STATE OF OHIO v. BERT S. WATKINS
CASE NO. CA2020-03-005
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
1/25/2021
[Cite as State v. Watkins, 2021-Ohio-163.]
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Cаse No. 19 CR 12981
J.A. Kovach Law Co., LPA, Valerie Sargent-Wood, 123 W. Main Street, Eaton, Ohio 45320, for appellant
S. POWELL, J.
{1} Appellant, Bert S. Watkins, appeals his conviction in the Preble County Court of Common Pleas after he entered a plea of no contest to one count of possession of cocaine and its accompanying forfeiture specification. For the reasons outlinеd below, we affirm Watkins’ conviction.
{3} Upon arriving at G.G.‘s house, Major Miller, who was accompanied by four deputies with the Preble County Sheriff‘s Office, was met in the doorway by G.G. One of the deputies who accompanied Major Miller was Deputy Matthew Lunsford. G.G., who knew a warrant had been issued for Watkins’ arrest, invited Major Miller and the four deputies to come inside. Once inside, G.G. told the officers that Watkins was upstairs sleeping. With G.G.‘s consent, the officers then climbed the stairs and found Watkins asleep in a second floor bedroom. The officers woke Watkins and placed him under arrest. The officers then conducted a search of Watkins’ person incident to that arrest. This search resulted in the discovеry of a plastic baggie containing 30.6 grams of crack cocaine in Watkins’ left front pants pocket and $2,095 in Watkins’ shoe.
{4} On May 13, 2019, Watkins entered a not guilty plea to the possession of cocaine offense and its accompanying forfeiture specification. Attorney Kristen Knight was then appointed to represent Watkins in his defense. The trial court assigned this Case No.
{5} On June 21, 2019, the trial court held a change of plea hearing in Case No. 19 CR 12981. Watkins, however, ultimately decided nоt to enter a plea at this hearing and the trial court scheduled the matter for trial on August 26, 2019.1
{6} On June 25, 2019, Watkins pled guilty to an amended aggravated assault charge in Case No. 18 CR 12549. The trial court accepted Watkins’ plea and scheduled the matter for sentencing to take place on July 3, 2019.
{7} On June 26, 2019, Attorney Knight moved to withdraw as Watkins’ counsel in Case No. 19 CR 12981. Attorney Knight supported her motion by alleging that she and Watkins had experienced a “material breakdown” in communication. The trial cоurt granted Attorney Knight‘s motion to withdraw and appointed Attorney Kyle Lennen to represent Watkins in his defense.
{8} On July 3, 2019, Watkins was sentenced to 18 months in prison after pleading guilty to an amended charge of aggravated assault in Case No. 18 CR 12549.
{9} On July 8, 2019, Attorney Lennen moved to withdraw as Watkins’ counsel in Case No. 19 CR 12981 after he and Watkins had “disagreements” that made their relationship “irreparably harmed.” The trial court granted Attorney Lennen‘s motion to withdraw and appointed Attorney Sam Borst to represent Wаtkins in his defense.
{10} On August 21, 2019, Attorney Borst filed a motion to continue. In support of this motion, Attorney Borst argued, in pertinent part, the following:
Defendant needs additional time to review the additional discovery the State has made available to the Defendant recently, and to prepare, file, and get a decision on, a necessary Motion to Disclose Grand Jury testimony, as discussed at the pretrial. In addition, the State of Ohio is not prejudiced by this request, the Defendant is out on bond, and the Defendant waives his Speedy Trial rights in this Motion.
Defendant needs additional time to review the additional discovery the State has to make available to the Defendant in the near future, and to prepare, file, and get a decision on, a necessary Motion for Speedy Trial Dismissal, and another Motion pertaining to faulty evidenсe handling, lack of chain of custody, as discussed at the pretrial. In addition, the State of Ohio is not prejudiced by this request, the Defendant is out on bond, and the Defendant waives his Speedy Trial rights in this Motion.
{12} On September 3, 2019, the trial court granted Attorney Borst‘s motion for a continuance and rescheduled the trial to take place on October 28, 2019.
