[Cite as State v. Luttrell,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-07-062

: OPINION - vs - 4/4/2022 :

GUY LUTTRELL, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR36588

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Johnna M. Shia, for appellant.

PIPER, P.J.

{¶1} Appellant, Guy Luttrell, appeals his conviction and sentence in the Warren

County Court of Common Pleas for felonious assault and two counts of assault.

{¶2} Luttrell was indicted for felonious assault, two counts of assault, and

possession of a deadly weapon while under detention. The charges were the result of an

altercation Luttrell had with three corrections officers while he was an inmate at Lebanon

Correctional Institution. All three corrections officers sustained injuries. Warren CA2021-07-062

{¶3} Luttrell was arrested on July 3, 2020, and then released on bond on July 8,

2020. According to the parties and the presentence-investigative report, at some point,

Luttrell was arrested and held in Fairfield County on unrelated charges. Luttrell was

eventually returned to Warren County. At an October 21, 2020, hearing, Luttrell pled not

guilty by reason of insanity and requested a psychological evaluation. At a competency

hearing on February 9, 2021, the parties stipulated to the competency report and that

Luttrell did not meet the criteria for a not guilty by reason of insanity plea.

{¶4} At this hearing, the parties also discussed setting the case for trial before

Luttrell's speedy trial rights expired and the court attempted to find a date within the time

frame that worked for the parties. Luttrell initially stated that he did not want to waive his

speedy trial rights, but after discussion and attempts to find a trial date that worked for

Luttrell's counsel, Luttrell stated that he did not mind waiving time to allow trial to be set on

April 1.

{¶5} At a hearing on March 17, 2021, Luttrell requested a continuance to obtain

additional evidence and executed a time waiver. On May 10, 2021, Luttrell entered into a

plea agreement with the state and pled guilty to the felonious assault and assault charges

in return for dismissal of the possession of a deadly weapon while under detention charge.

The trial court sentenced Luttrell to minimum sentences on each of the convictions and ran

all three sentences concurrently.

{¶6} Luttrell now appeals his conviction, raising four assignments of error for our

review.

{¶7} LUTTRELL'S COUNSEL WAS INEFFECTIVE FOR FAILURE TO FILE A

MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.

{¶8} In his first assignment of error, Luttrell argues that his trial counsel was

ineffective for failing to file a motion to dismiss the case on speedy trial grounds. However,

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as mentioned above, Luttrell pled guilty to the charges in this case. It is well established

that a voluntary, knowing, and intelligent guilty plea waives any alleged constitutional

violations unrelated to the entry of the guilty plea and any nonjurisdictional defects in the

proceedings. State v. Ketterer,

,

. A guilty plea thus

"'effectively waives all appealable errors at trial unrelated to the entry of the plea.'" Ketterer

at ¶ 105, quoting State v. Kelley,

(1991), paragraph two of the syllabus.

{¶9} The Ohio Supreme Court has determined that this waiver includes the right to

challenge a conviction on speedy trial issues pursuant to R.C. 2945.71(B)(2). Montpelier

v. Greeno,

(1986); State v. Kelly,

(1990). Moreover,

this court has previously determined that a guilty plea also waives claims of ineffective

assistance of counsel based upon statutory speedy trial issues. State v. Melampy, 12th

Dist. Brown No. CA2007-04-008,

. See also State v. Barnett,

(2nd Dist. 1991); State v. Bateman, 4th Dist. No. 19CA13,

; State

v. Mayle, 5th Dist. Morgan No. CA 07-3,

; State v. Jones, 8th Dist.

Cuyahoga No. 106150,

.

{¶10} Accordingly, Lutrell waived the right to challenge speedy trial issues on

appeal, whether directly, or by means of an ineffective assistance of counsel claim.1

{¶11} Moreover, we note that there is no merit to Luttrell's speedy trial argument.

According to R.C. 2945.71(C)(2), a person against whom a felony charge is pending must

be brought to trial within 270 days from the date of his arrest, not including the actual date

of his arrest. Each day a defendant is held in jail in lieu of bail on the pending charge is

counted as three days. R.C. 2945.71(E). However, an accused is only entitled to this triple

1. We note that the case cited by Luttrell that a defendant may challenge a speedy trial claim not raised below by means of an ineffective assistance of counsel claim involved a conviction by means of a trial, not a plea. See Cleveland v. White, 8th Dist. Cuyahoga No. 99375,

.

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credit when held in jail solely on the pending charge. State v. Kaiser (1978),

, paragraph two of the syllabus; State v. Davenport, 12th Dist. Butler No. CA2005-01-

005,

.

