Case Information
*1
[Cite as
State v. Weaver
,
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 12 BE 21
)
PLAINTIFF-APPELLEE, )
) VS. ) O P I N I O N
)
JACOB WEAVER, )
)
DEFENDANT-APPELLANT. ) CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 07CR33.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Christopher Berhalter Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950 For Defendant-Appellant: Jacob Weaver, Pro se
#A558-248 Chillicothe Correctional Institution P.O. Box 5500 Chillicothe, Ohio 45601 JUDGES: Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: February 6, 2013
*2
[Cite as
State v. Weaver
,
VUKOVICH, J. Defendant-appellant Jacob Weaver appeals the decision of the Belmont
County Common Pleas Court denying his motion to vacate his sentence wherein he alleged that his speedy trial rights had been violated. Contrary to appellant's first argument on appeal, speedy trial issues do not void a conviction or sentence. Appellant's speedy trial argument also fails because he pled guilty thus waiving the issue. Even if there had been no waiver, his arguments are based upon items existing in the record but he did not file a direct appeal. Other arguments he raises here were not raised in his motion before the trial court and cannot be considered for the first time on appeal. For these various reasons, the trial court's refusal to vacate the sentence is upheld.
STATEMENT OF THE CASE On January 19, 2007, appellant was arrested for raping a child in 1999.
He was held in jail as he could not make bail. On August 3, 2007, he pled guilty to the offense. He was sentenced, in an August 31, 2007 judgment entry, to eight years in prison. He was then labeled a sexual predator. He did not appeal from his conviction.
{¶4}
In 2011, appellant filed an unsuccessful motion protesting his
reclassification as a Tier III offender. On appeal from that proceeding, this court
vacated his Tier III classification and reinstated the prior sexual predator designation.
See State v. Weaver , 7th Dist. No. 11BE12,
vacate his sentence. He argued that his speedy trial rights were violated because he was not brought to trial within ninety days after his arrest. R.C. 2945.71(C)(2) (defendant shall be brought to trial within two hundred seventy days after arrest); R.C. 2945.71(E) (triple time if held in jail in lieu of bail). In his motion, appellant urged that a speedy trial violation voids a sentence and is thus an issue that can be raised at any time. The trial court overruled appellant's motion. The court outlined various
motions filed by appellant which stopped the running of the speedy trial clock. For *3 instance, trial was originally set for April 3, 2007, a date prior to the running of the speedy trial time. However, on March 29, 2007, appellant filed a motion for a competency evaluation, a motion to suppress his own statements, a motion to disclose the confidential informant and to suppress the informant's statements, a motion for any tape recordings of the victim's statements, and a motion for the victim's school and counseling records. Then, when the evaluation was completed, counsel requested two
different continuances of the competency hearing. At the rescheduled competency hearing, appellant stipulated to competency and entered his guilty plea. The trial court thus concluded that the record showed that appellant's speedy trial rights were not violated. The trial court alternatively concluded that appellant should have raised
any speedy trial issue on direct appeal, classifying appellant's motion as one seeking post-conviction relief. Appellant filed a timely notice of appeal from the denial of his motion.
ASSIGNMENTS OF ERROR ONE AND TWO Appellant sets forth four assignments of error, the first two of which ask:
"Whether the trial court abused its discretion by dismissing petition as clarified in RC §2953.21" and "Whether the trial court abused its discretion by failing to conduct an evidentiary hearing." First, appellant states that he did not file a motion for post-conviction
relief. Rather, he characterizes his filing as a motion to vacate a void sentence that
can be filed at any time, citing State v. Fischer ,
void, and thus, if post-release control was not imposed even though it was required
by law, that portion of the sentence is void. Fischer ,
way of a guilty plea. By entering this guilty plea, he waived this statutory speedy trial
claim. See State v. Kelley ,
finding of guilt after trial, his claim would not be cognizable by way of a post- conviction relief motion pursuant to R.C. 2953.21. That is, appellant alternatively argues that the trial court should have found that his speedy trial arguments can be raised in a motion under R.C. 2953.21 and that the court was required to hold an evidentiary hearing under said statute. However, appellant did not allege that it was necessary to evaluate
items existing off of the record in order to ascertain whether his speedy trial rights were violated. His arrest date, the fact that he was in jail pending his plea, the various motions, and the court's entries setting and rescheduling hearings and attributing time to the defendant, and the hearings held before the court are all part of the record. This type of speedy trial is a matter for direct appeal (after the guilty plea was attacked for instance or after trial or upon a no contest plea). Pursuant to the doctrine of res judicata, a defendant cannot raise an
issue in a motion for post-conviction relief if he could have raised the issue on direct
appeal. State v. Reynolds ,
under R.C. 2953.21, then it was untimely filed. See R.C. 2953.21(A)(2) (if no appeal
is taken, petition for post-conviction relief shall be filed no later than 180 days after
the expiration of the time for filing the appeal). The trial court was not permitted to
entertain this untimely post-conviction petition unless appellant was unavoidably
prevented from discovering the necessary facts or the United States Supreme Court
recognized a new retroactive right. See R.C. 2953.23(A)(1)(a). He must also have
presented clear and convincing evidence that, but for constitutional error at trial, no
reasonable fact-finder would have found him guilty. See R.C. 2953.23(A)(1)(b).
Here, appellant did not allege how he was (or even that he was)
unavoidably prevented from discovering the facts upon which his petition was based.
R.C. 2953.23(A)(1)(a). In fact, he states that counsel raised this issue below,
and this is confirmed by a judgment entry mentioning that counsel's motion to dismiss
was overruled. Moreover, appellant did not set forth a new retroactive right that has
been recognized by the United States Supreme Court. See id. As such, the trial
court had no jurisdiction to hear or consider this filing under the post-conviction relief
statutes. See State v. Bryant , 7th Dist. No. 10MA11,
failure to comply with Crim.R. 11, appellant does not specify which rights the court
failed to adequately explain. As to any allusions to what counsel told him, such
allegations exist outside of the record and were not before the trial court. A
defendant cannot add matter to the record on appeal that was not before the trial
court. See State v. Ishmail ,
even raised in the motion before the trial court. As such, they are not properly before
this court. State v. Robinson , 7th Dist. No. 09MO6,
ASSIGNMENT OF ERROR NUMBER FOUR Appellant's fourth assignment of error asks: "Whether the trial court
abused its discretion in not informing Appellant of his rights."
Under this assignment, appellant contends that any waiver of his
speedy trial right was invalid as it was not made in writing or in open court. See State
v. King ,
denying appellant's motion here was not to suggest that appellant entered an actual speedy trial rights waiver. Rather, as outlined in our Statement of the Case supra, the trial court's mention of waiver was a reference to the items filed by appellant *7 which tolled the speedy trial clock and thus acted as temporary waivers. That is, time is tolled by: any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined; any period of delay necessitated by reason of a motion, proceeding, or action made or instituted by the accused; the period of any continuance granted on the accused's own motion; and the period of any reasonable continuance granted other than upon the accused's own motion. R.C 2945.72(B), (E), (H). Hence, this assignment of error is the result of a misconstruction of the
language in the trial court's entry and is moot. For the foregoing reasons, the judgment of the trial court is affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.