State v. Boyd

[Cite as State v. Boyd, 2024-Ohio-1517.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY

State of Ohio, : Case Nos. 23CA4
23CA5
Plaintiff-Appellee, :
DECISION AND
v. : JUDGMENT ENTRY

Charles W. Boyd, :

Defendant-Appellant. : RELEASED 4/18/2024

______________________________________________________________________
APPEARANCES:

Richard D. Hixson, Zanesville, Ohio, for appellant.

Randy Dupree, Prosecuting Attorney, and Colleen S. Williams, Assistant Prosecuting
Attorney, Jackson, Ohio, for appellee.
______________________________________________________________________
Hess, J.

{¶1} In this consolidated appeal, Charles W. Boyd appeals from judgments of

the Jackson County Court of Common Pleas in two cases convicting him, following guilty

pleas, of two counts of failure to comply with an order or signal of a police officer and one

count of receiving stolen property. Boyd presents two assignments of error asserting that

(1) he was denied his Sixth Amendment right to effective assistance of counsel when his

trial counsel failed to file a motion to dismiss on speedy trial grounds, and (2) the trial

court’s findings regarding consecutive sentences pursuant to R.C. 2929.14(C)(4) were

unsupported by the record. For the reasons which follow, we overrule the assignments

of error and affirm the trial court’s judgments.
Jackson App. Nos. 23CA4, 23CA5 2

I. FACTS AND PROCEDURAL HISTORY

{¶2} On December 23, 2020, Boyd was indicted in Case No. 20CR0081 on one

count of failure to comply with an order or signal of a police officer in violation of R.C.

2921.331(B), a third-degree felony because his operation of a motor vehicle allegedly

caused a substantial risk of serious physical harm to persons or property, and one count

of receiving stolen property in violation of R.C. 2913.51(A), a fourth-degree felony

because the property involved was a motor vehicle. The indictment alleged the offenses

occurred on or about February 14, 2020. The clerk issued a summons on indictment

directing the county sheriff to summon Boyd to appear before the court. On December

29, 2020, a sheriff’s return was filed indicating Boyd could not be served because he was

in prison. On January 20, 2021, the summons was served via certified mail sent to Boyd

at the Lorain Correctional Institution, and on January 25, 2021, the return receipt was

filed.

{¶3} On March 1, 2021, Boyd was indicted in Case No. 21CR0032 on one count

of failure to comply with an order or signal of a police officer in violation of R.C.

2921.331(B), a third-degree felony because his operation of a motor vehicle allegedly

caused a substantial risk of serious physical harm to persons or property. The indictment

alleged that the offense occurred on or about December 3, 2020. The day the indictment

was filed, the clerk issued a warrant to arrest on indictment ordering the sheriff to arrest

Boyd and bring him before the court.

{¶4} The arraignment hearing in 20CR0081 was scheduled for March 11, 2021,

but was rescheduled for an unknown reason. The arraignment hearing in both cases

occurred on June 17, 2021. Boyd told the court he was getting out of prison on “July 10th.”
Jackson App. Nos. 23CA4, 23CA5 3

He pled not guilty in Case Nos. 20CR0081 and 21CR0032, and the trial court set bond.

The court scheduled both cases for a pre-trial hearing on July 23, 2021, for a final pre-

trial hearing on September 16, 2021, and for trial on September 27, 2021.

{¶5} On July 8, 2021, a sheriff’s return on the warrant to arrest on indictment in

Case No. 21CR0032 was filed, which stated that on July 7, 2021, Boyd was “incarcerated

at JCCF.” At the July 23, 2021 pre-trial hearing, the state noted that the defense

requested discovery on July 20, 2021. On July 25, 2021, bond was posted. On July 28,

2021, the state filed discovery request responses in both cases. On September 13, 2021,

defense counsel filed a motion to continue the trial in both cases. On September 30,

2021, the assignment commissioner issued notices stating the final pre-trial hearing in

both cases would be November 12, 2021, the trial in Case No. 20CR0081 would be

November 15, 2021, and the trial in Case No. 21CR0032 would be November 29, 2021.

{¶6} On November 16, 2021, the court issued orders on bond modification in

both cases, which pertinent here, state that Boyd was not present at the November 12,

2021 final pre-trial hearing even though he “received proper notice of the proceeding,”

that “[a]n arrest warrant shall issue for the Defendant,” that “[t]ime is tolled due to the

Defendant’s failure to appear,” and that “time is tolled until he is brought before this court.”

The same day, the clerk issued a capias in both cases. On December 7, 2021, a sheriff’s

return on the capias was filed in both cases indicating that Boyd was arrested on

December 6, 2021.

{¶7} On December 21, 2021, the trial court conducted a status conference in

both cases. The court observed that it had found that “time was tolled before [Boyd] was

brought before the court and that is today.” On December 23, 2021, the court issued
Jackson App. Nos. 23CA4, 23CA5 4

orders in both cases reinstating Boyd’s original bond, which had “previously been posted.”

Trial in both cases was scheduled for June 13, 2022.

{¶8} On January 12, 2022, the trial court issued orders in both cases stating time

was tolled from September 6, 2021, through October 1, 2021, “due to the Jackson County

Correctional Facility being on lockdown due to COVID-19.” On July 7, 2022, the trial court

issued an “order on reset trial date due to other trial going forward” in both cases. The

orders state that the cases came before the court “to re-schedule the Jury Trial set for

Monday, June 13, 2022,” because the cases “cannot proceed to trial due to the fact that

the case entitled State of Ohio vs. Phillip Moody case number 21CR0162/21CR0163 is

proceeding to trial.” The order in Case No. 20CR0081 states that “due to the already

scheduled criminal cases on the court’s docket the next available date for trial is Monday,

October 24, 2022,” and “trial shall be conducted on” that date. The order in Case No.

21CR0032 states that “due to the already scheduled criminal cases on the court’s docket

the next available date for trial is Monday, December 19, 2022,” and “trial shall be

conducted on” that date.

{¶9} On October 19, 2022, the trial court issued a judgment entry in Case No.

21CR0032 stating that the matter came before the court on the “Motion of the Defendant

for a Continuance of the October 24, 2022, trial.” The entry states that the motion is “well

taken,” that the trial will be continued “until a later date determined by the court,” and that

“time is tolled during this period of continuance.” On October 27, 2022, the trial court

issued an “order on reset trial date due to other trial going forward” in Case No.

20CR0081. The order states that the matter came before the court “to re-schedule the

Jury Trial set for Monday, October 24, 2022,” because the case “cannot proceed to trial
Jackson App. Nos. 23CA4, 23CA5 5

due to the fact that the case entitled State of Ohio vs. Christopher Moore, 21CR0074

continued over into the following week.” The order states that the trial is continued, that

“time is tolled during this period of continuance,” and that the matter “shall be reset by

separate order.”

{¶10} On December 15, 2022, the trial court conducted a change of plea hearing

at which Boyd pled guilty in both cases. On December 19, 2022, the trial court issued

entries stating that it accepted the pleas and found Boyd guilty as charged. The court

scheduled a presentence investigation for both cases.

{¶11} According to the presentence investigation report (“PSI”), Boyd was

convicted of over 30 offenses between 1994 and 2018. The PSI also includes portions

of reports from law enforcement and statements from Boyd about the offenses in this

case. According to a law enforcement report regarding Case No. 20CR0081, Boyd was

in possession of a van “confirmed stolen through LEADS.” An officer tried to stop the van

using his emergency lights, but Boyd drove away. During the resulting pursuit, Boyd ran

multiple stop signs and drove at high rates of speed, at one point going over 100 miles

hour. He also drove “left of center and in the wrong lane passing cars.” The pursuit only

ended after Boyd went “over a steep embankment causing the van to nose dive into a

muddy ditch,” disabling the vehicle. There was a ”meth pipe,” a “marijuana pipe,” digital

scales, and “other drug items” in the van. Boyd claimed the van was not stolen but

admitted he fled from law enforcement and ate and smoked drugs during the pursuit “to

get rid of them” before he got caught.

{¶12} According to law enforcement reports, Case No. 21CR0032 involved

another pursuit in which law enforcement sought Boyd because he had outstanding
Jackson App. Nos. 23CA4, 23CA5 6

warrants and “had just cut * * * a catalytic converter off a vehicle.” The pursuit lasted

about 113 minutes and covered about 57 miles. Boyd drove at high speeds, ran stop

signs or red lights, drove left of center multiple times, and drove in the opposite lane of

travel several times. At one point, a deputy thought he saw Boyd with a “long gun,” and

the deputy fired three rounds at Boyd’s vehicle. At another point, Boyd drove into a field,

a trooper bumped his vehicle to end the pursuit, but Boyd got away. Boyd’s vehicle later

contacted a different trooper’s vehicle. The pursuit ended after Boyd’s vehicle got stuck

in a ditch. Boyd admitted that he ran from law enforcement for “about an hour and [a]

half.”

{¶13} In Case No. 20CR0081, the court sentenced Boyd to 24 months in prison

on the failure to comply count and 12 months in prison on the receiving stolen property

count. In Case No. 21CR0032, the court sentenced Boyd to 24 months in prison on the

failure to comply count. The court ordered that the sentences be served consecutively,

resulting in a five-year aggregate sentence. In both sentencing entries, the court noted

that it had considered “any presentence investigation.”

II. ASSIGNMENTS OF ERROR

{¶14} Boyd presents two assignments of error:

I. Appellant was denied his Sixth Amendment right to effective assistance
of counsel when his trial counsel failed to file a motion to dismiss on speedy
trial grounds.

II. The trial court’s findings regarding consecutive sentences, pursuant to
R.C. 2929.14(C)(4), were unsupported by the record.
Jackson App. Nos. 23CA4, 23CA5 7

III. FIRST ASSIGNMENT OF ERROR

{¶15} In the first assignment of error, Boyd contends that he was denied his Sixth

Amendment right to effective assistance of counsel when trial counsel failed to file a

motion to dismiss on speedy trial grounds.

A. Positions of the Parties

{¶16} Boyd asserts that pursuant to R.C. 2945.71(C)(2), the state had to bring him

to trial within 270 days of his arrest. Boyd asserts that due to his incarceration in an

unrelated matter, speedy trial time began to run in Case No. 20CR0081 when he was

served with the summons, which he states was January 25, 2021, when it was actually

January 20, 2021. And he asserts speedy trial time began to run in Case No. 21CR0032

when the arrest warrant was issued, March 1, 2021. He claims the state had to bring him

to trial in Case No. 20CR0081 by October 22, 2021, and in Case No. 21CR0032 by

November 26, 2021. Because the state did not, Boyd claims there was a prima facie

speedy trial violation, and the state has “the burden of showing that some exceptions

codified in R.C. 2945.72 applied that tolled [his] speedy trial time and extended [his]

speedy trial date until at least” December 15, 2022, the day he entered guilty pleas.

{¶17} Boyd maintains that the “pertinent exception” in this case is in R.C.

2945.72(H), which tolls time during “ ‘the 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.’ ” Boyd acknowledges that on September 13, 2021, trial

counsel moved for a continuance, which tolled speedy trial time. He also acknowledges

that speedy trial time tolled from November 12, 2021, when he failed to appear for a final

pre-trial hearing, until December 21, 2021, “when he was brought before the court.” He
Jackson App. Nos. 23CA4, 23CA5 8

asserts that at that point, the state had to bring him to trial in Case No. 20CR0081 by

January 29, 2022, and in Case No. 21CR0032 by March 17, 2022. Boyd asserts that

“[n]o continuance was granted prior to these dates,” so “speedy trial time in each case

expired.” Therefore, trial counsel “should have filed a motion to dismiss on speedy trial

grounds,” and by not doing so, “counsel deficiently performed to the prejudice” of him.

{¶18} The state maintains that speedy trial time had not elapsed at the time Boyd

entered his guilty pleas. Relying on State v. Bauer, 61 Ohio St.2d 83, 399 N.E.2d 555

(1980), the state asserts that because Boyd failed to appear at the November 12, 2021

pre-trial hearing and November 2021 trials, he waived his right to assert the provisions of

R.C. 2945.71 through 2945.73 from his initial arrest to the date he was rearrested “after

his missed trial date.” The state asserts only 205 speedy trial days elapsed between

Boyd’s rearrest on December 6, 2021, and the rescheduled trial date of June 13, 2022.

And the state claims speedy trial time tolled under R.C. 2945.72(H) from June 13, 2022,

until Boyd entered his guilty pleas due to reasonable continuances necessitated by the

trial court’s overcrowded docket. The state suggests that if we disagree with its waiver

argument, “there were additional tolling events prior to the defendant’s non-appearance.”

