[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 seconddegree 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