State v. TillmanState v. Tillman
GRADY, J.:
{¶ 1} Defendant, Dwight Tillman, appeals from his conviction and sentence for failure to comply with an order or signal of a police officer.
{¶ 2} On June 3, 2006, at around 5:00 to 6:00 p.m., Springfield Police Officer Don Bartolet observed a vehicle on Yellow Springs Street that matched the description of a
{¶ 3} The pursuit continued on several streets in a residential neighborhood in Springfield. During that time, the driver of the vehicle, Defendant Tillman, ran one stop light and six stop signs and exceeded the speed limit. There were other vehicles and pedestrians about the area during this police pursuit. The pursuit ended when Defendant pulled into an alley off of Euclid Avenue and stopped, and then fled on foot.
{¶ 4} Officer Bartolet called to Defendant to halt and that he was under arrest, but Defendant continued to run. Officer Bartolet chased Defendant on foot for no more than two hundred yards. During the foot chase, Officer Bartolet was only fifteen to twenty feet behind Defendant. After Defendant ran around the corner of a building at Innisfallen and Yellow Springs Streets, Officer Bartolet found him lying on the ground next to a tree. Defendant was breathing heavily and perspiring.
{¶ 5} Defendant was indicted for two felony offenses: one
{¶ 6} In order to give Defendant time to consider the State‘s plea offer, the matter was again continued until September 22, 2006, and then again until September 25, 2006, at which time Defendant requested the appointment of different counsel. The trial court denied the request, and Defendant declined the State‘s plea offer.
{¶ 7} A jury trial commenced on October 20, 2006. Defendant was found guilty of failing to comply with the order or signal of a police officer. The jury also found that Defendant‘s operation of his vehicle during the police pursuit caused a substantial risk of serious physical harm to persons or property.
FIRST ASSIGNMENT OF ERROR
{¶ 8} “TRIAL COURT ERRED BY OVERRULING MR. TILLMAN‘S MOTION TO DISMISS ON GROUNDS HIS RIGHTS TO SPEEDY TRIAL WERE VIOLATED.”
SECOND ASSIGNMENT OF ERROR
{¶ 9} “TRIAL COURT‘S CONTINUANCE OF MR. TILLMAN‘S TRIAL WAS UNREASONABLE GIVEN THE FACT THAT MR. TILLMAN WAS STILL IN CUSTODY.”
{¶ 10} In these related assignments of error, Defendant contends that the trial court‘s sua sponte continuance of his trial on August 31, 2006, was not reasonable, and that the court therefore erred when it denied his motion to dismiss based upon a claimed violation of his speedy trial rights.
{¶ 11} The right to a speedy, public trial is a constitutional right of every defendant who is charged with a criminal offense for which he may be deprived of his liberty or property. Sixth Amendment, Constitution of the United States; Article I, Section 10, Constitution of Ohio. The constitutional right is implemented by
{¶ 12} Defendant was charged with and convicted of two felony offenses.
{¶ 13} Defendant was arrested on June 3, 2006, and thereafter remained incarcerated on the pending charges of failure to comply with an order or signal of a police officer and receiving stolen property. Pursuant to
{¶ 14} Defendant‘s trial was originally scheduled to begin on August 28, 2006, within the allowable ninety-day limit. On August 31, 2006, eighty-nine days after Defendant‘s arrest, the trial court sua sponte continued Defendant‘s trial, because on the date set for Defendant‘s trial the court was in trial in another case that had begun two weeks earlier. The trial court‘s order states:
{¶ 15} “This matter was scheduled for trial on August 28, 2006. However, the case of State of Ohio v. Joshua Wade, Case No. 05-CR-373 and 06-CR-11 is presently before the Court on that date. Therefore, the time constraints currently placed upon this court‘s schedule are reasonable and necessitate continuing the trial in the case at bar. This matter is hereby re-scheduled for trial at the earliest possible date.
{¶ 16} SO ORDERED.”
