[Cite as State v. Matland, 2010-Ohio-6585.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

RUDOLPH K. MATLAND, III, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 09-MA-115 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 08CR1251 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 West Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Rebecca M. Gerson 

Attorney Mark I. Verkhlin 

839 Southwestern Run 

Youngstown, Ohio 44514 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: December 30, 2010 
[Cite as State v. Matland, 2010-Ohio-6585.]

DONOFRIO, J. 

{¶1} Defendant-appellant Rudolph K. Matland III (Matland), appeals his 

multiple-count conviction and sentence in the Mahoning County Common Pleas 

Court. Matland contends he was denied effective assistance of counsel at trial due to 

counsel’s alleged failure to assert his right to a speedy trial. Further, Matland argues 

that the trial court imposed its sentence without appropriately balancing the purposes 

and principles of sentencing pursuant to R.C. 2929.11, as well as the seriousness 

and recidivism factors presented in R.C. 2929.12. 

{¶2} On October 30, 2008, Matland was indicted by the Mahoning County 

Grand Jury in case no. 08 CR 1251 for the following offenses: (1) attempted murder, 

in violation of R.C. 2903.02(A)(D) and R.C. 2923.02(E)(1), a first-degree felony; (2) 

felonious assault, in violation of R.C. 2903.11(A)(2)(D), a second-degree felony; (3) 

kidnapping, in violation of R.C. 2905.01(A)(3)(C), a first-degree felony; (4) aggravated 

burglary, in violation of R.C. 2911.11(A)(1)(B), a first-degree felony; (5) aggravated 

burglary, in violation of R.C. 2911.11(A)(1)(B), a first-degree felony; (6) felonious 

assault, in violation of R.C. 2903.11(A)(1)(D), a second-degree felony; (7) disrupting 

public services, in violation of R.C. 2909.04(A)(1)(C), a fourth-degree felony; and (8) 

menacing by stalking, in violation of R.C. 2903.211(A)(1)(B)(2)(b), a fourth-degree 

felony. (Direct Presentment, Case No. 08 CR 1251; Sentencing Tr., p.2-3.) 

{¶3} On December 18, 2008, Matland was indicted for domestic violence, in 

violation of R.C. 2919.25(A)(D)(3), a fourth-degree felony in Mahoning County 

Common Pleas Court case no. 08 CR 1360. (Sentencing Tr., p.3.) 

{¶4} On May 4, 2009, Matland’s cases were called for a jury trial. However, 

a plea agreement was reached whereby Matland changed his former plea of not 

guilty and entered a plea of guilty pursuant to Crim.R. 11. (Change of Plea at 2.) The 

State moved to dismiss counts one (attempted murder), five (aggravated burglary), 

six (felonious assault), and seven (disrupting public services) of the indictment in 

case no. 08 CR 1251. (Change of Plea at 4-5.) In exchange, Matland pled guilty to 

counts two (felonious assault), three (kidnapping), four (aggravated burglary), and 

eight (menacing by stalking), with the State recommending an aggregate eight-year 
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term of imprisonment. (Change of Plea at 5.) 

{¶5} In case no. 08 CR 1360, Matland pleaded guilty to an amended count 

of domestic violence, a first-degree misdemeanor. (Change of Plea at 5-6.) After 

engaging in a plea colloquy with Matland, the court accepted his pleas of guilty and 

ordered that the matter be set for sentencing. 

{¶6} On June 25, 2009, Matland’s sentencing was held. After hearing from 

all parties, the court sentenced Matland to a prison term of eight years. (Sentencing 

Tr., p.23.) Matland subsequently filed a timely appeal. 

{¶7} Matland raises two assignments of error, the first of which states: 

{¶8} “Defendant-Appellant, Rudolph K. Matland III, was denied effective 

assistance of counsel pursuant to the test in State v. Madrigal, 87 Ohio St.3d 378, 

388-389, 2000-Ohio-448, 721 N.E.2d 52, and Strickland v. Washington (1984), 466 

U.S. 668, 687-688, 104 S. Ct. 2052, 80 L.Ed.2d 674.” 

{¶9} Specifically, Matland contends that the State violated his statutory right 

to a speedy trial, and trial counsel’s failure to assert that right by filing a motion to 

dismiss upon the expiration of the speedy-trial clock denied him effective assistance 

of counsel, as the motion would have been successful, resulting in dismissal of the 

pending criminal charges. 

{¶10} For its part, the State maintains that Matland’s trial counsel rendered 

effective assistance, as numerous tolling events prevented the speedy-trial clock 

from expiring prior to appellant executing a waiver of his speedy-trial rights. 