The state asserts that time tolled while Boyd was in prison and due to his discovery

request. The state also asserts Boyd’s “failure to appear at the pre-trial and trial should

toll the speedy trial time from the time of the trial date for which the defendant did not

appear until the date of the new trial.”1

1 The state does not explicitly characterize this as an alternative argument to its waiver argument. However,

the state does not cite any legal authority for the position that failure to appear at a scheduled court
appearance not only waives the right to assert the provisions of the speedy trial statutes from the initial
arrest date to the date of rearrest but also tolls time until the rescheduled trial date. To support its tolling
argument, the state cites only State v. Smith, 4th Dist. Lawrence No. 16CA10, 2017-Ohio-7864, and asserts
that it held that “a Motion by the Defendant tolls the entire time from the date of the Motion until the
rescheduled trial date under 2945.72.”
Jackson App. Nos. 23CA4, 23CA5 9

B. Waiver

{¶19} Boyd entered guilty pleas, which are “a complete admission of the

defendant’s guilt.” Crim.R. 11(B)(1). “ ‘Generally, a guilty plea waives all appealable

errors that may have occurred in the trial court, unless the errors precluded the defendant

from knowingly, intelligently, and voluntarily entering a guilty plea.’ ” State v. Spangler,

4th Dist. Lawrence No. 16CA1, 2016-Ohio-8583, ¶ 17, quoting State v. Grove, 8th Dist.

Cuyahoga No. 103042, 2016-Ohio-2721, ¶ 26. A guilty plea waives a defendant’s right

to raise a R.C. 2945.71 statutory speedy trial claim. State v. Davis, 4th Dist. Meigs Nos.

21CA6, 21CA7, 21CA8, 21CA9, 2023-Ohio-867, ¶ 19, citing State v. Dixon, 4th Dist.

Hocking No. 21CA8, 2022-Ohio-2807, ¶ 17, and State v. Kelley, 57 Ohio St.3d 127, 566

N.E.2d 658 (1991), paragraph one of the syllabus. A guilty plea also waives a claim of

ineffective assistance “ ‘unless the ineffective assistance of counsel precluded the

defendant from knowingly, intelligently, and voluntarily entering a guilty plea.’ ” State v.

Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶ 26, quoting Grove at ¶ 26.

{¶20} Boyd’s ineffective assistance claim focuses on whether an effective lawyer

would have moved for dismissal of his cases on speedy trial grounds, not on the validity

of his guilty pleas. If the cases had been dismissed on speedy trial grounds, Boyd would

not have entered guilty pleas. But “ ‘ “[t]he mere fact that, if not for the alleged ineffective

assistance of counsel, the defendant would not have entered a guilty plea is not sufficient

to establish the necessary connection between ineffective assistance and the plea.” ’ ”

State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶ 45, quoting State

v. Neu, 4th Dist. Adams No. 12CA942, 2013-Ohio-616, ¶ 16, quoting 25 Ohio

Jurisprudence 3d, Criminal Law: Procedure, Section 78. Boyd does not contend that
Jackson App. Nos. 23CA4, 23CA5 10

counsel’s ineffective assistance caused his guilty pleas to not be knowing, intelligent, and

voluntary. Therefore, we conclude that he has waived his ineffective assistance of

counsel claim, and we need not address the merits of it. See State v. McCann, 4th Dist.

Lawrence No. 10CA12, 2011-Ohio-3339, ¶ 18 (guilty plea waived claim of ineffective

assistance based on speedy trial issues, so we would not address the merits of it). See

also State v. Bateman, 4th Dist. Jackson No. 19CA13, 2021-Ohio-57, ¶ 9 (“A counsel’s

failure to raise a speedy trial violation does not cause an appellant’s waiver of his or her

trial rights to be less than knowing and voluntary. Therefore, a guilty plea waives claims

of ineffective assistance of counsel based upon statutory speedy trial issues.” (Citation

omitted.)) However, as we explain below, even if Boyd had not waived this claim, he

failed in his burden to demonstrate ineffective assistance of counsel.

C. Speedy Trial Statutes

{¶21} “A defendant’s right to a speedy trial arises from the Sixth and Fourteenth

Amendments to the United States Constitution and Article I, Section 10 of the Ohio

Constitution.” State v. Myers, 4th Dist. Athens No. 22CA15, 2023-Ohio-3413, ¶ 7. “ ‘ “In

Ohio, the right to a speedy trial is implemented by statutes that impose a duty on the state

to bring the defendant to trial within a specified time.” ’ ” State v. Stansberry, 3d Dist.

Union No. 14-22-25, 2023-Ohio-3212, ¶ 11, quoting State v. Irish, 2019-Ohio-2765, 140

N.E.3d 209, ¶ 11 (3d Dist.), quoting State v. Melampy, 12th Dist. Brown No. CA2007-04-

008, 2008-Ohio-5838, ¶ 9. “[S]peedy trial statutes must be strictly construed against the

state.” Myers at ¶ 8, citing Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706

(1996). The prosecution and trial courts have a mandatory duty to try an accused within
Jackson App. Nos. 23CA4, 23CA5 11

the statutorily prescribed time frame. Id. at ¶ 7, citing State v. Singer, 50 Ohio St.2d 103,

105, 362 N.E.2d 1216 (1977).

{¶22} At the time Boyd’s cases were pending in the trial court, R.C. 2945.71

through R.C. 2945.73 contained the following provisions pertinent to this appeal. R.C.

2945.71(C)(2) stated: “A person against whom a charge of felony is pending * * * [s]hall

be brought to trial within two hundred seventy days after the person’s arrest.” 1999 S.B.

49.2 R.C. 2945.72 provided that “[t]he time within which an accused must be brought to

trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by”

the events enumerated in R.C. 2945.72(A) through (I). 1978 H.B. 1168.3 These events

included “[a]ny period of delay occasioned by the neglect or improper act of the accused,”

R.C. 2945.72(D), and “[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,” R.C. 2945.75(H). R.C. 2945.73(B) stated: “Upon motion made

at or prior to the commencement of trial, a person charged with an offense shall be

discharged if he is not brought to trial within the time required by sections 2945.71 and

2945.72 of the Revised Code.” 1972 H.B. 511.4

2 R.C. 2945.71(C)(2) was amended effective April 4, 2023, and now states, “A person against whom a

charge of felony is pending * * * [e]xcept as provided in division (C) of section 2945.73 of the Revised Code,
shall be brought to trial within two hundred seventy days after the person’s arrest.”
3 R.C. 2945.72 was amended effective April 6, 2023. The amendments modified language in R.C.
2945.72(A) through (C) and added R.C. 2945.72(J).
4 R.C. 2945.73 was amended effective April 4, 2023. R.C. 2945.73(B) now addresses only persons charged

with a misdemeanor, and R.C. 2945.73(C) states:

(1) A person charged with a felony, who is not brought to trial within the time required by
sections 2945.71 and 2945.72 of the Revised Code, is eligible for release from detention.
The court may release the person from any detention in connection with the charges
pending trial and may impose any terms or conditions on the release that the court
considers appropriate.

(2) Upon motion made at or before the commencement of trial, but not sooner than fourteen
days before the day the person would become eligible for release pursuant to division
Jackson App. Nos. 23CA4, 23CA5 12

{¶23} “When a defendant requests discharge on speedy trial grounds and

demonstrates that a trial did not occur within the speedy trial time limits, the defendant

has made a prima facie case for discharge.” State v. Howerton, 2021-Ohio-913, 168

N.E.3d 861, ¶ 12 (4th Dist.). “The prosecution then bears the burden to show that actions

or events chargeable to the accused under R.C. 2945.72 sufficiently extended the time

to bring the defendant to trial.” Id. In this case, Boyd’s trial counsel did not request his

discharge on speedy trial grounds.

D. Standard of Review

{¶24} “Upon direct appeal, appellate courts generally review claims of ineffective

assistance of counsel on a de novo basis, simply because the issue originates at the

appellate level; no trial court has ruled on the issue. Appellate courts review the trial

record and are left to judge from the bare record whether the assistance was effective.”

State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 53. To prevail,

a defendant must show: “(1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel’s errors, the proceeding’s result would have

been different.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,

(C)(1) of this section, the charges shall be dismissed with prejudice unless the person is
brought to trial on those charges within fourteen days after the motion is filed and served
on the prosecuting attorney. If no motion is filed, the charges shall be dismissed with
prejudice unless the person is brought to trial on those charges within fourteen days after
it is determined by the court that the time for trial required by sections 2945.71 and 2945.72
of the Revised Code has expired. If it is determined by the court that the time for trial
required by sections 2945.71 and 2945.72 of the Revised Code has expired, no additional
charges arising from the same facts and circumstances as the original charges may be
added during the fourteen-day period specified under this division. The fourteen-day
period specified under this division may be extended at the request of the accused or on
account of the fault or misconduct of the accused.
Jackson App. Nos. 23CA4, 23CA5 13

¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal to the claim. See

Strickland at 697. The defendant “has the burden of proof because in Ohio, a properly

licensed attorney is presumed competent.” Gondor at ¶ 62. “To prove ineffective

assistance on the basis of a failure to file a particular motion, a defendant must establish

that the motion stood a reasonable probability of success.” State v. Turner, 4th Dist.

Jackson No. 19CA4, 2019-Ohio-5470, ¶ 25.

E. Analysis

{¶25} “Generally, the 270-day speedy trial time period clock begins the day after

a defendant’s arrest.”5 State v. Smith, 2023-Ohio-1504, 218 N.E.3d 176, ¶ 16 (4th Dist.),

citing State v. Davis, 4th Dist. Scioto No. 12CA3506, 2013-Ohio-5311, ¶ 21, citing R.C.

1.14 (“The time within which an act is required by law to be done shall be computed by

excluding the first and including the last day * * *”) and Crim.R. 45(A) (“In computing any

period of time prescribed or allowed * * * by any applicable statute, the date of the act or

event from which the designated period of time begins to run shall not be included”). Boyd

suggests that we must treat the service of the summons as his initial arrest in Case No.

20CR0081 and the issuance of the arrest warrant as his initial arrest in Case No.

21CR0032. Even if we agreed with Boyd, as we explain below, speedy trial time did not

expire in either case before the November 12, 2021 final pre-trial hearing, and by failing

5 We note that under R.C. 2945.71(E), for purposes of computing this time, “each day during which the

accused is held in jail in lieu of bail on the pending charge shall be counted as three days.” Boyd’s brief
mentions the triple-count provision, but he does not contend that it applies to him, presumably because the
time he was held in jail was on two unrelated cases, and “ ‘when a defendant awaits trial on separate
unrelated cases, the triple-count provision does not apply.’ ” State v. Davis, 4th Dist. Meigs Nos. 21CA6,
21CA7, 21CA8, 21CA9, 2023-Ohio-867, ¶ 31, quoting State v. Sydnor, 4th Dist. Scioto No. 10CA3359,
2011-Ohio-3922, ¶ 19.
Jackson App. Nos. 23CA4, 23CA5 14

to appear at that hearing, Boyd waived speedy trial time from his initial arrest until his

rearrest on December 6, 2021.

{¶26} In Case No. 20CR0081, if Boyd was “arrested” the day the summons was

served, January 20, 2021, the state had until October 18, 2021,6 to bring Boyd to trial. In

Case No. 21CR0032, if Boyd was “arrested” the day the arrest warrant was issued, March

1, 2021, the state had until November 26, 2021 to bring Boyd to trial. The trial court set

both cases for trial on September 27, 2021, i.e., within the speedy trial time limit.

{¶27} On September 13, 2021, Boyd moved to continue the trial date in both

cases. The trial in Case No. 20CR0081 was rescheduled for November 15, 2021, and

the trial in Case No. 21CR0032 was rescheduled for November 29, 2021. Although the

trial court did not issue an entry stating it continued the trials at Boyd’s request, the record

does not reveal any other reason for the continuances, and Boyd concedes time tolled

under R.C. 2945.73(H) due to his continuance requests. Thus, we conclude that time

tolled in Case No. 20CR0081 from September 14, 2021, through November 15, 2021,

and in Case No. 21CR0032 from September 14, 2021, through November 29, 2021.

Consequently, even without any other tolling events, speedy trial time would not have

expired at the time Boyd failed to appear at the November 12, 2021 final pre-trial

hearing—at most 236 speedy trial days had elapsed in Case No. 20CR0081, and 196

speedy trial days had elapsed in Case No. 21CR0032.

{¶28} Contrary to what Boyd contends, Boyd’s failure to appear did not simply toll

time from November 12, 2021, until Boyd’s next court appearance on December 21, 2021.

In Bauer, the defendant was notified of the time, place, and date of his trial but failed to

6 270 calendar days from January 21, 2021 (the day after the “arrest”), would have been October 17, 2021,

but because that day was a Sunday, it is not included in the speedy trial calculation. See Crim.R. 45(A).
Jackson App. Nos. 23CA4, 23CA5 15

appear. Bauer, 61 Ohio St.2d at 83, 399 N.E.2d 555. The trial court forfeited his

appearance bond and issued a bench warrant for his arrest. Id. The defendant was

apprehended, and the trial was rescheduled. Id. Defense counsel moved for discharge

under R.C. 2945.71 et seq. Id. The trial court denied the motion, the defendant entered

a no contest plea, and the trial court sentenced him. Id. The court of appeals reversed

and ordered the defendant discharged. Id.

{¶29} The Supreme Court of Ohio reversed the judgment of the court of appeals.

Id. at 85. The Supreme Court explained that “there is no evidence whatsoever from which

it can be concluded that the rescheduling of appellee's trial date * * * emanated from

anything other than his own conduct.” Id. at 84. The Supreme Court explained that it

was “clear” that the defendant “was afforded his statutory right to a speedy trial initially,

but through his own design he chose to shun this right and impede the prompt

administration of this cause.” Id. He would “not be permitted to enjoy the protection of

these statutes, as to a time period prior to his failure to appear, when by his actions he

has waived their benefits.” Id. The Supreme Court rejected the defendant’s contention

that his failure to appear should “minimally ‘extend’ the period of time within which he

should be brought to trial, pursuant to R.C. 2945.72(D)” and toll time from his initial trial

date until his recapture. Id. at 84-85. The Supreme Court found “this solution unworkable

and inconsistent with the efficient administration of justice.” Id. at 85. The Supreme Court

explained: “There is no justification for a rule which could require a court to reschedule,

within a few days after his rearrest, the trial of a defendant who has forfeited his

appearance bond. Such a holding would not comport with the realities of congested court

dockets which are typically set months in advance.” Id. Thus, the Supreme Court held
Jackson App. Nos. 23CA4, 23CA5 16

that “a defendant who fails to appear at a scheduled trial, and whose trial must therefore

be rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71

through 2945.73 for that period of time which elapses from his initial arrest to the date he

is subsequently rearrested.” Id. at 85.

{¶30} “[T]his Court, relying upon precedent from other appellate districts, has

extended the reasoning in Bauer to apply to situations where the appellant fails to appear

at other scheduled court appearances, such as scheduling conferences, change of plea

hearings and arraignments.” State v. Fultz, 4th Dist. Ross No. 06CA2923, 2007-Ohio-

3619, ¶ 11. In this case, Boyd failed to appear at the November 12, 2021 final pre-trial

hearing. The trial court found that he had notice of the proceeding, capiases were issued

for his arrest, and Boyd was not rearrested until after the November 2021 trial dates.

Applying Bauer and our prior precedent, we conclude that Boyd waived his right to assert

the provisions of R.C. 2945.71 through 2945.73 from his initial arrest to the date he was

rearrested, December 6, 2021.

{¶31} Given this waiver, the 270-day speedy trial clock did not begin in both cases

until December 7, 2021, so absent any tolling events, the state had until September 2,

2022, to bring Boyd to trial. As noted above, the state asserts that under R.C. 2945.72(H),

time tolled from June 13, 2022, until Boyd entered his guilty pleas due to continuances

the trial court granted sua sponte due to its overcrowded docket. Specifically, in Case

No. 20CR0081, the trial court continued the June 13, 2022 trial to October 24, 2022,

because another case was proceeding to trial on June 13th and October 24th was “the

next available date for trial” “due to the already scheduled criminal cases on the court’s

docket.” The court later continued the October 24, 2022 trial because a trial in a different
Jackson App. Nos. 23CA4, 23CA5 17

case had carried over from the previous week. In Case No. 21CR0032, the trial court

continued the June 13, 2022 trial to December 19, 2022, because another case was

proceeding to trial on June 13th and December 19th was “the next available date for trial”

“due to the already scheduled criminal cases on the court’s docket.”7

{¶32} Boyd did not address these potential tolling events in his argument in his

appellate brief or file a reply brief arguing that these continuances were unreasonable or

should be attributed to the state. Consequently, Boyd has not established a motion to

dismiss on speedy trial grounds stood a reasonable probability of success in his cases.

Therefore, even if Boyd had not waived his ineffective assistance of counsel claim by

pleading guilty, he failed in his burden to demonstrate ineffective assistance of counsel.

Accordingly, we overrule the first assignment of error.

IV. SECOND ASSIGNMENT OF ERROR

{¶33} In the second assignment of error, Boyd concedes that the trial court made

the requisite findings to impose consecutive sentences under R.C. 2929.14(C)(4) at the

sentencing hearing and in the sentencing entry, but he contends those findings were

unsupported by the record. Boyd claims that the trial court was not “made aware of the

specific conduct” his offenses involved. He asserts that without such information, it is

“impossible” for a court to determine that consecutive sentences are not disproportionate

to the seriousness of an offender’s conduct and “difficult to ascertain any danger an

offender poses to the public.”

7 Neither party addresses the October 19, 2022 entry in Case No. 21CR0032 stating that the matter came

before the court on the “Motion of the Defendant for a Continuance of the October 24, 2022, trial,” that the
motion is “well taken,” that the trial will be continued “until a later date determined by the court,” and that
“time is tolled during this period of continuance.”
Jackson App. Nos. 23CA4, 23CA5 18

A. R.C. 2929.14(C)(4)

{¶34} R.C. 2929.14(C)(4) states:

If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.

{¶35} “Though ‘a trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, * * * it has no obligation to state reasons to support its findings.’ ” State v. Jones,

Slip Opinion No. 2024-Ohio-1083, ¶ 11, quoting State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. “ ‘Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.’ ” Id., quoting Bonnell at ¶ 37.

B. R.C. 2953.08(G)(2)

{¶36} R.C. 2953.08 governs appeals based on felony sentencing guidelines. R.C.

2953.08(G)(2) states:
Jackson App. Nos. 23CA4, 23CA5 19

The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;

(b) That the sentence is otherwise contrary to law.

“R.C. 2953.08(F) requires an appellate court to review the entire trial-court record,

including any oral or written statements made to or by the trial court at the sentencing

hearing, and any presentence, psychiatric, or other investigative report that was

submitted to the court in writing before the sentence was imposed. R.C. 2953.08(F)(1)

through (4).” Jones at ¶ 12.

{¶37} “R.C. 2953.08(G) permits an appellate court to increase, reduce, otherwise

modify, or vacate a sentence only ‘if it clearly and convincingly finds’ that the record does

not support the sentencing court’s findings or that the sentence is otherwise contrary to

law.” Id. at ¶ 13, citing R.C. 2953.08(G)(2), and State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. “The standard to be applied is the standard set

forth in the statute: an appellate court has the authority to increase, reduce, otherwise

modify, or vacate a sentence only after it has reviewed the entire trial-court record and

‘clearly and convincingly f[ound] either * * * [t]hat the record does not support the
Jackson App. Nos. 23CA4, 23CA5 20

sentencing court’s findings under [certain statutes]’ or ‘[t]hat the sentence is otherwise

contrary to law,’ R.C. 2953.08(G)(2).” (Alterations sic.) Id.

C. Analysis

{¶38} Boyd concedes that the trial court made the requisite findings to impose

consecutive sentences at the sentencing hearing and in the sentencing entry. Despite

the broad wording of his assignment of error, his argument addresses only whether the

proportionality finding was supported by the record. Boyd’s contention that the record

does not support this finding is based on an incorrect premise—that the trial court was

not aware of the specific conduct his offenses involved. The trial court reviewed the PSI,

which contained detailed information about Boyd’s offenses. The PSI indicates that in

Case No. 20CR0081, Boyd fled from law enforcement in a stolen vehicle, driving

erratically at high speeds while using drugs. The PSI indicates that about 10 months

later, in Case No. 21CR0032, Boyd fled from law enforcement again to avoid arrest on

outstanding warrants and for cutting a catalytic converter off a vehicle. He again drove

erratically at high speeds during a long pursuit which covered 57 miles. The PSI also

indicates that Boyd has a lengthy criminal record. And after reviewing the entire trial-

court record, we do not clearly and convincingly find that the record does not support the

finding that consecutive sentences are not disproportionate to the seriousness of Boyd’s

conduct and to the danger he poses to the public. Accordingly, we conclude Boyd’s

second assignment of error lacks merit, and we overrule it.
Jackson App. Nos. 23CA4, 23CA5 21

V. CONCLUSION

{¶39} Having overruled the assignments of error, we affirm the trial court’s

judgments.

JUDGMENTS AFFIRMED.
Jackson App. Nos. 23CA4, 23CA5 22

JUDGMENT ENTRY

It is ordered that the JUDGMENTS ARE AFFIRMED and that appellant shall pay
the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Jackson
County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.