State v. Pluhar

Ohio Court of Appeals April 6, 2016

State v. Pluhar, 2016 Ohio 1465 (2016)

Celebrezze

Opinion

[Cite as State v. Pluhar,

2016-Ohio-1465

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102012

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TIMOTHY PLUHAR

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-14-584753-A Application for Reopening Motion No. 490195

RELEASE DATE: April 6, 2016 FOR APPELLANT

Timothy Pluhar, pro se S.C.C. Hocking Correctional Facility 16759 Snake Hollow Road P.O. Box 59 Nelsonville, Ohio 45764-0059

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Denise J. Salerno Daniel T. Van Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Timothy Pluhar has filed a timely application for reopening pursuant to App.R.

26(B). Pluhar is attempting to reopen the appellate judgment that was rendered in State v.

Pluhar, 8th Dist. Cuyahoga No. 101289,

2015-Ohio-3344

, that affirmed his plea of guilty to the

offenses of rape, tampering with evidence, and sexual battery and the sentence imposed by the

trial court. We decline to reopen Pluhar’s original appeal.

{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Pluhar 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 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.

{¶4} Herein, Pluhar raises two proposed assignments of error in support of his claim of

ineffective assistance of appellate counsel. Pluhar, through his two proposed assignments of

error, argues that his convictions for the offenses of rape, tampering with evidence, and sexual battery were time-barred because the six-year statute of limitations, in effect at the time of the

commission of the offenses, had expired.

{¶5} Effective March 9, 1999, the General Assembly amended R.C. 2901.13 to provide

that the statute of limitations for certain felony offenses, including rape (R.C. 2907.02) and

sexual battery (R.C. 2907.03), was 20 years. The legislative history to the amendment states

that:

Section 2901.13 of the Revised Code, as amended by this act, applies to an offense committed prior to the effective date of this act if prosecution for that offense was not barred under section 2901.13 of the Revised Code as it existed on the day prior to the effective date of this act.

{¶6} Thus, if the statute of limitations had not expired by March 8, 1999, an offender is

subject to prosecution under the amended version of R.C. 2901.13. See State v. Herron, 8th

Dist. Cuyahoga No. 91362,

2009-Ohio-2128

. Courts throughout the state of Ohio have

uniformly upheld the constitutionality of this retroactive extension of the statute of limitations.

State v. Steele,

155 Ohio App.3d 659

2003-Ohio-7103

802 N.E.2d 1127

(1st Dist.).

{¶7} In the case sub judice, the offenses of rape and sexual battery occurred between June

20, 1998, and August 4, 1999. Thus, the applicable statute of limitations to the offenses of rape

and sexual battery is 20 years.

{¶8} In addition, the plea of guilty entered by Pluhar waived any claim that the conviction

for the offense of tampering with evidence was time-barred by a statute of limitations of six

years. State v. Brown,

43 Ohio App.3d 39

539 N.E.2d 1159

(1st Dist. 1988); State v. Keinath,

6th Dist. Ottawa No. OT-11-032,

2012-Ohio-5001

. Pluhar’s two proposed assignments of error

lack merit, and we find that he has failed to establish a claim of ineffective assistance of appellate