STATE OF OHIO, PLAINTIFF-APPELLEE, v. THOMAS B. WATKINS, DEFENDANT-APPELLANT.
CASE NO. 1-18-32
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
December 17, 2018
2018-Ohio-5055
ZIMMERMAN, J.
Appeal from Allen County Common Pleas Court, Trial Court No. CR2017 0271, Judgment Affirmed
Thomas Watkins, Appellant
Jana E. Emerick for Appellee
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. Wе affirm.
{¶2} On October 13, 2017, the Allen County Grand Jury indicted Watkins on Count One of burglary in violation of
{¶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 оf 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 sentenсe recommended by the parties. (Doc. No. 123). The trial
{¶5} On June 15, 2018, Watkins filed a notice of appeal. (Doc. No. 133). He raises оne 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 Assistаnce 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 pеrformance 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),
Analysis
{¶8} Watkins‘s ineffective-assistance-of-counsel claim centers on his trial counsel‘s allegеd 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
{¶9} “An accused is guarantеed 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
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{¶12} “If the State fails to meet the statutory time limits, then the trial court must discharge the defendant.” Matland at ¶ 19, citing
{¶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
{¶14} During the time when Wаtkins‘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 anоther 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 сounsel is appointed“), citing State v. Hart, 7th Dist. Columbiana No. 06 CO 62, 2007-Ohio-3404, ¶ 21.
{¶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
{¶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;
{¶18} On March 12, 2018, a new attorney filеd 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).
{¶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
{¶20} However, prior to trial, the State and Watkins reached a plеa 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.
{¶21} For these reasons, since Watkins‘s speedy-trial argument fails, his ineffective-assistance-of-trial-counsеl 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.
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