State v. Dickerson
| Decision Date | 03 February 2022 |
| Docket Number | 109434 |
| Citation | 2022 Ohio 298 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. OSCAR DICKERSON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
2022-Ohio-298
STATE OF OHIO, Plaintiff-Appellee,
v.
OSCAR DICKERSON, Defendant-Appellant.
No. 109434
Court of Appeals of Ohio, Eighth District, Cuyahoga
February 3, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585521-A
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.
Russel S. Bensing, for appellant.
JOURNAL ENTRY AND OPINION
EMANUELLA D. GROVES, JUDGE
{¶ 1} Defendant-appellant Oscar Dickerson ("Dickerson") appeals from the trial court's decision to grant plaintiff-appellee the state of Ohio's ("the state") motion to reinstate his conviction, following the court's denial of his motion to
dismiss for preindictment delay.[1] For the reasons that follow, we affirm in part, reverse in part, and remand.
Factual and Procedural History
{¶ 2} This case is the latest in a series of appeals from Dickerson's 2014 convictions for rape and kidnapping that stemmed from a 1994 incident. On May 15, 2014, Dickerson and his codefendant Michael Jenkins ("Jenkins") were each indicted on two counts of rape, one count of kidnapping, and two counts of complicity.
{¶ 3} The facts in this case have been completely and comprehensively set out in State v. Dickerson, 2016-Ohio-807, 60 N.E.3d 699 ("Dickerson I ") and State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.) ("Jenkins II "). We summarize below:[2]
The following facts were elicited at trial * * *. The victim J.R., testified that on July 2, 1994 * * * she was 16 years old. She had spent the day and evening with her boyfriend at his house, drinking and smoking marijuana. She left her boyfriend's house some time after midnight to walk home Her boyfriend walked with her approximately halfway home. She proceeded to walk the remainder of the approximately 40-minute walk home alone
When she was approximately ten minutes from her house, three males in a car approached her and called out to her as the car drove past. The car "circled back" a few times, and J.R. testified that she "waved them off." J.R. started to cut across an open area to avoid the car, but the car pulled over near a library. J.R. testified that the car was driven by an older white male. Two younger black males were also in the car.
One of the younger men got out of the car and approached J.R., offering her a ride home. She initially declined, but the young man persisted. At approximately 1:30 a.m., J.R. ultimately got into the car and told the men where she lived. J.R. testified that she was "not thinking" when she got in the car; she also testified that she accepted the ride because she was scared. The car proceeded to drive past her street. J.R. testified that she again told the driver where she lived as they passed her street, but she was ignored.
The car eventually pulled into a hotel parking lot. The driver of the car, later identified as Jerry Polivka, got out of the car and proceeded to rent a hotel room. A receipt indicated that the room was rented at approximately 4:42 a.m. J.R. remained in the car with the other two men, the then-18-year-old defendant-appellant Michael Jenkins and his then-19-year-old codefendant Oscar Dickerson. J.R. testified that she did not know the men, but they identified themselves as "Mike" and "Oscar" or "O," respectively.
When Polivka returned to the car, he drove to a back entrance of the hotel, where Dickerson and Jenkins walked J.R. into a hotel room. Polivka drove off, leaving J.R., Dickerson, and Jenkins at the hotel.
J.R. testified that she tried to think of a way to get out of the situation. At one point, she asked to go outside to smoke a cigarette, hoping to escape, but one of the young men accompanied her. J.R. accepted crack cocaine from him to put on the end of her cigarette, which she testified that she smoked in an attempt to "numb" herself for what she believed "was going to happen." Dickerson and Jenkins proceeded to have vaginal intercourse with J.R. in the bathroom and bedroom of the hotel room.
After both men had intercourse with J.R., she took a shower in the hotel bathroom. When she returned to the living area of the hotel room, Jenkins and Dickerson were asleep. J.R. took that opportunity to escape from the hotel room and go home.
J.R. testified that when she got home, she tried to run upstairs to the bathroom, but her mother confronted her and demanded to know where she had been. J.R. then told her mother what had happened at the hotel room.
J.R.'s mother testified that she was on the porch when J.R. returned home that morning and that J.R., who usually avoided her, sat down on the porch and looked like she wanted to talk. According to J.R.'s
mother, J.R. then voluntarily told her what had happened. J.R.'s mother then called the police, who responded to the call at J.R.'s home. Subsequently, J.R. went to the hospital and was treated for sexual assault. The responding officers went to the hotel, where they found Dickerson and Jenkins asleep in the hotel room. Both men were arrested.
The police obtained the receipt for the hotel room from a hotel clerk. The receipt identified Jerry Polivka as the individual who rented the room. Polivka was named as a suspect in the initial report, but was never contacted by the police in connection with this case.
After J.R. left the hospital, she went with her mother to meet with a detective to discuss the incident. J.R. testified that the detective was "very rude" and shared her opinion of the incident, leaving J.R. feeling humiliated and prompting her to tell the detective to "forget it if she wasn't going to help." J.R.'s mother, however, testified that the detective was respectful.
Following this meeting, the detective noted in the case file that no further investigation would take place.
Several days later, J.R. was walking to her boyfriend's house when someone she recognized as "Mike" pulled up alongside her in a car. J.R. testified that Mike seemed angry and "forced" her to sign a note recanting her statements about the incident. J.R. signed the note and immediately reported this incident to the police. The police made an intimidation report but never followed up on the incident.
J.R. testified that shortly after the July 2 events, she found out that she was pregnant and did not follow up with the police because she wanted to "get on with her life."
On August 24, 2012, J.R.'s rape kit was submitted to BCI for DNA testing as part of the Sexual Assault Kit Testing Initiative. DNA analysis showed Dickerson's DNA on vaginal and rectal swabs and Jenkins's DNA on the victim's bathing suit bottoms. The detective assigned to the case discovered that Polivka was deceased.
On May 15, 2014, Dickerson and Jenkins were each indicted on one count of rape for vaginal intercourse, one count of rape for fellatio, two corresponding counts of complicity to commit rape, and one count of kidnaping. Both defendants pleaded not guilty to all charges.
On November 5, 2014, counsel for Dickerson filed a motion to dismiss based on preindictment delay. Jenkins's counsel did not file a similar motion at this or any other point in the proceedings.
The docket in Dickerson's case does not indicate a ruling on Dickerson's motion to dismiss. In his appeal to this court, Dickerson characterized the motion as having been denied as untimely, and this court adopted that characterization. Dickerson II at ¶ 2. A review of the transcript shows that the trial court declined to consider the motion because it was untimely.
A jury trial took place from November 12 to November 18, 2014. The jury found both defendants guilty of one count of rape for vaginal intercourse, one count of complicity for each other's rape conviction, and one count of kidnaping. The jury found both defendants not guilty of the rape and complicity charges as they related to fellatio.
{¶ 4} On December 29, 2014, the court sentenced Dickerson to five years in prison on each count, to be served concurrently. This sentence was imposed under Am.Sub.H.B. No. 86, the sentencing regime that became effective on September 30, 2011, and was in effect at the time of sentencing in 2014.
{¶ 5} The state appealed, arguing that the trial court erred by ordering a definite term of incarceration because Dickerson would have been subject to an indefinite sentence under the sentencing regime as it existed at the time of the 1994 offense. Dickerson cross-appealed, arguing that the trial court erred in denying his motion to dismiss for preindictment delay and that his trial counsel was ineffective for not timely filing the motion. This court vacated Dickerson's conviction, finding that his counsel was deficient for not timely filing the motion to dismiss and that there was a reasonable probability that it would have been granted had it been timely filed, given that Dickerson "had a strong, viable claim of actual prejudice." Dickerson I at ¶ 43. The state appealed this decision to the Ohio Supreme Court,
and the Supreme Court vacated Dickerson I and remanded the case "for application of State v. Jones, [148 Ohio St.3d 167, ] 2016-Ohio-5105, [69 N.E.3d 688]." State v. Dickerson, 146 Ohio St.3d 1493, 2016-Ohio-5585, 57 N.E.3d 1172.
{¶ 6} On remand and after applying Jones, this court reached the same conclusion, finding that Dickerson's counsel was ineffective and stating, in relevant part:
After consideration of this case, we find that Dickerson had a reasonable probability of success in demonstrating actual and substantial prejudice. The circumstances of this case are similar to the circumstances in [State v.] Luck, [15 Ohio St.3d 150, 427 N.E.2d 1097 (1984)] in that the defendants and the deceased [witness] were...
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