[Cite as State v. Hayes, 2020-Ohio-3998.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
WILLIAM W. HAYES                             :       Case No. 2019-CA-0105
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal form the Court of Common
                                                     Pleas, Case No. 2019-CR-0089




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 5, 2020




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOSEPH C. SNYDER                                     MATTHEW J. MALONE
38 South Park Street                                 10 East Main Street
Mansfield, OH 44902                                  Ashland, OH 44805
Richland County, Case No. 2019-CA-0105                                                  2



Wise, Earle, J.


        {¶ 1} Defendant-Appellant William W. Hayes appeals the October 21, 2019

judgment of conviction and sentence of the Richland County Court of Common Pleas.

Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

        {¶ 2} On April 16, 2018 around midnight, Ontario Police Officer Jeremy Mohn and

Sergeant Casey Bly arrived at an Ontario Wal-Mart in response to a shoplifting call. Hayes

was identified as a suspect and detained. Officers found a crystalline substance on Hayes'

person and a short time later, in his vehicle along with merchandise stolen from Wal-Mart.

Hayes refused to tell the officers what the crystalline substance was. Following the

discovery of the substance and merchandise in Hayes' vehicle, Hayes fled officers on

foot.

        {¶ 3} Officer Mohn caught up to Hayes and a struggle ensued. During the struggle

Hayes attempted to take Mohn's firearm from its holster. Hayes was eventually cuffed,

placed in a cruiser, and taken to jail.

        {¶ 4} As a result of the events on April 16, 2018, Hayes was charged with

misdemeanors in Ontario Mayor’s Court case number 18-CRB-0136. The charges were

one count each of obstructing official business, a misdemeanor of the second degree,

resisting arrest, a misdemeanor of the second degree, and petty theft, a misdemeanor of

the first degree. On April 26, 2018, Hayes entered no contest pleas to the charges, was

found guilty and was sentenced to three days in jail.
Richland County, Case No. 2019-CA-0105                                                   3


       {¶ 5} On January 28, 2019, nine months after his plea and sentence in mayor’s

court, Hayes was indicted on felony charges in Richland County Common Pleas Court

case number 2019-CR-0089. These new charges resulted from the same April 16, 2018

events. The charges were one count of aggravated robbery (for attempting to take Officer

Mohn's gun), a felony of the first degree, and one count of aggravated possession of

drugs, specifically methamphetamine, a felony of the third degree. A warrant for Hayes'

arrest was issued. Hayes was arraigned on the charges on February 21, 2019 and

entered pleas of not guilty.

       {¶ 6} On February 27, 2019, counsel for Hayes filed a motion for discovery. The

state provided the same and requested reciprocal discovery on February 28, 2019.

       {¶ 7} On April 19, 2019, Hayes requested a continuance of trial which was

scheduled for April 30, 2019. On April 29, 2019, Hayes waived his speedy trial rights.

       {¶ 8} Following several more continuances at Hayes' request, a bench trial was

held on August 1, 2019. Before trial, Hayes entered a plea of guilty to aggravated

possession of drugs. Following the bench trial, the trial court found Hayes guilty of

aggravated robbery. Hayes was subsequently sentenced to four years for aggravated

robbery and eleven months for aggravated possession of drugs. The trial court ordered

Hayes to serve the sentences consecutively. At no point during the proceedings did

Hayes raise a speedy trial challenge, nor was the record from the Ontario Mayor's Court

before the court of common pleas.

       {¶ 9} Hayes timely filed an appeal and the matter is before this court for

consideration. He raises one assignment of error as follows:

                                            I
Richland County, Case No. 2019-CA-0105                                                      4


       {¶ 10} "APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO

THE UNITES STATES CONSTITUTION AS WELL AS ARTICLE I, SECTION 10 OF THE

OHIO CONSTITUTION, BY HIS TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO

DISMISS APPELLANT'S CHARGES BASED ON THE STATE'S FAILURE TO BRING

APPELLANT TO TRIAL WITHIN THE SPEEDY TRIAL PROVISIONS CONTAINED IN

R.C.2945.71."

       {¶ 11} In his sole assignment of error, Hayes argues his trial counsel rendered

ineffective assistance by failing to file a motion to dismiss as the state had failed to bring

him to trial within the speedy trial provisions of R.C. 2945.71. For the reasons that follow,

we find a direct appeal is not the appropriate vehicle to address Hayes' ineffective

assistance of counsel argument, and we decline to address the same.

       {¶ 12} On February 10, 2020, Hayes filed a motion to supplement the record on

appeal to include certified copies of the record in Ontario Mayor’s Court case number 18-

CRB-00136. On March 3, 2020, we granted the motion. On April 9, 2020, the state filed

a motion to reconsider which we denied on May 6, 2020, but noted “This is an interlocutory

order which may be revised at the time of the merit review.” Upon review of the record

from the Ontario Mayor’s Court, and the record of the Richland County Court of Common

Pleas, we find the record of the Ontario Mayor's Court was never presented to the

Richland County Court of Common Pleas. The record on appeal may be supplemented

to include only those matters which were before the trial court, and thus constitute part of

the proceedings. We therefore find our decision to permit Hayes to supplement the record

was improperly granted. State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),
Richland County, Case No. 2019-CA-0105                                                      5


State v. Williams, 73 Ohio St.3d 153, 1995-Ohio-275, 652 N.E.2d 721. Upon the state's

motion for reconsideration, therefore, we deny Hayes' motion to supplement the record.

      {¶ 13} That said, a petition for post-conviction relief, rather than a direct appeal, is

the proper vehicle to raise an ineffective assistance of counsel claim premised on

evidence outside the record. State v. Madrigal, 87 Ohio St.3d 378, 390-391, 2000-Ohio-

448, 721 N.E.2d 52.

      {¶ 14} Based on the record as it presently exists, we overrule appellant's sole

assignment of error.


By Wise, Earle, J.

Hoffman, P.J. and

Wise, J. concur.



EEW/rw
