[Cite as State v. Sims, 2016-Ohio-5316.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )            CASE NO. 14 MA 0027
V.                                                  )
                                                    )                    OPINION
ROBBIE SIMS,                                        )
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Youngstown
                                                    Municipal Court of Mahoning County,
                                                    Ohio
                                                    Case No. 2013CRB2622

JUDGMENT:                                           Motion to Reopen Sustained
                                                    Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                              Dana Lantz
                                                    Prosecutor
                                                    Kathleen Thompson
                                                    Assistant Prosecutor
                                                    26 S. Phelps Street, 4th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant                             Attorney Richard J. Hura
                                                    9 East Park Avenue
                                                    Columbiana, Ohio 44408

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L Waite
Hon. Mary DeGenaro


                                                    Dated: August 1, 2016
[Cite as State v. Sims, 2016-Ohio-5316.]
DONOFRIO, P.J.

        {¶1}     Defendant-appellant Robbie Sims has filed a timely application to
reopen his direct appeal after this Court’s December 16, 2015 decision in State v.
Sims, 7th Dist. No. 14 MA 27, 2015-Ohio-5454. In that appeal, Sims’s appointed
appellate counsel raised two assignments of error. The first assignment of error was
that his conviction was against the manifest weight of the evidence. The Court found
that assignment of error without merit and affirmed his conviction.         The second
assignment of error was that he was not afforded his right to allocution. The Court
found merit to that assignment of error and reversed and remanded the matter for
resentencing.
        {¶2}     In this application to reopen, Sims argues that he was denied the
effective assistance of appellate counsel when that counsel failed to raised an
assignment of error relative to the improper denial of his jury demand in the trial court
which prejudiced him in the outcome of his appeal. Pursuant to App.R. 26(B)(1), a
criminal defendant may seek reopening based upon a claim of ineffective assistance
of counsel. The defendant must set forth any assignments of error not considered on
the merits or considered on an incomplete record due to appellate counsel’s deficient
representation. App.R. 26(B)(2)(c). The application shall be granted if there is a
genuine issue as to whether the defendant was deprived of the effective assistance
of counsel. App.R. 26(B)(5).
        {¶3}     In determining whether a defendant received ineffective assistance of
appellate counsel, we ask whether there exists deficient performance falling below an
objective standard of reasonableness and prejudice in that there is a reasonable
probability the result of the appeal would have been different but for serious error.
See State v. Were, 120 Ohio St. 3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶¶ 10-11,
citing Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Appellant has the burden of demonstrating a “genuine issue” as
to whether he has a “colorable claim” of ineffective assistance of appellate counsel.
Id. at ¶ 11.
        {¶4}     The assignment of error that Sims contends his appointed appellate
counsel failed to raise and argue in the initial appeal is as follows:
                                                                                   -2-


              The trial court was without jurisdiction to conduct a bench trial in
       this matter, and violated Appellant’s Sixth and Fourteen [sic]
       Amendment rights by holding a bench trial, as Appellant timely filed a
       jury demand requiring reversal of conviction and a jury trial to be held.

       {¶5}   Sims, through appointed trial counsel, filed a jury demand on Monday,
February 3, 2014, nine days prior to trial.      Crim.R. 23(A) requires that the jury
demand be filed “not less than ten days prior to the date set for trial.” The trial court
denied Sims’s jury demand as untimely.         Sims essentially argues that since the
deadline for filing the jury demand fell on Sunday the trial court should have afforded
him to the next working day to file the demand which was Monday, February 3, 2014.
       {¶6}   Sims’s principal authority in support of this argument comes from the
“last day of the period so computed” language of Crim.R. 45 governing the
computation of time as it pertains to the criminal rules:

              (A) Time: Computation. 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 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.

(Emphasis added.)
       {¶7}   It should be noted the Ohio Supreme Court, not the General Assembly,
promulgated the Rules of Criminal Procedure pursuant to the authority conferred by
Section 5(B), Article IV of the Ohio Constitution.          This Court’s interpretation of
Crim.R. 45 and its interplay with Crim.R. 23(A) is guided by Crim.R. 1(B), which
                                                                                      -3-


states:

                 (B) Purpose and Construction. These rules are intended to
          provide for the just determination of every criminal proceeding. They
          shall be construed and applied to secure the fair, impartial, speedy, and
          sure administration of justice, simplicity in procedure, and the
          elimination of unjustifiable expense and delay.

