[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/.




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