[Cite as State v. Smith,
2025-Ohio-2939.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-24-53
PLAINTIFF-APPELLEE,
v.
KYLE W. SMITH, OPINION AND
JUDGMENT ENTRY
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2024 0025
Judgment Affirmed
Date of Decision: August 18, 2025
APPEARANCES:
William T. Cramer for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-24-53
WALDICK, P.J.
{¶1} Defendant-appellant, Kyle Smith (“Smith”), appeals the August 15,
2024 judgment of conviction and sentence entered against him in the Allen County
Court of Common Pleas, following a jury trial in which Smith was found guilty of
multiple felony-level drug and firearm offenses. For the reasons set forth below,
we affirm.
Procedural History
{¶2} This case originated on March 14, 2024, when an Allen County grand
jury returned a five-count indictment against Smith. On March 21, 2024, Smith
filed a written plea of not guilty.
{¶3} On April 11, 2024, a superseding indictment was filed in the case,
charging Smith as follows: Count 1 – Possession of a Fentanyl-Related Compound,
a first-degree felony in violation of R.C. 2925.11(A), (C)(10)(b), and (C)(11)(e);
Count 2 – Aggravated Possession of Drugs (Methamphetamine), a second-degree
felony in violation of R.C. 2925.11(A) and (C)(1)(c); Count 3 – Illegal Manufacture
of Drugs, a second-degree felony in violation of R.C. 2925.04(A) and (C)(2); Count
4 – Engaging in a Pattern of Corrupt Activity, a first-degree felony in violation of
R.C. 2923.32(A)(1) and (B)(1); and Count 5 – Having Weapons While Under
Disability, a third-degree felony in violation of R.C. 2923.13(A)(3). Counts 1, 2,
and 3 of the superseding indictment also each contained a firearm specification
pursuant to R.C. 2941.141(A). Additionally, Counts 1, 2, 3, and 4 of that indictment
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contained forfeiture specifications relating to a firearm and United States currency,
and Count 5 contained a firearm forfeiture specification. On April 17, 2024, Smith
filed a written plea of not guilty to the superseding indictment.
{¶4} On August 12, 2024, a jury trial commenced in the case. At the close
of the two-day trial, the jury returned verdicts finding Smith guilty as to all crimes
and specifications alleged in the indictment at issue.1
{¶5} On August 14, 2024, a sentencing hearing was held. The trial court
sentenced Smith as follows: Count 1 – a mandatory indefinite prison term of 6 to 9
years, plus an additional 1-year mandatory prison term for the firearm specification;
Count 2 – a mandatory indefinite prison term of 4 to 6 years; Count 3 – a mandatory
indefinite prison term of 4 to 6 years; Count 4 – a non-mandatory indefinite prison
term of 4 to 6 years; and Count 5 – a non-mandatory prison term of 12 months, with
all prison terms to be served consecutively. On August 15, 2024, the trial court
journalized its sentencing orders.
{¶6} On September 10, 2024, Smith filed the instant appeal.
1
During the course of the trial, the trial court granted a prosecution motion to amend the dates alleged in
Counts 3 and 4 of the superseding indictment, from on or about the date of February 1, 2024 to a range of
dates that were from on or about January 1, 2024 to February 1, 2024.
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Summary of Evidence Presented at Trial
{¶7} The record reflects that the State of Ohio presented the testimony of
three witnesses at trial: (1) Deputy Evan Thomas of the Allen County Sheriff’s
Office, who was formerly assigned as an investigator with the West Central Ohio
Crime Task Force; (2) Investigator Deana Lauck, a Lima Police Department officer
assigned to the West Central Crime Task Force; and (3) Kristin Canfield, a forensic
scientist employed by the Ohio Bureau of Criminal Investigation (“BCI”) and an
expert in controlled substance analysis. The prosecution also admitted 100
evidentiary exhibits. The defense presented no evidence.
{¶8} The state’s evidence at trial reflected that, in January of 2024, the West
Central Ohio Crime Task Force received information from confidential informants
and other sources that resulted in task force investigators launching a short-term
investigation of Smith’s residence at 1912 East Elm Street, Lot 16, in Lima. As part
of that investigation, officers began conducting surveillance of the residence and
also stopping vehicles that were coming and going from the home. During the
surveillance of Smith’s residence and neighborhood, officers observed Smith
interacting with an individual identified as Paris Foster. Foster was known to the
task force to be involved in narcotics trafficking, with ties to the Dayton, Ohio area,
a source-city from which drugs are often supplied to Allen County.
{¶9} Subsequently, task force officers procured a search warrant for Smith’s
residence, based upon an affidavit containing information obtained during the
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investigation. That search warrant was served at Smith’s East Elm Street residence
in the evening hours of February 1, 2024. When officers made entry pursuant to the
search warrant, they found Smith’s girlfriend, Ashley Carnes, in the living room,
Smith’s mother, Dalene Smith, in a back bedroom, and Smith in another
bedroom. A search of Smith’s person revealed a bindle of suspected narcotics, cash,
and a flip phone.
{¶10} In the bedroom where Smith was located, investigators found drug
paraphernalia, including a scale, pipe, and torch. A nightstand in that same bedroom
contained a black bag filled with multiple bags of suspected narcotics, a nutribullet
blender container with white powder residue on it, and used Keno gambling
receipts, which are commonly folded up into paper bindles and utilized to hold
narcotics for distribution. The blender container was significant in that such
blenders are used to blend, or “cut”, narcotics with other substances, such as baking
soda, in order to increase the quantity of the narcotics before selling them. Also
located in that bedroom were additional cell phones, Smith’s debit card, a sheet of
paper upon which debts owed by or to more than a dozen named persons were noted,
a box of baking soda, and a bag of pills. The notations on that sheet of paper, which
was found sitting on the bed, included a running tally of money owed to Paris Foster,
suggesting that Foster was supplying Smith with narcotics, which Smith would pay
Foster for, but then Smith would assume more indebtedness to Foster after Foster
would front Smith additional quantities of drugs.
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{¶11} Lastly, in that same bedroom, officers also found Smith’s Ohio
identification card and wallet. The address for Smith listed on his Ohio I.D. card
was 1912 East Elm Street, Lot 16. Inside a safe kept in that bedroom, officers
located a loaded and operable firearm, ammunition, bank envelopes containing
$1300.00 in cash, gold and silver coins, a photo of Smith and his girlfriend, Ashley,
numerous suboxone strips, and a ledger. The ledger contained a number of
individual names and what appeared to be a record of the amount of money owed
to Smith by each of the individuals.
{¶12} Following the execution of the search warrant, a data extraction was
performed on Smith’s cell phone. The content of text messages sent to and from
the phone during the month of January of 2024 was introduced in evidence at
trial. That evidence included numerous text messages to and from multiple
individuals relating to narcotics dealing on Smith’s part, including negotiations as
to the weight and price of drugs being sold. The text messages reflected that Smith’s
girlfriend actively assisted him in the drug dealing. The messages also referred to
money owed for drugs sold by Smith.
{¶13} The various quantities of suspected controlled substances located in
Smith’s possession during the execution of the search warrant were subsequently
weighed and analyzed at BCI. Among the substances seized from Smith was found
to be approximately 135 grams of methamphetamine; approximately 43 grams of a
mixture of xylazine, heroin, and fentanyl; and .16 grams of a mixture of xylazine
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and fentanyl. The residue noted on the blender container was determined to be a
mixture of xylazine and fentanyl. Additionally, BCI confirmed there were nearly
250 strips of suboxone, a prescription medication used to treat opioid
dependence. Finally, small quantities of methylphenidate and diazepam were
identified in various forms.
{¶14} Smith was arrested at the time of the search warrant execution on
February 1, 2024, and was subsequently interviewed by task force
investigators. That interview was recorded and was played for the jury at trial. In
the interview, Smith admitted possessing the drugs found in his bedroom, but stated
that he was unaware of the overall quantity. Smith indicated that he had just
acquired the drugs that were found in the nightstand, but had not had a chance to
weigh them. Smith stated that he thought Foster was setting him up by delivering
an excessive quantity of drugs to the home, because the police arrived shortly after
Foster left. Smith acknowledged that he and his girlfriend would get high, and
claimed the drugs found in his possession were for personal use. Smith denied being
a drug dealer but admitted that he sold drugs to some people in order to help them
out. Smith stated the ledger from the safe was three years old and listed debts going
back years. Smith admitted that the paper found on the bed related to money
currently owed to him by other persons, but stated the debts were not all drug-
related. Smith asserted that he made money through buying and selling cars at
auction. Smith acknowledged that he had been fronted the drugs by Foster but said
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he was going to pay Foster back after selling one of his vehicles. Smith also
admitted that the bags of fentanyl and methamphetamine were worth about
$1,400.00, and stated that he owed Foster around $5,000.00. Finally, Smith
acknowledged that he used the blender to blend drugs with a cutting agent.
Assignments of Error Raised on Appeal
First Assignment of Error
Appellant’s due process rights were violated by a conviction for
engaging in a pattern of corrupt activity based on insufficient
evidence of an association with an enterprise.
Second Assignment of Error
Appellant’s conviction for engaging in a pattern of corrupt
activity was not supported by the weight of the evidence on the
issue of associating with an enterprise.
Third Assignment of Error
Appellant was deprived of his right to the effective assistance of
counsel when defense counsel failed to subject the prosecution’s
case to meaningful adversarial testing.
Fourth Assignment of Error
By clear and convincing evidence, the record does not support the
trial court’s consecutive sentences findings under R.C.
2929.14(C)(4).
Fifth Assignment of Error
Appellant’s federal and state constitutional rights to a speedy trial
were violated by the failure to satisfy the statutory 270-day time
limit for trial set forth in R.C. 2945.71.
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Sixth Assignment of Error
Appellant was deprived of his right to the effective assistance of
counsel when defense counsel failed to move to dismiss for a
speedy trial violation prior to trial.
First and Second Assignments of Error
{¶15} In the first assignment of error, Smith argues that his conviction for
Engaging in a Pattern of Corrupt Activity on Count 4 was not based on sufficient
evidence. In the second assignment of error, Smith argues that his conviction for
Engaging in a Pattern of Corrupt Activity on Count 4 was against the manifest
weight of the evidence. As the first and second assignments of error both require a
review of the evidence presented at trial in light of the statutory elements of the
crime at issue, albeit with differing standards of review, we shall jointly address
those assignments of error.
{¶16} It is well established that “[t]he legal concepts of sufficiency of the
evidence and weight of the evidence are both quantitatively and qualitatively
different.” State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the
syllabus.
{¶17} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.
3d 259 (1991), paragraph two of the syllabus. Consequently, “[t]he relevant inquiry
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is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Id. “‘In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both
are functions reserved for the trier of fact.’” State v. Williams, 2024-Ohio 2307, ¶
21 (3d Dist.), quoting State v. Jones,
2013-Ohio-4775, ¶ 33 (1st Dist.).
{¶18} By contrast, when reviewing whether a verdict was against the
manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and
examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). In doing so, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether, in resolving conflicts in the evidence, the factfinder “clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.”
Id. Nevertheless, when assessing a manifest-
weight challenge, a reviewing court must still allow the trier-of-fact appropriate
discretion on matters relating to the credibility of the witnesses. State v. Stewart,
2023-Ohio-253, ¶ 11 (3d Dist.), citing State v. DeHass,
10 Ohio St.2d 230, 231
(1967). When applying the manifest-weight standard, “[o]nly in exceptional cases,
where the evidence ‘weighs heavily against the conviction,’ should an appellate
court overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen No. 2012-
Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter,
2011-Ohio-6524, ¶ 119.
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{¶19} In the instant case, Smith was convicted on Count 4 of Engaging in a
Pattern of Corrupt Activity in violation of R.C. 2923.32(A)(1), which provides that
“[n]o person employed by, or associated with, any enterprise shall conduct or
participate in, directly or indirectly, the affairs of the enterprise through a pattern of
corrupt activity ….” Pursuant to R.C. 2923.31(I)(2)(c), “corrupt activity”
includes drug trafficking, drug manufacturing, and any drug possession that is at
least a fourth-degree felony. Pursuant to R.C. 2923.31(E), a “pattern of corrupt
activity” means “two or more incidents of corrupt activity, whether or not there has
been a prior conviction, that are related to the affairs of the same enterprise, are not
isolated, and are not so closely related to each other and connected in time and place
that they constitute a single event.” “Enterprise” is defined in R.C. 2923.31(C) and
includes “any individual, sole proprietorship, partnership, limited partnership,
corporation, trust, union, government agency, or other legal entity, or any
organization, association, or group of persons associated in fact although not a legal
entity.” “Enterprise” includes illicit as well as licit enterprises. Id.
{¶20} Smith concedes on appeal that there was clear evidence presented at
trial of corrupt activity through drug possession and manufacturing. However,
Smith argues in the first assignment of error that the evidence was insufficient to
prove that he was associated with any enterprise, as required to sustain a conviction
for Engaging in a Pattern of Corrupt Activity. Similarly, in the second assignment
of error, Smith asserts that his conviction for Engaging in a Pattern of Corrupt
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Activity was against the manifest weight of the evidence as to the issue of
associating with an enterprise.
{¶21} In State v. Beverly, 2015-Ohio-219 (2015), the Supreme Court of Ohio
noted that the statutory definition of an enterprise is “remarkably open-ended.” Id.,
at ¶ 8. Additionally, “[i]t is easy to prove the existence of certain enterprises,
especially those with licit purposes: there is a document memorializing the creation
of a partnership or corporation, etc.” Id., at ¶ 9. However, “in most cases involving
a RICO-type conviction, the existence of an enterprise is more difficult to establish
because the enterprise is entirely an ‘association in fact,’ i.e., a de facto enterprise.”
Id., citing U.S. v. Turkette,
452 U.S. 576, 583 (1981). “An association-in-fact
enterprise has been defined as ‘a group of persons associated together for a common
purpose of engaging in a course of conduct.’”
Id. Put another way, “‘an association-
in-fact enterprise is simply a continuing unit that functions with a common
purpose.’” Beverly, at ¶ 9, quoting Boyle v. U.S.,
566 U.S. 938, 948 (2009). Finally,
“the existence of an enterprise, sufficient to sustain a conviction for engaging in a
pattern of corrupt activity under R.C. 2923.32(A)(1), can be established without
proving that the enterprise is a structure separate and distinct from a pattern of
corrupt activity.” Beverly, at ¶ 13.
{¶22} This Court addressed the proof necessary to establish association with
an enterprise in State v. Siferd, 2002–Ohio–6801 (3d Dist.), where we noted in
relevant part:
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Within the assigned errors, Siferd asserts that the state failed to prove
that he was “employed by or associated with” the … drug
enterprise. … Siferd characterizes himself as “nothing more than a
drug addict who spent all he had on his cocaine addiction,” concluding
that “Ohio RICO was never meant to reach these facts.” …
Federal and state courts have generally defined the concept of being
“associated with” an enterprise within the overall context of the
statute, often concluding that a defendant has “associated with” an
enterprise when he or she has “participate[d] in, directly or indirectly,
the affairs of the enterprise.” [See State v. Hughes, 1992 WL 52472
(2d Dist. Mar. 13, 1992)]. In [State v.] Schlosser, [79 Ohio St.3d 329
(1997)], the Ohio Supreme Court described the level of association
necessary to support an R.C. 2923.32(A)(1) conviction in a
broad sense, indicating that the state “had to prove that each defendant
was voluntarily connected to the pattern [of corrupt activity
comprising the enterprise], and performed two or more acts in
furtherance of it.” [Schlosser, at 334 (emphasis added)]. Again, “the
RICO net is woven tightly to trap even the smallest fish, those
peripherally involved with the enterprise. … Direct evidence of
agreement is unnecessary: ‘proof of such an agreement may rest upon
inferences drawn from relevant and competent circumstantial
evidence, ordinarily the acts and conduct of the alleged conspirators
themselves.’ Additionally, once the conspiracy had been established,
the government need show only ‘slight evidence’ that a particular
person was a member of the conspiracy. Of course, a ‘party to the
conspiracy need not know the identity, or even the number, of his
confederates.’” [U.S. v. Elliott, 571 F.2d 880, 903 (1978)].
Id., at ¶¶ 42-43.
{¶23} Additionally, as the Supreme Court of Ohio stated in its recent
decision, State v. Brown, 2025-Ohio-2804:
One way the State can show that a person was employed by or
associated with an enterprise is by showing that the person entered
into a conspiracy with another person who was a member of that
enterprise. See United States v. Godwin, 765 F.3d 1306, 1323 (11th
Cir. 2014), citing United States. v. Browne, 505 F.3d 1229, 1264 (11th
Cir. 2007). That is because an associated-in-fact enterprise “shares
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important characteristics with the traditional conspiracy of criminal
law.” United States v. Griffin, 660 F.2d 996, 999 (4th Cir. 1981). A
person who merely agrees “to participate in the conduct of the affairs
of the enterprise through a pattern of racketeering activity brings [him
or her] within the conspiracy.” United States v. Gonzalez, 921 F.2d
1530, 1540 (11th Cir. 1991).
Of course, not all drug sales involve a conspiracy. See United States
v. Bostick, 791 F.3d 127, 139 (D.C.Cir. 2015). Someone who buys
drugs from another person but does not have an agreement with that
person to resell the drugs has not formed a conspiracy with the seller.
See United States v. Brown, 726 F.3d 993, 1001 (7th Cir. 2013).
But when a buyer agrees with the seller to distribute the drugs that the
buyer purchased, a conspiracy forms because “there is an agreement
beyond the mere sale for personal consumption.” United States v.
Kozinski, 16 F.3d 795, 808 (7th Cir. 1994).
The Sixth Circuit Court of Appeals has recognized that the trust
involved in selling drugs on credit (i.e., “fronting” drugs) “suggests
more than a buyer-seller arrangement” between the parties to the
transaction. United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir. 1996).
Ultimately, “evidence of fronting coupled with evidence of repeat
drug purchases is sufficient ‘to distinguish a conspiracy from a
nonconspiratorial buyer-seller relationship.’” United States v.
Gallegos, 784 F.3d 1356, 1360 (10th Cir. 2015), quoting United States
v. Johnson, 592 F.3d 749, 755, fn. 5 (7th Cir. 2010).
Brown, supra, at ¶¶ 21-24.
{¶24} In the instant case, contrary to Smith’s position on appeal, an
abundance of evidence was presented at trial that served to establish Smith’s
involvement in, and association with, an enterprise engaged in a pattern of corrupt
activity. As Smith concedes, his own pattern of corrupt activity through drug
possession and drug manufacturing was clearly proven. The evidence also
overwhelmingly established that Smith had been engaged in an ongoing business of
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trafficking in drugs to numerous individuals, as reflected by the content of his text
messages over time, his written records of accounts, his admissions – both direct
and indirect – to the police when questioned about his drug-related activities, and
the quantity of illegal drugs – along with cutting agents and equipment with which
to cut narcotics for sale - found in his possession. As the definition of “enterprise”
in R.C. 2923.31(C) includes any individual or sole proprietorship, evidence of such
activities on Smith’s part alone served to prove his association with an enterprise
consisting of himself as the sole proprietor.
{¶25} However, there was also evidence presented at trial that Smith bought
– or was advanced without prepayment – significant quantities of drugs from Paris
Foster, an individual who was known to the task force to be involved in narcotics
trafficking and who had ties to Dayton, Ohio, which is a source-city for illegal
narcotics sold in Allen County. Furthermore, the text messages introduced into
evidence clearly reflected that Smith’s drug dealing was assisted by, and done in
conjunction with, another individual identified in the messages as “Baby”,
presumably his girlfriend based on the content of those messages. Such evidence
served to establish an association-in-fact enterprise, however loosely organized,
with which Smith was associated and with the support of which he engaged in the
pattern of corrupt activity at issue.
{¶26} We also find the facts of this case to be distinguishable from those in
our prior decision of State v. Agner, 135 Ohio App.3d 286 (1999), upon which Smith
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relies on appeal, where there was only evidence of a single defendant selling drugs
with no further evidence of the defendant being a member of any larger organization
or establishing that, even acting alone, the defendant constituted an enterprise.
{¶27} Accordingly, upon applying the relevant statutory definitions and case
law to the facts presented in evidence in this case, we find with regard to the first
assignment of error that there was sufficient evidence presented at trial, when
viewed in a light most favorable to the prosecution, upon which any rational trier of
fact could have found the essential elements of Engaging in a Pattern of Corrupt
Activity proven beyond a reasonable doubt.
{¶28} As to the second assignment of error, where Smith raises a manifest-
weight argument, our independent scrutiny of the record and weighing of the
evidence presented, along with consideration of all reasonable inferences stemming
therefrom, does not establish that the jury clearly lost its way or created a manifest
miscarriage of justice in determining that Smith was associated with an enterprise
and was guilty of Engaging in a Pattern of Corrupt Activity as charged in Count 4.
Therefore, we also conclude that Smith’s conviction for Engaging in a Pattern of
Corrupt Activity is not against the manifest weight of the evidence.
{¶29} The first and second assignments of error are overruled.
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Third Assignment of Error
{¶30} In the third assignment of error, Smith raises a claim of ineffective
assistance of counsel. Specifically, Smith argues that his trial counsel was
ineffective because counsel opted to waive opening statement and closing argument,
and did not cross-examine witnesses called by the prosecution.
{¶31} A defendant asserting a claim of ineffective assistance of counsel on
appeal must establish: (1) counsel’s performance was deficient under the
circumstances, falling below an objective standard of reasonable representation, and
(2) the deficient performance prejudiced the defense. State v. Kole, 92 Ohio St.3d
303, 306 (2001), citing Strickland v. Washington,
466 U.S. 668, 686-687 (1984);
State v. Drain,
2022-Ohio-3697, ¶ 67.
{¶32} In order to establish that counsel’s performance was deficient, the
defendant must show that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, at 687. To do so, the defendant must overcome the presumption that
counsel provided competent representation and must show that counsel’s actions
were not trial strategies prompted by reasonable professional judgment. Strickland,
at 689. Counsel is entitled to a strong presumption that all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,
675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance of counsel. State v. Grant, 2023-Ohio-
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270, ¶ 55 (3d Dist.). Rather, the errors complained of must amount to a substantial
violation of counsel’s essential duties to his client. State v. Bradley, 42 Ohio St.3d
136, 141 (1989).
{¶33} Prejudice results from a deficient performance by counsel when
“‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Bradley, supra, at 142, quoting
Strickland at 694. “‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’”
Id.
{¶34} Although review of a claim of ineffective assistance of counsel
involves a two-pronged analysis, an appellate court does not need to consider the
facts of the case under both prongs if the appellant makes an insufficient showing
on one. State v. Crawford, 2021-Ohio-547, ¶ 18 (3d Dist.), citing State v. Baker,
2018-Ohio-3431, ¶ 19 (3d Dist.).
{¶35} Before reviewing the specifics of Smith’s ineffective counsel claims
in this case, we first address his contention that, pursuant to U.S. v. Cronic, 466 U.S.
648 (1984), no showing of prejudice is needed to establish ineffective assistance of
counsel here. Smith asks this Court to presume prejudice based on his assertion that
counsel entirely failed “to subject the prosecution’s case to meaningful adversarial
testing.”
Id., at 659.
{¶36} However, as the Supreme Court of Ohio noted in State v. Drain, 2022-
Ohio-3697, “to trigger Cronic’s presumption of prejudice, ‘the attorney’s failure
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must be complete.’” Id., at ¶ 69, quoting Bell v. Cone, 535 U.S. 685, 697 (2002).
“The record must show that defense counsel ‘failed to oppose the prosecution
throughout [a particular] proceeding as a whole,’ not merely that they ‘failed to do
so at specific points. For purposes of distinguishing between the rule
of Strickland and that of Cronic, this difference is not of degree but of kind.’”
Id.
{¶37} As will be detailed below, a review of the record in this case reflects
that Smith’s counsel did not completely fail to test the state’s case throughout the
proceeding as a whole. We therefore reject Smith’s contention that Cronic is
applicable here, and move on to apply the standards of Strickland v. Washington
discussed above.
{¶38} With regard to Smith’s claim concerning counsel’s failure to make an
opening statement, the record reflects that the State of Ohio made a brief opening
statement at the start of the trial. At that time, Smith’s counsel deferred opening
statement until after the presentation of the state’s case-in-chief. After the
prosecution presented its evidence, moved for admission of its exhibits, and rested
its case, Smith’s counsel then effectively waived opening statement by noting for
the record that the defense would not be presenting any evidence, as Smith had
elected not to testify.
{¶39} In reviewing counsel’s decision regarding opening statement, we note
that “‘[t]he decision not to make an opening statement is viewed as a tactical
decision to which a reviewing court must be highly deferential.’” State v. Magers,
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2004-Ohio-4013, ¶ 18 (3d Dist.), quoting State v. Williams (1991),
74 Ohio App.3d
686, 700 (1991), citing Strickland v. Washington (1984),
466 U.S. 668 (1984). As
this Court discussed in State v.
Magers, supra:
While the preferred trial court strategy may well be to make an
opening statement, we cannot say that the decision by Magers’s
counsel to waive an opening statement amounts to ineffective
assistance of counsel. Considering the facts and possible witnesses,
counsel could reasonably have concluded that it was too uncertain for
defense counsel to predict to the jury what it expected the evidence to
show and then to leave the jury wondering why the predicted evidence
did not materialize. At the usual time for opening statements, it may
have been that defense counsel was undecided about whether to call
Magers, the defendant, as a witness. Further, once the state rested its
case and defense counsel decided it should call Magers as a witness,
counsel may also have concluded that Magers, himself, was too
unpredictable a witness for counsel to characterize his testimony in
advance. Hence, defense counsel could reasonably have decided to
waive even its delayed opening statement.
Id., at ¶ 18.
{¶40} Similarly, in the instant case, Smith’s counsel could have reasonably
concluded initially that an opening statement was an uncertain endeavor or,
additionally, that an opening statement by the defense was unnecessary at that time
in light of the brevity of the opening statement presented by the prosecution. After
the State of Ohio rested its case and Smith’s counsel in effect waived opening
statement after opting not to present evidence, the record reflects that defense
counsel also noted that the matter had been discussed with his client and that it was
Smith’s decision not to testify. Additionally, the record reflects that the trial court
thereafter instructed the jury that the defense did not intend to present evidence, but
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that the defense had the right not to do so because the burden of proof was on the
State of Ohio.
{¶41} On such facts, and in light of the deference required by law of this
Court to what is deemed a tactical decision on counsel’s part, Smith has not
established that counsel opting to forego an opening statement was deficient
performance or otherwise unreasonable under the circumstances.
{¶42} With regard to counsel’s failure to present a closing argument at trial,
the record reflects that, after the close of the evidence, the State of Ohio presented
a closing argument summarizing the evidence and highlighting the elements of the
crimes at issue in the indictment. Following that, defense counsel noted for the
record that the defense would be waiving closing argument. The trial court then
immediately instructed the jury that the defense is not required to present a closing
argument and was electing not to do so.
{¶43} It is well established that “[t]he waiver of closing arguments is a
tactical decision and is thus not ineffective assistance of counsel.” State v. Line,
2019-Ohio-4221, ¶ 14 (3d Dist.), citing State v. Burke,
73 Ohio St.3d 399, 405
(1995), State v. Frierson,
2018-Ohio-391, ¶ 31 (8th Dist.), and State v. Guysinger,
2017-Ohio-1167 (4th Dist.). As this Court has repeatedly recognized in reviewing
claims of ineffective assistance, tactical or strategic trial decisions, even if
ultimately unsuccessful, will not substantiate a claim of ineffective assistance of
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counsel. State v. Shoaf, 2022-Ohio-3605, ¶ 50 (3d Dist.), citing State v. Hines, 2005-
Ohio-6696, ¶ 38 (3d Dist.).
{¶44} In this case, Smith asserts that the corrupt activity charge in Count 4
was factually weak, claiming that there was little evidence of Smith associating with
anyone else in a coordinated enterprise. Based on that assertion, Smith argues that
his counsel was deficient in not making an argument in that regard to the jury.
However, contrary to Smith’s claims, and as discussed in the first and second
assignments of error above, there was ample and firmly corroborated evidence of
Smith’s association with an enterprise. Smith also argues that counsel, in foregoing
closing argument, failed to argue the burden of proof. Although this Court
recognizes that counsel’s performance may not have been optimal by making no
such arguments on behalf of Smith, we note that Smith’s counsel stressed fairness,
impartiality, and the burden of proof during his voir dire and, more importantly, the
trial court provided detailed instructions to the jury on the state’s burden of proof
and the presumption of innocence in its general charge at the close of the trial. The
jury was also instructed that the evidence at trial does not include the closing
arguments of counsel. Finally, we acknowledge there is an inherent, and not
unreasonable, tactical strategy in waiving closing argument on behalf of a defendant
in certain criminal cases, as such a waiver forecloses the ability of the prosecution
to offer any rebuttal argument and to present certain key points that may have been
purposely left by the state for final closing argument.
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{¶45} Accordingly, on the basis of the applicable law as well as the record
before us, Smith has not established that counsel’s waiver of closing argument
amounted to deficient performance on counsel’s part.
{¶46} With regard to counsel’s lack of cross-examination of the prosecution
witnesses, the record reflects that the State of Ohio called only three witnesses at
trial, of whom defense counsel asked no questions. The testimony of two of those
witnesses, Investigator Deana Lauck and BCI chemist Kristin Canfield, was
extremely narrow in scope and limited to issues that were uncontested, and
reasonably so, on the facts of this case, with Lauck testifying solely as to the chain
of custody on items seized in the search warrant and Canfield testifying concerning
the weighing and analysis of the drugs found in Smith’s possession. The
prosecution’s third witness, Deputy Evan Thomas, was the state’s primary witness
who provided the bulk of the testimony in support of all the elements of the crimes
with which Smith was charged. However, essentially all aspects of the key
testimony given by Thomas were corroborated at trial by the dozens of evidentiary
exhibits presented in conjunction with that testimony.
{¶47} “[T]he decision whether to cross-examine a witness is a matter of trial
strategy that ‘is firmly committed to the trial counsel’s judgment ….’” State v.
Berry, 2021-Ohio-1132, ¶ 125 (3d Dist.), quoting State v. Grate,
2020-Ohio-5584,
¶ 148. In particular, foregoing cross-examination can be considered reasonable with
regard to witnesses who have testified about facts that were not in dispute. Grate,
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supra, at ¶ 148, citing State v. Dean, 2015-Ohio-4347, ¶ 272. Deciding not to cross-
examine a witness is also a reasonable trial tactic where cross-examination may
have served to emphasize already damaging testimony. See State v. Brinkley, 2005-
Ohio-1507, ¶ 129.
{¶48} Upon applying those legal principles to the facts of the instant case,
we must find that counsel’s opting to forego all cross-examination, while perhaps
questionable, was nevertheless a permissible strategic decision. In reaching that
conclusion, we note that the trial record confirms that counsel’s decisions on that
issue were the result of purposeful trial strategy on counsel’s part. Specifically, after
counsel waived closing argument, having already waived opening statement and
having opted to not cross-examine witnesses, the trial court inquired of defense
counsel on the record, outside the presence of the jury, about counsel’s decisions
concerning those matters. Noting that defense counsel had waived closing argument
and had not cross-examined witnesses, the trial court stated, “I’m not asking you to
get into details, but Mr. Chamberlain, were those trial strategy decisions on your
part to do those or not do those things?” (Tr., 428). In response, defense counsel
confirmed that those decisions were trial strategy on his part, based on his training
and experience. More importantly, Smith fails to articulate on appeal what specific,
favorable information counsel could have theoretically elicited during cross-
examination and, ultimately, Smith does not establish that he was prejudiced by the
lack of cross-examination. Accordingly, we reject this claim.
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{¶49} In summary, as to the third assignment of error as a whole, it is well
established that the decisions of defense counsel in a criminal case regarding
opening statement, closing argument, and cross-examination of witnesses are
decisions that fall squarely within the realm of trial strategy, and decisions to which
a reviewing court must accord great deference in light of the discretion granted by
law to counsel with regard to such tactical choices.
{¶50} In this case, upon collectively considering counsel’s decisions to
forego opening statement, closing argument, and the cross-examination of
witnesses, this Court is compelled to note that we view the same with disfavor.
However, upon the specific facts reflected by the record of the trial proceedings,
and upon applying the well-settled law cited above, we cannot find that defense
counsel’s overall performance fell below an objective standard of reasonableness.
As this Court observed in State v. Pack, 2000-Ohio-1792 (3d Dist.), at *5:
The motives and method behind the actions of an attorney during trial
are beyond the review of this court. Further, decisions such as
refraining from giving opening statements, treatment of jurors and
witnesses and refraining from multiple objections are all part of a
lawyer’s trial strategy. Thus this court cannot say that a strategic
decision to defend a client in a certain fashion rises to the level of
prejudice or unreasonableness required by the law.
{¶51} Ultimately, in the instant case, while counsel’s decisions regarding
opening statement, closing argument, and the cross-examination of witnesses may
have been questionable, particularly when considered as a whole, the overall record
reflects a competent performance by counsel on behalf of Smith. Prior to trial,
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Smith’s counsel filed timely motions on behalf of Smith, including a demand for
discovery, a motion for a bill of particulars, a motion to preserve evidence, a request
for notice of the state’s intent to use evidence, and a motion to compel digital and
electronic evidence. Motions to suppress evidence were also filed on Smith’s
behalf, seeking to exclude the incriminating statements given by Smith to police and
the evidence seized during the search of Smith’s residence. Defense counsel
attended pretrial hearings, and engaged in plea negotiations with the state to the
potential benefit of Smith. At trial, counsel conducted a thorough voir dire, stressing
the need for impartiality on the part of the jurors, highlighting the state’s burden of
proof, and questioning individual jurors about drugs and their ability to fairly sit as
jurors in a drug-related case. Defense counsel also requested and effectuated a
stipulation at trial as to Smith’s prior drug conviction, to the extent that conviction
was admissible as an element of the weapons under disability charge in Count 5,
thereby limiting the potential prejudicial impact of such evidence being presented
at trial. See State v. Creech, 2016-Ohio-8440. At trial, defense counsel also lodged
an appropriate hearsay objection to a question asked by the prosecution of Deputy
Thomas, and counsel further objected to the amendment of the indictment at trial.
At the close of the state’s case, counsel moved for acquittal pursuant to Crim.R. 29,
and then renewed that motion at the time the defense opted to rest without presenting
evidence. The record further reflects, as previously noted, that the decision to not
present Smith’s testimony in his defense was a decision made by Smith after
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consultation with counsel. The record also does not reveal, nor does Smith argue on
appeal, that there may have been other witnesses or evidence favorable to Smith that
counsel failed to present at trial. Based on statements made by defense counsel
during the course of the trial to the court or opposing counsel, the record also reflects
familiarity with the information contained in discovery and with the charges at issue
in the indictment, indicating trial preparedness on counsel’s part. Finally, counsel
also argued eloquently on Smith’s behalf at the sentencing hearing.
{¶52} In Strickland v. Washington, supra, the United States Supreme Court
held that “[t]he benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”
Id. at 686.
{¶53} In this case, for all of the reasons discussed throughout our analysis of
this assignment of error, we conclude that defense counsel’s performance did not so
undermine the adversarial process so as to impact the justness or reliability of the
trial’s outcome. While foregoing an opening statement, closing argument, and the
questioning of witnesses may not be a preferred trial strategy, particularly when
those decisions are viewed as a whole, the overall record of the case before us does
not support a finding that defense counsel’s performance was deficient, nor has
resulting prejudice been established. We hasten to add that our decision in this case
should not be interpreted as a general holding that similar actions by counsel in other
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cases will never constitute ineffective assistance of counsel, as our decision here is
based strictly on the circumstances reflected by the record in this particular matter.
{¶54} The third assignment of error is overruled.
Fourth Assignment of Error
{¶55} In the fourth assignment of error, Smith argues that the imposition of
consecutive sentences was not supported by the record in this case.
{¶56} The standard of review applicable to Smith’s sentence-related claim is
whether the sentence is clearly and convincingly contrary to law. State v. Marcum,
2016-Ohio-1002; R.C. 2953.08. With regard to sentencing-review generally, the
Supreme Court of Ohio has limited that review by holding that R.C.
2953.08(G)(2)(b) “does not provide a basis for an appellate court to modify or
vacate a sentence based on its view that the sentence is not supported by the record
under R.C. 2929.11 and 2929.12.” State v. Jones,
2020-Ohio-6729, ¶
39. Additionally, a trial court has full discretion to impose any sentence within the
statutory range. State v. Johnson,
2021-Ohio-1768, ¶ 9 (3d Dist). “A sentence
imposed within the statutory range is not contrary to law as long as the trial court
considered the purposes and principles of felony sentencing contained in R.C.
2929.11 and the sentencing factors contained in R.C. 2929.12.
Id., citing State v.
Dorsey,
2021-Ohio-76, ¶ 15 (2d Dist.).
{¶57} In order to impose consecutive sentences, “a trial court is required to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
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incorporate its findings into its sentencing entry ….” State v. Bonnell, 2014-Ohio-
3177, syllabus.
{¶58} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶59} When reviewing consecutive sentences on appeal, “[t]he plain
language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s
consecutive-sentence findings, and the trial court’s findings must be upheld unless
those findings are clearly and convincingly not supported by the record.” State v.
Gwynne, 2023-Ohio-3851, ¶ 5.
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{¶60} In the instant case, the trial court made findings pursuant to R.C.
2929.14(C)(4)(b) in support of the consecutive sentences, and Smith does not
contest that fact on appeal. Additionally, upon reviewing the entire record before
us, we cannot clearly and convincingly find that the record does not support the trial
court’s findings with regard to consecutive sentences.
{¶61} To the contrary, the record is replete with factors that support the
consecutive sentences imposed by the trial court. Specifically, in support of the trial
court’s finding that Smith’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender, the record reflects that Smith has a decades-long history of criminal
convictions, for both misdemeanor and felony level crimes. Smith also has not
responded favorably to sanctions previously imposed, and had served a prior prison
term after violating the terms of the community control to which he had initially
been sentenced. The presentence investigation upon which the trial court relied
reflected that Smith had an ORAS score of 27 at the time of his prior sentencing,
which indicated a high risk of reoffending. Additionally, in finding that consecutive
sentences are necessary to protect the public from future crime by the offender and
to punish the offender, the trial court accurately noted the devastating and even
potentially deadly effect upon the general public of the two types of drugs Smith
was involved in possessing and trafficking in this case, fentanyl and
methamphetamine. Those facts, as well as other facts of the case established by the
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evidence presented at trial, fully support the findings made by the trial court in
support of consecutive sentences.
{¶62} In sum, when considering the record as a whole, Smith has not
demonstrated by clear and convincing evidence that his consecutive sentences are
contrary to law. Therefore, the fourth assignment of error is overruled.
Fifth Assignment of Error
{¶63} In the fifth assignment of error, Smith contends his statutory right to a
speedy trial was violated, asserting that he was brought to trial beyond the time limit
set forth in R.C. 2945.71(C)(2).
{¶64} R.C. 2945.71(C)(2) provides that a person charged with a felony shall
be brought to trial within 270 days after the person’s arrest. “‘The statutory time
period begins to run on the date the defendant is arrested; however, the date of arrest
is not counted when computing the time period.’” State v. Turner, 2011-Ohio-4348,
¶ 12 (3d Dist.), quoting State v. Maisch, 2007–Ohio–6230, ¶ 26 (3d Dist.). Pursuant
to R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail on the pending
charge shall be counted as three days in that 270-day calculation. “The prosecution
and the trial courts have a mandatory duty to try an accused within the time frame
provided by the statute.” State v. Ramey, 2012–Ohio–2904, ¶ 14.
{¶65} However, R.C. 2945.72 allows for an extension of the time within
which the accused must be brought to trial under certain circumstances. Specifically
excluded from the speedy trial calculation is “[a]ny period of delay necessitated by
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reason of a … motion, proceeding, or action made or instituted by the accused.”
R.C. 2945.72(E). The exclusion set forth in R.C. 2945.72(E) includes motions by
the defendant for discovery or for a bill of particulars. State v. Brown, 2002–Ohio–
7040. For the statutory time period to be tolled by reason of a defense motion for
discovery, the prosecution must respond to the motion in a reasonable amount of
time. See State v. Johnson, 2011–Ohio–994, ¶ 24 (3d Dist.) (finding that an 8-day
response time to a defense discovery request was reasonable and therefore tolled the
speedy trial time); State v. Risner, 2004–Ohio–186, ¶ 18 (3d Dist.) (finding that a
16-day response time to a defense discovery demand tolled the speedy trial statute).
{¶66} The standard of review in an appeal raising a speedy trial issue is to
count the expired days as directed by R.C. 2945.71, et seq. State v. Taylor, 2014-
Ohio-1793, ¶ 27 (3d Dist.), citing State v. DePue, 96 Ohio App.3d 513, 516 (1994);
see also State v. King, 2007–Ohio–335, ¶ 30 (3d Dist.).
{¶67} In the instant case, it is undisputed that Smith remained in jail from
the date of his arrest, February 1, 2024, until the time of trial, which commenced on
August 12, 2024. Thus, the “3 for 1” provision of R.C. 2945.71(E) is applicable in
this case, and the State of Ohio was required to bring Smith to trial within 90 days
of his arrest. However, the record reflects that two tolling events occurred between
the date of Smith’s arrest and the date his trial began: Smith filed a demand for
discovery on March 15, 2024, and he filed a motion to suppress evidence on April
22, 2024.
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{¶68} As Smith accurately notes in his merit brief on appeal, 43 days are
chargeable to the State of Ohio between the date of his arrest, February 1, 2024, and
the filing of his discovery motion on March 15, 2024. On April 1, 2024, the State
of Ohio filed a response to Smith’s demand for discovery, which we find was a
reasonable time in which to respond to the motion, a fact that Smith does not dispute.
{¶69} An additional 21 days then elapsed between the filing of the state’s
discovery response on April 1, 2024 and April 22, 2024, the date on which Smith
filed his motion to suppress. Smith does not contest the fact that the filing of the
motion to suppress again tolled the speedy trial time until July 16, 2024, when the
trial court filed a judgment entry overruling the suppression motion after a hearing
thereon. Following that, another 27 days elapsed until the trial began on August 12,
2024.
{¶70} Adding all of that time together, the record reflects that Smith’s trial
commenced on the 91st day after his arrest, which is his contention on appeal in
support of his speedy trial claim. However, the date on which the trial began,
August 12, 2024, was a Monday, meaning that the 90th day of Smith’s speedy trial
time fell on a Sunday.
{¶71} Crim.R. 45(A) governs the computation of time in criminal cases and
provides:
In computing any period of time prescribed or allowed by these rules,
by the local rules of any court, by order of court, or by any applicable
statute, the date of the act or event from which the designated period
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Case No. 1-24-53
of time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, Sunday, or legal
holiday, in which event the period runs until the end of the next day
which is not Saturday, Sunday, or legal holiday. When the period of
time prescribed or allowed is less than seven days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in
computation.
{¶72} Thus, upon applying Crim.R. 45(A) to the speedy trial time calculation
in this case, Smith was brought to trial within the prescribed time limit set forth in
R.C. 2945.71 and his speedy trial claim lacks merit.
{¶73} The fifth assignment of error is overruled.
Sixth Assignment of Error
{¶74} In the sixth assignment of error, Smith argues that he was denied the
effective assistance of counsel because his trial counsel failed to move, prior to trial,
for Smith’s discharge on the basis of speedy trial grounds.
{¶75} We note that the standard of review applicable to ineffective assistance
of counsel claims was set forth above in the third assignment of error, and we
incorporate the same here by reference.
{¶76} As we concluded in the fifth assignment of error, supra, that Smith
was brought to trial within the time period mandated by Ohio’s speedy trial statute,
the failure of Smith’s trial counsel to make a futile motion does not constitute
deficient performance and Smith was not denied the effective assistance of counsel
in that regard. See State v. Harrison, 2015-Ohio-1419, ¶ 89 (3d Dist.) (“‘[T]he
failure to make a futile objection does not constitute deficient performance for an
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ineffective assistance of counsel claim.’”, quoting State v. Corder, 2012-Ohio-1995,
¶ 29 (4th Dist.)).
{¶77} The sixth assignment of error is overruled.
Conclusion
{¶78} Having found no error prejudicial to the defendant-appellant, Kyle
Smith, in the particulars assigned and argued, the judgment of the Allen County
Court of Common Pleas is affirmed.
Judgment affirmed
ZIMMERMAN and MILLER, J.J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Juergen A. Waldick, Judge
William R. Zimmerman, Judge
Mark C. Miller, Judge
DATED:
/jlm
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