{¶11} In order to prevail on a claim of ineffective assistance of counsel, 

Matland must demonstrate that (1) counsel’s performance was deficient, and (2) that 

deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. After Strickland, the Ohio Supreme 

Court adopted a two-part test for analyzing claims for ineffective assistance of 

counsel. State v. Madrigal (2000), 87 Ohio St.3d 378, 388-89, 721 N.E.2d 52. To 

prove such a claim, the defendant must show “(1) that counsel’s performance fell 

below an objective standard of reasonableness, and (2) that counsel’s deficient 
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performance prejudiced the defendant resulting in an unreliable or fundamentally 

unfair outcome of the proceeding.” Id. at 389, 721 N.E.2d 52, citing Strickland at 687-

88, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

{¶12} The first prong of the Strickland test requires the reviewing court to 

determine whether trial counsel’s assistance was actually ineffective – that is, 

whether counsel’s performance fell below an objective standard of reasonable 

advocacy or fell short of counsel’s basic duties to the client. State v. Bradley (1989), 

42 Ohio St.3d 136, 141-43, 538 N.E.2d 373. The defendant must show that counsel 

made errors that were sufficiently egregious, such that counsel was not acting in a 

manner guaranteed by the Sixth Amendment. Id. at 141, 538 N.E.2d 373. Because 

of the inherent difficulties in making this evaluation, “a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance[.]” Strickland at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

Further, “every effort [must] be made to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the 

conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052, 80 

L.Ed.2d 674. In addition, the reviewing court must grant due deference to legitimate 

trial strategy decisions, as trial strategy and tactics are left to the discretion of the 

individual attorney, and sound decisions on these matters do not constitute 

ineffective assistance of counsel. Id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. 

Brown (Jan. 30, 2001), 7th Dist. No. 96 CA 56, 69. Following the guidance of 

Strickland, Ohio courts have unwaveringly endorsed the presumption that a licensed 

attorney is competent. State v. Calhoun (1999), 86 Ohio St.3d 279, 289, 714 N.E.2d 

905. 

{¶13} If the reviewing court concludes that counsel’s performance fell below 

this objective standard, the court must then determine whether the defendant actually 

suffered prejudice due to defense counsel’s deficiency, such that the reliability of the 

trial’s outcome should be called into question. Strickland at 688, 104 S.Ct. 2052, 80 

L.Ed.2d 674. To warrant reversal, a defendant must show that there is a reasonable 
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probability that, but for counsel’s unprofessional error, the result of the proceeding 

would have been different. Bradley at paragraph three of the syllabus, 538 N.E.2d 

373. 

{¶14} A reviewing court can only make a finding of ineffective assistance of 

counsel once the defendant has affirmatively established both prongs of the 

Strickland test. Strickland at 687, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674. And the 

court need not address both prongs if appellant fails to prove either one. Calhoun at 

289, 714 N.E.2d 905; Bradley at 143, 538 N.E.2d 373. 

{¶15} When a claim of ineffective assistance of counsel is based on counsel’s 

failure to file a particular motion, the appellant must show that the motion had a 

reasonable probability of success. State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio2577, 829 N.E.2d 729, at ¶14. If the motion would not have been successful, the 

appellant cannot prevail on an ineffective assistance of counsel claim. State v. 

Barbour, 10th Dist. No. 07AP-841, 2008-Ohio-2291, at ¶14. Here, Matland’s claim 

centers on trial counsel’s failure to file a motion to dismiss based upon an alleged 

violation of his right to a speedy trial. As such, an analysis of Matland’s first 

assignment of error necessitates a review of the law pertaining to speedy-trial rights. 

{¶16} As a general principle, “an appellant cannot raise a speedy-trial issue 

for the first time on appeal.” State v. Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, 

858 N.E.2d 1249, at ¶21. If, at the trial level, a defendant does not contest counsel’s 

failure to file a motion to dismiss for the violation of his right to a speedy trial, the 

matter is waived for appellate purposes. State v. Hergenroder, 7th Dist. No. 07 CO 

17, 2008-Ohio-2410, at ¶13; Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, 858 

N.E.2d 1249, at ¶22. 

{¶17} This Court, however, has recognized that allowing “a defendant to enter 

a guilty plea after speedy trial time had expired would amount to ineffective 

assistance of counsel, and thus, could affect the knowing and voluntary nature of the 

plea.” State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, at ¶10; see, also, 

State v. Gray, 2nd Dist. No. 20980, 2007-Ohio-4549, at ¶21 (holding that, where the 
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trial attorney permitted the defendant to execute a waiver of his speedy-trial rights 

and later admitted that she was unaware that the time limit had run, “counsel’s failure 

to move for dismissal strays outside the range of reasonable assistance”). Matland 

likewise asserts that his trial counsel rendered ineffective assistance by allowing him 

to sign a waiver of his speedy-trial rights and subsequently plead guilty to the 

indictment after the State failed to bring him to trial within the 270-day limit of R.C. 

2945.71. 

{¶18} Ohio recognizes both a constitutional and a statutory right to a speedy 

trial. State v. King (1994), 70 Ohio St.3d 158, 161, 637 N.E.2d 903; see also Sixth 

Amendment, United States Constitution; Section 10, Article I, Ohio Constitution. The 

Sixth Amendment of the U.S. Constitution provides that, “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy [trial].” The General 

Assembly has embodied this fundamental right in the provisions of R.C. 2945.71 to 

2945.73. R.C. 2945.71; R.C. 2945.72; R.C. 2945.73. Thus, the Ohio Supreme Court 

has found the statutory speedy-trial provisions set forth in R.C. 2945.71 to be 

coextensive with constitutional speedy-trial provisions. State v. O’Brien (1987), 34 

Ohio St.3d 7, 9, 516 N.E.2d 218. The rationale supporting the speedy-trial statute 

was to prevent “inexcusable delays caused by indolence within the judicial system.” 

