[Cite as State v. Watkins, 2020-Ohio-715.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,
                                                          CASE NO. 1-19-48
       PLAINTIFF-APPELLEE,

       v.

THOMAS B. WATKINS,                                        OPINION

       DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2017 0271

                                      Judgment Affirmed

                              Date of Decision: March 2, 2020



APPEARANCES:

        Thomas M. Kollin for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-48


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Thomas B. Watkins (“Watkins”) brings this

appeal from the judgment of the Court of Common Pleas of Allen County alleging

that the trial court erred in denying his petition for post-conviction relief on the

grounds of res judicata. For the reasons set forth below, the judgment is affirmed.

      {¶2} On May 16, 2018, Watkins entered a plea of guilty to one count of

Burglary in violation of R.C. 2911.12(A)(1), 2911.12(D), a felony of the second

degree and one count of violating a protection order in violation of R.C.

2919.27(A)(1), 2929.27(B)(4), a felony of the third degree. Doc. 122. The trial

court sentenced him to an aggregate prison term of four years. Doc. 123. Watkins

appealed this judgment. Doc. 133. On appeal, Watkins argued that his guilty pleas

were involuntary due to ineffective assistance of counsel. Doc. 151. This court

affirmed the judgment of the trial court on December 17, 2018. Id.

      {¶3} On June 14, 2019, Watkins filed a petition for post-conviction relief.

Doc. 153. The petition claimed that Watkins was denied effective assistance of

counsel because counsel failed to inform him of a speedy trial violation. Id.

Watkins included affidavits to support the claim. Id. The State filed its response

on July 2, 2019. Doc. 154. The trial court ruled on the motion on July 3, 2019,

denying it on the grounds of res judicata. Doc. 155. On August 1, 2019, Watkins

filed his notice of appeal from the denial of post-conviction relief. Doc. 158.

Watkins, on appeal, makes one assignment of error.

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Case No. 1-19-48


       The trial court erred in denying [Watkins’] petition for post-
       conviction relief when it erroneously relied upon res judicata to
       preclude [Watkins’] petition.

       {¶4} The sole assignment of error is that res judicata should not apply

because Watkins could only prove ineffective assistance of counsel through the use

of evidence outside of the record. “‘[A] convicted defendant is precluded under the

doctrine of res judicata from raising and litigating in any proceeding, except an

appeal from that judgment, any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial which resulted in that

judgment of conviction or on appeal from that judgment.’” State v. Jones, 10th Dist.

Franklin No. 17AP-431, 2018-Ohio-306, ¶ 13, quoting State v. Szefcyk, 77 Ohio

St.3d 93, 96, 671 N.E. 2d 233 (1996).

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial and
       substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
       71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
       When making that determination, a two-step process is usually
       employed. “First, there must be a determination as to whether
       there has been a substantial violation of any of defense counsel's
       essential duties to his client. Next, and analytically separate from
       the question of whether the defendant's Sixth Amendment rights
       were violated, there must be a determination as to whether the
       defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
       (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
       623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
       3135, 57 L.Ed.2d 1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio

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Case No. 1-19-48


        St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
        Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

violation makes it unnecessary for a court to consider the other prong of the test.”

State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.

        {¶5} Here, Watkins argued in his motion that he had repeatedly asked his

attorney to file a motion alleging a speedy trial violation and she refused to do so.

Watkins claims that he was actually arrested on August 10, 2017, not August 14,

2017.1 He then submits a certified booking sheet to show that he was arrested on

the 10th. However, a review of the booking sheet shows that he was arrested on that

day for a misdemeanor, not the felony burglary charge at issue here.2 “When a

defendant is held in jail for reasons other than the currently pending charges, such

as a holder issued pursuant to an outstanding warrant, the triple-count provision does

not apply.” State v. Brown, 64 Ohio St.3d 476, 479, 1992-Ohio-96, 597 N.E.2d 97.

The Ohio Supreme Court has held that “a charge is not pending for purposes of

calculating speedy-trial time pursuant to R.C. 2945.71(C) until the accused has been

formally charged by a criminal complaint or indictment, is held pending the filing



1
  This Court notes that the allegation that the actual arrest occurred on August 10 was known at the time of
the direct appeal and was noted in a footnote. A review of the record shows that the arrest warrant and the
complaint initiating this action were both issued on August 14, 2017. The return of executed warrant states
that Watkins was arrested on this offence on August 14, 2017.
2
  The booking sheet appears to indicate that Watkins may have been held on a probation violation, but it is
not clear exactly what the reason for the incarceration was other than a misdemeanor crime.

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Case No. 1-19-48


of charges, or is released on bail or recognizance.” State v. Azbell, 112 Ohio St.3d

300, 2006-Ohio-6552, ¶ 1, 859 N.E.2d 532. The arrest warrant for the burglary

charge was requested on August 14, 2017, and Watkins was arrested on this charge

on that same day. Doc. 1. Since the arrest on August 10, 2017, was for a different

charge, the time does not count in this case.

       {¶6} The issue of whether there was a speedy trial violation was raised and

reviewed on direct appeal. State v. Watkins, 3d Dist. Allen No. 1-18-32, 2018-Ohio-

5055. This court determined that before the first tolling event, Watkins had

accumulated 261 days towards the 270 days allowed. Id. at ¶ 13. Then, various

tolling events occurred. This court then determined that “under the facts presented

* * * [Watkins’] speedy-trial clock was tolled from November 9, 2017 until May

16, 2018, and no additional days accrued to the State’s 270-day statutory limit.” Id.

at ¶ 20. Once it was determined that the speedy-trial argument failed, this court held

that the ineffective assistance of trial counsel argument also failed. Id. at ¶ 21. The

argument has not changed. The only difference is that Watkins has produced more

evidence showing the same facts previously known. Since this court has already

ruled upon the issue of whether a speedy trial violation occurred, it is barred from

being re-litigated by the doctrine of res judicata. Since the motion for post-

conviction relief fails to set forth that the actions of trial counsel would have been

prejudicial, the motion fails to set forth a basis for a need to hold a hearing on the



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Case No. 1-19-48


matter. See Walker, supra. The trial court did not err in finding as such and

overruling the motion for post-conviction relief.

       {¶7} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Allen County is affirmed.

                                                           Judgment Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/hls




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