State v. Patterson , 2018 Ohio 4672 ( 2018 )

[Cite as State v. Patterson, 2018-Ohio-4672.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-17-045
WD-17-046
Appellee
Trial Court Nos. 2016CR0461
v. 2016CR0460
William Patterson DECISION AND JUDGMENT
Appellant Decided: November 20, 2018
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
SINGER, J.
{¶ 1} In this consolidated appeal, appellant, William Patterson, challenges a
judgment of the Wood County Court of Common Pleas, in which the court sentenced
him, following his entering of a guilty plea, to a five-year community control sanction for
failing to appear as required by recognizance in violation of R.C. 2937.99(A) and (B), a
felony of the fourth degree. For the reasons that follow, we affirm.
Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
I. APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT
RIGHTS WERE VIOLATED WHEN HE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL.
II. APPELLANT’S PLEA WAS NOT MADE KNOWINGLY AND
VOLUNTARILY.
Background
{¶ 3} Appellant was scheduled to be sentenced on September 13, 2016, after
pleading guilty to negligent homicide and permitting drug abuse in other Wood County
criminal cases. Appellant failed to appear for sentencing. Appellant was indicted and the
trial court issued a warrant.
{¶ 4} On December 19, 2016, and while incarcerated for another case, appellant
served and filed a notice for speedy disposition under R.C. 2941.401. The trial court held
an arraignment hearing on April 28, 2017.
{¶ 5} At the hearing, appellant explained that he filed the notice for speedy
disposition in an effort to resolve the failure to appear charge. He waived his right to
speedy trial, which tolled the speedy trial clock, until June 2, 2017. Numerous
continuances were granted and other procedural matters arose, and appellant eventually
2.
entered a guilty plea and was sentenced on August 25, 2017. The judgment was
journalized August 30, 2017. Appellant timely appeals.
Law and Analysis
{¶ 6} In his first assigned error, appellant asserts he was deprived of effective
assistance of trial counsel. In his second, appellant asserts he was not properly advised
regarding his plea. In response, appellee contends there was no issue with respect to
appellant’s speedy trial rights, and thus appellant’s trial counsel committed no error when
advising appellant about his plea. We will address both assigned errors together.
{¶ 7} In evaluating ineffective assistance of counsel claims, the test is “whether
the accused, under all the circumstances, * * * had a fair trial and substantial justice was
done.” State v. Hester, 45 Ohio St. 2d 71, 341 N.E.2d 304 (1976), paragraph four of the
syllabus; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). A court must determine “whether there has been a substantial violation of any of
defense counsel’s essential duties to his client” and “whether the defense was prejudiced
by counsel’s ineffectiveness.” State v. Calhoun, 86 Ohio St. 3d 279, 289, 714 N.E.2d 905
(1999).
{¶ 8} In this case, appellant specifically argues that his trial counsel was
ineffective because counsel failed to act on an alleged violation of his statutory speedy
trial rights, and counsel could not have properly advised him to knowingly accept a guilty
plea because the case should have been dismissed under R.C. 2941.401.
3.
{¶ 9} Both arguments assume appellant’s speedy trial rights were violated.
Nevertheless, we disagree and find no such error in the record.
{¶ 10} A speedy trial claim involves a mixed question of law and fact. See State v.
Larkin, Richland App. No. 2004-CA-103, 2005-Ohio-3122, ¶ 11. An appellate court
must accept as true any facts found by the trial court and supported by competent,
credible evidence. Id. With regard to the legal issues, however, we apply a de novo
standard of review and thus freely review the trial court’s application of the law. Id.
{¶ 11} R.C. 2941.401, in pertinent part, provides:
When a person has entered upon a term of imprisonment in a
correctional institution of this state, and when during the continuance of the
term of imprisonment there is pending in this state any untried indictment,
information, or complaint against the prisoner, he shall be brought to trial
within one hundred eighty days after he causes to be delivered to the
prosecuting attorney and the appropriate court in which the matter is
pending, written notice of the place of his imprisonment and a request for a
final disposition to be made of the matter, except that for good cause shown
in open court, with the prisoner or his counsel present, the court may grant
any necessary or reasonable continuance. * * *
If the action is not brought to trial within the time provided, subject
to continuance allowed pursuant to this section, no court any longer has
4.
jurisdiction thereof, the indictment, information, or complaint is void, and
the court shall enter an order dismissing the action with prejudice.
See, e.g., State v. McIntire, 6th Dist. Huron No. H-10-004, 2011-Ohio-1544, ¶ 11-16.
{¶ 12} In this case, we find appellant properly notified the warden or superintendent
having custody of him in accordance with R.C. 2941.401, on December 19, 2016. That
would be the point in time when the 180-day period began to run.
{¶ 13} “[T]he right to a speedy trial may be waived as long as the waiver is
knowingly and voluntarily made.” See, e.g., State v. Melampy, 12th Dist. Brown No.
CA2007-04-008, 2008-Ohio-5838, ¶ 11. “[A]n accused’s waiver of his or her
constitutional and statutory right to a speedy trial must be expressed in writing or made in
open court on the record.” Ohio v. King, 70 Ohio St. 3d 158, 161, 637 N.E.2d 903 (1994).
{¶ 14} Close review of the record here reveals that appellant waived his rights to
speedy trial in open court on the record at the April 28, 2017 hearing.
{¶ 15} More specifically, the transcript of the hearing reveals the following
exchange occurred between the prosecutor, trial court, appellant, and appellant’s counsel.
[Prosecutor]: Your Honor, pursuant to his pleading pursuant to
2941.401 and the time limitations contained therein, we’re requesting a
waiver of time based upon their request of a pretrial in June.
