Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-610385-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Brian Lynch, Assistant Prosecuting Attorney,
A Miranda, for appellant
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
1} 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.
2} 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
Facts and Procedural History
3} 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.
4} 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.
5} 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
6} 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.
7} Wilson has filed this appeal assigning two errors
for our review:
Appellant was denied the effective assistance of counsel;
and, II. Appellant's plea was not entered in accordance
to Crim.R. 11.
Ineffective Assistance of Counsel
Standard of Review
8} 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.
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
9} 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.
10} 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,