{¶12} The Ohio Revised Code enumerates specific instances in which the time

period that a defendant must be brought to trial is extended, including the time while a

defendant's competency to stand trial is being determined, periods of continuance caused

by an accused's own motion, and "the period of any reasonable continuance granted other

than upon the accused's own motion." R.C. 2945.72(C), (E) and (H). "Upon review of a

speedy-trial issue, a court is required to count the days of delay chargeable to either side

and determine whether the case was tried within the applicable time limits." State v.

Sanchez,

,

, ¶ 8; State v. Thacker, 12th Dist. Warren

No. CA2019-06-058,

.

{¶13} In the parties' briefs, there are two major areas of disagreement regarding the

calculation of speedy trial time. The first involves calculation of time Luttrell spent

incarcerated in Fairfield County and the second involves whether Luttrell waived his speedy

trial rights at a pretrial hearing. While the parties disagree on the facts involved during the

Fairfield County incarceration and whether the record supports Luttrell's argument, we find

that even if we were to accept Luttrell's argument regarding the time calculation involving

the Fairfield County charges, Luttrell's plea was still within speedy trial requirements

because he waived time at the pretrial hearing.

{¶14} Luttrell calculates the time before the pretrial hearing in this case at 185 days.

At the pretrial hearing, the parties discussed the need to set a trial date within speedy trial

limits. Initially, Luttrell stated that he did not want to waive his speedy trial rights and he

argues on appeal that time therefore continued to run after the pretrial hearing. However,

after more discussion at the hearing, and an in-depth discussion about speedy trial rights,

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Luttrell clarified that he was fine with a limited waiver in order to set trial shortly after to

accommodate his counsel's schedule, but that he did not want "this to be carried out six,

seven, eight, nine months." He further stated that "[i]f we can agree to keep it within a

reasonable time, I don't mind signing a waiver." The parties then agreed to set the trial for

April 1, 2021, the court carefully discussed the issue in detail, and Luttrell explicitly agreed

to waive time until trial on April 1, 2021. As mentioned above, on March 17, 2021, Luttrell

executed a full waiver and he then pled guilty on May 10, 2021. Therefore, there is no merit

to Luttrell's argument that his counsel was ineffective for failing to raise a speedy trial claim.

Accordingly, Luttrell's first assignment of error is overruled.

{¶15} LUTTRELL'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY MADE.

{¶16} When a defendant enters a guilty plea in a felony criminal case, the plea must

be knowingly, intelligently, and voluntarily made. State v. Smith, 12th Dist. Warren Nos.

CA2019-10-113 and CA2019-11-121,

. "Failure on any of those points

renders enforcement of the plea unconstitutional under both the United States Constitution

and the Ohio Constitution." State v. Engle,

,

.

"Crim.R. 11(C) prescribes the process that a trial court must use before accepting a plea of

guilty to a felony." State v. Bishop,

,

. "The trial

court must follow certain procedures and engage the defendant in a detailed colloquy before

accepting his or her plea."

{¶17} The Ohio Supreme Court has addressed a trial court's compliance with

Crim.R. 11(C) and how an appellate court should review a trial court's plea colloquy to

ensure that a defendant's plea is knowingly and voluntarily entered. State v. Dangler,

,

. As a general matter, "a defendant is not entitled to have his

plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to

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comply with the provisions of Crim.R. 11(C)," i.e., that "the plea would not have otherwise

been made." Id. at ¶ 16. There are, however, two exceptions to this rule: (1) when the trial

court fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c) that a defendant

waives by pleading guilty or no contest, and (2) "a trial court's complete failure to comply

with a portion of Crim.R. 11(C)." (Emphasis sic.) Id. at ¶ 15. Under either exception, the

defendant is not required to show prejudice. Id.

{¶18} As relevant to this case, Crim.R. 11 provides that a trial court must not accept

a guilty plea in a felony case without personally addressing the defendant and "[d]etermining

that the defendant is making the plea voluntarily, with understanding of the nature of the

charges and of the maximum penalty involved" and "[i]nforming the defendant of and

determining that the defendant understands the effect of the plea of guilty or no contest."

Crim.R. 11(C)(2)(a) and (b). Luttrell argues that the trial court did not inform him of the

effect of his plea and that he was prejudiced by the prosecutor's failure to recite the facts of

the case or provide a charging instrument that indicated the mandatory nature of the

sentence for felonious assault.

{¶19} The indictment in this case charged Luttrell with felonious assault in violation

of R.C. 2903.11(A)(2) and (D)(1)(a) and stated that the offense was a felony of the second

degree. However, the plea form that Luttrell signed specifically stated that the charge

carried a mandatory prison sentence pursuant to R.C. 2929.13(F)(6). This provision

requires a prison term for a defendant who commits a first- or second-degree felony when

the defendant has been previously convicted of a first- or second-degree felony. Id.; State

v. Buttery,

,

, ¶ 10.

{¶20} At the plea hearing, the court informed Luttrell several times that prison was

mandatory. The court and parties discussed the mandatory nature of the prison term and

whether it precluded Luttrell from an earned reduction of his minimum prison time under

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changes to sentencing pursuant to the Reagan Tokes Act. The trial court twice stated that

because the sentence was mandatory, Luttrell was not entitled to earned credit. The parties

and court later discussed the issue and whether any portion of the sentence would be

subject to earned credit. Although they were unsure whether the earned credit applied, the

court stated "we could all be mistaken then, [but] he's at least been previously warned that

that could happen." Luttrell was asked if he had any questions and replied that he did not.

{¶21} Luttrell argues a variety of issues related to the mandatory nature of the prison

sentence. However, given that the plea form specifically stated the prison sentence was

mandatory and trial court explicitly explained to Luttrell that he was subject to a mandatory

prison term and Luttrell indicated that he understood and did not have any questions, we

find Luttrell was informed of the maximum penalty he could receive. Therefore, his plea

was knowingly, voluntarily and intelligently made. Luttrell's second assignment of error is

overruled.

{¶22} LUTTRELL'S SENTENCE IS CONTRARY TO LAW AND NOT SUPPORTED

BY THE RECORD.

{¶23} An appellate court generally reviews felony sentences under R.C.

2953.08(G)(2). State v. Marcum,

,

; State v.

Portefield,

,

, ¶ 19. R.C. 2953.08(G)(2) provides that an

appellate court can modify or vacate a sentence only if the appellate court finds by clear

and convincing evidence that the record does not support the trial court's findings under

relevant statutes or that the sentence is otherwise contrary to law. "A sentence is not clearly

and convincingly contrary to law where the trial court considers the purposes and principles

of sentencing as set forth in R.C. 2929.11, as well as the seriousness and recidivism factors

listed in R.C. 2929.12, and sentences a defendant within the permissible statutory range."

State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201, CA2014-10-202, 2016-Ohio-

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4918, ¶ 9.

{¶24} When reviewing a felony sentence, "[n]othing in R.C. 2953.08(G)(2) permits

an appellate court to independently weigh the evidence in the record and substitute its

judgment for that of the trial court concerning the sentence that best reflects compliance

with R.C. 2929.11 and 2929.12." State v. Jones,

,

. The record must merely reflect that the trial court considered the relevant statutory

factors set forth in R.C. 2929.11 and 2929.12 prior to issuing its decision. State v. Watkins,

12th Dist. Preble No. CA2020-03-005,

.

{¶25} Luttrell argues the trial court's sentence was contrary to law because the trial

court failed to state at the sentencing hearing that it considered R.C. 2929.11 and 2929.12.

However, as this court has previously recognized, "a trial court is not required to expressly

cite to R.C. 2929.11 or 2929.12 at the sentencing hearing." State v. Motz, 12th Dist. Warren

No. CA2019-10-109,

. The fact that R.C. 2929.11 and 2929.12 are

not expressly referenced during a sentencing hearing is immaterial when the trial court's

sentencing entry cites to both statutes. State v. Murphy, 12th Dist. Butler No. CA2021-05-

048,

.

{¶26} In this case, the trial court specifically stated in its sentence entry that it had

considered the principles and purposes of sentencing under R.C. 2929.11 and had

balanced the seriousness and recidivism factors under R.C. 2929.12.

{¶27} Luttrell also argues that his sentence is contrary to law because the trial court

"misconstrued" that it had to impose a mandatory prison term for the felonious assault

charge. He argues that the record does not reflect that the mandatory sentencing provision

in R.C. 2929.13(F)(6) applied to him. He contends that the trial court never mentioned prior

conviction as the reason prison was mandatory and that the state indicated that the prison

term was mandatory "because it was a second-degree felony" but did not indicate a prior

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conviction as the reason.

{¶28} However, as mentioned above, the plea form signed by Luttrell explicitly

stated that R.C. 2929.13(F)(6) applied in sentencing. In addition, the presentence-

investigative report indicates that Luttrell was previously convicted of aggravated arson, a

first-degree felony. Accordingly, we find no merit to Luttrell's arguments that his sentence

was contrary to law and his third assignment of error is overruled.

{¶29} LUTTRELL'S SENTENCE PURSUANT TO REAGAN TOKES ACT IS

UNCONSTITUTIONAL.

{¶30} In his final assignment of error, Luttrell argues that his counsel was ineffective

for failing to challenge his indefinite sentence under the Reagan Tokes Act as

unconstitutional. This court, however, has already determined that "[t]rial counsel's failure

to raise the constitutionality of the Reagan Tokes Law, an argument which has proven

unsuccessful in this and other districts, does not constitute ineffective assistance." State v.

Hodgkin, 12th Dist. Warren No. CA2020-08-048,

; State v. Abner,

12th Dist. Warren No. CA2021-05-048,

. Accordingly, appellant's

fourth assignment of error is overruled.

{¶31} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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