(Attorney-client discussion held off the record).
[The Court]: I need to address this with both Mr. Dech and also with
the defendant in this particular case.
5.
Mr. Patterson, you filed your own request in this particular case.
And at the direction or after consultation with your attorney in this
particular matter that this matter be addressed in a more timely manner
under 2941.041, you made that request. The Court has a requirement to do
that within 180 days unless you were willing to waive that for a reasonable
time to have the report addressed by the Court.
[Appellant]: Yes, Your Honor. My initial reason for doing that at
the time was that I was delivered to the institution the very first week of
December. And Wood County has made trips to the institution roughly
every week, every Thursday since then. I was hoping that maybe sometime
long before today that they were going to come and pick me up and bring
me back for these charges. I had no idea that they were going to wait until
this late. So that was the original reason why I filed that speedy disposition
because that was what they instructed me to do at the institution to get the
courts to come and get me.
[The Court]: So you would waive it to at least the next pretrial of
June 2nd?
[Appellant]: Yes, Your Honor.
[The Court]: Mr. Dech?
[Appellant’s Counsel]: Nothing further.
6.
{¶ 16} Although appellant only waived the speedy trial issue until “the next
pretrial of June 2nd[,]” that tolled the time for 35 days. As of April 28, 2017, only 130
days had passed, and the clock did not start back until June 2, 2017.
{¶ 17} Appellant asserts that from that point, the trial court was obligated to bring
him to trial by July 28, 2017, and thus that he was not brought to trial in time.
{¶ 18} Appellee counters, recognizing that appellant’s trial counsel spoke for
appellant during the case and that counsel requested continuances and a withdrawal that
tolled the time. Appellee calculates appellant was “tried after roughly 130 days.”
{¶ 19} “[T]olling provisions of R.C. 2945.72 apply to the 180-day speedy trial
time limit of R.C. 2941.401.” (Citations omitted.) State v. Colon, 5th Dist. Stark No. 09-
CA-232, 2010-Ohio-2326, ¶ 30; State v. Roberts, 6th Dist. Wood No. WD-04-028, 2004-
Ohio-5509.
{¶ 20} R.C. 2945.72, in pertinent part, provides:
The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only by
the following: * * *
(A) Any period during which the accused is unavailable for hearing
or trial, by reason of other criminal proceedings against him, within or
outside the state, by reason of his confinement in another state, or by reason
of the pendency of extradition proceedings, provided that the prosecution
exercises reasonable diligence to secure his availability; * * *
7.
(C) Any period of delay necessitated by the accused’s lack of
counsel, provided that such delay is not occasioned by any lack of diligence
in providing counsel to an indigent accused upon his request as required by
law;
(D) Any period of delay occasioned by the neglect or improper act
of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the accused;
***
(H) The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other than
upon the accused’s own motion; * * *
See Roberts at ¶ 12.
{¶ 21} In this case, we calculate the speedy trial time period as less than 180 days,
as follows:
 12/19/16 (notice) – 4/28/17 (appellant’s waiver) = 130 days elapsed.
 6/2/17 (appellant unavailable) – 6/9/17 (continuance granted) = tolled
due to appellant’s unavailability.
 6/9/17 (continuance) – 7/14/17 (appellant’s Crim.R. 14 motion) = tolled
due to continuance.
 7/14/17 (motion) – 7/19/17 (order issued) = tolled due to motion.
8.
 7/19/17 (order) – 7/21/17 (motion to withdraw as counsel) = 3 days elapsed.
 7/21/17 (no counsel) – 7/24/17 (counsel appointed) = tolled due to
appointing of counsel.
 7/24/17 (counsel appointed) – 7/28/17 (pretrial conference) = 4 days
elapsed.
 7/28/17 (pretrial) – 8/14/2017 (plea hearing) = 17 days elapsed.
 8/14/2017 (plea) – 8/25/2017 (sentencing) = 9 days elapsed.
{¶ 22} Based on these calculations, only 163 days elapsed. More specifically, the
elapsed time would add up as such: 130 days + 3 days + 4 days + 17 days + 9 days = 163
days.
{¶ 23} Appellant thus cannot challenge his conviction based on a violation of his
speedy trial rights. Furthermore, because appellant’s speedy trial rights were not
violated, we decline to address whether appellant’s guilty plea waived those rights.1
1
We note that some districts hold that “allowing ‘a defendant to enter a guilty plea after
speedy trial time has expired would amount to ineffective assistance of counsel, and thus,
could affect the knowing and voluntary nature of the plea.’” State v. Matland, 7th Dist.
Mahoning No. 09-MA-115, 2010-Ohio-6585, ¶ 17, quoting State v. Haverly, 7th Dist.
Columbiana No. 09-CO-4, 2010-Ohio-1005, ¶ 10. See also State v. Johnson, 2d Dist.
Greene No. 2013-CA-1, 2013-Ohio-4077, ¶ 5 (“Although there is support for the
proposition that a guilty plea waives both statutory and constitutional speedy-trial claims,
this court has recognized a potential exception when a speedy-trial claim is raised in the
context of ineffective assistance of counsel.”). But see State v. Wyley, 8th Dist.
Cuyahoga No. 102889, 2016-Ohio-1118, ¶ 34, citing State v. Johnson, 8th Dist.
Cuyahoga No. 61904, 1993 Ohio App. LEXIS 1263, 9 (Mar. 4, 1993) (“defense
counsel’s failure to assert the right to a speedy trial does not cause a defendant’s plea to
be less than knowing and voluntary.”).
9.
{¶ 24} Accordingly, appellant’s assigned errors are not well-taken.
Conclusion
{¶ 25} The August 30, 2017 judgment of the Wood County Court of Common
Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
10.