{13} On October 9, 2019, Attorney Daniel O‘Brien filed a notice of appearance/substitution of counsel notifying the trial court that it was him, and not Attorney Bоrst, who would be representing Watkins in his defense going forward.
{14} On October 24, 2019, Attorney O‘Brien filed a demand for discovery and a motion to suppress alleging Watkins’ arrest was not supported by probable cause. Attorney O‘Brien also alleged that the search of G.G.‘s house was unconstitutional in that “no search warrant was signed by a judge.” Attorney O‘Brien further alleged that any and all statements that Watkins may have made to Major Miller should be suppressed given that Watkins’ statements (1) were given without Miranda warnings, (2) were invоluntary, (3) were the fruits of an inherently illegal and/or coercive arrest, or, (4) if Miranda warnings were given, the warnings were given to Watkins when he was “demonstrably and obviously barely conscious and under the influence of drugs and/or alcohol.”
{15} Attorney O‘Brien also filed a motion to dismiss alleging Watkins’ right to a speedy trial had been violated. In support of this motion, Attorney O‘Brien argued the
Mr. Watkins has been held continuously in jail since his arrest April 4, 2019 until the date of the filing of this Motion. The Defendant has never been informed by duly aрpointed counsel or the Court, in writing or orally, that any act he was performing, in or out of Court, was in fact and/or law a complete waiver of his speedy trial rights or the complete legal ramifications of those acts were never explained to him.
{16} On November 8, 2019, the trial court issued a decision denying Watkins’ motion to dismiss. In so holding, the trial court stated:
The case would have gone to trial on June 24, 2019, but for Defendant saying that he wanted to enter into a plea agreement аnd then – as is his right – changing his mind, necessitating a continuance of the trial to August 26, 2019. The trial would have been conducted on that date but for Defendant filing a motion on August 2[2], 2019, to continue in order to file motions, in which he expressly waived his speedy trial rights. The trial would have been held on October 28, 2019, but for Defendant filing the instant motion, a motion to suppress, and a demand for discovery. Therefore, speedy trial time has been tolled since June 24, 2019, and continues to be until resolution of the motion to supprеss.
{17} On December 13, 2019, the trial court held a hearing on Watkins’ motion to suppress. During this hearing, the trial court heard testimony from two witnesses, Major Miller and Deputy Lunsford. Following this hearing, on January 3, 2020, the trial court issued a decision denying Watkins’ motion in its entirety. Explaining its reasoning for denying Watkins’ motion, the trial court stated:
Contrary to Defendant‘s assertions in his motion, he was not arrested on suspicion of committing a crime, but rather on a warrant, the validity of which has not been questioned by the Defendant. Thereforе, no probable cause was needed for his arrest. Further, the State did not need a warrant to enter [the home where Watkins’ was located] as they were given consent by the owner to enter for the specific purpose of locating and arresting the Defendant.
{18} Concluding, the trial court stated:
Finally, the evidence presented showed that Defendant was
promptly advised of his constitutional rights. However, the issue apparently is moot because the State does not contend that Defendant made any inculpatory statements anyway.
{19} On January 24, 2020, Watkins enterеd a plea of no contest to the indicted possession of cocaine offense and its accompanying forfeiture specification. Upon finding Watkins’ plea was knowingly, intelligently, and voluntarily entered, the trial court accepted Watkins’ no contest plea and found Watkins guilty as charged.
{20} On February 19, 2020, the trial court held a sentencing hearing. At sentencing, the trial court sentenced Watkins to serve an indefinite term of a minimum of five years in prison and a maximum of seven-and-оne-half years in prison with jail-time credit for 90 days plus any additional days that Watkins would serve while awaiting transportation to prison. The trial court ordered this prison term to be served concurrently with the 18-month prison term it had previously imposed in Case No. 18 CR 12549.
{21} The trial court also notified Watkins that he would be subject to a mandatory postrelease control term of up to five years. The trial court issued its judgment entry of sentence on February 20, 2020. The trial court noted within this sentencing entry that it had сonsidered, among other things, “the principles and purposes of sentencing under §§2929.11 and 2929.12, of the Ohio Revised Code” prior to issuing its sentencing decision.
{22} On March 23, 2020, Watkins filed a pro se motion for jail-time credit alleging that he was entitled to 327 days of jail-time credit rather than the 94 days of jail-time credit that he actually received. Watkins supported this motion by arguing that he was entitled to jail-time credit beginning on the date of his arrest, April 4, 2019, up to and including the day that he was transported to prison to begin serving time on the prison term imposed in Case No. 19 CR 12981, February 24, 2020. Therefore, according to Watkins, he was entitled to an additional 233 days of jail-time credit.
{23} On April 7, 2020, the trial court issued a decision denying Watkins’ motion for
On July 3, 2019, the Defendant was sentenced to 18 months in custody of the Department of Rehabilitation and Corrections and continues to serve that sentence by this Court in Case No. 18 CR 12[5]49. Therefore, the only time that he was being held on the charges in the instant case was from April 4, 2019 through July 3, 2019, a total of 94 days.
{24} The trial court also stated:
Defendant‘s two cases for which prison sentences were imposed arose out of completely different sets of facts. Therefore, he is not entitled to credit in this case for time he was serving a sentence in Case No. 18 CR 12[5]49. The 94 days of jail time credit provided in Defendant‘s sentencing entry herein is correct.
{25} Watkins now appeals, raising four assignments of error for review.
{26} Assignment of Error No. 1:
{27} THE DEFENDANT WAS PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF COUNSEL.
{28} In his first assignment of error, Watkins argues his conviction must be reversed because he was provided with ineffective assistance of counsel. We disagree.
{29} “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7, citing State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. To prevail on an ineffective assistance of counsel claim, Watkins must show that (1) his trial counsel‘s performance fell below an objective standard of reasonableness and that (2) he was prejudiced as a result. State v. Ward-Douglas, 12th Dist. Warren No. CA2011-05-042, 2012-Ohio-4023, ¶ 96, citing Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104 S.Ct. 2052 (1984). “Deficient performance is dеfined as performance that fell below an objective standard of reasonableness.” State v. Arledge, 12th Dist. Clinton No. CA2018-12-024, 2019-Ohio-3147, ¶ 8, citing State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 97. Prejudice occurs where “there is a reasonable probability the result of the proceeding would be different, but for the unprofessional errors.” State v. Schwartz, 12th Dist. Clermont Nos. CA2019-04-029 thru CA2019-04-031, 2019-Ohio-4912, ¶ 39. The failure to make an adequate showing on either prong is fatal to an ineffective assistance of counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, ¶ 50.
{30} Watkins initially argues that Attorney Borst provided him with ineffective assistance of counsel when hе moved the trial court for a continuance shortly before his trial was set to begin. Watkins supports this claim by arguing that it was improper for Attorney Borst to claim that he was out on bond when he had in fact never been bonded out of jail following his arrest. However, while it may be true that Attorney Borst was incorrect in his assertion that Watkins was out on bond, we fail to see how this amounts to ineffective assistance of counsel. This is because, even if this mistake did amount to deficient performanсe, Watkins’ cannot demonstrate any resulting prejudice therefrom. That is to say, there is no reasonable probability that the proceedings would have been any different but for Attorney Borst‘s mistake in drafting his original and amended motions for a continuance.
{31} The same is true as it relates to Watkins’ claim that Attorney Borst was ineffective for failing to obtain his consent prior to waiving his speedy trial rights. This is because, contrary to Watkins’ assertions otherwise, it is well-established that “[a] defendant is bоund by his counsel‘s waiver of speedy trial rights, even though the waiver might have been executed without his consent.” State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 33; see also State v. McBreen, 54 Ohio St.2d 315, 319 (1978) (trial counsel has “the authority to execute the waivers of time provisions for the purpose of trial preparation” even absent the defendant‘s approval); State v. Vaughn, 106 Ohio App.3d 775, 786 (12th Dist.1995) (“speedy-trial waiver signed by defense counsel is valid even if appellant did not consent“); State v. Carmon, 10th Dist. Franklin No. 11AP818, 2012-Ohio-1615, ¶ 19 (“a defendant is bound by the actions of counsel in waiving speedy trial rights by seeking or agreeing to a continuanсe, even over the defendant‘s objections“). Watkins’ claim otherwise lacks merit.
{32} Watkins also argues that Attorney Borst provided him with ineffective assistance when he informed the trial court that a continuance was necessary so that he could file a motion to disclose grand jury testimony, as well as a motion pertaining to “faulty evidence handling” and “lack of chain of custody,” when he never actually filed either motion. However, despite Watkins’ claims, Watkins has provided no еvidence to indicate Attorney Borst was attempting to mislead the trial court, nor has Watkins provided any evidence to indicate Attorney Borst was acting in bad faith by referencing either motion. Simply stated, Watkins has cited no authority that would require Attorney Borst to file either motion just because he referenced them as a reason why a continuance was needed. This is likely because there are multiple reasons why Attorney Borst may not have filed either motion. This includes, for instаnce, the fact that Attorney O‘Brien replaced Attorney Borst as Watkins’ trial counsel just a few weeks after the trial court granted Attorney Borst‘s motion for a continuance.
{33} Watkins further argues that he received ineffective assistance when none of the four attorneys who represented him before the trial court filed a motion to suppress raising a chain of custody argument. However, contrary to Watkins’ claim, “it is well-established that a challenge to the chain of custody is ‘an issue not properly raised in a motion to suppress, rather properly raised in a motion in limine.‘” State v. Cyrek, 12th Dist. Butler No. CA2019-02-037, 2019-Ohio-4515, ¶ 15, quoting State v. Woltz, 4th Dist. Athens No. 17CA20, 2017-Ohio-9042, ¶ 15. This is because, “the purpose of a motion to suppress
{34} Assignment of Error No. 2:
{35} THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT‘S MOTION TO DISMISS DUE TO SPEEDY TRIAL CALCULATION.
{36} In his second assignment of error, Watkins argues the trial court erred by denying his motion to dismiss alleging a violation of his right to a speedy trial. We disagree.
{37} “Review of a speedy-trial claim involves a mixed question of law and fact.” State v. Long, Slip Opinion No. 2020-Ohio-5363, ¶ 15. We therefore “defer to the trial court‘s factual findings if they are supported by competent, credible evidence, but we review the application of the law to those facts de novo.” Id., citing State v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 17. “De novo appellate review means that this court independently reviews the record and affords no deference to a trial court‘s deсision.”
{38} “The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Section 10, Ohio Constitution.” State v. Jones, 12th Dist. Butler Nos. CA2019-01-006 and CA2019-01-008, 2020-Ohio-2672, ¶ 17, citing State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32. “To preserve this right, the Ohio General Assembly enacted the speedy trial statutes found in
{39} Pursuant to
{40} At the time of Watkins’ arrest, April 4, 2019, Watkins was not being held in jail solely on the charge of possession of cocaine in Case No. CR 19 12981. Watkins was
{41} Watkins entered his no contest plea on January 24, 2020. That was 25 days after the 270-day time limitation set forth in
{42} Assignment of Error No. 3:
{43} THE COURT ERRED IN ITS JAIL TIME CREDIT CALCULATION.
{45} Assignment of Error No. 4:
{46} THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM OF FIVE (5) YEARS ON THE OFFENSE.
{47} In his fourth assignment of еrror, Watkins argues the trial court erred by sentencing him to an indefinite term of a minimum of five years in prison and a maximum of seven-and-one-half years in prison. We disagree.
{48} “[A]n appellate court does not review the sentencing court‘s decision for an abuse of discretion.” State v. Scott, 12th Dist. Clermont Nos. CA2019-07-051 and CA2019-07-052, 2020-Ohio-3230, ¶ 54, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 10. It is instead the standard of review set forth in
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{49} Watkins argues the trial court erred by sentencing him to an indefinite term of a minimum of five years in prison and a maximum of seven-and-one-half years in prison when it failed to cite to any of the requisite sentencing factors set forth in
{50} “Likewise,
{51} The record is clear that the trial court considered the requisite sentencing factors set forth in both
{52} The record is also clear, and Watkins does not dispute, that the trial court properly imposed postrelease control and sentenced him within the permissible statutory
{53} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.