State v. Ladd (1978), 56 Ohio St.2d 197, 200, 10 O.O.3d 363, 383 N.E.2d 579. 

{¶19} R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy 

trial based on the level of offense. As stated previously, Matland was initially indicted 

on eight felony counts. According to the Ohio Revised Code, “a person against 

whom a charge of felony is pending shall be brought to trial within two hundred 

seventy days after his arrest.” R.C. 2945.71(C)(2). However, each day the defendant 

spends in jail solely on the pending criminal charge counts as three days. R.C. 

2945.71(E). For purposes of this calculation, the Tenth District Court of Appeals has 

clarified, “where more than one charge has arisen from a single transaction and the 

multiple charges share a common litigation history from arrest onward, incarceration 

on the multiple charges will be considered incarceration on the ‘pending charge’ for 
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purposes of 2945.71(E).” State v. Madden, 10th Dist. No. 04AP-1228, 2005-Ohio4281, at ¶29-30, citing State v. Parsley (1993), 82 Ohio App.3d 567, 571, 612 N.E.2d 

813. Here, Matland’s felony charges (in case no. 08 CR 1251) stem from “a single 

transaction” arising out of the September 30, 2008 incident, and those charges 

shared a “common litigation history from arrest onward[.]” Thus, at least initially, 

Matland was entitled to the triple-count provision for the time he spent in jail after his 

arrest. 

{¶20} Section 2945.72 lists a number of tolling events that may extend the 

period of time in which the prosecution must bring a defendant to trial. R.C. 

2945.71(A)-(I). If the State fails to meet the statutory time limits, then the trial court 

must discharge the defendant. R.C. 2945.73. The Supreme Court of Ohio has 

“imposed upon the prosecution and the trial courts the mandatory duty of complying” 

with the speedy-trial statutes. State v. Singer (1977), 50 Ohio St.2d 103, 105, 4 

O.O.3d 237, 362 N.E.2d 1216. As such, the speedy-trial provisions are strictly 

construed against the State. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 

N.E.2d 706; Singer at 105, 4 O.O.3d 237, 362 N.E.2d 1216. 

{¶21} Consequently, the role of the reviewing court is to count the days of 

delay chargeable to either side and determine whether the case was tried within the 

time limits set forth in the Code. State v. Hart, 7th Dist. No. 06 CO 62, 2007-Ohio3404, at ¶8-9, citing State v. High (2001), 143 Ohio App.3d 232, 757 N.E.2d 1176. 

Moreover, this duty is not affected by whether the State raised certain filings as tolling 

events. State v. Williams, 7th Dist. No. 07 MA 162, 2008-Ohio-1532, at ¶38. 

{¶22} Upon demonstrating that the statutory time limit has expired, the 

defendant has established a prima facie case for violation of his speedy-trial rights, 

thereby warranting dismissal. State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 27 

OBR 445, 500 N.E.2d 1368. If the defendant can make this showing, the State then 

has the burden to establish any exceptions that may have suspended the speedytrial clock. Butcher at 31, 27 OBR 445, 500 N.E.2d 1368. As such, the resolution of 

Matland’s ineffective assistance of counsel claim requires scrutinizing the record to 
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ascertain the tolling potential of each filing event. 

{¶23} In the present case, both sides acknowledge that Matland was arrested 

on September 30, 2008. (Brief of the Defendant-Appellant at 9; Appellee-State of 

Ohio’s Answer Brief at 9.) As Matland remained incarcerated while unable to make 

bail and, as noted, was initially entitled to the triple-count provision, Matland 

estimates that “[t]he ninety (90) day period in which Appellant was required to be 

brought to trial expired on December 30, [2008].” (Brief of Defendant-Appellant at 9.) 

At the trial level, this showing would have sufficed to obligate the State to produce 

evidence that Matland was not entitled to the triple-count provision of R.C. 

2945.71(E), or that specific events tolled the speedy-trial clock and Matland was 

ultimately brought to trial within the statutory time limit. See Butcher at 31, 27 OBR 

445, 500 N.E.2d 1368. However, because the issue was not raised at trial, this Court 

must conduct an independent evaluation of the record to determine whether any 

events in the proceedings tolled the speedy-trial allotment. Hart at ¶8-9. 

{¶24} At the outset, this matter is complicated by the fact that the record, as 

submitted to this Court, is silent as to the details of Matland’s arrest. While the briefs 

of both parties stipulate that Matland was taken into custody on September 30, 2008, 

there is nothing in the record proving this fact. In making this assertion, Matland cites 

to the indictment, but the indictment only references September 30, 2008 as the date 

of the alleged crimes – it states nothing about the date of arrest. (See Direct 

Presentment, Case No. 08 CR 1251; Brief of the Defendant-Appellant at 9.) The 

State, presumably recognizing the absence of evidence on this point, cites to 

information contained in its own motion to supplement the record, filed just three days 

before its answer brief and still pending before this Court. (Appellee-State of Ohio’s 

Answer Brief at 9; Appellee-State of Ohio’s Motion to Supplement the Record, 

Appendix A.) However, because neither party contests this date, there appears to be 

no reason why the court should not recognize September 30, 2008 as the date of 

arrest. 

{¶25} Nevertheless, even accepting this date as the day of arrest without 
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documentary support, a point of contention still arises: the evidence the State seeks 

to introduce in its motion to supplement establishes not just when Matland was 

arrested, but where Matland was arrested and held – a fact that significantly impacts 

the calculation of the speedy-trial timetable. Consequently, this Court’s analysis of 

the underlying issues must begin with the resolution of the State’s still-pending 

motion to supplement the record (and its subsequent motion to amend its motion to 

supplement). 

{¶26} On March 29, 2010, the State moved this Court to supplement the 

record with documents from the Augusta County Sheriff’s Department, pursuant to 

App.R. 9(E). The documents, which included incident reports and correspondence 

relevant to appellant’s arrest, demonstrated that Matland was in fact arrested in 

Augusta County, Virginia on September 30, 2008. The State subsequently filed a 

motion to amend its initial motion to supplement with a communication from the 

Mahoning County Sheriff Department indicating that the date on which Matland was 

taken into custody by Mahoning County was October 29, 2008. Absent this 

evidence, there is nothing in the record to indicate that Matland was ever detained 

anywhere other than in Mahoning County. 

{¶27} R.C. 2945.72(A) dictates that the speedy-trial clock will toll for: “[a]ny 

period during which the accused is unavailable for hearing or trial, by reason of other 

criminal proceedings against him, within or outside the state, 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[.]” 

{¶28} As such, if the State can prove Matland was arrested in Virginia on 

September 30, 2008, and remained there awaiting extradition until his transfer to 

Mahoning County on October 29, 2008, then that entire period would be tolled by 

virtue of R.C. 2945.72(A). Conversely, without the State’s supplementary material, 

there is nothing in the record establishing that Matland was ever held anywhere other 

than Mahoning County, and this Court must presume that the speedy-trial clock ran 
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unabated from the date of arrest, with three days counted for every day of 

incarceration. See State v. Turner, 7th Dist. No. 93 CA 91, 2004-Ohio-1545, at ¶23 

(clarifying that speedy-trial time commences when an accused is arrested, but the 

actual day of arrest is not counted, and that the triple-count provision applies for the 

period during which the accused is held solely on the pending charge). Therefore, to 

say nothing of any subsequent events, the disposition of this issue alone would yield 

a differential of 29 days (87 with the triple-count provision) in either direction. 

{¶29} Ultimately, though, this Court does not need to resolve this issue in 

order to reach a decision on Matland’s first assignment of error. Even absent the 

State’s supplemental evidence, the undisputed portions of the record clearly 

demonstrate that other events tolled enough time to prevent the expiration of the 

speedy-trial clock prior to Matland signing the waiver. Therefore, the State’s motion 

to supplement is overruled as moot. 

{¶30} We will assume arguendo that the speedy-trial clock began running on 

September 30, 2008, the date of arrest. Because Matland was initially held solely on 

the pending charge (the consolidation of the eight felony counts), R.C. 2945.71(E) 

mandates that each day of incarceration count as three against the speedy-trial 

clock. Parsley, at 571, 612 N.E.2d 813. As established, though, the actual day of 

arrest is not counted for purposes of this calculation. Turner, 7th Dist. No. 93 CA 91, 

2004-Ohio-1545, at ¶23. 

{¶31} Matland was arraigned on October 30, 2008. At the arraignment, 

Matland entered a plea of not guilty and the court set the pretrial date for November 

3, 2008. (Oct. 30, 2008 J.E.) At pretrial, the parties jointly moved to continue the trial 

to a later date. (Nov. 6, 2008 J.E.) Citing no authority, Matland argues that “[s]ince 

the continuance was for a pretrial hearing, and the trial date itself was not continued, 

Appellant’s speedy trial time did not toll.” (Brief of the Defendant-Appellant at 10.) 

This assertion is clearly contrary to the law. See State v. Hairston, 101 Ohio St.3d 

308, 2004-Ohio-969, 804 N.E.2d 471, at ¶12 (holding that a pretrial continuance tolls 

the speedy-trial clock); State v. Williams, 7th Dist. No. 07 MA 162, 2008-Ohio-1532, 
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at ¶12 (allowing pretrial rescheduling to toll speedy-trial clock); State v. Baker (1993), 

92 Ohio App.3d 516, 530, 636 N.E.2d 363 (tolling speedy-trial clock for 32 days due 

to pretrial continuance). 

{¶32} In Hairston, the Supreme Court of Ohio looked to R.C. 2945.72(H), 

which suspends the speedy-trial clock for “[t]he period of any continuance granted on 

the accused’s own motion, and the period of any reasonable continuance granted 

other than upon the accused’s own motion[.]” The court held that the plain language 

of this provision does not preclude its application to a trial court rescheduling pretrial 

conferences, declaring “[w]e apply unambiguous statutes according to the plain 

meaning of the words used.” Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 

N.E.2d 471, at ¶12. Rather, the noted provision in R.C. 2945.72(H) refers generally 

to “the period of any reasonable continuance[.]” Id. (Emphasis in original.) 

{¶33} Moreover, it is well established that any period of delay “made or joined 

in by appellant” may toll the speedy-trial clock. State v. Barbour, 10th Dist. No. 07AP841, 2008-Ohio-2291, at ¶16-18. This Court has held: “[w]hen the parties agree to a 

continuance, even if it is not on the motion of the defendant, the continuance is 

presumptively reasonable and there is no need to explain the reason for the 

continuance on the record.” State v. Freeman, 7th Dist. No. 08 MA 81, 2009-Ohio3052, at ¶50 (overruled on other grounds); see, also, State v. Rupp, 7th Dist. No. 

05MA166, 2007-Ohio-1561, at ¶108. Some courts have gone even further, holding 

that time is tolled even if the defendant outright objects to the continuance. State v. 

Wade, 10th Dist. No. 03AP-774, 2004-Ohio-3974, at ¶13. 

{¶34} Consequently, upon the court’s judgment entry of November 6, 2008, 

the speedy-trial clock was suspended. To that point, 36 days had passed from the 

date of arrest. Thus, with the triple-count provision, 108 days had accumulated 

toward the 270-day limit. 

{¶35} The pretrial was eventually reset for December 8, 2008. Generally, the 

speedy-trial clock would resume running on this date. However, on November 26, 

2008, Matland filed a plea of not guilty by reason of insanity. The trial court’s 
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judgment entry of December 10, 2008 formally recognized Matland’s plea and 

ordered that the Forensic Psychiatric Center of Northeast Ohio, Inc. conduct an 

evaluation of Matland to assess his mental competence. This plea further extended 

the State’s time limit. 

{¶36} According to R.C. 2945.72(B), the time in which an accused must be 

brought to trial is also tolled for “[a]ny period during which the accused is mentally 

incompetent to stand trial or during which his mental competence to stand trial is 

being determined[.]” As such, this Court has held that entering a plea of not guilty by 

reason of insanity automatically “toll[s] the operation of the speedy-trial statute until 

resolution of that issue.” Turner, 7th Dist. No. 93 CA 91, 2004-Ohio-1545, at ¶30. 

Here, it appears the question of Matland’s mental competence was never resolved 

prior to the execution of his speedy-trial waiver. Nothing in the record mentions the 

outcome of this evaluation before trial, so this Court must presume that the 

determination was still pending. Such a presumption is not unreasonable, as these 

examinations routinely necessitate a considerable delay. See State v. Hiatt (July 15, 

1996), 4th Dist. No. 94 CA 578, 7-8 (allowing speedy-trial time to toll for 63 days 

pending mental competency evaluation); Freeman, 7th Dist. No. 08 MA 81, 2009-

Ohio-3052, at ¶52 (allowing speedy-trial time to toll for 71 days pending mental 

competency evaluation). 

{¶37} In Freeman, this Court also made clear that the speedy trial clock 

begins tolling upon the court’s judgment entry ordering the defendant’s competency 

evaluation, rather than simply on the date the defendant filed his plea. Id. Here, 

because the previous tolling event was lifted on December 8, 2008, and the court’s 

judgment entry ordering the evaluation was dated December 10, 2008, another two 

days elapsed that would be charged to the State. Thus, 38 days had accumulated 

on the speedy-trial clock – totaling 114 with the triple-count provision. 

{¶38} However, the resulting delay from the mental competency evaluation 

would then have tolled the speedy-trial clock until the execution of Matland’s limited 

waiver on February 19, 2009. During this period, 71 days passed – precisely the 
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amount of time that this Court recognized as a reasonable delay in Freeman. Id. 

Here, although it is unclear when the trial court received the results of Matland’s 

assessment, the court did not spend an unreasonable amount of time awaiting the 

Psychiatric Center’s determination. As such, the speedy-trial count remained at 114 

days. 

{¶39} From December 10, 2008, to February 19, 2009, a number of other 

events also affected the speedy-trial timetable. Of course, if the delay accompanying 

Matland’s competency evaluation validly tolled this entire period, then this conclusion 

essentially renders the intervening events inconsequential. Nonetheless, as both 

parties raised issues regarding these events, they will be addressed in turn. 

{¶40} On December 18, 2008, Matland was indicted on a charge of domestic 

violence, a fourth-degree felony, in Mahoning County Common Pleas Court case no. 

08 CR 1360. Matland was subsequently arraigned on December 30, 2008, at which 

point he entered a plea of not guilty and the court set dates for pretrial and trial. 

While the record before this Court is devoid of any documents detailing these 

proceedings, both parties stipulated to these facts. (Brief of the Defendant-Appellant 

at 5; Appellee-State of Ohio’s Answer Brief at 2.) 

{¶41} As already established, the triple-count provision of R.C. 2945.71(E) is 

only applicable to those defendants held in jail in lieu of bail solely on the pending 

charges. State v. Brown (1992), 64 Ohio St.3d 476, 479, 597 N.E.2d 97. 

Accordingly, this Court has held that, “where the offender would not be let free if the 

pending charge was dismissed due to the existence of another charge * * * then the 

triple-count provision does not apply.” State v. Davis, 7th Dist. No. 01 CA 171, 2002-

Ohio-2789, at ¶18, citing State v. McDonald (1976), 48 Ohio St.2d 66, 357 N.E.2d 40. 

Thus, upon the introduction of the new domestic violence charge, Matland was no 

longer being held solely on the pending charge (the pending charge being the eight 

felony counts in case no. 08 CR 1251). The new charge stemmed from events 

allegedly occurring on September 16, 2008, not from the “same transaction” that 

precipitated the initial charge. (Motion in Limine to Prohibit the State from Introducing 
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Evidence of Other Crimes, Bad Acts, etc.) Further, the charges cannot be said to 

have shared a “common litigation history from arrest onward[.]” Madden, 10th Dist. 

No. 04AP-1228, 2005-Ohio-4281, at ¶29-30, citing Parsley at 571, 612 N.E.2d 813. 

Consequently, the triple-count provision was inapplicable for the remainder of the 

proceedings, as neither matter was resolved prior to the execution of the limited 

waiver or the final plea agreement. Brown at 479, 597 N.E.2d 97, citing State v. 

Dunkins (1983), 10 Ohio App.3d 72, 74-75, 460 N.E.2d 688. Therefore, even without 

the tolling effect of Matland’s plea of not guilty by reason of insanity – or had the 

evaluation been completed at any earlier point – the speedy-trial clock would still not 

have reached the 270-day limit. 

{¶42} In addition, on January 28, 2009, Matland’s counsel entered a motion to 

withdraw, which was sustained by the court. (Jan. 30, 2009 J.E.) As this Court has 

recognized, counsel’s motion to withdraw constitutes a tolling event, with time 

beginning to run again when substitute counsel is appointed. State v. Hart, 7th Dist. 

No. 06 CO 62, 2007-Ohio-3404, at ¶21. In the present case, however, this event did 

not actually toll any time, as the court simultaneously appointed new counsel. (Jan. 

30, 2009 J.E.) Upon his appointment, though, successor counsel concurrently filed 

the following on January 29, 2009: (1) motion for bill of particulars; (2) motion to 

compel law enforcement officials to turn over and advise prosecuting attorney of all 

information acquired during the course of investigation; (3) request for discovery and 

inspection; and (4) motion for notice of intention to use evidence. 

{¶43} R.C. 2945.72(E) extends the time in which a defendant must be brought 

to trial for “[a]ny period of delay necessitated by reason of a plea in bar or abatement, 

motion, proceeding, or action made or instituted by the accused[.]” In State v. 

Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, the Ohio Supreme 

Court held that the State need not prove that a defendant’s motion causes a delay in 

order for speedy-trial time to be tolled pursuant to R.C. 2946.72(E), stating: “It is the 

filing of the motion itself, the timing of which the defense can control, that provides 

the state with an extension. R.C. 2945.72(E) implicitly recognizes that when a motion 
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is filed by defendant, there is a ‘period of delay necessitated’ – at the very least, for a 

reasonable time until the motion is responded to and ruled upon. Id. at ¶26. 

Moreover, it is well established that requests for discovery and bills of particulars are 

tolling events pursuant to R.C. 2945.72(E). State v. Brown, 98 Ohio St.3d 121, 2002-

Ohio-7040, 781 N.E.2d 159, at ¶18-20; State v. Palmer, 112 Ohio St.3d 457, 2007-

Ohio-374, 860 N.E.2d 1011, at ¶19. 

{¶44} The delay chargeable to the defendant is only that entailed by the 

State’s response to the motions. Turner, 7th Dist. No. 93 CA 91, 2004-Ohio-1545, at 

¶25. The State ostensibly complied with Matland’s request for discovery on February 

3, 2009. (Request and Demand for Discovery Notice and Receipt.) The court 

sustained all the motions in its judgment entry of February 10, 2009. (Feb. 10, 2009 

J.E.) Hence, the speedy-trial time would have tolled again until at least February 10, 

2009. This is well within a reasonable time frame for such responses and rulings. 

See Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶26; Turner, 

7th Dist. No. 93 CA 91, 2004-Ohio-1545, at ¶25. 

{¶45} On February 13, 2009, Matland filed a motion for discovery and 

inspection, alleging that the State failed to respond to his initial request – despite 

evidence to the contrary in the February 3, 2009 discovery receipt. (Motion for 

Discovery and Inspection; Request and Demand for Discovery Notice and Receipt.) 

Nonetheless, the State responded on February 19, 2009 with additional discovery 

material. (Supplemental Discovery.) For the same reasons as stated above, this 

period would also be tolled. 

{¶46} Also on February 19, 2009, Matland executed a limited waiver of his 

right to a speedy trial until May 4, 2009. (Waiver of Right to Speedy Trial; Feb. 19, 

2009 J.E.) It is well-settled law that an accused may waive his right to a speedy trial, 

so long as the waiver is knowingly and voluntarily made. O’Brien at 9, 516 N.E.2d 

218. Such a waiver must be in writing or expressly made on the record in open court. 

State v. King (1994), 70 Ohio St.3d 158, 160, 637 N.E.2d 903. Furthermore, a waiver 

may be limited or unlimited in duration. State v. Bray, 9th Dist. No. 03CA008241, 
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2004-Ohio-1067, at ¶8, citing O’Brien, at paragraph two of the syllabus, 516 N.E.2d 

218. 

{¶47} In the present case, Matland submitted a signed waiver in which he 

made handwritten revisions limiting the continuance until May 4, 2009. (Waiver of 

Right to Speedy Trial; Feb. 19, 2009 J.E.) However, Matland did not reference a 

starting point for the waiver. Id. When a waiver fails to include a specific date as the 

starting point for the tolling of time, the waiver is deemed to be effective from the date 

of arrest. Bray at ¶8-9. Consequently, Matland’s waiver was effective from 

September 30, 2008, and he cannot claim any speedy-trial violation for that entire 

period. 

{¶48} At the termination of Matland’s limited waiver on May 4, 2009, the case 

was called for trial. (May 5, 2009 J.E.) There, the State and Matland reached a plea 

agreement pursuant to Crim.R. 11 negotiations. Id. This effectively ended the period 

under consideration for any infringement of Matland’s right to a speedy trial. As the 

limited waiver tolled the period from February 19, 2009 until May 4, 2009, no 

additional days accrued to the State’s 270-day statutory limit. 

{¶49} However, the crux of Matland’s ineffective assistance of counsel claim 

hinges on the argument that the limited waiver was not knowingly and voluntarily 

executed. Matland contends that, because counsel permitted him to sign the waiver 

after the speedy-trial time had lapsed, he was denied effective assistance. The 

foregoing review of the proceedings amply demonstrates that this argument cannot 

stand. Matland was clearly brought to trial within the parameters of both the 

constitutional and statutory speedy-trial provisions, so his assertion that the waiver 

was defective must fail. 

{¶50} In sum, the mere failure to raise the speedy-trial issue does not 

necessarily indicate a failure of proper representation because the objection may not 

have been meritorious. State v. Turner, 5th Dist. No. 05CA108, 2006-Ohio-3786, at 

¶27. As stated, there cannot be ineffective assistance of counsel if the motion to 

dismiss would not have been successful. Barbour at ¶14. Here, a motion to dismiss 
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based on the alleged violation of Matland’s right to a speedy trial would have failed 

unequivocally. 

{¶51} Moreover, both attorneys representing Matland were aware of all the 

relevant tolling events – including, through discovery, the information at issue in the 

State’s motion to supplement. (Request and Discovery Demand Notice and Receipt 

of November 18, 2008; Request and Discovery Demand Notice and Receipt of 

February 3, 2009.) Given Ohio’s strong presumption that licensed counsel performs 

competently, it is fair to assume that his counselors did not raise the speedy-trial 

issue because they had determined it to be futile. Calhoun at 289, 714 N.E.2d 905. 

Thus, it cannot be said “that counsel’s performance fell below an objective standard 

of reasonableness.” Madrigal at 389, 721 N.E.2d 52, citing Strickland at 687-88, 104 

S. Ct. 2052. 

{¶52} Furthermore, under the Strickland analysis, there could be no resulting 

prejudice, as there was not a valid claim to any violation of Matland’s speedy-trial 

rights. Therefore, Matland fails to satisfy either prong under Strickland. Id. 

{¶53} For the foregoing reasons, Matland’s first assignment of error is without 

merit. 

{¶54} Matland’s second assignment of error states: 

{¶55} “The Trial Court committed reversible error when it sentenced 

Defendant-Appellant, Rudolph K. Matland III to an eight (8) year prison term simply 

adopting the sentencing recommendation of the State of Ohio without appropriately 

balancing the purposes and principles of sentencing pursuant to R.C. 2929.11 and 

balancing the seriousness and recidivism factors pursuant to R.C. 2929.12.” 

{¶56} Matland contends that the trial court erred in imposing an eight-year 

term of incarceration, arguing that “it does not appear that [the trial court] considered 

the factors that it was required to or engaged in any balancing test, but rather blindly 

adopted the State’s sentencing recommendation[.]” (Brief of Defendant-Appellant at 

15.) 

{¶57} It is universally recognized that this issue is guided by the Ohio 
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Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 

N.E.2d 470, and the subsequent cases that have refined its holding. In Foster, the 

Supreme Court severed the judicial-fact-finding portions of R.C. 2929.14 in order to 

make Ohio’s sentencing scheme compatible with the United State’s Supreme Court’s 

decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531(holding that 

a trial court may not sentence a defendant based on facts not reflected in a jury 

verdict). Foster’s result dictated that “trial courts have full discretion to impose a 

prison sentence within the statutory range and are no longer required to make 

findings or give their reasons for imposing maximum, consecutive, or more than the 

minimum sentences.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at 

¶100. 

{¶58} Although Foster eliminated mandatory judicial fact-finding for upward 

departures from the minimum, it left intact R.C. 2929.11 and 2929.12. R.C. 2929.11 

and 2929.12, however, are not fact-finding statutes like R.C. 2929.14. Instead, they 

serve as “an overarching guide” for a trial judge to consider in fashioning an 

appropriate sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, at ¶17. Specifically, R.C. 2929.11 requires that the sentencing judge 

consider the purposes and principles of sentencing; R.C. 2929.12, on the other hand, 

asks that the court weigh certain seriousness and recidivism factors. The trial court 

must still consider these statutes, as these provisions continue to be “an integral part 

of the felony sentencing process.” State v. Merriweather, 7th Dist. No. 09 MA 160, 

2010-Ohio-2279, at ¶8, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 

846 N.E.2d 1, at ¶38. In considering these statutes in light of Foster, the trial court 

has full discretion to determine whether the sentence satisfies the overriding purpose 

of Ohio’s sentencing structure. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, at ¶17. In addition, the sentencing court must be guided by statutes that 

are specific to the case itself. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 

1, at ¶38. 

{¶59} In Kalish, the Supreme Court distilled the role of a reviewing court in 
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light of post-Foster sentencing guidelines: “In applying Foster to the existing statutes, 

appellate courts must apply a two-step approach. First, they must examine the 

sentencing court’s compliance with all applicable rules and statutes in imposing the 

sentence to determine whether the sentence is clearly and convincingly contrary to 

law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an 

abuse-of-discretion standard.” Id. at ¶4. 

{¶60} In the first step, the “applicable rules and statutes” includes R.C. 

2929.11 and 2929.12. Id.; Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, 

at ¶38. Matland asserts that the trial court wholly disregarded these mandates. In 

making this claim, Matland points to the sentencing court’s statement: “The Court 

has reviewed the rather lengthy presentence investigation involving the defendant. I 

have read the communications, gone back and forth in total review of everything I 

see, and I think the recommendation of the prosecutor, and with the dismissals that 

took place and the subsequent recommendations that have been made, which I 

might add are far from the maximum sentences, those recommendations appear to 

be sufficient under the circumstances.” (Sentencing Tr., p.23.) Because the court 

fails to mention the pertinent statutes by name and does not elaborate on its 

thoughtful consideration, Matland presumes that the trial court merely adopted the 

State’s recommendation without further deliberation. 

{¶61} However, “Foster does not require a trial court to provide any reasons 

in imposing its sentence.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, at ¶12. The sentencing court need not make specific findings on the 

record or use specific language to evidence its consideration. State v. Barnette, 7th 

Dist. No. 06 MA 135, 2007-Ohio-7209, at ¶25. Further, a silent record actually 

“raises the rebuttable presumption that the sentencing court considered all the proper 

sentencing criteria.” State v. James, 7th Dist. No. 07CO47, 2009-Ohio-4392, at ¶50. 

{¶62} Moreover, the court’s judgment entry does explicitly reference the 

relevant sentencing guidelines: “The Court considered the record, pre-sentence 

investigation report, oral statements, as well as the principles and purposes of 
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sentencing under ORC § 2929.11 and balances the seriousness and recidivism 

factors under ORC § 2929.12. The Court finds the Defendant is not amenable to a 

community control sanction.” (June 30, 2009 J.E.) And this Court has held, “[t]he trial 

court’s mere statement that it considered the factors * * * is sufficient to establish 

compliance with its duty.” Barnette at ¶25. 

{¶63} In regard to the case-specific statutes, the eight-year prison term is well 

within the range of sentences available to the trial court. (Sentencing Tr., p.13-14; 

Guilty Plea.) As Matland properly explains, “[a] sentence is contrary to law when a 

court does not consider factors enumerated in R.C. 2929.11 and 2929.12, or if it [is] 

out of the range of sentences allowed by law[.]” (Brief of Defendant-Appellant at 13.) 

Here, the trial court considered the relevant statutes and its sentence was within the 

range of permissible sentences. Therefore, Matland cannot complain that the court’s 

punishment was clearly and convincingly contrary to law. 

{¶64} Having established that the trial court complied with the applicable rules 

and statutes, the exercise of its discretion in selecting a sentence within the 

permissible statutory range is subject to review for abuse of discretion pursuant to 

Foster. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶17. 

An abuse of discretion is “more than an error of law or judgment; it implies that the 

court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Kalish, 120 

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶19, quoting Blakemore v. 

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 

{¶65} As stated, the trial court specifically stated that it considered R.C. 

2929.11 and 2929.12 in determining the appropriate sentence. Further, before 

making its determination, the court reviewed the pre-sentence investigation report 

and heard statements made on behalf of both Matland and the victim, detailing his 

pattern of drug and alcohol abuse. 

{¶66} Moreover, Matland had already received an immediate benefit in his 

plea bargain by having four of the charges dropped, some of which were for crimes 

carrying even harsher penalties. This Court has previously held, “the court may 
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consider charges that are eventually dropped when it is formulating its sentence.” 

State v. Merriweather, 7th Dist. No. 09 MA 160, 2010-Ohio-2279, at ¶9, citing State v. 

Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97; see also State v. Merriweather, 

7th Dist. No. 09 MA 160, 2010-Ohio-2279, at ¶9 (holding that being charged with a 

lesser offense constitutes a benefit). 

{¶67} Finally, the eight-year prison term is within the range of sentences 

available to the trial court. In fact, the sentences could have been run consecutively, 

meaning that Matland could have rightfully been sentenced for close to 30 years. 

Consequently, no abuse of discretion can be found in the record. 

{¶68} For the foregoing reasons, Matland’s second assignment of error is 

without merit. 

{¶69} The judgment of the trial court is hereby affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.