[Cite as State v. Smith, 2021-Ohio-1177.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 29779
29780
Appellee
v.
APPEAL FROM JUDGMENT
TONY D. SMITH ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE Nos. CR 18 07 2327
CR 18 06 1986
DECISION AND JOURNAL ENTRY
Dated: April 7, 2021
CALLAHAN, Judge.
{¶1} Defendant-Appellant, Tony Smith, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} Over the course of several weeks, Mr. Smith was indicted in three separate criminal
cases. In Criminal Case No. 2018-06-1862, he was indicted on charges of aggravated burglary
with a firearm specification, two counts of aggravated menacing, retaliation, and having a weapon
under disability. In Criminal Case No. 2018-06-1986, he was indicted on charges of possession
of cocaine, possession of drug paraphernalia, and possession of marijuana. Finally, in Criminal
Case No. 2018-07-2327, he was indicted on charges of aggravated trafficking in methamphetamine
with a forfeiture specification, trafficking in cocaine with a forfeiture specification, aggravated
possession of methamphetamine, and possession of cocaine.
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{¶3} Mr. Smith was able to resolve two of his criminal cases by way of a plea agreement.
The State amended his second trafficking count in Criminal Case No. 2018-07-2327, and Mr.
Smith pleaded guilty to one count of possession of cocaine with a forfeiture specification in that
case. He also pleaded guilty to one count of possession of cocaine in Criminal Case No. 2018-06-
1986. His remaining charges in those two cases were dismissed. Likewise, his indictment in
Criminal Case No. 2018-06-1862 was dismissed upon motion of the State because the victim
refused to cooperate. The court sentenced Mr. Smith on his two counts and ordered his sentences
to run concurrently for a total of two years in prison.
{¶4} One month after he was sentenced, Mr. Smith filed a pro se motion to set aside his
plea and sentence. He argued that his speedy trial time had expired by the time he was sentenced,
so he was entitled to be discharged and have his judgments vacated. The State responded in
opposition to his motion, and Mr. Smith filed a reply. Upon review of the filings, the trial court
denied Mr. Smith’s pro se motion. It also permitted the attorney who had represented Mr. Smith
at the time of his plea and sentence to withdraw as defense counsel.
{¶5} Subsequently, Mr. Smith petitioned the court for post-conviction relief based on
ineffective assistance of counsel. Because his speedy trial time had expired, Mr. Smith argued,
his trial counsel engaged in ineffective assistance when he failed to file a motion to dismiss Mr.
Smith’s indictments. The State responded in opposition to the petition, and Mr. Smith filed a reply.
The trial court then set the matter for hearing and appointed new counsel for Mr. Smith. Following
the hearing, the court denied Mr. Smith’s petition.
{¶6} Mr. Smith appealed from the trial court’s denial of his petition for post-conviction
relief in both Criminal Case Nos. 2018-06-1986 and 2018-07-2327. Because he filed identical
petitions in both cases and the trial court resolved them by way of a single judgment entry, this
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Court consolidated his appeals for purposes of briefing, argument, and decision. Mr. Smith’s
consolidated appeals are now before this Court and raise one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO VACATE HIS CONVICTION[.]
{¶7} In his sole assignment of error, Mr. Smith argues that the trial court abused its
discretion when it denied his petition for post-conviction relief. This Court rejects his argument.
{¶8} “Under R.C. 2953.21(A)(1), a convicted criminal defendant may petition the trial
court to vacate or set aside the judgment or sentence because it is void or voidable under the
Constitution of the United States or the Ohio Constitution.” State v. El-Jones, 9th Dist. Summit
No. 26616, 2013-Ohio-3349, ¶ 4. The decision to grant or deny a petition for post-conviction
relief is committed to the sound discretion of the trial court. State v. Glynn, 9th Dist. Medina No.
02CA0090-M, 2003-Ohio-1799, ¶ 4. Accordingly, this Court will not overturn the decision of a
trial court regarding a petition for post-conviction relief absent an abuse of discretion. Id. An
abuse of discretion is present when a trial court’s decision “‘is contrary to law, unreasonable, not
supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-
Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
{¶9} “When a petitioner’s post-conviction claim sounds in ineffective assistance of
counsel, a trial court must analyze his * * * claim under the two-step test set forth in Strickland v.
Washington, 466 U.S. 668 (1984).” State v. Muzic, 9th Dist. Summit No. 28646, 2017-Ohio-8563,
¶ 8. Thus, the petitioner must show that (1) counsel’s performance was deficient, and (2) the
deficiency prejudiced him. Strickland at 687.
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In the context of a guilty plea, prejudice will lie only if “there is a reasonable
probability that, but for * * * counsel’s error, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.” State v. Evans, 9th Dist.
Medina No. 09CA0049-M, 2010-Ohio-3545, ¶ 4. To that end, “‘ineffective
assistance will only be found to have affected the validity of the plea when it
precluded the defendant from entering the plea knowingly and voluntarily.’” State
v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 17 (9th Dist.), quoting State v.
Doak, 7th Dist. Columbiana Nos. 03 CO 15, 03 CO 31, 2004-Ohio-1548, ¶ 55.
(Alteration in original.) State v. Tyburski, 9th Dist. Lorain No. 18CA011291, 2018-Ohio-4248, ¶
9. “[I]neffective assistance of counsel arguments that do not relate to the voluntary and knowing
character of the defendant’s plea, and involve errors that occurred prior to the plea, are waived by
a guilty plea.” State v. Emich, 9th Dist. Medina No. 17CA0039-M, 2018-Ohio-627, ¶ 16. See also
State v. Harris, 9th Dist. Summit Nos. 28229, 28230, 28231, 2017-Ohio-1150, ¶ 5 (plea of guilt
waives right to challenge conviction based on statutory speedy trial grounds).
{¶10} Mr. Smith argues that he was entitled to post-conviction relief because he received
ineffective assistance of counsel. He argues that his counsel engaged in a deficient performance
when he failed to file a motion to dismiss the indictments. According to Mr. Smith, his counsel
prepared a motion to dismiss due to Mr. Smith’s statutory speedy trial time having expired. Mr.
Smith claims that his counsel promised to file the motion, but never did. Instead, his counsel
arranged for Mr. Smith to plead guilty and never advised him that doing so would result in a waiver
of his speedy trial rights. Mr. Smith argues that, had the speedy trial issue been litigated, there is
a reasonable probability he would have prevailed on his motion, and the outcome of the
proceedings would have been different. He argues that the failure of his counsel to inform him
that his guilty plea would waive his speedy trial rights “made it impossible for his plea to be
knowing and intelligent * * *.” Thus, he argues that the trial court abused its discretion when it
denied his petition.
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{¶11} The trial court held an evidentiary hearing on Mr. Smith’s petition and heard
testimony from Mr. Smith, as well as the prosecutor who handled his criminal cases.1 Mr. Smith
testified that his counsel came to the jail and showed him a copy of a motion to dismiss that he had
drafted. The two agreed that he would file the motion the following day, which was several days
before Mr. Smith’s scheduled trial. Mr. Smith testified that he was brought to court the next day,
but he did not know why. When he arrived, he spoke with his counsel, and his counsel advised
him that he would be pleading guilty to reduced charges. According to Mr. Smith, he did not speak
to anyone about his speedy trial rights, it was his impression that his motion to dismiss had been
filed, and his counsel never told him that, by pleading guilty, he would be waiving his right to
pursue the motion. He testified that he would not have pleaded guilty if he had known that the
motion had not been filed.
{¶12} The prosecutor testified that he recalled speaking with defense counsel on the day
Mr. Smith was brought to court. He testified that he and defense counsel discussed the speedy
trial issue at length, as they both recognized the legitimacy of the other’s position. According to
the prosecutor, the issue was “not a slam dunk either way,” and it was difficult to predict how the
trial court might rule or whether its decision might be reversed on appeal. The prosecutor recalled
that defense counsel had a motion to dismiss and intended to file it if they were unable to reach a
plea agreement. He further recalled that, at some point, he spoke directly with Mr. Smith about
the speedy trial issue in the presence of defense counsel. The prosecutor testified that he told Mr.
Smith the case could be resolved on a plea and any uncertainties as to how the court might rule on
1
Mr. Smith’s original attorney was not able to give evidence, as he passed away before Mr. Smith
filed his petition for post-conviction relief.
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the speedy trial issue could be avoided if they could agree on an appropriate plea and sentence.
Following their discussion, a plea hearing was held, and Mr. Smith entered his guilty pleas.
{¶13} In rejecting Mr. Smith’s petition for post-conviction relief, the trial court
specifically found credible the testimony of the prosecutor who testified at the evidentiary hearing.
The court found that the parties had reached a plea agreement, in part, based on a mutual
understanding that the defense would forgo the thorny speedy trial issue in exchange for a
favorable plea. The court also found that Mr. Smith had made no mention of the motion to dismiss
or his speedy trial rights at the plea hearing and had expressed his satisfaction with his counsel’s
performance. The court concluded that Mr. Smith failed to establish that he received ineffective
assistance of counsel. Thus, it denied his petition for post-conviction relief.
{¶14} Upon review, this Court cannot conclude that the trial court abused its discretion
when it denied Mr. Smith’s petition. See Glynn, 2003-Ohio-1799, at ¶ 4. There was evidence
before the court that both the prosecutor and defense counsel spoke with Mr. Smith about his
speedy trial time before the plea hearing commenced. Indeed, the prosecutor identified the speedy
trial issue as a catalyst for the plea, explaining that the parties resolved the cases to avoid litigating
that issue by coming to an agreement. The record, therefore, supports the conclusion that the
decision to plead guilty was a strategic one. See Akron v. Radcliff, 9th Dist. Summit No. 19704,
2000 WL 530352, *2 (May 3, 2000) (foregoing speedy trial argument to secure a favorable plea
may be a valid trial strategy). To the extent Mr. Smith’s testimony at the hearing on his petition
conflicted with the prosecutor’s testimony, the trial court was in the best position to judge their
credibility, and this Court will not second-guess that determination on appeal. See State v. Dovala,
9th Dist. Lorain No. 10CA009896, 2011-Ohio-3110, ¶ 12. The evidence showed that Mr. Smith
came before the court to enter his plea and never asked about his motion to dismiss or his speedy
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trial time. He also gave no indication that he was confused about the terms of his plea or the fact
that he was being sentenced. Based on the evidence that emerged at the hearing, the trial court
reasonably could have concluded that Mr. Smith failed to show that his counsel engaged in a
deficient performance that affected the knowing and voluntary nature of his plea. See Tyburski,
2018-Ohio-4248, at ¶ 9; Emich, 2018-Ohio-627, at ¶ 16. As such, this Court cannot conclude that
the trial court abused its discretion when it denied his petition for post-conviction relief. Mr.
Smith’s sole assignment of error is overruled.
III.
{¶15} Mr. Smith’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.