Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-545422
ATTORNEY FOR APPELLANT: Rick L. Ferrara
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, James Hofelich Milko Cecez Daniel T. Van Assistant County Prosecutors
BEFORE: Blackmon, J., Boyle, P.J., and Rocco, J.
ON RECONSIDERATION 
PATRICIA ANN BLACKMON, J.
(¶1} Appellant Quintine M. Walker ("Walker") appeals his convictions for aggravated robbery and having a weapon while under disability, and assigns six errors for our review.
(¶2} Having reviewed the record and relevant law, we affirm Walker's convictions but remand the matter for the trial court to calculate the jail-time credit to which Walker is entitled. The apposite facts follow.
(¶3} The Cuyahoga County Grand Jury indicted Walker on 11 counts: two counts for aggravated robbery, four counts for kidnapping, two counts for felonious assault, one count for theft, one count for having a weapon while under disability, and one count for contributing to the delinquency of a minor. The charges arose from the robbery of two pizza delivery men at gunpoint by Walker and his codefendants: L.B., Emmanual Jackson ("Jackson"), and Oliver Finklea ("Finklea").
(¶4} L.B., Jackson, Finklea, and Walker were socializing the evening of December 16, 2010 at L.B.'s house, when they came up with the plan to commit a robbery. Around 1:00 a.m., on December 17, 2010, L.B. ordered several pizzas, wings, and pop from Arcade Pizza, the only pizza shop in the area that would deliver late at night. She gave the delivery address as 6717 Fullerton Road, which was a house where no one was home across from L.B.'s house. The plan was for L.B. to act like she was the customer, while the other three robbed the delivery man. Walker had a .9mm handgun that Jackson took from him to use during the robbery.
(¶ 5} Two Arcade Pizza delivery employees delivered the pizza, Joseph Salatino ("Salatino") and Sam Jeffrey ("Jeffrey"). Salatino removed the pizzas from the car and walked towards L.B. who was walking from the back of the house. As Salatino approached L.B., Jackson pulled out the gun and ordered L.B. and Salatino to get on the ground. While Jackson searched Salatino, Finklea and Walker went to the car and ordered Jeffrey to exit. Because the passenger door was not working, Finklea pulled him out through the driver's side. Both Finklea and Walker searched the victims' pockets and the car.
(¶6} Once the group retrieved the men's cell phones, Salatino's jacket, wallet and gloves, Jackson shot the gun in the air and ordered the men to run. The delivery men ran towards the field next to the home. Jeffrey turned to look back at the men twice and each time Jackson fired a shot at him. Jeffrey and Salatino eventually returned to the car when they saw the group had left. They drove back to the pizza shop where they called the police.
(¶7} After the robbery, the group ran across the street to return to L.B.'s house. However, after hearing the gunshots, L.B.'s mother told them to leave. After gathering their property, they left and went to DeWayne McClough's ("McClough") house, which was located down the street, where they divided the proceeds from the robbery. L.B. and Jackson then left, while Walker and Finklea spent the night at McClough's house. The next day, Walker and Finklea were arrested at McClough's house, while L.B. and Jackson were arrested at another house.
(¶ 8} Prior to the pizza delivery men calling the police, the police had already been called by a resident on Fullerton who heard the shots fired. The police had also received an anonymous call directing them to L.B.'s house. The police recovered two .9mm shell casings from the outside area of the house where the pizzas were delivered.
(¶ 9} The jury found Walker guilty of aggravated robbery and kidnapping, both with firearm specifications, and petty theft. They found Walker not guilty of the remaining counts. The trial court conducted a separate hearing that found Walker guilty of having a weapon while under disability. Upon remand from this court, the trial court merged all the offenses, except for the weapons while under disability count with the aggravated robbery count, and merged all the firearm specifications. The trial court sentenced Walker to concurrent three-year terms for the aggravated robbery and having weapons while under disability counts to be served consecutively to the three-year firearm specification, for a total of six years.
(¶ 10} In his first assigned error, Walker argues that the trial court erred by failing to grant his motion to dismiss for lack of a speedy trial.
(¶ 11} The Sixth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution guarantee an accused the right to a speedy and public trial. State v. Ginley, 8th Dist. Cuyahoga No. 90724, 2009-Ohio-30. The standard of review that appellate courts apply to speedy trial issues is to count days as set forth in R.C. 2945.71. State v. Stevens, 8th Dist. Cuyahoga No. 87693, 2006-Ohio-5914. Trial must be held within 270 days of arrest in order to effectuate a speedy trial. R.C. 2945.71(C)(2). However, pursuant to R.C. 2945.71(E), each day spent in jail "on a pending charge" acts as three days toward speedy trial time, thus 90 days time in jail would equate to 270 days using the triple-count provision.
(¶ 12} Walker was arrested on December 17, 2010. Because he was incarcerated while awaiting trial, the state had 90 days to bring Walker to trial. The date of arrest is not included in the calculation of days in determining a speedy trial violation. State v. Steiner, 71 Ohio App.3d 249, 250-51, 593 N.E.2d 368 (9th Dist. 1991); State v. Thieshen, 55 Ohio App.2d 99, 379 N.E.2d 622 (3d Dist. 1977). Thus, Walker's speedy trial time commenced on December 18, 2010.
(¶ 13} Although the trial did not commence until January 3, 2012, the trial court had set the matter for trial several other times only to have it continued by various tolling events. Based on the various tolling events, the trial court denied Walker's motion to dismiss because it concluded only 77 days had elapsed. Walker contends the trial court failed to include 58 days.
(¶ 14} Pursuant to R.C. 2945.72, a speedy trial time may be tolled by several events, including the following:
(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent ...