Opinion
No. 106813
09-09-2019
STATE OF OHIO, Plaintiff-Appellee, v. ESTEPHEN CASTELLON, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee. Estephen Castellon, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-16-610907-A
Application for Reopening
Motion No. 528559
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee. Estephen Castellon, pro se. LARRY A. JONES, SR., P.J.:
{¶ 1} Estephen Castellon has filed a timely application for reopening pursuant to App.R. 26(B). Castellon is attempting to reopen the appellate judgment, rendered in State v. Castellon, 8th Dist. Cuyahoga No. 106813, 2019-Ohio-628, that affirmed his conviction and sentence of incarceration for the offenses of rape and kidnapping with a sexual motivation specification. We decline to reopen Castellon=s original appeal.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel, Castellon is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).
{¶ 3} In Strickland, the United States Supreme Court held that a court's scrutiny of an attorney's work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland.
II. First Proposed Assignments of Error
{¶ 4} Castellon's first proposed assignment of error is that:
Prosecutorial misconduct created tainted convictions pursuant to the use of inadmissible statements/evidence.
{¶ 5} Castellon, through his first proposed assignment of error, argues that appellate counsel failed to assert on appeal that he was prejudiced by the admission at trial of recorded jail-phone conversations.
{¶ 6} The principles of res judicata may be applied to bar the further litigation of issues that were raised previously or could have been raised previously in an appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Claims of ineffective assistance of appellate counsel in an application for reopening may be barred from further review by the doctrine of res judicata unless circumstances render the application of the doctrine unjust. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992); State v. Logan, 8th Dist. Cuyahoga No. 88472, 2008-Ohio-1934.
{¶ 7} The issue raised by Castellon, that he was prejudiced by the admission of recorded jail-phone conversations, has already been addressed upon direct appeal through his third assignment of error. This court previously held that:
In his third assignment of error, Castellon contends that his trial counsel was ineffective. His argument revolves around the jail recordings and counsel's failure to file a pretrial motion to suppress or in limine; failure to object to the alleged hearsay testimony of Detective Mladek, who was neither a party to the conversations nor prepared the transcript of the recordings; and counsel agreeing to the admission of a summary of the jail recordings, as testified to by Detective Mladek, and without the translator who translated the "Spanglish" portions of the recordings. Castellon also contends that his counsel was ineffective because, in addition to failing to subpoena the translator to testify as to his or her qualifications, counsel also did not seek an independent translation of the recordings to verify accuracy with the transcript. * * *
Evid.R. 801 defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Subsection (D) of the rule governs statements that are not hearsay; one such statement is an "admission by party-opponent." Evid.R. 801(D)(2). A statement is deemed an admission by party-opponent if "the statement is offered against a party and is (a) the party's own statement, in either an individual or a representative capacity * * *." Id.Castellon, 8th Dist. Cuyahoga No. 106813, 2019-Ohio-628, at ¶ 34, 37-39.
Upon review, we find that the statements were admissible under Evid.R. 801(D)(2) as an admission of party-opponent. Further, we find that counsel's decision to not seek to exclude the statements very well may have been trial strategy. Specifically, the statements could have arguably supported an "accident" or "consensual encounter" defense.
In regard to counsel not subpoenaing the translator or obtaining an independent translator, we note that, in general, the decision whether to call a witness "falls within the rubric of trial strategy and will not be second-guessed by a reviewing court." State v. Treesh, 90 Ohio St.3d 460, 490, 2001- Ohio 4, 739 N.E.2d 749 (2001); State v. Williams, 74 Ohio App.3d 686, 694, 600 N.E.2d 298 (8th Dist.1991). Moreover, the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel. State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993).
