[Cite as State v. Matland, 2010-Ohio-6585.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )          CASE NO. 09-MA-115
                                                 )
RUDOLPH K. MATLAND, III,                         )               OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 08CR1251

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 West Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Rebecca M. Gerson
                                                 Attorney Mark I. Verkhlin
                                                 839 Southwestern Run
                                                 Youngstown, Ohio 44514




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: December 30, 2010
[Cite as State v. Matland, 2010-Ohio-6585.]
DONOFRIO, J.

        {¶1}     Defendant-appellant Rudolph K. Matland III (Matland), appeals his
multiple-count conviction and sentence in the Mahoning County Common Pleas
Court. Matland contends he was denied effective assistance of counsel at trial due to
counsel’s alleged failure to assert his right to a speedy trial. Further, Matland argues
that the trial court imposed its sentence without appropriately balancing the purposes
and principles of sentencing pursuant to R.C. 2929.11, as well as the seriousness
and recidivism factors presented in R.C. 2929.12.
        {¶2}     On October 30, 2008, Matland was indicted by the Mahoning County
Grand Jury in case no. 08 CR 1251 for the following offenses: (1) attempted murder,
in violation of R.C. 2903.02(A)(D) and R.C. 2923.02(E)(1), a first-degree felony; (2)
felonious assault, in violation of R.C. 2903.11(A)(2)(D), a second-degree felony; (3)
kidnapping, in violation of R.C. 2905.01(A)(3)(C), a first-degree felony; (4) aggravated
burglary, in violation of R.C. 2911.11(A)(1)(B), a first-degree felony; (5) aggravated
burglary, in violation of R.C. 2911.11(A)(1)(B), a first-degree felony; (6) felonious
assault, in violation of R.C. 2903.11(A)(1)(D), a second-degree felony; (7) disrupting
public services, in violation of R.C. 2909.04(A)(1)(C), a fourth-degree felony; and (8)
menacing by stalking, in violation of R.C. 2903.211(A)(1)(B)(2)(b), a fourth-degree
felony. (Direct Presentment, Case No. 08 CR 1251; Sentencing Tr., p.2-3.)
        {¶3}     On December 18, 2008, Matland was indicted for domestic violence, in
violation of R.C. 2919.25(A)(D)(3), a fourth-degree felony in Mahoning County
Common Pleas Court case no. 08 CR 1360. (Sentencing Tr., p.3.)
        {¶4}     On May 4, 2009, Matland’s cases were called for a jury trial. However,
a plea agreement was reached whereby Matland changed his former plea of not
guilty and entered a plea of guilty pursuant to Crim.R. 11. (Change of Plea at 2.) The
State moved to dismiss counts one (attempted murder), five (aggravated burglary),
six (felonious assault), and seven (disrupting public services) of the indictment in
case no. 08 CR 1251. (Change of Plea at 4-5.) In exchange, Matland pled guilty to
counts two (felonious assault), three (kidnapping), four (aggravated burglary), and
eight (menacing by stalking), with the State recommending an aggregate eight-year
                                                                                  -2-


term of imprisonment. (Change of Plea at 5.)
       {¶5}   In case no. 08 CR 1360, Matland pleaded guilty to an amended count
of domestic violence, a first-degree misdemeanor. (Change of Plea at 5-6.) After
engaging in a plea colloquy with Matland, the court accepted his pleas of guilty and
ordered that the matter be set for sentencing.
       {¶6}   On June 25, 2009, Matland’s sentencing was held. After hearing from
all parties, the court sentenced Matland to a prison term of eight years. (Sentencing
Tr., p.23.) Matland subsequently filed a timely appeal.
       {¶7}   Matland raises two assignments of error, the first of which states:
       {¶8}   “Defendant-Appellant, Rudolph K. Matland III, was denied effective
assistance of counsel pursuant to the test in State v. Madrigal, 87 Ohio St.3d 378,
388-389, 2000-Ohio-448, 721 N.E.2d 52, and Strickland v. Washington (1984), 466
U.S. 668, 687-688, 104 S. Ct. 2052, 80 L.Ed.2d 674.”
       {¶9}   Specifically, Matland contends that the State violated his statutory right
to a speedy trial, and trial counsel’s failure to assert that right by filing a motion to
dismiss upon the expiration of the speedy-trial clock denied him effective assistance
of counsel, as the motion would have been successful, resulting in dismissal of the
pending criminal charges.
       {¶10} For its part, the State maintains that Matland’s trial counsel rendered
effective assistance, as numerous tolling events prevented the speedy-trial clock
from expiring prior to appellant executing a waiver of his speedy-trial rights.
       {¶11} In order to prevail on a claim of ineffective assistance of counsel,
Matland must demonstrate that (1) counsel’s performance was deficient, and (2) that
deficient performance prejudiced the defense. Strickland v. Washington (1984), 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. After Strickland, the Ohio Supreme
Court adopted a two-part test for analyzing claims for ineffective assistance of
counsel. State v. Madrigal (2000), 87 Ohio St.3d 378, 388-89, 721 N.E.2d 52. To
prove such a claim, the defendant must show “(1) that counsel’s performance fell
below an objective standard of reasonableness, and (2) that counsel’s deficient
                                                                                 -3-


