶ 7.   We observed that no

dispute existed that the State failed to try Ross for his felony

charges within 270 days, as per R.C. 2945.71(C)(2).   However, we

characterized the delays and continuances as reasonable.    Id. at ¶

13, and observed that appellant’s constitutional speedy trial claim

was also without merit.    Id. at ¶ 15.

     {¶17} R.C. 2945.73(B) states, “[u]pon motion made at or prior

to the commencement of trial, a person charged with an offense

shall be discharged if he is not brought to trial within the time

required by sections 2945.71 and 2945.72 of the Revised Code.”

(Emphasis added.)   Thus, the statute requires the accused to file

the motion before trial.   State v. Powell, 

,

citing 

; State v. Thompson, 

(6th Dist. 1994).   In the case at bar, because appellant did not

file a motion to dismiss the charge for an alleged speedy trial

violation during the trial court proceedings that failure to do so

results in a waiver of the issue on appeal.    Powell at ¶ 23; 

 (appellant’s speedy trial challenge waived where he did not

timely move to dismiss the case on speedy trial grounds in the
GALLIA, 23CA20                                                       9



trial court).    See also State v. Tumey, 

 (4th

Dist.) (because defendant did not timely file a motion to dismiss

based on his speedy-trial claim, he waived the claim); State v.

Bishop, 

, ¶ 16 (the speedy trial statute requires the

accused to make a motion).

     {¶18} Similarly, in the case sub judice, because appellant did

not timely file a motion to dismiss based on his speedy trial

claim, he waived that issue.   Speedy trial rights are not self-

executing.   See Partsch v. Haskins, 

, 140

(1963)(requiring affirmative action on the part of the accused

before a constitutional speedy trial challenge may be made); State

v. Trummer, 

 (applying Partsch and

requiring affirmative action on the part of the accused before a

statutory speedy trial challenge may be made); Bishop, supra, at ¶

16 (because constitutional and statutory rights are not “self-

executing” rights, trial court had no obligation or duty to sua

sponte dismiss charges on speedy trial grounds).   Consequently, we

conclude that because appellant did not timely file a motion to

dismiss based upon a speedy trial violation, he waived speedy trial

for appellate review.

     {¶19} Moreover, even if appellant had not waived his right to

raise the speedy trial issue on appeal, we believe that his claim

is without merit.   Ohio’s speedy trial provisions, R.C. 2945.71 to
GALLIA, 23CA20                                                         10



2945.73, “constitute a rational effort to enforce the

constitutional right to a public speedy trial of an accused charged

with the commission of a felony or a misdemeanor.”     State v.

Pachay, 

, syllabus (1980).   States “are free to

prescribe a reasonable period consistent with constitutional

standards.”   Barker, 407 U.S. at 523.   Thus, R.C. 2945.71

designates specific time requirements for the state to try an

accused.   State v. Hughes, 

 (1999).    In the

case at bar, R.C. 2945.71(B)(2) requires the State to bring a

person accused of a first-degree misdemeanor to trial within 90

days of the individual’s arrest.

     {¶20} Generally, the 90-day speedy trial time period clock

begins the day after a defendant’s arrest.    State v. Davis, 2013-

Ohio-5311, ¶ 21, citing R.C. 1.14 and Crim.R. 45(A).    “Two key

concepts direct how a court must charge the days when calculating a

potential speedy trial violation: waiver and tolling.”     State v.

Williams, 

 (10th Dist.); State v. Calo-Jimenez,

, ¶ 18 (1st Dist.).   “A defendant's express waiver of

a right to a speedy trial allows additional time at the defendant's

request, whereas the automatic tolling of time … operates to

protect the state's ability to adequately prosecute persons who

have committed crimes.”   State v. Blackburn, 

, ¶ 21.
GALLIA, 23CA20                                                       11




     {¶21} “Tolling occurs by operation of law under R.C. 2945.72

under certain circumstances and the defendant is not required to

agree to the tolling of time,” 

; 

, such as discovery requests, motions by the defendant,

continuances granted on the defendant's own motion, and any

reasonable continuances granted other than upon the defendant's

motion.   

 citing R.C. 2945.72(E) and (H).

     {¶22} In the case sub judice, the State contends that appellant

waived his right to speedy trial multiple times and did not revoke

that waiver.     Generally, a criminal defendant may waive his or her

speedy trial rights.     See, e.g., State v. King, 

,

syllabus (1994); State v. O’Brien, 

 (1987),

citing Barker, 407 U.S. at 529.    However, “[t]o be effective, an

accused’s waiver of his or her constitutional and statutory rights

to a speedy trial must be expressed in writing or made in open

court on the record.”     King, syllabus.

     {¶23} In the case at bar, the trial court’s April 6, 2023 entry

contained a checkmark next to the box “Time charged to defendant

due to pre trial/continuance request,” a checkmark next to the box

“final pre trial 5-11-2003,” and a checkmark next to the box

“Speedy trial waived.”     The trial court’s May 11, 2023 entry

contains a checkmark next to the box “Time charged to defendant due

to pre trial/continuance request (with continuance request
GALLIA, 23CA20                                                           12



underlined),” lists a trial date of July 6, 2023, and contains a

checkmark next to the box “Speedy trial waived.”     The trial court’s

July 6, 2023 entry that indicated “while in the process of taking

Def’s plea, he indicated he was not guilty of the elements of the

offense.   Def’s witnesses were not present, requiring a

continuance,” contains a checkmark next to the box “Speedy trial

waived.”   Moreover, each of the three entries referenced above

contains appellant’s signature.   A trial court speaks through its

journal entries, see State v. Bonnell, 

; Kaine

v. Marion Prison Warden, 

 (2000) and here the

journal entries reflect that appellant waived his right to speedy

trial on at least three occasions with no indication of revocation.

     {¶24} On July 14, 2023, appellee’s continuance motion stated

that appellee’s witnesses “are unavailable on this date [August 17,

2023] due to having to be back to school for mandated training.

Defendant has no objection.”   On July 14, 2023, the trial court’s

entry continued the trial to September 14, 2023 and stated, “this

case will not be beyond time limits/no more continuances.”       These

63 days would be chargeable to the State.     R.C. 2945.72(H).

However, as appellee points out, appellant still had a speedy trial

waiver on file from the July 7, 2023 entry.     Thus, the State argues

that even these 63 days do not count against the State.     We agree.
GALLIA, 23CA20                                                      13




     {¶25} Consequently, after our review we believe appellant

waived for appellate review the issue as to whether his statutory

speedy trial rights were violated.   Moreover, it appears that

appellant expressly waived his speedy trial rights during the trial

court proceeding.

     {¶26} Accordingly, based upon the foregoing reasons, we

overrule both of appellant's assignments of error and affirm the

trial court’s judgment.



                                                                    JU

                                                               DGMENT

                                                               AFFIRME

                                                               D.
GALLIA, 23CA20                                                       14

                          JUDGMENT ENTRY

     It is ordered that the judgment be affirmed.   Appellee shall
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 Gallipolis Municipal 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 60 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 the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-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 60 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.

     Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

                                   For the Court




     BY:_____________________________
                                        Peter B. Abele, 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.