{¶ 8} It must also be noted that this court held in the appeal that:
Notwithstanding that counsel may have been deficient in not subpoenaing the translator, we find that Castellon has not demonstrated that, but for this error, the result of the trial would have been different, the second prong of an ineffective assistance of counsel claim. "[I]t is well settled that a rape conviction may rest solely on the victim's testimony, if believed, and that '[t]here is no requirement that a rape victim's testimony be corroborated as a condition precedent to conviction.'" State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 40, quoting State v. Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d 854, 8 Anderson's Ohio App. Cas. 185 (4th Dist.1990). Thus, A.I.'s testimony alone was sufficient to support the convictions. We therefore overrule Castellon's ineffective assistance of counsel claim.Castellon at ¶ 41.
{¶ 9} Res judicata prevents this court from once again determining whether Castellon was prejudiced by the admission of the recorded jail-phone conversations. State v. Tate, 8th Dist. Cuyahoga No. 81682, 2004-Ohio-973. We further find that circumstances do not render the application of the doctrine of res judicata unjust. Castellon has failed to establish any prejudice through his first proposed assignment of error.
III. SECOND PROPOSED ASSIGNEMNT OF ERROR
{¶ 10} Castellon's second proposed assignment of error is that:
Castellon was denied the right to confront his accusers or witnesses of the state of Ohio.
{¶ 11} Castellon, through his second proposed assignment of error, argues that his right to confront the state's witnesses constituted a violation of the Sixth Amendment Confrontation Clause. Specifically, Castellon argues that the jailhouse phone call recordings admitted at trial, that involved his ex-girlfriend and his mother, required the cross-examination of the ex-girlfriend and mother.
{¶ 12} The decision of trial counsel to confront any witness falls squarely within the realm of trial strategy and tactics that will not be disturbed on appeal absent the demonstration of prejudice. State v. Warner, 8th Dist. Cuyahoga No. 95750, 2011-Ohio-4096, reopening disallowed, 2012-Ohio-256. In addition, Castellon has failed to identify, with any specificity, the prejudice that resulted from the lack of cross-examination of his ex-girlfriend and his mother. State v. Griffith, 8th Dist. Cuyahoga No. 97366, 2013-Ohio-256; State v. Marsh, 7th Dist. Mahoning No. 12-MA-40, 2013-Ohio-2049. We conclude a lack of prejudice because Castellon has failed to demonstrate that had the failure to cross-examine his ex-girlfriend and mother been presented as an argument in the direct appeal, this court would have reversed his conviction. The second proposed assignment of error fails to support a reopening of Castellon's direct appeal.
IV. Lack of Speedy Trial
{¶ 13} Castellon's third proposed assignment of error is that:
Castellon was denied his constitutional right to a speedy trial.
{¶ 14} Castellon, through his third proposed assignment of error, argues that appellate counsel failed to assert on appeal the issue that he was denied the right to a speedy trial. Specifically, Castellon argues that:
Here, the record clearly shows that Castellon was indicted on November 1, 2016 and arrested on December 5, 2016, with arrival to Cuyahoga County Jail on December 19, 2016. Appearance Docket. Trial did not commence until exactly one (1) year after arrest. Id. The reason for delay is "continuing discovery". This boilerplate designation negates the fact that technology has lent to discovery being placed on a defense portal. The real ulterior motive for delay was to prevail on forcing a plea to the otherwise inadmissible jailhouse phone calls. This disreputable behavior of gaining a tactical advantage cannot be sanctioned at the cost of inalienable birthrights.
{¶ 15} Herein, Castellon argues that the numerous trial time tolling provision of "continuing discovery" improperly extended the time for a speedy trial, because modern technology allows for the immediate ability to provide discovery. Castellon has failed to demonstrate that his right to a speedy trial was violated through the tolling provisions of R.C. 2945.72 or that the tolling provisions relating to requested discovery violated his constitutional right to a speedy trial.