See, also, R.C. 2901.04(B) (“[r]ules of criminal procedure * * * shall be construed so
as to effect the fair, impartial, speedy and sure administration of justice”). Moreover,
Crim.R. 57(B) notes that “[i]f no procedure is specifically prescribed by rule, the court
may proceed in any lawful manner not inconsistent with [the] rules of criminal
procedure.”
          {¶8}   The State argues that Crim.R. 45 does not affect the computation of
time for a jury demand under Crim.R. 23(A) because the “last day of the period so
computed” would be the day on which the trial has been scheduled, not the
preceding tenth day. In other words, since a trial court would not schedule a trial on
a Saturday, Sunday, and legal holiday, the State argues that Crim.R. 45(A) does not
apply to the computation set forth in Crim.R. 23(A).
          {¶9}   The State’s argument is unpersuasive. Crim.R. 23(A) clearly directs
that the ten days is to be computed from the date set for trial:

                 (A) Trial by Jury. * * * In petty offense cases, where there is a
          right of jury trial, the defendant shall be tried by the court unless he
          demands a jury trial. Such demand must be in writing and filed with the
          clerk of court not less than ten days prior to the date set for trial, or on
          or before the third day following receipt of notice of the date set for trial,
          whichever is later. Failure to demand a jury trial as provided in this
          subdivision is a complete waiver of the right thereto.

(Emphasis added.)         Although Crim.R. 23(A) is worded in such a way that the
computation is made by calculating ten days preceding the date set for trial, it is
                                                                               -4-


nevertheless a computation to which Crim.R. 45 applies. The purpose and intent
behind Crim.R. 45 would seem to be to provide the greatest degree of fairness to
criminal defendants by allowing for filing on the next business day when the time
period expires on a day of court closure. Here, since the tenth day fell on Sunday,
Sim’s jury demand filed on Monday should have been considered timely.
       {¶10} It is noteworthy that even in instances where a criminal defendant has
failed to make their jury demand more than ten days prior to the original date set for
trial, courts have found that they have not necessarily permanently waived their right
to do so:

               The purpose behind Crim.R. 23(A) is to ensure that criminal
       defendants do not wait until they have reached the courthouse steps on
       the day of trial to demand a jury. This would result in undue delay and
       expense and possibly prejudice the state. * * * Where a demand for a
       jury trial is made far enough in advance of the actual trial date so as to
       remove these concerns of delay and prejudice, it is improper to deny a
       jury trial.

State v. Burton, 39 Ohio App. 3d 151, 151-152, 530 N.E.2d 955 (6th Dist.1988)
       {¶11} In this instance, there is nothing in the record to indicate that the
operation of the trial court would have been disturbed in any way by the granting of
this jury demand.      Further, we find that the State would suffer no prejudice by
allowing a jury trial in this specific situation.
       {¶12} In conclusion, under the facts and circumstances of this case, we find
that Sims has met both prongs of the Strickland standard. The failure herein to raise
the constitutional issue of the defendant’s right to a jury trial constitutes deficient
performance. Also, since Sims had a “reasonable probability” of success if this claim
had been asserted, appellate counsel's failure to do so was prejudicial.
       {¶13} Accordingly, Sim’s assignment of error has merit and his motion to
reopen the appeal is sustained. The judgment of the trial court is reversed and this
case remanded for further proceedings according to law and consistent with this
                                                                              -5-


Court’s opinion with instructions to vacate Sim’s conviction and allow for Sim to have
a jury trial if that is how he so chooses to proceed. This Court’s original December
16, 2015 decision in State v. Sims, 7th Dist. No. 14 MA 27, 2015-Ohio-5454, is
otherwise set aside as moot.

Waite, J., concurs.

DeGenaro, J., dissents with attached dissenting opinion.

DeGenaro, J. dissenting.
      {¶14} Because Sims failed to object to the denial of his jury demand on the
record in the trial court, he has waived this argument on appeal. State v. Allen, 8th
Dist. No. 90552, 2008-Ohio-5251, ¶ 6. The right to a jury trial in a criminal case is "
'not an absolute and unrestricted right in Ohio with respect to misdemeanors * * *.' "
State v. Brooks, 7th Dist. No. 05MA31, 2006-Ohio-4610, ¶ 57, quoting City of Mentor
v. Giordano, 9 Ohio St. 2d 140, 224 N.E.2d 343 (1967), paragraph one of the
syllabus. Thus, appellate counsel cannot be deemed ineffective.