{¶ 17} The State argues that the continuance the court ordered extended Defendant‘s
{¶ 18} Whether a sua sponte continuance is “reasonable” for purposes of
{¶ 19} A continuance is “[t]he adjournment or postponement of a future date.” Black‘s Law Dictionary (Seventh Ed.). That definition contemplates both abandonment of a date that‘s been set and establishment of a new date certain. We believe that, for purposes of the extension of a defendant‘s statutory speedy trial time pursuant to
{¶ 20} The sua sponte continuance the court ordered on August 31, 2006, satisfies the requirements of Mincy because it was journalized before his statutory speedy trial time expired and affirmatively demonstrates the necessity and reasonableness of the continuance. City of Aurora v. Patrick (1980), 61 Ohio St.2d 107. Further, the court ordered the case promptly rescheduled for trial. However, instead of doing that, on September 6, 2006, the court reassigned the case to the probate court judge, without explanation. The reassignment produced some delay that did not directly and actually result from the continuance. However, Defendant did not argue in the trial court, and does not argue on appeal,
{¶ 21} The probate court judge was out of the state on September 6-8, 2006. On September 12, 2006, the probate court judge set the matter for a pretrial conference on September 19, 2006. At that pretrial conference, Defendant filed a motion to dismiss the case based upon a claimed speedy trial violation.
{¶ 22} By entry filed September 20, 2006, the court overruled Defendant‘s motion to dismiss, concluding that it was impossible for the original trial court judge to proceed with Defendant‘s case as scheduled because a murder trial in another case was proceeding in that judge‘s court at that time. Also at that September 19, 2006 pretrial conference, Defendant requested time to consider a plea offer from the State. Pursuant to Defendant‘s request, the court continued the matter for a plea hearing on September 22, 2006.
{¶ 23} On September 22, 2006, the court explained his options to Defendant, which were to either accept the State‘s plea offer, a guilty plea to one charge with a two-year sentence and the dismissal of the other charge, or proceed to trial on October 20, 2006, which was the earliest date
{¶ 24} At the September 25, 2006 plea hearing, Defendant renewed his request that other counsel be appointed to represent him, claiming that there was a conflict between him and current counsel. The court denied Defendant‘s request, finding no conflict that would justify the removal of current counsel for Defendant. At that point, Defendant refused to accept the State‘s plea offer, and the court scheduled the matter for a jury trial on October 20, 2006, the earliest date available on the court‘s calendar.
{¶ 25} Defendant‘s speedy trial time was extended by the continuance the court ordered on August 31, 2006. In the
{¶ 26} The first and second assignments of error are overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 27} “TRIAL COURT ERRED BY OVERRULING MR. TILLMAN‘S REQUEST TO HAVE NEW COUNSEL ASSIGNED.”
{¶ 28} Defendant argues that the trial court abused its discretion when it denied his motion to dismiss court appointed counsel and substitute new counsel. We disagree.
{¶ 29} In State v. Furlow, Clark App. No. 03CA0058, 2004-Ohio-5279, at ¶11-13, this court stated:
{¶ 30} “‘An indigent defendant has no right to have a
{¶ 31} “Disagreement between the attorney and client over trial tactics and strategy does not warrant a substitution of counsel. State v. Glasure (1999), 132 Ohio App.3d 227, 724 N.E.2d 1165. Moreover, mere hostility, tension and personal conflicts between attorney and client do not constitute a total breakdown in communication if those problems do not interfere with the preparation and presentation of a defense. State v. Gorden, 149 Ohio App.3d 237, 241, 776 N.E.2d 1135, 2002-Ohio-2761.
{¶ 32} “The decision whether or not to remove court appointed counsel and allow substitution of new counsel is addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of
{¶ 33} At the September 22, 2006 plea hearing, and again at the September 25, 2006 continuation of that hearing, Defendant argued that an irreconcilable conflict of interest between himself and court appointed counsel had developed, because counsel failed to properly represent him with respect to his claimed speedy trial violation, and because counsel had attempted to coerce him into accepting a plea. Neither allegation is supported by this record.
