State v. Pluhar , 2016 Ohio 1465 ( 2016 )

[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
counsel.
{¶9} Application denied.
FRANK D. CELEBREZZE, JR., JUDGE
TIM McCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR