[Cite as State v. Wilson,
2019-Ohio-2741.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107926
v. :
RICHARD WILSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 3, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-610385-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian Lynch, Assistant Prosecuting
Attorney, for appellee.
Myriam A. Miranda, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Richard Wilson (“Wilson”), appeals his guilty
plea and conviction, and asks this court to vacate his conviction and find that he was
denied effective assistance of counsel. After a review of the record, we affirm.
Wilson pleaded guilty to one count of felonious assault, a second-
degree felony, in violation of R.C. 2903.11, and to a one-year firearm specification,
in violation of R.C. 2941.141. Wilson was sentenced to two years in prison on the
felonious assault and one-year for the firearm specification for an aggregate of three
years in prison. The trial court awarded Wilson 365 days of jail-time credit.
I. Facts and Procedural History
The facts adduced reveals that on December 18, 2015, Wilson entered
the residence of the victim, Christopher Baldwin (“Baldwin”) while Baldwin was
playing video games with several friends. Once inside, Baldwin claimed that Wilson
had a gun in his hand, struck Baldwin in the head, and fired his gun several times.
One of the bullets grazed Baldwin’s shoulder. Baldwin fought his way free and ran
to a neighbor’s house and called 911. When police arrived on the scene, two shell
casings and a bullet fragment were recovered in Baldwin’s living room. The
detectives submitted the evidence to the Cuyahoga County Regional Forensic
Laboratory (“CCRFSL”) for testing.
Wilson was not arrested and fled to Iowa with his girlfriend. Wilson
was subsequently arrested in Iowa on a separate firearm charge on March 21, 2016.
Ballistics comparison concluded that the firearm recovered in Iowa was the firearm
used in the Baldwin incident. Additionally, one of Wilson’s accomplices identified
Wilson as Baldwin’s shooter. Wilson was indicted on November 8, 2016, on two
counts of aggravated burglary, with one- and three-year firearm specifications; two
counts of aggravated robbery, with one- and three-year firearm specification; one
count of kidnapping, with one- and three-year firearm specifications; two counts of
felonious assault, with one- and three-year firearm specifications; and one count of
having a weapon while under disability.
Wilson’s arraignment was scheduled for November 23, 2016, but he
failed to appear, and a warrant was issued for his arrest. At the time of the
indictment and arraignment, Wilson, unknown to the state of Ohio, was
incarcerated in Iowa on another matter. After Wilson completed his sentence in
Iowa, he was arrested again on a probation violation in Iowa in November 2017. It
was at that time that Iowa discovered there was a warrant for Wilson in Ohio.
Cuyahoga County took Wilson into custody on April 28, 2018, and he was arraigned
on May 1, 2018. According to the docket, pretrials were held thereafter on May 4
and 17, June 7 and 26, July 10 and 24, August 13 and 20, and September 26, 2018.
All of the pretrials were continued at Wilson’s request. Trial was originally
scheduled for September 10, 2018, however it was rescheduled for October 2, 2018
at Wilson’s request.
On October 2, 2018, Wilson pleaded guilty to one count of felonious
assault with a one-year firearm specification. Wilson was sentenced to three years
in prison for the felonious assault and one-year for the firearm specification. The
trial court awarded Wilson 365 days of jail-time credit, which included the five
months he awaited extradition in Iowa.
Wilson has filed this appeal assigning two errors for our review:
I. Appellant was denied the effective assistance of counsel; and,
II. Appellant’s plea was not entered in accordance to Crim.R. 11.
II. Ineffective Assistance of Counsel
A. Standard of Review
To establish a claim for ineffective assistance of counsel, Wilson must
show that
his trial counsel’s performance was deficient and that the deficient
performance prejudiced his defense. State v. Drummond, 111 Ohio
St.3d 14,
2006-Ohio-5084, ¶ 205,
854 N.E.2d 1038, citing
Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d
674 (1984). Prejudice is established when the defendant
demonstrates “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland at 694.
State v. Salti, 8th Dist. Cuyahoga No. 106834,
2019-Ohio-149, ¶ 66.
B. Whether the Appellant was Denied the Effective Assistance
of Counsel when his Counsel did not File a Motion to
Dismiss for Lack of Speedy Trial
Wilson claims that his trial counsel was ineffective because counsel
failed to file a motion to dismiss for want of speedy trial.
Generally, the failure to raise the violation of speedy trial rights in the
trial court constitutes a waiver of the defense on appeal. However, a
defendant may raise a speedy trial claim in the context of a claim of
ineffective assistance of counsel. Cleveland v. White, 8th Dist.
Cuyahoga No. 99375, 2013-Ohio-5423, ¶ 7. And in order to
demonstrate that counsel provided ineffective assistance of counsel by
failing to file a motion to dismiss for speedy trial violations, the
defendant must show that the motion would have been successful and
the case would likely have been dismissed. Id. “Counsel cannot be
[ineffective] for failing to file a fruitless motion.” State v. Cottrell, 4th
Dist. Ross Nos. 11CA3241 and 11CA3242, 2012-Ohio-4583, ¶ 8.
State v. Mango, 8th Dist. Cuyahoga No. 103146,
2016-Ohio-2935, ¶ 18.
According to the record, Wilson was arrested in the state of Iowa for
a probation violation in November 2017 and awaited extradition on this case until
he was brought to Ohio on April 29, 2018.
The Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution guarantee a criminal
defendant the right to a speedy trial. This guarantee is implemented
in R.C. 2945.71, which provides the specific time limits within which
a person must be brought to trial. State v. Blackburn, 118 Ohio St.3d
163,
2008-Ohio-1823,
887 N.E.2d 319, ¶ 10.
A defendant charged with a felony must be brought to trial within 270
days of his or her arrest. R.C. 2945.71(C)(2). However, “each day
during which the accused is held in jail in lieu of bail on the pending
charge shall be counted as three days.” R.C. 2945.71(E). This is
referred to as the triple count provision. State v. Wright, 7th Dist.
Mahoning No. 15 MA 0092, 2017-Ohio-1211, ¶ 29, appeal not allowed,
150 Ohio St.3d 1433,
2017-Ohio-7567, 81, N.E.3d 1272, ¶ 29.
The trial time tolling provisions are set forth in R.C. 2945.72.
Relevant to this appeal, speedy trial is tolled for any time “during
which the accused is unavailable for hearing or trial … by reason of
his confinement in another state, or by reason of the pendency of
extradition proceedings, provided that the prosecution exercises
reasonable diligence to secure his availability.” R.C. 2945.72(A).
Where the prosecution did not unreasonably delay extradition, arrest
in another state on an Ohio warrant and confinement awaiting
extradition does not count toward the speedy trial clock and the time
is tolled until the defendant arrives in Ohio. State v. Helms, 7th Dist.
Mahoning No. 14 MA 96, 2015-Ohio-1708, ¶ 24.
State v. Harvey, 7th Dist. Mahoning No. 17 MA 0023,
2018-Ohio-2777, ¶ 3-5.
Wilson asserts that the five months that he was incarcerated in Iowa
awaiting extradition to Ohio was unreasonable. The record is void regarding any
proceedings in the five months that Wilson has referenced. We conclude that
Wilson does not demonstrate that the state of Ohio did not exercise reasonable
diligence to secure his availability for proceedings in Ohio.
It has been concluded that, where the prosecution did not
unreasonably delay extradition, arrest in another state on an Ohio
warrant and confinement awaiting extradition does not count toward
the speedy trial clock and the time is tolled until the defendant arrives
in Ohio. State v. Haney, 11th Dist. [Lake] No. 2012-L-098, 2013-
Ohio-2823 ¶ 23-25, citing State v. Patrick, 2d Dist. [Montgomery]
No. 15225, 1996 Ohio App. LEXIS 2516 (June 14, 1996) and State v.
Adkins, 4 Ohio App.3d 231, 232,
447 N.E.2d 1314 (3d Dist.1982)
(where defendant was arrested in Kentucky and waived extradition,
time began to run when he arrived in Ohio); State v. Tullis, 10th Dist.
Franklin No. 04AP-333, 2005-Ohio-2205, ¶ 22 (time involved
between arrest in Missouri and transfer to Ohio did not raise concerns
of a lack of diligence).
State v. Helms, 7th Dist. Mahoning No. 14 MA 96, 2015-Ohio-1708, ¶ 24.
Therefore, we conclude that Wilson has not shown that the trial court
would have granted the motion to dismiss on speedy-trial grounds.