{¶ 34} On September 19, 2006, Defendant‘s counsel filed a motion to dismiss based upon a claimed speedy trial violation. As we discussed in overruling Defendant first and second assignments of error, that motion to dismiss for want of a speedy trial lacked merit, and the trial court properly overruled it. Furthermore, a review of the September 22 and 25, 2006 hearings fails to demonstrate that court-appointed counsel attempted to coerce Defendant into accepting the State‘s plea offer. Rather, both defense counsel and the trial court simply made accurate representations to Defendant regarding his option to either accept the State‘s plea offer
{¶ 35} The matter was discussed fully on the record and the court repeatedly questioned Defendant as to the reasons behind his request for the appointment of new counsel. Clearly, Defendant was not coerced by his counsel into accepting a plea because he rejected the State‘s plea offer and elected to go to trial. Furthermore, neither deficient performance by defense counsel nor a total breakdown in the attorney-client relationship has been demonstrated on this record. At worst, there may have been personal conflicts and disagreement between the attorney and the client over trial tactics and strategy, but that does not warrant a substitution of new counsel. Furlow. The trial court correctly concluded that the record simply did not demonstrate the existence of a conflict which would justify removal of court appointed counsel in this case. Defendant‘s right to the effective assistance of counsel was not compromised.
{¶ 36} Defendant‘s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 37} “THE STATE FAILED TO SATISFY ITS BURDEN OF PROVING THAT MR. TILLMAN‘S ACTIONS CONSTITUTED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO PERSONS OR PROPERTY.”
{¶ 39} A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 40} “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Accord: State v. Thompkins, supra.
{¶ 41} In order to find that a manifest miscarriage of justice occurred, an appellate court must conclude that a guilty verdict is “against,” that is, contrary to, the manifest weight of the evidence presented. See, State v. McDaniel (May 1, 1998), Montgomery App. No. 16221. The fact that the evidence is subject to different interpretations on the matter of guilt or innocence does not rise to that level.
{¶ 42} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 43} “Because the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” Id., at p. 4.
{¶ 44} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 46} The evidence demonstrates that this car chase lasted seven minutes and occurred in a residential area of Springfield. At times during the police pursuit, speeds exceeded the posted thirty-five mile-per-hour speed limit. During the pursuit, Defendant disregarded traffic laws, failing to signal turns and running one red light and six stop signs. Furthermore, this pursuit occurred at rush hour, 5:00-6:00 p.m., when other vehicles and pedestrians were about on the streets where the pursuit occurred. On these facts, the jury did not lose its way in finding Defendant guilty. The guilty verdict is not contrary to the testimony of the two police officers who were chasing Defendant.
{¶ 47} Reviewing this record as a whole we cannot say that the evidence weighs heavily against a conviction, that the
{¶ 48} Defendant‘s fourth assignment of error is overruled.
The judgment of the trial court will be affirmed.
BROGAN, J., concurs.
WOLFF, P.J., concurs separately.
WOLFF, P.J., concurring:
{¶ 49} I agree with the disposition of the third and fourth assignments of error, and I agree with the result reached on the first and second assignments.
{¶ 50} I have difficulty with the characterization of Tillman‘s September 19 motion to dismiss as “premature” and with the citation to Williams in support of that characterization.
{¶ 51} Because I agree that the fifty-day continuance was reasonable under the circumstances here, the motion to dismiss was properly overruled, particularly when the motion was filed only twenty days after the August 31 continuance.
{¶ 52} As I read the majority opinion, however, the motion to dismiss was premature because the trial date had been
{¶ 53} I think one could reasonably interpret the majority opinion to say that a motion to dismiss on speedy trial grounds is premature (and subject to dismissal) until the new trial date is actually established, regardless of the length of time between the old and new trial dates. I don‘t believe the majority intends this interpretation, but I believe it‘s a reasonable interpretation.
{¶ 54} This interpretation would run counter to
{¶ 55} Simply put, I would hold that Tillman‘s motion was properly overruled because it was made within a period of reasonable continuance, not because a new trial date had yet to be set.
. . . . . . . . . .
Amy M. Smith, Esq.
Bryan K. Penick, Esq.
Hon. Richard P. Carey