{¶ 16} In addition, a substantive review of the docket in Cuyahoga C.P. No. CR-16-610907 fails to demonstrate a violation of Castellon's right to a speedy trial. The Sixth Amendment to the United States Constitution and Ohio Constitution Article I, Section 10 guarantee a criminal defendant the right to a speedy trial. This guarantee is implemented in R.C. 2945.71, which provides the specific time limits within which a person must be brought to trial. The trial time tolling provisions are set forth in R.C. 2945.72. R.C. 2945.71 provides that a person against whom a felony charge is pending shall be brought to trial within 270 days after arrest. R.C. 2945.71(C)(2). If an accused is in jail in lieu of bail solely on the pending charge, the statute mandates that each day count as three days for purposes of speedy trial calculation. R.C. 2945.71(E). If an accused is not brought to trial within the statutory time limit, the accused must be discharged. R.C. 2945.73(B). However, the R.C. 2945.71 time limits can be extended for any reason set out in R.C. 2945.72, but those extensions must be strictly construed against the state. State v. Sanders, 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524.
{¶ 17} The docket in CR-16-610907, demonstrates that:
1) 11/1/16 — Castellon indicted;
2) 12/19/16 — Castellon arrested and in custody;
3) 12/21/19 — Castellon arraigned;
4) 12/27/19 — Castellon files demand for discovery;
5) 1/3/17 — pretrial had and continued to 1/12/17 at request of Castellon in order to complete discovery;
6) 1/12/17 — pretrial had and continued to 1/23/17 at request of Castellon in order to complete discovery;
7) 1/23/17 — pretrial held and trial set for 3/6/17;
8) 2/21/17 — Castellon files motion for continuance of trial and converting trial date to pretrial on 3/6/17;
9) 3/6/17 — pretrial had and continued to 3/28/17 at request of Castellon in order to complete discovery;
10) 3/28/17 — pretrial had and continued to 4/13/17 at request of Castellon in order to complete discovery;
11) 4/13/17 — pretrial had and continued to 5/3/17 at request of Castellon in order to complete discovery;
12) 4/17/17 — Castellon files supplemental discovery request;
13) 5/3/17 — pretrial had and continued to 5/16/17 at request of Castellon in order to complete discovery;
14) 5/4/17 — Castellon filed motion to compel production of supplemental discovery;
15) 5/16/17 — pretrial had and continued to 5/25/17 at request of Castellon in order to complete discovery;
16) 5/25/17 — pretrial had and continued to 6/1/17 at request of Castellon in order to complete discovery;
17) 6/1/17 — pretrial had and continued to 6/20/17 at request of Castellon in order to complete discovery;
18) 6/20/17 — pretrial had and continued to 7/20/17 at request of Castellon in order to complete discovery;
19) 7/20/17 — pretrial had and continued to 7/27/17 at request of Castellon in order to complete discovery;
20) 7/27/17 — pretrial had and continued to 8/10/17 at request of Castellon in order to complete discovery;
21) 8/10/17 — pretrial had and continued to 8/17/17 at request of Castellon in order to complete discovery;
22) 8/17/17 — Castellon waives, in writing, his right to speedy trial until 12/31/17
23) 12/5/17 — trial commenced
{¶ 18} Between 12/19/16 (date of arrest) and 8/17/17 (waiver of speedy trial), a period of 111 speedy trial days ran that were chargeable against the 270 days in which Castellon was required to be brought to trial. The time period between Castellon's arrest (12/19/16) and the initial request for discovery (12/27/16) involved 24 chargeable days (8 x 3 = 24). In addition, the time period between 1/23/17 and 2/21/17 involved 29 chargeable days (29 x 3 = 87). The remainder of the days between arrest and waiver of speedy trial were tolled as a result of the numerous requests for pretrial continuances, discovery requests, and trial continuances made by Castellon. State v. Brown, 2016-Ohio-1453, 63 N.E.3d 509 (4th Dist.); State v. Shepard, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415. Castellon has not demonstrated that he was denied his right to a speedy trial from the delay in his trial date. Castellon has failed to establish any prejudice through his third proposed assignment of error.
{¶ 19} Accordingly, the application for reopening is denied. /s/_________
LARRY A. JONES, SR., PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR