State v. NicholsonState v. Nicholson
JUDGMENT: AFFIRMED
BEFORE: Celebrezze, J., Rocco, P.J., and Dyke, J.
RELEASED: July 23, 2009
JOURNALIZED:
ATTORNEY FOR APPELLANT
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Michael D. Horn
Robert Botnick
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, Samuel Nicholson, brings this appeal challenging his conviction for murder. After a thorough review of the record, and for the reasons set forth below, we affirm.
{¶ 2} On July 16, 2007, appellant was indicted on one count of aggravated murder with one- and three-year firearm specifications. Bond was set at $1,000,000, and counsel was appointed because of appellant‘s indigency. Trial was originally set for August 21, 2007. At the first pretrial conference, appellant waived his speedy trial rights until December 31, 2007; this waiver was made in writing and in open court. Appellant again waived his speedy trial rights until February 28, 2008; this waiver was made in writing and in open court. A third time, appellant waived his speedy trial rights until April 30, 2008; this waiver was made in writing, but not in open court.
{¶ 3} Trial was then set for March 5, 2008. On that date, appellant appeared in court and entered a plea of guilty to the amended charge of murder in violation of
Review and Analysis
{¶ 4} Appellant was granted leave to file a delayed appeal by this court. He raises four assignments of error for our review.
Validity of Speedy Trial Waivers
{¶ 5} “I. The appellant was denied his right to a speedy trial when the trial court failed to personally sign the journal entries and instead used a rubber stamp or computer generated signature in violation of
{¶ 6} In his first assignment of error, appellant argues that the journal entries reflecting his waiver of speedy trial are not valid because the trial judge‘s signature is computer-generated.2 We find no merit in this argument.
{¶ 7} The Sixth and Fourteenth Amendments to the United States Constitution, as well as Section 10, Article I of the Ohio Constitution, guarantee a criminal defendant the right to a speedy trial by the state. State v. O‘Brien (1987), 34 Ohio St.3d 7, 516 N.E.2d 218. In Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112-113, the United States
{¶ 8} It is well established that the Ohio speedy trial statute constitutes a rational effort to enforce the constitutional right to a speedy public trial of an accused charged with the commission of a felony or misdemeanor and shall be strictly enforced by the courts of this state. State v. Pachay (1980), 64 Ohio St.2d 218, 416 N.E.2d 589. Once the statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Howard (1992), 79 Ohio App.3d 705, 607 N.E.2d 1121. At that point, the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to
{¶ 10}
{¶ 11} Pursuant to
Ineffective Assistance of Counsel
{¶ 12} “II. Trial counsel was ineffective under the Sixth and Fourteenth Amendments of the federal Constitution when he failed to move to dismiss the case due to a violation of the appellant‘s speedy trial rights.”
{¶ 13} In his second assignment of error, appellant argues that his counsel was ineffective for not moving to dismiss his case based on a speedy trial violation. He bases his argument on his previous assignment of error that the court‘s electronic signature renders a judgment entry invalid. Having resolved the previous issue in the state‘s favor, we do the same on this issue.
{¶ 14} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407.
{¶ 15} Appellant is not able to demonstrate that counsel‘s performance was flawed or deficient in any way for not having challenged the court‘s electronic signature. Had counsel moved to dismiss appellant‘s case on the basis that his speedy trial waivers were invalid, the motion would have been denied. As such,
{¶ 16} Appellant‘s second assignment of error is overruled.
Violation of Crim.R. 11
{¶ 17} “III. The appellant‘s guilty plea was not knowingly, intelligently and voluntarily given when the trial judge failed to explain the elements of murder and the Due Process Clause of the Fourteenth Amendment was violated.”
{¶ 18} In his third assignment of error, appellant argues that the trial court violated
{¶ 19} In State v. Collins (Oct. 18, 1979), Cuyahoga App. No. 39926, this court held that “there is no requirement in
{¶ 20} The state and the trial court stated on the record that appellant would be pleading guilty to the amended charge of murder. Appellant stated on the record that he understood the charge against him and that he was pleading guilty to murder.
{¶ 21} Despite appellant‘s appeal to this court to “take a new look at this issue,”
{¶ 22} we follow established precedent in our district and find that appellant‘s plea was knowingly, intelligently, and voluntarily made.
{¶ 23} Appellant‘s third assignment of error is overruled.
Withdrawal of Plea
{¶ 24} “IV. The trial court abused its discretion in denying the appellant‘s motion to withdraw his guilty plea and thus violated the Fourteenth Amendment of the federal Constitution.”
{¶ 25} In his fourth assignment of error, appellant argues that the trial court erred by not allowing him to withdraw his guilty plea prior to sentencing.
{¶ 26}
{¶ 27} With regard to presentence motions to withdraw a guilty plea, the Ohio Supreme Court has held: “Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, * * * still the decision thereon is within the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion * * *.” State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1226; State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863.
{¶ 28} In Peterseim, paragraph three of the syllabus, this court held that “[a] trial court does not abuse its discretion in overruling a motion to withdraw the plea: (1) where the accused is represented by highly competent counsel, (2) where the accused was offered a full hearing, pursuant to
{¶ 30} At his sentencing hearing, appellant made an oral motion to withdraw his plea stating, “[W]hen they brought me up here [on March 5th], I had an expectation to go to trial and I felt forced to make a decision that I wasn‘t comfortable with and I haven‘t been able to find peace with that decision.” In denying the motion, the trial court noted that when appellant entered his plea, he acknowledged that he understood the ramifications of the plea and also expressed remorse for his actions.
{¶ 31} There is nothing in the record to indicate the trial court acted unjustly or unfairly by denying appellant‘s motion. We find that the trial court gave appellant‘s motion sufficient consideration. Appellant simply had a change of heart. Changing one‘s mind is not a sufficient basis for allowing the withdrawal of a plea. State v. Salter, Cuyahoga App. No. 82488, 2003-Ohio-5652; State v. Lambros (1988), 44 Ohio App.3d 102, 103, 541 N.E.2d 632. The
{¶ 32} Appellant‘s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO, P.J., CONCURS;
ANN DYKE, J., CONCURS IN JUDGMENT ONLY