[Cite as State v. Wilson,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2015-T-0082 - vs - :

JOHN DAVID WILSON, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CR 00903.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

Robert L. York, 138 East Mark Street, Warren, OH 44481. (For Defendant-Appellant).

John David Wilson, pro se, PID: A661-819, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030-8000. (Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, John David Wilson, appeals his sentence following his guilty

plea to two counts of burglary and one count of receiving stolen property. We affirm.

{¶2} Wilson was indicted by the grand jury for burglary, a second-degree felony

in violation of R.C. 2911.12(A)(1)&(D), burglary, a third-degree felony in violation of R.C. 2911.12(A)(3)&(D), and receiving stolen property, a fifth-degree felony in violation of

R.C. 2913.51(A)&(C).

{¶3} Wilson appeared with his attorney and pleaded guilty to an amended

indictment of two burglary charges, felonies of the third degree, and the original

receiving stolen property charge. Wilson failed to appear for his scheduled sentencing

and the court ordered bond forfeiture. He was ultimately sentenced to a total of 60

months comprised of 30 months on counts one and two, to be served consecutively,

and twelve months on count three, to run concurrently.

{¶4} We granted Wilson leave to file a delayed appeal and appointed counsel,

who asserts four assigned errors. Wilson also asserts a supplemental assignment of

error pro se.1 Appellant’s appointed counsel filed a brief informing that he could not, in

good faith, argue the supplemental assignments.

{¶5} Wilson’s pro se assigned error alleges the state and trial court breached

his written plea agreement because the trial court failed to impose concurrent 24-month

sentences originally included in his pre-printed plea agreement.

{¶6} However, this typed paragraph in his plea agreement setting forth this

lesser prison term is clearly crossed out, and next to this crossed-out paragraph are

appellant’s initials, the prosecutor’s initials, and defense counsel’s initials. Furthermore,

this typewritten paragraph of the plea agreement was replaced with the following:

{¶7} “The underlying agreement upon which this plea is based is as follows:

THE DEFENDANT TO UNDERGO A PRE-SENTENCE INVESTIGATION.”

{¶8} In addition, the following exchange occurred at Wilson’s plea hearing:

1. Appellant initially alleged two pro se assigned errors, but subsequently withdrew one.

2 {¶9} “THE COURT: I am holding in front of me a document that is captioned as

a Finding of Guilty Pleas to Amended Indictment. I will ask you if you’ve gone over this

with your attorney?

{¶10} “THE DEFENDANT: Yes, sir.

{¶11} “THE COURT: Do you understand it?

{¶12} “THE DEFENDANT: Yes sir.

{¶13} “THE COURT: Do you have any questions about it?

{¶14} “THE DEFENDANT: No, sir, I don’t.

{¶15} “* * *

{¶16} “THE COURT: Any threats or promises made to you to cause you to sign

this document?

{¶17} “THE DEFENDANT: No, sir.

{¶18} “* * *

{¶19} “THE COURT: [Attorney] Matavich, are you satisfied that your client

understands what is in this document and the consequences of waiving his

Constitutional Rights?

{¶20} “ATTY. MATAVICH: Yes.

{¶21} “THE COURT: To this Amended Indictment, how do you plead?

{¶22} “THE DEFENDANT: I plead guilty.

{¶23} “* * *

{¶24} “THE COURT: * * * The underlying agreement, it now reads that the

Defendant is to undergo a presentence investigation. There was another section there

3 that has been crossed out and initialed[.] [S]o it’s everybody’s understanding that now

he will undergo a presentence investigation, is that correct?

{¶25} “[Defense counsel]: Yes.

{¶26} “[Prosecutor]: Yes.

{¶27} “THE COURT: All right. Mr. Wilson, you are going to undergo a

presentence investigation to assist the Court in determining your sentence. So * * *

Show up for your interviews at the Probation Department when you’re asked to show

up. Be truthful with them about your background and do not get into any kind of trouble

between now and the time of sentencing. Do you understand that?

{¶28} “THE DEFENDANT: Yes, I do.”

{¶29} Wilson claims the court and state were obligated to impose the

typewritten, but crossed out prison term of 24-months. He directs our attention to State

v. Bonnell, 12th Dist. Clermont No. CA2001-12-094,

, and Cohen v.

United States,

(6th Cir. 1979), in support.

{¶30} However, the trial court in Bonnell “explicitly promised appellant it would

not sentence him to prison, then failed to follow through on its promise at the sentencing

hearing without stating its intention and without giving appellant the opportunity to

withdraw his plea.” Id. at ¶22. Further, the United States Court of Appeals for the Sixth

Circuit held in Cohen that the petitioner would be entitled to relief from the district court

if he could establish that the government breached the terms of the plea agreement.

Cohen at 772.

{¶31} Here, however, neither the trial court nor the prosecutor breached the

terms of the plea agreement in not imposing the crossed-out, shorter prison term. The

4 trial court asked Wilson if he understood the agreement, and he said yes. His attorney

also verified that he understood the nature the plea agreement. Finally, Wilson was

informed that he would be undergoing a presentence investigation to assist the court in

determining his sentence. Thus, he was given notice and did not object or raise this

argument before his plea or at sentencing.

{¶32} Wilson’s sole pro se argument lacks merit.

{¶33} Wilson’s second through fifth assigned errors raised by his appellate

counsel allege:

{¶34} “[2] The trial court committed error prejudicial to defendant in failing to

order defendant discharged from prosecution on all charges in the indictment on a date

occurring after March 6, 2014.

{¶35} “[3] The trial court committed error prejudicial to appellant in finding that

appellant understood and waived all of his constitutional rights; accepting appellant’s

guilty plea; and finding him guilty of the charges in the ‘Plea Agreement.’

{¶36} “[4] The trial court committed error prejudicial to appellant in failing to

determine that appellant understood the effect of his plea of guilty.

{¶37} “[5] Defendant was denied effective assistance of counsel throughout the

entire proceeding below, in violation of his right to assistance of counsel guaranteed by

the U.S. Constitution and his plea of guilty is, therefore rendered invalid.”

{¶38} Wilson’s second argument consists of three subparts arising from his

alleged denial of his right to speedy trial. First, he claims the trial court erred in failing to

engage in colloquy with Wilson to determine that his waiver of speedy trial rights was

knowingly, intelligently, and voluntarily made. Second he claims that the preprinted

5 speedy trial waiver form does not specify the beginning date of the waiver. Finally, he

alleges that because his trial did not commence within 270 days after his arrest, R.C.

2945.71 and 2945.72 require dismissal of all offenses charged in the indictment.

{¶39} Speedy trial issues present mixed questions of law and fact. State v.

Hiatt,

,

4th Dist. (1997). This court reviews

questions of law de novo and applies the clearly erroneous standard to questions of

fact. State v. Evans, 11th Dist. Trumbull No. 2003-T-0132,

.

{¶40} It is undisputed that Wilson signed a written speedy trial waiver. He

nonetheless argues he was deprived of his right to a speedy trial because he did not

knowingly and intelligently waive his right.

{¶41} The right to a speedy trial is guaranteed by the United States and Ohio

Constitutions. State v. Pachay,

,

(1980);

Brecksville v. Cook,

,

,

(1996). A

defendant may waive his or her right to a speedy trial, but to be valid, it must be in

writing or made on the record in open court. State v. King,

, 1994-

Ohio-412,

, syllabus (1994); State v. McLean, 11th Dist. Trumbull Nos.

2003-T-0115 and 2003-T-0116,

.

{¶42} In spite of Wilson’s claims that his waiver is invalid, he never raised this

argument to the trial court. Numerous courts, including the Ohio Supreme Court, have

held that upon pleading guilty, a defendant’s failure to raise a speedy trial issue

constitutes waiver. State v. Kelley,

, 566 N.E.2d. 658 (1991);

Worthington v. Ogilby,

(10th Dist. 1982); State v. Shorter, 9th Dist.

Summit C.A. No. 15055,

, at *3-4 (Oct. 2, 1991); State v.

6 Trummer,

,

(7th Dist. 1996); State v.

Turner,

,

,

(5th Dist.) ; State

v. Hergenroder, 7th Dist. Columbiana No.

,

(holding

“[a]ppellant's failure to file an appropriately timed motion to dismiss on speedy trial

grounds constitutes a waiver of the issue on appeal.”)

{¶43} Wilson waived his speedy trial rights at his March 3, 2014 pretrial hearing

both orally and in writing. His counsel indicated that he was unable to proceed with the

scheduled trial due to a conflict in his schedule, and he also stated that Wilson wanted

to secure new counsel. Wilson then informed the court that he understood the waiver;

that he reviewed it with his attorney; that he had no questions; and that he voluntarily

signed it. His counsel also confirmed that he believed Wilson understood the waiver of

his speedy trial rights. The written waiver of his speedy trial rights states that it was

granted for 120 days from March 3, 2014 and reset his trial to June 23, 2014.

{¶44} Thereafter, Wilson filed a motion to extend the previous waiver which was

granted on June 16, 2014 for 60 days and his trial was reset to August 4, 2014.

{¶45} Wilson subsequently pleaded guilty to the amended indictment on August

4, 2014 without objecting on speedy trial grounds orally or in writing. Accordingly, he

has failed to preserve this issue for appellate review, and his second claimed error lacks

merit in full.

{¶46} Wilson’s third assigned error alleges the trial court committed plain error in

accepting his guilty plea since it was not voluntarily and intelligently entered. He argues

that the court erroneously found that he understood and waived his constitutional rights

7 without conducting the requisite colloquy pursuant to Crim.R. 11, and as such, his plea

must be vacated.

{¶47} “Literal compliance with Crim. R. 11 is certainly the preferred practice, but

the fact that the trial judge did not [comply] does not require vacation of the defendant's

guilty plea if the reviewing court determines that there was substantial compliance. * * *

{¶48} “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. * * * Furthermore, a defendant who challenges his guilty plea on the basis that

it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.

* * * The test is whether the plea would have otherwise been made.” (Citations

omitted.) State v. Nero,

,

(1990).

{¶49} Wilson specifically challenges the trial court’s failure to explain his right to

a speedy trial and his right to assistance of counsel, and claims it failed to ascertain

whether he understood those rights in particular before accepting his guilty plea.

{¶50} Ohio Crim.R. 11(C)(2)(c) states:

{¶51} “(2) In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally and doing all of the following:

{¶52} “* * *

{¶53} “(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses in the

defendant's favor, and to require the state to prove the defendant's guilt beyond a

8 reasonable doubt at a trial at which the defendant cannot be compelled to testify against

himself or herself.”

{¶54} Contrary to Wilson’s argument, Crim.R. 11(C) does not require the trial

court to explain a defendant’s right to counsel or speedy trial rights in an on-the-record

exchange before it may accept a guilty plea. The trial court was not required to inform

him that by entering his guilty pleas, he was waiving his right to appeal his conviction on

speedy trial grounds. State v. Childs, 12th Dist. Butler No. CA2009-03-076, 2010-Ohio-

1814, ¶9; State v. Smith, 8th Dist. Cuyahoga No. 66497,

,

at *18 (Apr. 27, 1995) (holding in part that a trial court did not need to inform defendant

that his “guilty plea * * * would operate as a waiver of his motion for dismissal for

violation of the right to a speedy trial.”)

{¶55} Notwithstanding, after the court confirmed that Wilson could read and

write and he was not under the influence of drugs or medication, it conducted the

requisite Crim.R. 11(C) discussion with him. It confirmed at the plea hearing that Wilson

was not on probation; advised him of the right to counsel; the right to confront and

cross-examine witnesses; the right against self-incrimination; and the right to appeal.

The trial court also advised Wilson that his sentences could run consecutive to one

another; that he could subpoena witnesses to testify; outlined the elements the state

had to prove beyond a reasonable doubt at trial; listed the range of possible penalties;

advised him that he faced up to three years post-release control; and stated that the

state opposed judicial release. Wilson indicated that he understood these rights.

{¶56} Wilson thereafter confirmed that he reviewed the guilty plea to the

amended indictment, he understood it, and he had no questions. He also confirmed

9 that he voluntarily signed the guilty plea. Accordingly, Wilson’s third assigned error

lacks merit.

{¶57} Wilson’s fourth argument claims the trial court erred in not informing him

that it did not have to impose the concurrent sentences that were crossed off in his

guilty plea. We disagree. The trial court specifically informed Wilson that he was facing

consecutive sentences before accepting his plea. The trial court likewise confirmed the

parties’ assent to the crossed-out portion of his plea agreement and informed him that

his sentence would be determined after the presentence investigation was complete.

{¶58} Wilson, his attorney, and the prosecutor each initialed the crossed-out

typewritten sentence which stated: “The underlying agreement upon which this plea is

based is as follows: THE DEFENDANT TO UNDERGO A PRE-SENTENCE

INVESTIGATION.”

{¶59} Based on the foregoing, we cannot find that Wilson’s plea was not

voluntarily and intelligently entered. Accordingly, his fourth argument is overruled.

{¶60} The last argument asserts that Wilson was denied effective assistance of

counsel throughout the trial court proceedings in violation of his right to assistance of

counsel guaranteed by the U.S. Constitution, and as a result, he claims his guilty plea is

invalid.

{¶61} “In order to support a claim of ineffective assistance of counsel, the

defendant must satisfy a two-prong test. First, he must show that counsel's

performance was deficient. * * * This requires a showing that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed the defendant by

the Sixth Amendment.

A properly licensed attorney is presumed to be competent.

10 * * * In order to rebut this presumption, the defendant must show the actions of counsel

did not fall within a range of reasonable assistance. * * * ‘[j]udicial scrutiny of counsel's

performance must be highly deferential. * * *’

In addition, ‘[b]ecause of the difficulties

inherent in making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance

* * *.’

{¶62} “Second, the defendant must show the deficient performance prejudiced

the defense. In order to satisfy this prong, ‘[t]he defendant must show that there is a

reasonable probability that, but for counsel's * * * errors, the result of the [trial] would

have been different.’ * * *

{¶63} “It is well settled that strategic and tactical decisions do not constitute a

deprivation of the effective assistance of counsel. State v. Clayton,

,

(1980). Errors of judgment regarding tactical matters do not

substantiate a claim of ineffective assistance of counsel. Id.” State v. Holnapy, 11th

Dist. Lake No. 2013-L-002,

, ¶37-39 citing Strickland v. Washington,

,

(1984).

{¶64} Wilson argues his trial counsel’s collective errors constitute the effective

assistance of trial counsel. First, Wilson alleges his counsel failed to file a motion to

dismiss on speedy trial grounds. Second, he asserts his counsel erred in failing to

conduct discovery before Wilson entered his guilty plea. Third, Wilson claims error

based on his attorney’s failure to move to withdraw Wilson’s guilty plea before

sentencing. Wilson claims he was prejudiced by counsel’s collective errors, and as

such, his guilty plea should be vacated.

11 {¶65} As for Wilson’s speedy trial argument, R.C. 2945.71(C)(2) requires a

person charged with a felony to be brought to trial within 270 days after the date of his

arrest. Speedy-trial provisions are mandatory and must be strictly enforced. State v.

Parker,

,

,

. If a defendant is

not brought to trial in the allotted time, the trial court must discharge the defendant upon

a timely motion. R.C. 2945.73(B).

{¶66} As the previously discussed speedy trial waivers were valid, and

appellant’s argument is dependent upon an invalid waiver, he was timely tried.

Obviously, then, the failure to seek dismissal is not deficient.

{¶67} Next, Wilson claims his counsel was deficient in not securing discovery in

advance of Wilson’s guilty plea.

{¶68} However, as stated by the Fourth District Court of Appeals, counsel’s

failure to request discovery “does not place his performance outside the ‘wide range of

reasonable professional assistance.’” State v. Jenkins, 4th Dist. Lawrence No. 02CA5,

, ¶36, citing Strickland v. Washington,

,

.

Additionally, Wilson must establish resulting prejudice from counsel’s deficiencies or

failures. Wilson does not allege the discovery would have revealed exculpatory or

mitigating evidence. He likewise does not claim that but for his counsel's alleged error,

he would have insisted on going to trial and not pleaded guilty. State v. Fink, 11th Dist.

Ashtabula No. 2006-A-0035,

, citing State v. Lewis, 11th Dist.

Trumbull No. 92-T-4687,

, at *8(August 19, 1994) .

12 {¶69} Furthermore, Wilson does object to or disagree with the state’s summary

of what the evidence would have shown had his case proceeded to trial. The

prosecutor stated in part at his plea hearing:

{¶70} “[T]he state would have shown that on December 5, 2013, * * * this

Defendant entered into an unlocked door of [a residence]* * * and took [a] wallet.

{¶71} “* * * Defendant entered into [another residence] * * * without permission,

he stole pennies as well as a driver’s license. A neighbor identified this Defendant as

going into the home of the victim in that case * * * . Officer responded to an unrelated

crash a couple hours later and they find this Defendant who matched the identification

from the witness, and the Defendant had the [victim’s] driver’s license as well as the

pennies on his person.

{¶72} “State would have introduced the testimony of both victims in this case

and the evidence found on him when he was arrested.”

{¶73} There was overwhelming evidence against him. An eyewitness identified

him as the individual entering the victim’s home, and soon thereafter he was arrested

with the stolen property in his possession. Based on the foregoing, this argument lacks

merit because Wilson’s allegations of ineffective assistance of counsel did not affect his

knowing and voluntary plea of guilt.

{¶74} Finally, Wilson claims his counsel was deficient for failing to withdraw his

plea before sentencing because the crossed-out provisions in his written guilty plea led

to confusion. However, the trial court clarified the details of the plea agreement at the

plea hearing, advised Wilson he was facing consecutive sentences, confirmed that the

parties initialed the changes to the written agreement, and informed Wilson that his

13 sentence was to be determined once the presentence investigation was obtained.

Accordingly, a motion to withdraw Wilson’s guilty plea on this basis was not warranted,

and counsel’s performance in this regard was not deficient.

{¶75} Based on the foregoing, Wilson’s fifth assignment of error lacks merit in its

entirety. Accordingly, the judgment of the Trumbull County Court of Common Pleas is

affirmed.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.

concur.

14