[Cite as State v. Watkins, 2018-Ohio-5055.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-18-32

        v.

THOMAS B. WATKINS,                                        OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2017 0271

                                      Judgment Affirmed

                          Date of Decision: December 17, 2018




APPEARANCES:

        Thomas Watkins, Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-32


ZIMMERMAN, J.

       {¶1} Defendant-appellant, Thomas B. Watkins (“Watkins”), pro se, appeals

the May 18, 2018 judgment entry of sentence of the Allen County Court of Common

Pleas. We affirm.

       {¶2} On October 13, 2017, the Allen County Grand Jury indicted Watkins

on Count One of burglary in violation of R.C. 2911.12(A)(1), (D), a second-degree

felony and Count Two of violating a protection order in violation of R.C.

2919.27(A)(1), (B)(4), a third-degree felony. (Doc. No. 3). On October 30, 2017,

Watkins appeared for arraignment and pled not guilty to the counts of the

indictment. (Doc. No. 10).

       {¶3} On November 28, 2017, the State filed a motion to join this case with

another case of Watkins’s (case number CR 2017 0373), which the trial court

granted on April 18, 2018. (Doc. Nos. 38, 75).

       {¶4} On May 16, 2018, Watkins withdrew his pleas of not guilty and entered

guilty pleas, under a written plea agreement, to both counts in the indictment. (Doc.

No. 121). In exchange for his change of pleas, the State agreed to dismiss case

number CR 2017 0373 and recommend that Watkins serve a four-year prison

sentence. (Id.). The trial court accepted Watkins’s guilty pleas, found him guilty,

and imposed the sentence recommended by the parties. (Doc. No. 123). The trial




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court filed its judgment entries of conviction and sentence on May 18, 2018. (Doc.

Nos. 121, 123).

       {¶5} On June 15, 2018, Watkins filed a notice of appeal. (Doc. No. 133).

He raises one assignment of error for our review.

                                Assignment of Error

       Watkins’ Guilty Pleas Were Entered in Violation of the Due
       Process Clause to the Fourteenth Amendment to the United States
       Constitution as a Direct Result of Being Deprived Effective
       Assistance of Counsel.

       {¶6} In his assignment of error, Watkins argues that his guilty pleas were not

knowing, intelligent, or voluntary because his trial counsel was ineffective for

failing to advise him that his right to a speedy trial was violated.

                                 Standard of Review

       {¶7} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective assistance of

counsel relates to a guilty plea, a defendant must show there is a reasonable

probability that but for counsel’s deficient or unreasonable performance the

defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992),



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citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland, 466 U.S.

at 687.

                                       Analysis

          {¶8} Watkins’s ineffective-assistance-of-counsel claim centers on his trial

counsel’s alleged failure to advise him prior to permitting him to plead guilty that

his speedy-trial rights had been violated. In other words, Watkins asserts that he

would not have pled guilty if his trial counsel had informed him of the speedy-trial

violation. See State v. Street, 3d Dist. Hancock No. 5-98-09, 1998 WL 682284, *2

(Sept. 30, 1998) (“If a defendant can demonstrate that he received ineffective

assistance of counsel in entering his guilty plea and that but for that ineffective

assistance he would have proceeded to trial, then we would be required to reverse a

defendant’s sentence and remand the matter to the trial court to allow the defendant

to withdraw his plea.”); State v. Matland, 7th Dist. Mahoning No. 09-MA-115,

2010-Ohio-6585, ¶ 17 (stating 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.’”), quoting State v.

Heverly, 7th Dist. Columbiana No. 09 CO 4, 2010-Ohio-1005, ¶ 10, and citing State

v. Gray, 2d Dist. Montgomery No. 20980, 2007-Ohio-4549, ¶ 21 (concluding that,

where trial counsel 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


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failure to move for dismissal strays outside the range of reasonable assistance”).

Therefore, an analysis of Watkins’s assignment of error necessitates a review of the

law pertaining to speedy-trial rights. See Matland at ¶ 15.

       {¶9} “An accused is guaranteed the constitutional right to a speedy trial

pursuant to the Sixth and Fourteenth Amendments of the United States Constitution

and Ohio Constitution, Article I, Section 10.” State v. Ferguson, 10th Dist. Franklin

No. 16AP-307, 2016-Ohio-8537, ¶ 12, citing State v. Taylor, 98 Ohio St.3d 27,

2002-Ohio-7017, ¶ 32. “Ohio’s speedy trial statutes, found in R.C. 2945.71 et seq.,

were implemented to enforce those constitutional guarantees.”             Id., citing

Brecksville v. Cook, 75 Ohio St.3d 53, 55 (1996) and State v. Blackburn, 118 Ohio

St.3d 163, 2008-Ohio-1823, ¶ 10. “The proper standard of review in speedy trial

cases is to simply count the number of days passed, while determining to which

party the time is chargeable, as directed in R.C. 2945.71 and 2945.72.” Id., citing

State v. Jackson, 10th Dist. No. 02AP-468, 2003-Ohio-1653, ¶ 32, citing State v.

DePue, 96 Ohio App.3d 513, 516 (4th Dist.1994).

       {¶10} “R.C. 2945.71 provides the timeframe for a defendant’s right to a

speedy trial based on the level of offense.” Matland at ¶ 19. “[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). “The date of the arrest is not

included for the purpose of calculating time under the statutes for a speedy trial.”


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State v. Taylor, 3d Dist. Allen No. 1-13-46, 2014-Ohio-1793, ¶ 27, citing State v.

Huston, 3d Dist. Wyandot Nos. 16-05-23 and 16-05-24, 2006-Ohio-6857, ¶ 7.

“However, each day the defendant spends in jail solely on the pending criminal

charge counts as three days.” Matland at ¶ 19, citing R.C. 2945.71(E).

       {¶11} “R.C. 2945.72 allows for an extension of the time that the accused

must be brought to trial under certain circumstances.” Taylor at ¶ 28. Excluded

from the speedy trial calculation is “[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.” R.C. 2945.72(E). Also excluded from the speedy-trial calculation is

“[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.” R.C. 2945.72(H).

       {¶12} “If the State fails to meet the statutory time limits, then the trial court

must discharge the defendant.”       Matland at ¶ 19, citing 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.” Id., quoting State v.

Singer, 50 Ohio St.2d 103, 105 (1977). “As such, the speedy-trial provisions are

strictly construed against the State.” Id., citing Brecksville, 75 Ohio St.3d at 57, and

Singer at 105.




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        {¶13} In this case, the speedy-trial clock began to run on August 15, 2017—

the day after Watkins was arrested herein—and ran for 87 days before the speedy-

trial time was tolled as a result of Watkins’s November 9, 2017 motion to continue

his trial. (See Doc Nos. 1, 2, 19).1 Because Watkins remained in jail during that

time, 261 days accumulated toward the 270-day limit under the triple-count

provision. The trial court rescheduled Watkins’s trial for December 11, 2017. (Doc.

No. 20). “[I]t is well-established that a defense motion to continue trial tolls the

speedy trial clock until the rescheduled trial date.” State v. Caulton, 7th Dist.

Mahoning No. 09 MA 140, 2011-Ohio-6636, ¶ 33, citing R.C. 2945.72(H) and State

v. Brown, 7th Dist. Mahoning No. 03 MA 32, 2005-Ohio-2939, ¶ 41. See also State

v. Quinnie, 10th Dist. Franklin No. 12AP-484, 2013-Ohio-1208, ¶ 8.

        {¶14} During the time when Watkins’s speedy-trial “clock” was tolled,

Watkins’s was released from jail on a recognizance bond on November 16, 2017.

(Doc. No. 25). Then, on November 22, 2017, Watkins’s trial counsel filed a motion

to withdraw, which constituted another tolling event even if Watkins’s speedy-trial

clock had not already been tolled until December 11, 2017. (Doc. No. 35). See

Matland at ¶ 42 (stating that “counsel’s motion to withdraw constitutes a tolling

event, with time beginning to run again when substitute counsel is appointed”),

citing State v. Hart, 7th Dist. Columbiana No. 06 CO 62, 2007-Ohio-3404, ¶ 21.


1
 Watkins contends that he was arrested on August 10, 2017—a date which is refuted by the record. (See
Doc. Nos. 1, 2).

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       {¶15} On November 28, 2017, the State filed a motion to join this case with

case number 2017 0373. (Doc. No. 38). As a result of Watkins’s trial counsel’s

motion to withdraw and the State’s motion to consolidate the cases, the trial court

held a hearing on December 11, 2017 to address whether Watkins was entitled to a

court-appointed counsel. (Doc. Nos. 39, 40). At that hearing, the trial court granted

Watkins two weeks—until December 27, 2017—to gather evidence to support his

claim of indigency. (Dec. 11, 2017 Tr. at 22-24). The following day, Watkins’s

trial counsel filed a motion requesting that the trial court determine his “obligations

as Court Appointed Counsel.” (Doc. No. 47). Thus, Watkins’s speedy-trial clock

continued to be tolled until December 27, 2017. See R.C. 2945.72(C), (H).

       {¶16} However, the trial court rescheduled the December 27, 2017 hearing

for the following day. (Doc. No. 48). See State v. Hairston, 101 Ohio St.3d 308,

2004-Ohio-969, ¶ 12 (stating that R.C. 2945.72(H) tolls an accused speedy-trial

clock for the period of any reasonable continuance). And, after the December 28,

2017 hearing, the trial court granted Watkins’s trial counsel’s motion to withdraw;

concluded that Watkins was not indigent; continued its decision on the State’s

motion to join the cases until February 8, 2018 to provide Watkins time to employ

private counsel; and set trial for April 2, 2018. (Doc. Nos. 51, 52). Accordingly,

under the facts presented, Watkins’s speedy-trial clock continued to be tolled until

April 2, 2018. See R.C. 2945.72(C), (H).


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       {¶17} Even though Watkins’s speedy-trial clock was tolled until April 2,

2018, Watkins continued to engage in conduct that would have tolled the speedy-

trial clock if it was not already tolled. On January 22, 2018, Watkins filed a motion,

pro se, requesting the trial court to reconsider its December 29, 2017 decision

concluding that he is not indigent. (Doc. No. 54). See State v. Baker, 12th Dist.

Fayette No. CA2005-05-017, 2006-Ohio-2516, ¶ 36, 38, 43, 46; R.C. 2945.72(E).

In response, the trial court scheduled a hearing for Watkins’s motion on February 8,

2018, wherein the trial court denied Watkins’s motion to reconsider and continued

the matter until March 2, 2018 to provide Watkins time to hire counsel. (Feb. 8,

2018 Tr. at 17-18); (Doc. Nos. 56, 61). However, Watkins failed to appear at the

March 2, 2018 hearing. (Doc. No. 62). See R.C. 2945.72(D) (stating that the

speedy-trial clock is tolled for “[a]ny period of delay occasioned by the neglect or

improper act of the accused”).

       {¶18} On March 12, 2018, a new attorney filed a notice informing the trial

court that she was now representing Watkins. (Doc. No. 66). That same day, the

trial court held a status conference during which the parties jointly moved to

continue the trial to a later date to allow Watkins’s newly retained counsel adequate

time to prepare for trial. (Mar. 12, 2018 Tr. at 3-6). Based on that request, the trial

court rescheduled Watkins’s trial date for May 14, 2018. (Doc. Nos. 68, 70, 71).




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Thus, Watkins’s speedy-trial clock continued to be tolled until May 14, 2018. R.C.

2945.72(H).

       {¶19} On May 8, 2018, the State filed a motion to continue the trial because

the State could not locate the victim—its “key” witness—“despite numerous

attempts by law enforcement to serve her with a subpoena.” (Doc. No. 94). After

hearing the State’s motion on May 10, 2018, the trial court continued the trial until

May 29, 2018. (May 10, 2018 Tr. at 5-6); (Doc. Nos. 96, 98). Therefore, Watkins’s

speedy-trial clock continued to be tolled until May 29, 2018. State v. Binks, 12th

Dist. Butler No. CA2017-08-118, 2018-Ohio-1570, ¶ 36 (“‘[It is] well-settled that

the availability of a key prosecution witness is a reasonable ground for granting a

continuance pursuant to R.C. 2945.72(H).’”), quoting State v. Nelson, 12th Dist.

Clinton No. CA2007-11-046, 2009-Ohio-555, ¶ 25, citing State v. Mitchell, 7th Dist.

Mahoning No. 06-MA-169, 2008-Ohio-645, ¶ 34. See also State v. Elliott, 10th

Dist. Franklin No. 03AP-605, 2004-Ohio-2134, ¶ 15.

       {¶20} However, prior to trial, the State and Watkins reached a plea

agreement on May 16, 2018, which effectively terminated the speedy-trial clock in

this matter.   (Doc. Nos. 121, 122).     See Matland, 2010-Ohio-6585, at ¶ 48.

Therefore, we conclude, under the facts presented, that Watkins’s 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. See id.


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       {¶21} For these reasons, since Watkins’s speedy-trial argument fails, his

ineffective-assistance-of-trial-counsel argument is without merit. See id. at ¶ 50.

Accordingly, Watkins’s assignment of error is overruled.

       {¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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