[Cite as State v. Williams, 2011-Ohio-4115.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   Sheila G. Farmer, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 10CA142
                                               :
                                               :
MARK ANTHONY WILLIAMS                          :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Richland
                                                    County Court of Common Pleas Case
                                                    No. 2010-CR-527H

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             August 17, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES J. MAYER, JR.                                 WILLIAM PAUL BRINGMAN
Prosecuting Attorney                                13 East College Street
Richland County, Ohio                               Fredericktown, Ohio 43019-1192

BY: DANIEL J. BENOIT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. Williams, 2011-Ohio-4115.]


Edwards, J.

        {¶1}     Defendant-appellant Mark Williams appeals his conviction and sentence

from the Richland County Court of Common Pleas on one count of aggravated burglary,

one count of felonious assault, both with firearm and repeat violent offender

specifications, and two counts of having weapons while under disability. Plaintiff-

appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     Appellant was arrested on July 19, 2010. On August 6, 2010, the Richland

County Grand Jury indicted appellant on one count of aggravated burglary in violation of

R.C. 2911.11(A)(1), a felony of the first degree, one count of felonious assault in

violation of R.C. 2903.11(A)(1), a felony of the second degree, and two counts of having

weapons while under disability in violation of R.C. 2923.13(A)(2), felonies of the third

degree. The aggravated burglary and felonious assault counts were accompanied by

firearm and repeat violent offender specifications. At his arraignment on August 17,

2010, appellant entered a plea of not guilty to the charges contained in the indictment.

        {¶3}     Pursuant to a Judgment Entry filed on August 30, 2010, new counsel was

appointed for appellant.

        {¶4}     On September 3, 2010, appellant’s counsel filed a Motion to Withdraw on

the basis that appellant was unhappy with his counsel’s representation. As

memorialized in a Judgment Entry filed on September 22, 2010, the trial court granted

such motion and appointed Attorney Charles Brown to represent appellant.

        {¶5}     On October 8, 2010, appellant’s new counsel filed a Motion for a

Continuance of the October 11, 2010 trial date on the grounds that he needed additional
Richland County App. Case No. 10CA142                                                       3


time to prepare for trial. Pursuant to a Judgment Entry filed on October 12, 2010, the

trial court granted such motion and continued the matter until further order of court. The

trial court’s judgment Entry stated that “time failed.”

       {¶6}   On November 10, 2010, appellant filed a Notice of Alibi.

       {¶7}   A jury trial commenced on November 22, 2010. Thereafter, on November

29, 2010, appellee filed a Motion to Amend the Indictment. On November 29, 2010, the

jury found appellant guilty of all counts and specifications. Pursuant to a Judgment

Entry filed on November 30, 2010, the trial court granted the Motion to Amend the

Indictment.

       {¶8}   As memorialized in a Sentencing Entry filed on December 6, 2010,

appellant was sentenced to an aggregate prison sentence of seventeen (17) years.

Appellant also was placed on five years of post-release control.

       {¶9}   Appellant now raises the following assignment of error on appeal:

       {¶10} “THE TRIAL COURT ERRED IN APPOINTING APPELLANT’S TRIAL

COUNSEL DUE TO SAID COUNSEL’S INEFFECTIVE ASSISTANCE OF APPELLANT

IN THE TRIAL OF THE CASE IN TRIAL COURT.”

                                                  I

       {¶11} Appellant, in his sole assignment of error, argues that the trial court erred

in appointing appellant’s trial counsel due to “said counsel’s ineffective assistance of

appellant in the trial of the case in the trial court.” Appellant specifically maintains that

trial counsel was ineffective in failing to file a Motion to Dismiss on speedy trial grounds.

       {¶12} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of
Richland County App. Case No. 10CA142                                                      4


reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Strickland v. Washington (1984), 466 U.S. 668, 104 s.Ct.

2052, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. In determining

whether counsel's representation fell below an objective standard of reasonableness,

judicial scrutiny of counsel's performance must be highly deferential. Bradley at 142.

Because of the difficulties inherent in determining whether effective assistance of

counsel was rendered in any given case, a strong presumption exists counsel's conduct

fell within the wide range of reasonable, professional assistance. Id. In order to warrant

a reversal, the appellant must additionally show he was prejudiced by counsel's

ineffectiveness. “Prejudice from defective representation sufficient to justify reversal of a

conviction exists only where the result of the trial was unreliable or the proceeding

fundamentally unfair because of the performance of trial counsel.” State v. Carter, 72

Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965, citing Lockhart v. Fretwell (1993),

506 U.S. 364, 113 S.Ct. 838, 842-843.

       {¶13} An accused is guaranteed the right to a speedy trial by the Sixth

Amendment to the United States Constitution and Section 10, Article I of the Ohio

Constitution. To determine whether an accused's right to a speedy trial has been

violated, the United States Supreme Court has devised a balancing test that requires

courts to balance and weigh the conduct of the prosecution and that of the accused by

examining four factors: the length of the delay, the reason for the delay, whether the

accused has asserted his speedy trial rights, and any resulting prejudice to the accused.

Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182.
Richland County App. Case No. 10CA142                                                    5


       {¶14} In Ohio, the right to a speedy trial has been implemented by statutes that

impose a duty on the state to bring a defendant who has not waived his rights to a

speedy trial to trial within the time specified by the particular statute. R.C. 2945.71 et

seq. applies to defendants generally. R.C. 2945.71 provides:

       {¶15} “(C) A person against whom a charge of felony is pending:

       {¶16} “(1) * * *

       {¶17} “(2) Shall be brought to trial within two hundred seventy days after the

person's arrest.”

       {¶18} If a person is held in jail in lieu of bond, then each day that the suspect is

in custody counts as three days. R.C. 2945.71(E). This “triple count” provision is applied

only when the defendant is being held in jail solely on the pending charge. State v.

MacDonald (1976), 48 Ohio St.2d 66, 357 N.E.2d 40, paragraph one of the syllabus.

The day of the arrest is not counted when computing speedy trial time.            State v.

Jenkins, 2011-Ohio-837 at ¶ 15, Cuyahoga App. No. 95006, citing State v. Masters, 172

Ohio App.3d 666, 2007-Ohio-4229, 876 N.E.2d 1007.

       {¶19} A speedy-trial claim involves a mixed question of law and fact. State v.

Larkin, Richland App. No. 2004–CA–103, 2005–Ohio–3122. As an appellate court, we

must accept as true any facts found by the trial court and supported by competent,

credible evidence. 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 to the

facts. Id. When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against the state. In Brecksville v. Cook, 75 Ohio
Richland County App. Case No. 10CA142                                                                  6


St.3d 53, 57, 1996–Ohio–171, 661 N.E.2d 706, 709, the court reiterated its prior

admonition “to strictly construe the speedy trial statutes against the state.”

        {¶20} The time to bring a defendant to trial can be extended for any of the

reasons enumerated in R.C. 2945.72.

        {¶21} “When reviewing a speedy-trial issue, an appellate court must calculate

the number of days chargeable to either party and determine whether the appellant was

properly brought to trial within the time limits set forth in R.C. 2945.71.” State v. Riley,

162 Ohio App.3d 730, 2005–Ohio–4337, 834 N.E.2d 887, ¶ 19.

        {¶22} Appellant, in the case sub judice, argues that he was entitled to the triple

count provisions of R.C. 2945.71(E) from the date of his arrest on July 19, 2010,

because he was held in jail in lieu of cash or bond on the pending charges. Appellant

argues that his trial should have commenced by October 17, 2010, but that his trial did

not commence until November 22, 2010.

        {¶23} As is stated above, on October 8, 2010, appellant’s new counsel filed a

Motion for a Continuance of the October 11, 2010, trial date on the grounds that, having

recently been appointed, he needed additional time to prepare for trial. Such motion

was granted by the court on October 12, 2010, prior to the expiration of the speedy trial

time.1 While the trial court did not journalize any order setting a new trial date, the trial

commenced on November 22, 2010.                 R.C. 2945.72(H) provides that a continuance

granted at a defendant's request tolls the period within which the trial must occur. See

State v. Soto (1994), 96 Ohio App.3d 743, 645 N.E.2d 1307. In State v. Mularkey (May

1
  We note that the Ohio Supreme Court, in State v. Mincy (1982), 2 Ohio St.3d 6, 441 N.E.2d 571
syllabus, held that “[w]hen sua sponte granting a continuance under R.C. 2945.72(H) the trial court must
enter the order of continuance and the reasons therefore by journal entry prior to the expiration of the
time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.” We note that the continuance in
the case sub judice was not sua sponte, but rather was at appellant’s request.
Richland County App. Case No. 10CA142                                                 7


30, 1991), Franklin App. Nos. 90AP-1377 & 90AP1378, 1991 WL 94454, unreported,

the court noted that the motion for a continuance itself, even in the absence of an

explicit waiver of the accused's speedy trial rights, tolls the speedy trial time clock.

Therefore, when the record indicates that the continuance was attributable to the

defendant, the delay will be assessed to the defendant even in the absence, as here, of

an express waiver of speedy trial rights. See, also, State v. Bumbalough (1992), 81

Ohio App.3d 408, 611 N.E.2d 369. Therefore, the forty-one (41) days between October

12, 2010, and November 22, 2010, are not chargeable against the State pursuant to

R.C. 2945.72(H). Deducting these 41 days from the 126 days from the date of

appellant’s arrest on July 19, 2010, until his trial on November 22, 2010, 85 days

passed between appellant’s arrest and the commencement of his trial. This is under the

90 days speedy trial limit.

       {¶24} Based on the foregoing, we find that trial counsel was not ineffective in

failing to file a Motion to Dismiss on speedy trial grounds.
Richland County App. Case No. 10CA142                                            8


       {¶25} Appellant’s sole assignment of error is, therefore, overruled.

       {¶26} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.



By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/d0615
[Cite as State v. Williams, 2011-Ohio-4115.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MARK ANTHONY WILLIAMS                             :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10CA142




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