performance prejudiced the defendant resulting in an unreliable or fundamentally
unfair outcome of the proceeding.” Id. at 389, 721 N.E.2d 52, citing Strickland at 687-
88, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶12} The first prong of the Strickland test requires the reviewing court to
determine whether trial counsel’s assistance was actually ineffective – that is,
whether counsel’s performance fell below an objective standard of reasonable
advocacy or fell short of counsel’s basic duties to the client. State v. Bradley (1989),
42 Ohio St.3d 136, 141-43, 538 N.E.2d 373. The defendant must show that counsel
made errors that were sufficiently egregious, such that counsel was not acting in a
manner guaranteed by the Sixth Amendment. Id. at 141, 538 N.E.2d 373. Because
of the inherent difficulties in making this evaluation, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” Strickland at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Further, “every effort [must] be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052, 80
L.Ed.2d 674. In addition, the reviewing court must grant due deference to legitimate
trial strategy decisions, as trial strategy and tactics are left to the discretion of the
individual attorney, and sound decisions on these matters do not constitute
ineffective assistance of counsel. Id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Brown (Jan. 30, 2001), 7th Dist. No. 96 CA 56, 69.           Following the guidance of
Strickland, Ohio courts have unwaveringly endorsed the presumption that a licensed
attorney is competent. State v. Calhoun (1999), 86 Ohio St.3d 279, 289, 714 N.E.2d
905.
       {¶13} If the reviewing court concludes that counsel’s performance fell below
this objective standard, the court must then determine whether the defendant actually
suffered prejudice due to defense counsel’s deficiency, such that the reliability of the
trial’s outcome should be called into question. Strickland at 688, 104 S.Ct. 2052, 80
L.Ed.2d 674. To warrant reversal, a defendant must show that there is a reasonable
                                                                                -4-


probability that, but for counsel’s unprofessional error, the result of the proceeding
would have been different. Bradley at paragraph three of the syllabus, 538 N.E.2d
373.
       {¶14} A reviewing court can only make a finding of ineffective assistance of
counsel once the defendant has affirmatively established both prongs of the
Strickland test. Strickland at 687, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674. And the
court need not address both prongs if appellant fails to prove either one. Calhoun at
289, 714 N.E.2d 905; Bradley at 143, 538 N.E.2d 373.
       {¶15} When a claim of ineffective assistance of counsel is based on counsel’s
failure to file a particular motion, the appellant must show that the motion had a
reasonable probability of success. State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-
2577, 829 N.E.2d 729, at ¶14. If the motion would not have been successful, the
appellant cannot prevail on an ineffective assistance of counsel claim. State v.
Barbour, 10th Dist. No. 07AP-841, 2008-Ohio-2291, at ¶14. Here, Matland’s claim
centers on trial counsel’s failure to file a motion to dismiss based upon an alleged
violation of his right to a speedy trial.    As such, an analysis of Matland’s first
assignment of error necessitates a review of the law pertaining to speedy-trial rights.
       {¶16} As a general principle, “an appellant cannot raise a speedy-trial issue
for the first time on appeal.” State v. Turner, 168 Ohio App.3d 176, 2006-Ohio-3786,
858 N.E.2d 1249, at ¶21. If, at the trial level, a defendant does not contest counsel’s
failure to file a motion to dismiss for the violation of his right to a speedy trial, the
matter is waived for appellate purposes. State v. Hergenroder, 7th Dist. No. 07 CO
17, 2008-Ohio-2410, at ¶13; Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, 858
N.E.2d 1249, at ¶22.
       {¶17} This Court, however, has recognized that allowing “a defendant to enter
a guilty plea after speedy trial time had expired would amount to ineffective
assistance of counsel, and thus, could affect the knowing and voluntary nature of the
plea.” State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, at ¶10; see, also,
State v. Gray, 2nd Dist. No. 20980, 2007-Ohio-4549, at ¶21 (holding that, where the
                                                                                -5-


trial attorney permitted the defendant to execute a waiver of his speedy-trial rights
and later admitted that she was unaware that the time limit had run, “counsel’s failure
to move for dismissal strays outside the range of reasonable assistance”). Matland
likewise asserts that his trial counsel rendered ineffective assistance by allowing him
to sign a waiver of his speedy-trial rights and subsequently plead guilty to the
indictment after the State failed to bring him to trial within the 270-day limit of R.C.
2945.71.
       {¶18} Ohio recognizes both a constitutional and a statutory right to a speedy
trial. State v. King (1994), 70 Ohio St.3d 158, 161, 637 N.E.2d 903; see also Sixth
Amendment, United States Constitution; Section 10, Article I, Ohio Constitution. The
Sixth Amendment of the U.S. Constitution provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy [trial].” The General
Assembly has embodied this fundamental right in the provisions of R.C. 2945.71 to
2945.73. R.C. 2945.71; R.C. 2945.72; R.C. 2945.73. Thus, the Ohio Supreme Court
has found the statutory speedy-trial provisions set forth in R.C. 2945.71 to be
coextensive with constitutional speedy-trial provisions. State v. O’Brien (1987), 34
Ohio St.3d 7, 9, 516 N.E.2d 218. The rationale supporting the speedy-trial statute
was to prevent “inexcusable delays caused by indolence within the judicial system.”
State v. Ladd (1978), 56 Ohio St.2d 197, 200, 10 O.O.3d 363, 383 N.E.2d 579.
       {¶19} R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy
trial based on the level of offense. As stated previously, Matland was initially indicted
on eight felony counts. According to the Ohio Revised Code, “a person against
whom a charge of felony is pending shall be brought to trial within two hundred
seventy days after his arrest.” R.C. 2945.71(C)(2). However, each day the defendant
spends in jail solely on the pending criminal charge counts as three days. R.C.
2945.71(E). For purposes of this calculation, the Tenth District Court of Appeals has
clarified, “where more than one charge has arisen from a single transaction and the
multiple charges share a common litigation history from arrest onward, incarceration
on the multiple charges will be considered incarceration on the ‘pending charge’ for
                                                                                 -6-


purposes of 2945.71(E).” State v. Madden, 10th Dist. No. 04AP-1228, 2005-Ohio-
4281, at ¶29-30, citing State v. Parsley (1993), 82 Ohio App.3d 567, 571, 612 N.E.2d
813. Here, Matland’s felony charges (in case no. 08 CR 1251) stem from “a single
transaction” arising out of the September 30, 2008 incident, and those charges
shared a “common litigation history from arrest onward[.]” Thus, at least initially,
Matland was entitled to the triple-count provision for the time he spent in jail after his
arrest.
          {¶20} Section 2945.72 lists a number of tolling events that may extend the
period of time in which the prosecution must bring a defendant to trial. R.C.
2945.71(A)-(I). If the State fails to meet the statutory time limits, then the trial court
must discharge the defendant. R.C. 2945.73.          The Supreme Court of Ohio has
“imposed upon the prosecution and the trial courts the mandatory duty of complying”
with the speedy-trial statutes. State v. Singer (1977), 50 Ohio St.2d 103, 105, 4
O.O.3d 237, 362 N.E.2d 1216.         As such, the speedy-trial provisions are strictly
construed against the State. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661
N.E.2d 706; Singer at 105, 4 O.O.3d 237, 362 N.E.2d 1216.
          {¶21} Consequently, the role of the reviewing court is to count the days of
delay chargeable to either side and determine whether the case was tried within the
time limits set forth in the Code. State v. Hart, 7th Dist. No. 06 CO 62, 2007-Ohio-
3404, at ¶8-9, citing State v. High (2001), 143 Ohio App.3d 232, 757 N.E.2d 1176.
Moreover, this duty is not affected by whether the State raised certain filings as tolling
events. State v. Williams, 7th Dist. No. 07 MA 162, 2008-Ohio-1532, at ¶38.
          {¶22} Upon demonstrating that the statutory time limit has expired, the
defendant has established a prima facie case for violation of his speedy-trial rights,
thereby warranting dismissal. State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 27
OBR 445, 500 N.E.2d 1368. If the defendant can make this showing, the State then
has the burden to establish any exceptions that may have suspended the speedy-
trial clock. Butcher at 31, 27 OBR 445, 500 N.E.2d 1368. As such, the resolution of
Matland’s ineffective assistance of counsel claim requires scrutinizing the record to
                                                                                 -7-


ascertain the tolling potential of each filing event.
          {¶23} In the present case, both sides acknowledge that Matland was arrested
on September 30, 2008. (Brief of the Defendant-Appellant at 9; Appellee-State of
Ohio’s Answer Brief at 9.) As Matland remained incarcerated while unable to make
bail and, as noted, was initially entitled to the triple-count provision, Matland
estimates that “[t]he ninety (90) day period in which Appellant was required to be
brought to trial expired on December 30, [2008].” (Brief of Defendant-Appellant at 9.)
At the trial level, this showing would have sufficed to obligate the State to produce
evidence that Matland was not entitled to the triple-count provision of R.C.
2945.71(E), or that specific events tolled the speedy-trial clock and Matland was
ultimately brought to trial within the statutory time limit. See Butcher at 31, 27 OBR
445, 500 N.E.2d 1368. However, because the issue was not raised at trial, this Court
must conduct an independent evaluation of the record to determine whether any
events in the proceedings tolled the speedy-trial allotment. Hart at ¶8-9.
          {¶24} At the outset, this matter is complicated by the fact that the record, as
submitted to this Court, is silent as to the details of Matland’s arrest. While the briefs
of both parties stipulate that Matland was taken into custody on September 30, 2008,
there is nothing in the record proving this fact. In making this assertion, Matland cites
to the indictment, but the indictment only references September 30, 2008 as the date
of the alleged crimes – it states nothing about the date of arrest. (See Direct
Presentment, Case No. 08 CR 1251; Brief of the Defendant-Appellant at 9.) The
State, presumably recognizing the absence of evidence on this point, cites to
information contained in its own motion to supplement the record, filed just three days
before its answer brief and still pending before this Court. (Appellee-State of Ohio’s
Answer Brief at 9; Appellee-State of Ohio’s Motion to Supplement the Record,
Appendix A.) However, because neither party contests this date, there appears to be
no reason why the court should not recognize September 30, 2008 as the date of
arrest.
          {¶25} Nevertheless, even accepting this date as the day of arrest without
                                                                               -8-


documentary support, a point of contention still arises: the evidence the State seeks
to introduce in its motion to supplement establishes not just when Matland was
arrested, but where Matland was arrested and held – a fact that significantly impacts
the calculation of the speedy-trial timetable. Consequently, this Court’s analysis of
the underlying issues must begin with the resolution of the State’s still-pending
motion to supplement the record (and its subsequent motion to amend its motion to
supplement).
        {¶26} On March 29, 2010, the State moved this Court to supplement the
record with documents from the Augusta County Sheriff’s Department, pursuant to
App.R. 9(E). The documents, which included incident reports and correspondence
relevant to appellant’s arrest, demonstrated that Matland was in fact arrested in
Augusta County, Virginia on September 30, 2008. The State subsequently filed a
motion to amend its initial motion to supplement with a communication from the
Mahoning County Sheriff Department indicating that the date on which Matland was
taken into custody by Mahoning County was October 29, 2008.                Absent this
evidence, there is nothing in the record to indicate that Matland was ever detained
anywhere other than in Mahoning County.
        {¶27} R.C. 2945.72(A) dictates that the speedy-trial clock will toll for: “[a]ny
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[.]”
        {¶28} As such, if the State can prove Matland was arrested in Virginia on
September 30, 2008, and remained there awaiting extradition until his transfer to
Mahoning County on October 29, 2008, then that entire period would be tolled by
virtue of R.C. 2945.72(A). Conversely, without the State’s supplementary material,
there is nothing in the record establishing that Matland was ever held anywhere other
than Mahoning County, and this Court must presume that the speedy-trial clock ran
                                                                                      -9-


unabated from the date of arrest, with three days counted for every day of
incarceration. See State v. Turner, 7th Dist. No. 93 CA 91, 2004-Ohio-1545, at ¶23
(clarifying that speedy-trial time commences when an accused is arrested, but the
actual day of arrest is not counted, and that the triple-count provision applies for the
period during which the accused is held solely on the pending charge). Therefore, to
say nothing of any subsequent events, the disposition of this issue alone would yield
a differential of 29 days (87 with the triple-count provision) in either direction.
       {¶29} Ultimately, though, this Court does not need to resolve this issue in
order to reach a decision on Matland’s first assignment of error. Even absent the
State’s supplemental evidence, the undisputed portions of the record clearly
demonstrate that other events tolled enough time to prevent the expiration of the
speedy-trial clock prior to Matland signing the waiver. Therefore, the State’s motion
to supplement is overruled as moot.
       {¶30} We will assume arguendo that the speedy-trial clock began running on
September 30, 2008, the date of arrest. Because Matland was initially held solely on
the pending charge (the consolidation of the eight felony counts), R.C. 2945.71(E)
mandates that each day of incarceration count as three against the speedy-trial
clock. Parsley, at 571, 612 N.E.2d 813. As established, though, the actual day of
arrest is not counted for purposes of this calculation. Turner, 7th Dist. No. 93 CA 91,
2004-Ohio-1545, at ¶23.
       {¶31} Matland was arraigned on October 30, 2008.               At the arraignment,
Matland entered a plea of not guilty and the court set the pretrial date for November
3, 2008. (Oct. 30, 2008 J.E.) At pretrial, the parties jointly moved to continue the trial
to a later date. (Nov. 6, 2008 J.E.) Citing no authority, Matland argues that “[s]ince
the continuance was for a pretrial hearing, and the trial date itself was not continued,
Appellant’s speedy trial time did not toll.” (Brief of the Defendant-Appellant at 10.)
This assertion is clearly contrary to the law. See State v. Hairston, 101 Ohio St.3d
308, 2004-Ohio-969, 804 N.E.2d 471, at ¶12 (holding that a pretrial continuance tolls
the speedy-trial clock); State v. Williams, 7th Dist. No. 07 MA 162, 2008-Ohio-1532,
                                                                                 - 10 -


at ¶12 (allowing pretrial rescheduling to toll speedy-trial clock); State v. Baker (1993),
92 Ohio App.3d 516, 530, 636 N.E.2d 363 (tolling speedy-trial clock for 32 days due
to pretrial continuance).
       {¶32} In Hairston, the Supreme Court of Ohio looked to R.C. 2945.72(H),
which suspends the speedy-trial clock for “[t]he 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[.]” The court held that the plain language
of this provision does not preclude its application to a trial court rescheduling pretrial
conferences, declaring “[w]e apply unambiguous statutes according to the plain
meaning of the words used.” Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804
N.E.2d 471, at ¶12. Rather, the noted provision in R.C. 2945.72(H) refers generally
to “the period of any reasonable continuance[.]” Id. (Emphasis in original.)
       {¶33} Moreover, it is well established that any period of delay “made or joined
in by appellant” may toll the speedy-trial clock. State v. Barbour, 10th Dist. No. 07AP-
841, 2008-Ohio-2291, at ¶16-18. This Court has held: “[w]hen the parties agree to a
continuance, even if it is not on the motion of the defendant, the continuance is
presumptively reasonable and there is no need to explain the reason for the
continuance on the record.” State v. Freeman, 7th Dist. No. 08 MA 81, 2009-Ohio-
3052, at ¶50 (overruled on other grounds); see, also, State v. Rupp, 7th Dist. No.
05MA166, 2007-Ohio-1561, at ¶108. Some courts have gone even further, holding
that time is tolled even if the defendant outright objects to the continuance. State v.
Wade, 10th Dist. No. 03AP-774, 2004-Ohio-3974, at ¶13.
       {¶34} Consequently, upon the court’s judgment entry of November 6, 2008,
the speedy-trial clock was suspended. To that point, 36 days had passed from the
date of arrest.   Thus, with the triple-count provision, 108 days had accumulated
toward the 270-day limit.
       {¶35} The pretrial was eventually reset for December 8, 2008. Generally, the
speedy-trial clock would resume running on this date. However, on November 26,
2008, Matland filed a plea of not guilty by reason of insanity.         The trial court’s
                                                                                - 11 -


judgment entry of December 10, 2008 formally recognized Matland’s plea and
ordered that the Forensic Psychiatric Center of Northeast Ohio, Inc. conduct an
evaluation of Matland to assess his mental competence. This plea further extended
the State’s time limit.
       {¶36} According to R.C. 2945.72(B), the time in which an accused must be
brought to trial is also tolled for “[a]ny period during which the accused is mentally
incompetent to stand trial or during which his mental competence to stand trial is
being determined[.]” As such, this Court has held that entering a plea of not guilty by
reason of insanity automatically “toll[s] the operation of the speedy-trial statute until
resolution of that issue.” Turner, 7th Dist. No. 93 CA 91, 2004-Ohio-1545, at ¶30.
Here, it appears the question of Matland’s mental competence was never resolved
prior to the execution of his speedy-trial waiver. Nothing in the record mentions the
outcome of this evaluation before trial, so this Court must presume that the
determination was still pending. Such a presumption is not unreasonable, as these
examinations routinely necessitate a considerable delay. See State v. Hiatt (July 15,
1996), 4th Dist. No. 94 CA 578, 7-8 (allowing speedy-trial time to toll for 63 days
pending mental competency evaluation); Freeman, 7th Dist. No. 08 MA 81, 2009-
Ohio-3052, at ¶52 (allowing speedy-trial time to toll for 71 days pending mental
competency evaluation).
       {¶37} In Freeman, this Court also made clear that the speedy trial clock
begins tolling upon the court’s judgment entry ordering the defendant’s competency
evaluation, rather than simply on the date the defendant filed his plea. Id. Here,
because the previous tolling event was lifted on December 8, 2008, and the court’s
judgment entry ordering the evaluation was dated December 10, 2008, another two
days elapsed that would be charged to the State. Thus, 38 days had accumulated
on the speedy-trial clock – totaling 114 with the triple-count provision.
       {¶38} However, the resulting delay from the mental competency evaluation
would then have tolled the speedy-trial clock until the execution of Matland’s limited
waiver on February 19, 2009. During this period, 71 days passed – precisely the
                                                                                - 12 -


amount of time that this Court recognized as a reasonable delay in Freeman. Id.
Here, although it is unclear when the trial court received the results of Matland’s
assessment, the court did not spend an unreasonable amount of time awaiting the
Psychiatric Center’s determination. As such, the speedy-trial count remained at 114
days.
        {¶39} From December 10, 2008, to February 19, 2009, a number of other
events also affected the speedy-trial timetable. Of course, if the delay accompanying
Matland’s competency evaluation validly tolled this entire period, then this conclusion
essentially renders the intervening events inconsequential. Nonetheless, as both
parties raised issues regarding these events, they will be addressed in turn.
        {¶40} On December 18, 2008, Matland was indicted on a charge of domestic
violence, a fourth-degree felony, in Mahoning County Common Pleas Court case no.
08 CR 1360. Matland was subsequently arraigned on December 30, 2008, at which
point he entered a plea of not guilty and the court set dates for pretrial and trial.
While the record before this Court is devoid of any documents detailing these
proceedings, both parties stipulated to these facts. (Brief of the Defendant-Appellant
at 5; Appellee-State of Ohio’s Answer Brief at 2.)
        {¶41} As already established, the triple-count provision of R.C. 2945.71(E) is
only applicable to those defendants held in jail in lieu of bail solely on the pending
charges. State v. Brown (1992), 64 Ohio St.3d 476, 479, 597 N.E.2d 97.
Accordingly, this Court has held that, “where the offender would not be let free if the
pending charge was dismissed due to the existence of another charge * * * then the
triple-count provision does not apply.” State v. Davis, 7th Dist. No. 01 CA 171, 2002-
Ohio-2789, at ¶18, citing State v. McDonald (1976), 48 Ohio St.2d 66, 357 N.E.2d 40.
Thus, upon the introduction of the new domestic violence charge, Matland was no
longer being held solely on the pending charge (the pending charge being the eight
felony counts in case no. 08 CR 1251). The new charge stemmed from events
allegedly occurring on September 16, 2008, not from the “same transaction” that
precipitated the initial charge. (Motion in Limine to Prohibit the State from Introducing
                                                                                - 13 -


Evidence of Other Crimes, Bad Acts, etc.) Further, the charges cannot be said to
have shared a “common litigation history from arrest onward[.]” Madden, 10th Dist.
No. 04AP-1228, 2005-Ohio-4281, at ¶29-30, citing Parsley at 571, 612 N.E.2d 813.
Consequently, the triple-count provision was inapplicable for the remainder of the
proceedings, as neither matter was resolved prior to the execution of the limited
waiver or the final plea agreement. Brown at 479, 597 N.E.2d 97, citing State v.
Dunkins (1983), 10 Ohio App.3d 72, 74-75, 460 N.E.2d 688. Therefore, even without
the tolling effect of Matland’s plea of not guilty by reason of insanity – or had the
evaluation been completed at any earlier point – the speedy-trial clock would still not
have reached the 270-day limit.
       {¶42} In addition, on January 28, 2009, Matland’s counsel entered a motion to
withdraw, which was sustained by the court. (Jan. 30, 2009 J.E.) As this Court has
recognized, counsel’s motion to withdraw constitutes a tolling event, with time
beginning to run again when substitute counsel is appointed. State v. Hart, 7th Dist.
No. 06 CO 62, 2007-Ohio-3404, at ¶21. In the present case, however, this event did
not actually toll any time, as the court simultaneously appointed new counsel. (Jan.
30, 2009 J.E.) Upon his appointment, though, successor counsel concurrently filed
the following on January 29, 2009: (1) motion for bill of particulars; (2) motion to
compel law enforcement officials to turn over and advise prosecuting attorney of all
information acquired during the course of investigation; (3) request for discovery and
inspection; and (4) motion for notice of intention to use evidence.
       {¶43} R.C. 2945.72(E) extends the time in which a defendant must be brought
to trial for “[a]ny period of delay necessitated by reason of a plea in bar or abatement,
motion, proceeding, or action made or instituted by the accused[.]”          In State v.
Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, the Ohio Supreme
Court held that the State need not prove that a defendant’s motion causes a delay in
order for speedy-trial time to be tolled pursuant to R.C. 2946.72(E), stating: “It is the
filing of the motion itself, the timing of which the defense can control, that provides
the state with an extension. R.C. 2945.72(E) implicitly recognizes that when a motion
                                                                                  - 14 -


is filed by defendant, there is a ‘period of delay necessitated’ – at the very least, for a
reasonable time until the motion is responded to and ruled upon. Id. at ¶26.
Moreover, it is well established that requests for discovery and bills of particulars are
tolling events pursuant to R.C. 2945.72(E). State v. Brown, 98 Ohio St.3d 121, 2002-
Ohio-7040, 781 N.E.2d 159, at ¶18-20; State v. Palmer, 112 Ohio St.3d 457, 2007-
Ohio-374, 860 N.E.2d 1011, at ¶19.
       {¶44} The delay chargeable to the defendant is only that entailed by the
State’s response to the motions. Turner, 7th Dist. No. 93 CA 91, 2004-Ohio-1545, at
¶25. The State ostensibly complied with Matland’s request for discovery on February
3, 2009. (Request and Demand for Discovery Notice and Receipt.)                 The court
sustained all the motions in its judgment entry of February 10, 2009. (Feb. 10, 2009
J.E.) Hence, the speedy-trial time would have tolled again until at least February 10,
2009. This is well within a reasonable time frame for such responses and rulings.
See Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶26; Turner,
7th Dist. No. 93 CA 91, 2004-Ohio-1545, at ¶25.
       {¶45} On February 13, 2009, Matland filed a motion for discovery and
inspection, alleging that the State failed to respond to his initial request – despite
evidence to the contrary in the February 3, 2009 discovery receipt. (Motion for
Discovery and Inspection; Request and Demand for Discovery Notice and Receipt.)
Nonetheless, the State responded on February 19, 2009 with additional discovery
material. (Supplemental Discovery.) For the same reasons as stated above, this
period would also be tolled.
       {¶46} Also on February 19, 2009, Matland executed a limited waiver of his
right to a speedy trial until May 4, 2009. (Waiver of Right to Speedy Trial; Feb. 19,
2009 J.E.) It is well-settled law that an accused may waive his right to a speedy trial,
so long as the waiver is knowingly and voluntarily made. O’Brien at 9, 516 N.E.2d
218. Such a waiver must be in writing or expressly made on the record in open court.
State v. King (1994), 70 Ohio St.3d 158, 160, 637 N.E.2d 903. Furthermore, a waiver
may be limited or unlimited in duration. State v. Bray, 9th Dist. No. 03CA008241,
                                                                                 - 15 -


2004-Ohio-1067, at ¶8, citing O’Brien, at paragraph two of the syllabus, 516 N.E.2d
218.
         {¶47} In the present case, Matland submitted a signed waiver in which he
made handwritten revisions limiting the continuance until May 4, 2009. (Waiver of
Right to Speedy Trial; Feb. 19, 2009 J.E.) However, Matland did not reference a
starting point for the waiver. Id. When a waiver fails to include a specific date as the
starting point for the tolling of time, the waiver is deemed to be effective from the date
of arrest. Bray at ¶8-9.       Consequently, Matland’s waiver was effective from
September 30, 2008, and he cannot claim any speedy-trial violation for that entire
period.
         {¶48} At the termination of Matland’s limited waiver on May 4, 2009, the case
was called for trial. (May 5, 2009 J.E.) There, the State and Matland reached a plea
agreement pursuant to Crim.R. 11 negotiations. Id. This effectively ended the period
under consideration for any infringement of Matland’s right to a speedy trial. As the
limited waiver tolled the period from February 19, 2009 until May 4, 2009, no
additional days accrued to the State’s 270-day statutory limit.
         {¶49} However, the crux of Matland’s ineffective assistance of counsel claim
hinges on the argument that the limited waiver was not knowingly and voluntarily
executed. Matland contends that, because counsel permitted him to sign the waiver
after the speedy-trial time had lapsed, he was denied effective assistance.          The
foregoing review of the proceedings amply demonstrates that this argument cannot
stand.     Matland was clearly brought to trial within the parameters of both the
constitutional and statutory speedy-trial provisions, so his assertion that the waiver
was defective must fail.
         {¶50} In sum, the mere failure to raise the speedy-trial issue does not
necessarily indicate a failure of proper representation because the objection may not
have been meritorious. State v. Turner, 5th Dist. No. 05CA108, 2006-Ohio-3786, at
¶27. As stated, there cannot be ineffective assistance of counsel if the motion to
dismiss would not have been successful. Barbour at ¶14. Here, a motion to dismiss
                                                                                 - 16 -


based on the alleged violation of Matland’s right to a speedy trial would have failed
unequivocally.
         {¶51} Moreover, both attorneys representing Matland were aware of all the
relevant tolling events – including, through discovery, the information at issue in the
State’s motion to supplement. (Request and Discovery Demand Notice and Receipt
of November 18, 2008; Request and Discovery Demand Notice and Receipt of
February 3, 2009.) Given Ohio’s strong presumption that licensed counsel performs
competently, it is fair to assume that his counselors did not raise the speedy-trial
issue because they had determined it to be futile. Calhoun at 289, 714 N.E.2d 905.
Thus, it cannot be said “that counsel’s performance fell below an objective standard
of reasonableness.” Madrigal at 389, 721 N.E.2d 52, citing Strickland at 687-88, 104
S. Ct. 2052.
         {¶52} Furthermore, under the Strickland analysis, there could be no resulting
prejudice, as there was not a valid claim to any violation of Matland’s speedy-trial
rights. Therefore, Matland fails to satisfy either prong under Strickland. Id.
         {¶53} For the foregoing reasons, Matland’s first assignment of error is without
merit.
         {¶54} Matland’s second assignment of error states:
         {¶55} “The Trial Court committed reversible error when it sentenced
Defendant-Appellant, Rudolph K. Matland III to an eight (8) year prison term simply
adopting the sentencing recommendation of the State of Ohio without appropriately
balancing the purposes and principles of sentencing pursuant to R.C. 2929.11 and
balancing the seriousness and recidivism factors pursuant to R.C. 2929.12.”
         {¶56} Matland contends that the trial court erred in imposing an eight-year
term of incarceration, arguing that “it does not appear that [the trial court] considered
the factors that it was required to or engaged in any balancing test, but rather blindly
adopted the State’s sentencing recommendation[.]” (Brief of Defendant-Appellant at
15.)
         {¶57} It is universally recognized that this issue is guided by the Ohio
                                                                               - 17 -


Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, and the subsequent cases that have refined its holding. In Foster, the
Supreme Court severed the judicial-fact-finding portions of R.C. 2929.14 in order to
make Ohio’s sentencing scheme compatible with the United State’s Supreme Court’s
decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531(holding that
a trial court may not sentence a defendant based on facts not reflected in a jury
verdict). Foster’s result dictated that “trial courts have full discretion to impose a
prison sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, consecutive, or more than the
minimum sentences.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at
¶100.
        {¶58} Although Foster eliminated mandatory judicial fact-finding for upward
departures from the minimum, it left intact R.C. 2929.11 and 2929.12. R.C. 2929.11
and 2929.12, however, are not fact-finding statutes like R.C. 2929.14. Instead, they
serve as “an overarching guide” for a trial judge to consider in fashioning an
appropriate sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, at ¶17. Specifically, R.C. 2929.11 requires that the sentencing judge
consider the purposes and principles of sentencing; R.C. 2929.12, on the other hand,
asks that the court weigh certain seriousness and recidivism factors. The trial court
must still consider these statutes, as these provisions continue to be “an integral part
of the felony sentencing process.” State v. Merriweather, 7th Dist. No. 09 MA 160,
2010-Ohio-2279, at ¶8, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,
846 N.E.2d 1, at ¶38. In considering these statutes in light of Foster, the trial court
has full discretion to determine whether the sentence satisfies the overriding purpose
of Ohio’s sentencing structure. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, at ¶17. In addition, the sentencing court must be guided by statutes that
are specific to the case itself. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, at ¶38.
        {¶59} In Kalish, the Supreme Court distilled the role of a reviewing court in
                                                                                   - 18 -


light of post-Foster sentencing guidelines: “In applying Foster to the existing statutes,
appellate courts must apply a two-step approach.           First, they must examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the
sentence to determine whether the sentence is clearly and convincingly contrary to
law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an
abuse-of-discretion standard.” Id. at ¶4.
       {¶60} In the first step, the “applicable rules and statutes” includes R.C.
2929.11 and 2929.12. Id.; Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,
at ¶38. Matland asserts that the trial court wholly disregarded these mandates. In
making this claim, Matland points to the sentencing court’s statement: “The Court
has reviewed the rather lengthy presentence investigation involving the defendant. I
have read the communications, gone back and forth in total review of everything I
see, and I think the recommendation of the prosecutor, and with the dismissals that
took place and the subsequent recommendations that have been made, which I
might add are far from the maximum sentences, those recommendations appear to
be sufficient under the circumstances.” (Sentencing Tr., p.23.) Because the court
fails to mention the pertinent statutes by name and does not elaborate on its
thoughtful consideration, Matland presumes that the trial court merely adopted the
State’s recommendation without further deliberation.
       {¶61} However, “Foster does not require a trial court to provide any reasons
in imposing its sentence.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, at ¶12. The sentencing court need not make specific findings on the
record or use specific language to evidence its consideration. State v. Barnette, 7th
Dist. No. 06 MA 135, 2007-Ohio-7209, at ¶25.            Further, a silent record actually
“raises the rebuttable presumption that the sentencing court considered all the proper
sentencing criteria.” State v. James, 7th Dist. No. 07CO47, 2009-Ohio-4392, at ¶50.
       {¶62} Moreover, the court’s judgment entry does explicitly reference the
relevant sentencing guidelines:      “The Court considered the record, pre-sentence
investigation report, oral statements, as well as the principles and purposes of
                                                                              - 19 -


sentencing under ORC § 2929.11 and balances the seriousness and recidivism
factors under ORC § 2929.12. The Court finds the Defendant is not amenable to a
community control sanction.” (June 30, 2009 J.E.) And this Court has held, “[t]he trial
court’s mere statement that it considered the factors * * * is sufficient to establish
compliance with its duty.” Barnette at ¶25.
      {¶63} In regard to the case-specific statutes, the eight-year prison term is well
within the range of sentences available to the trial court. (Sentencing Tr., p.13-14;
Guilty Plea.) As Matland properly explains, “[a] sentence is contrary to law when a
court does not consider factors enumerated in R.C. 2929.11 and 2929.12, or if it [is]
out of the range of sentences allowed by law[.]” (Brief of Defendant-Appellant at 13.)
Here, the trial court considered the relevant statutes and its sentence was within the
range of permissible sentences. Therefore, Matland cannot complain that the court’s
punishment was clearly and convincingly contrary to law.
      {¶64} Having established that the trial court complied with the applicable rules
and statutes, the exercise of its discretion in selecting a sentence within the
permissible statutory range is subject to review for abuse of discretion pursuant to
Foster. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶17.
An abuse of discretion is “more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶19, quoting Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
      {¶65} As stated, the trial court specifically stated that it considered R.C.
2929.11 and 2929.12 in determining the appropriate sentence.           Further, before
making its determination, the court reviewed the pre-sentence investigation report
and heard statements made on behalf of both Matland and the victim, detailing his
pattern of drug and alcohol abuse.
      {¶66} Moreover, Matland had already received an immediate benefit in his
plea bargain by having four of the charges dropped, some of which were for crimes
carrying even harsher penalties. This Court has previously held, “the court may
                                                                              - 20 -


consider charges that are eventually dropped when it is formulating its sentence.”
State v. Merriweather, 7th Dist. No. 09 MA 160, 2010-Ohio-2279, at ¶9, citing State v.
Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97; see also State v. Merriweather,
7th Dist. No. 09 MA 160, 2010-Ohio-2279, at ¶9 (holding that being charged with a
lesser offense constitutes a benefit).
       {¶67} Finally, the eight-year prison term is within the range of sentences
available to the trial court. In fact, the sentences could have been run consecutively,
meaning that Matland could have rightfully been sentenced for close to 30 years.
Consequently, no abuse of discretion can be found in the record.
       {¶68} For the foregoing reasons, Matland’s second assignment of error is
without merit.
       {¶69} The judgment of the trial court is hereby affirmed.


Waite, J., concurs.

DeGenaro, J., concurs.