We also conclude that Wilson has not demonstrated that his trial
counsel was ineffective for failure to file a motion to dismiss.
And in order to demonstrate that counsel provided ineffective
assistance of counsel by failing to file a motion to dismiss for speedy
trial violations, the defendant must show that the motion would have
been successful and the case would likely have been dismissed. Id.
“Counsel cannot be [ineffective] for failing to file a fruitless motion.”
State v. Cottrell, 4th Dist. Ross Nos. 11CA3241 and 11CA3242, 2012-
Ohio-4583, ¶ 8.
State v. Mango, 8th Dist. Cuyahoga No. 103146, 2016-Ohio-2935, ¶ 18.
Wilson’s first assignment of error is overruled.
III. Guilty Plea
A. Standard of Review
Wilson contends that his guilty plea was not entered knowingly,
intelligently, and voluntarily.
The standard of review we must apply for compliance with the
requirements set forth in Crim.R. 11(C) is de novo. State v. Roberts,
8th Dist. Cuyahoga No. 89453, 2010-Ohio-3302, ¶ 19, citing State v.
Stewart, 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977). It requires an
appellate court to review the totality of the circumstances and
determine whether the plea hearing was in compliance with
Crim.R. 11(C). Id.
In order to comply with Crim.R. 11(C), a trial court must determine
whether the defendant fully comprehends the consequences of his
guilty plea. State v. Gatson, 8th Dist. Cuyahoga No. 94668, 2011-
Ohio-460, ¶ 5. “‘Adherence to the provisions of Crim.R. 11(C)(2)
requires an oral dialogue between the trial court and the defendant
that enables the court to determine fully the defendant’s
understanding of the consequences of his plea of guilty or no contest.’”
Id., quoting State v. Caudill,
48 Ohio St.2d 342,
358 N.E.2d 601
(1976), paragraph two of the syllabus. “‘Unlike … constitutional
rights, which necessitate strict compliance [with Crim.R. 11(C)],
nonconstitutional rights require that the trial court demonstrate
substantial compliance.’” State v. Fink, 11th Dist. Ashtabula
No. 2006-A-0035, 2007-Ohio-5220, ¶ 18, quoting State v. White, 11th
Dist. Lake No. 2002-L-146, 2004-Ohio-6474, ¶ 25. “Substantial
compliance means ‘that under the totality of the circumstances[,] the
defendant subjectively understands the implications of his plea and
the rights he is waiving.’” White at ¶ 25, quoting State v. Nero, 56
Ohio St.3d 106, 108,
564 N.E.2d 474 (1990).
State v. Darling, 8th Dist. Cuyahoga
No. 104517, 2017-Ohio-7603, ¶ 17-18.
B. Whether Appellant Understood his Charges and the
Possible Consequences of his Plea
Wilson contends that his guilty plea was not made voluntarily because
he thought he would receive treatment or probation as a result of his guilty plea.
Crim.R. 11(C)(2)(a) requires the court to determine that the defendant
is making the plea voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved. Therefore, a trial court
must substantially comply with this requirement.
State v. Reed, 8th Dist. Cuyahoga No. 102364, 2016-Ohio-689, ¶ 10.
The record reveals that the trial judge who took Wilson’s plea is not
the trial judge that presided over Wilson’s sentencing hearing. The trial judge at the
plea hearing addressed Wilson personally and advised Wilson of the nature of the
charges and the maximum penalties involved. The transcript of the plea hearing
indicates this stating,
Court: Do you understand the offense to which you will be
pleading as amended in Count 6 is a felony of the
[second] degree with a one-year firearm specification.
The felony of the [second] degree carries with it a
possible term of two — yes, two, three, four, five, six,
seven, or eight years and/or up to a $15,000 fine, do you
understand that?
Defendant: Yes.
Court: Do you also know that you shall be subject to three years
mandatory [postrelease] control. That’s a parole period
after incarceration. If you violate the terms of
[postrelease] control, you may look at additional time of
up to half the original sentence and/or a charge of felony
escape if you’re violated by the Parole Authority or
Department of Corrections. If you were on judicial
release and violated by a judge, you may look at the
imposition of the remainder of your prison term, do you
understand?
Defendant: Yes.
Court: And in addition to that sentence, possible sentence for a
felony of the [second] degree, you shall serve a
mandatory consecutive term of one year for the firearm
specification. No reduction for the mandatory time, no
reduction in sentencing and no judicial release for that
time for the firearm, do you understand?
Defendant: Yes.
Court: All right. Other than what you’ve heard here today has
anyone promised you anything or threatened you in any
way in order to get you to change your plea?
Defendant: No, ma’am.
Court: All right. Are you presently on probation, parole or
[postrelease] control to anyone?
Defendant: Probation.
Court: You’re on probation to Judge Jackson?
Counsel: He’s on probation in Iowa.
Court: In Iowa, okay. For what?
Counsel: A gun case. He ended up getting probation and drug
treatment and then extradited back.
Court: Okay. Well, you understand that I don’t know what Iowa
is about, but you may be subject to consequences in
Iowa?
Counsel: We went over that, your Honor, but actually this case
occurred before he was placed on probation. This is from
2015. So we don’t believe he’s subject to any increased
penalties.
Court: All right. Without knowing.
Counsel: We just want to make sure.
Court: All right. How do you plead then to the charge as
amended, felonious assault, in violation of 2903.11(A)(2),
which states that on or about December 18, 2015, you did
knowingly cause or attempt to cause physical harm to
Christopher Baldwin, B-A-L-D-W-I-N, by means of a
deadly weapon or dangerous ordnance, to wit: a firearm,
how do you plead?
Defendant: Guilty.
Court: All right. And to the one-year firearm specification in
violation of [R.C.] 2941.141(A), which states that you had
a firearm on or about your person or under your control
while committing the offense, how do you plead?
Defendant: Guilty.
Court: All right. And to the forfeiture of the weapon, in violation
of [R.C.] 2941.141(A), which states that on that date you
were the owner and/or possessor of a firearm, Lorcin
serial No. 091249, which was contraband and/or
property derived from or through the commission or
facilitation of an offense or an instrumentality used or
intended to be used in the commission or facilitation of a
felony offense, how do you plead?
Defendant: Guilty.
Court: All right. Let the record reflect the Court finds the
defendant knowingly, voluntarily, with full
understanding of his rights entered his pleas of — plea of
guilt. At the recommendation of the [s]tate, the
remaining Counts 1 through 5, 7, and 8 are nolled.
Counsel, are you satisfied Rule 11 has been complied
with?
Counsel: Yes, your Honor.
State: Yes, your Honor.
(Tr. 34-38.)
At sentencing, the original judge assigned to the case presided and
Wilson’s attorney informed the court that Wilson’s plea was not made knowingly.
He stated,
Unfortunately, after speaking with my client, it became clear this
morning that he did not understand the terms of the plea. He was
under the impression that by doing the plea that probation and/or
some form of treatment would be a possibility with him, and then I,
again, explained that no, basically under the plea, the best-case
scenario would be a likelihood of three years with a maximum of up
to nine based upon your plea. He apparently did not understand that
at all and has indicated in the PSI, when they asked him of course what
happened, he again denied that he did anything. And he indicated to
me that he basically only pled to avoid the possibility of the long term
that he was facing in prison, I believe with a floor of nine years and
obviously with a much higher potential.
So based upon what he indicated to me, I do not believe that his plea
was made knowingly, intelligently, and voluntarily, and he does wish
to withdraw his plea and set it for trial. We’re also aware that your
term is coming to an end, and obviously he would have an unknown
new judge. I don’t know what his or her schedule would be, but I’m
guessing mid-January would be the approximate, quote/unquote,
earliest that that would likely happen.
(Tr. 40-41.)
After Wilson’s counsel made this statement, the trial court addressed
Wilson and explained the consequences of his guilty plea. (Tr. 41-43.) The trial
court then allowed Wilson to speak to his trial counsel. After Wilson and his counsel
spoke, Wilson’s counsel stated that Wilson wanted to go forward with the
sentencing. (Tr. 44.) Wilson agreed with counsel by stating, “correct.” Id. Then the
trial court asked Wilson if his guilty plea was made knowingly, to which Wilson
replied, “yes.” (Tr. 46.) After a review of the record, we determine that Wilson’s plea
was made knowingly, voluntarily, and intelligently.
Therefore, we overrule his second assignment of error.
Judgment is affirmed.
It is ordered that the 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
____________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, A.J., and
RAYMOND C. HEADEN, J., CONCUR
