[Cite as State v. Spillman, 2011-Ohio-310.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-63 EDDIE SPILLMAN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2005- CR-865 & 2006-CR-138H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 26, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. JEFFEREY R. STIFFLER Richland County Prosecutor DAVID C. BADNELL CO., L.P.A. 38 South Park Street 21 North Walnut Street Mansfield, OH 44902 Mansfield, OH 44902 [Cite as State v. Spillman, 2011-Ohio-310.]
Gwin, P.J.
{¶1} Defendant-appellant Eddie Spillman, Jr. appeals two judgments of the
Court of Common Pleas of Richland County, Ohio. In 2005-CR-0865, appellant pled
guilty to one count of escape in violation of R.C. 2921.34 and in 2006-CR-138, appellant
pled guilty to one count of failing to notify of change of address in violation of R.C.
2950.05. Appellant assigns three errors to the trial court:
{¶2} “I. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEAS
OF GUILTY, AS APPELLANT’S PLEAS WERE NOT MADE KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY IN ACCORDANCE WITH CRIMINAL RULE 11
(C)(2).
{¶3} “II. APPELLANT’S RIGHT TO SPEEDY TRIAL, AS GUARANTEED BY
THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, WAS
VIOLATED BECAUSE HE WAS NOT BROUGHT TO TRIAL WITHIN THE
STATUTORILY MANDATED TIME.
{¶4} “III. THE TRIAL COURT ERRED AS APPELLANT’S RIGHTS WERE
VIOLATED BECAUSE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE
OF COUNSEL AT THE TRIAL LEVEL.”
{¶5} The record indicates appellant absconded from a half-way house while he
was on parole for prior offenses. At the hearing on the change of plea, the trial court
informed appellant he had the right to a trial either before a jury or a judge. The court
advised appellant he was entitled to the presumption of innocence and the right to be
represented by an attorney. The court informed appellant if the State did not convince a Richland County, Case No. 2010-CA-63 3
jury of his guilt, it would find him not guilty. The court advised appellant he did not have
to prove his innocence.
{¶6} The trial court informed appellant he had the right to confront witnesses.
The court explained appellant’s right to cross examination, and the State’s subpoena
power. The court advised appellant he had the right to testify and call witnesses, but he
could not be forced to testify against himself. The court informed appellant the State
had to prove beyond a reasonable doubt that he was guilty of the charged offenses.
The court also advised appellant the jury determines guilt, but not punishment.
{¶7} The court then inquired whether appellant understood his Constitutional
rights. Appellant raised the issue of speedy trial, informing the court he believed the
speedy trial time had run, if it was counted from the time he was arrested or jailed. The
court responded that appellant was in custody on another charge in addition to the two
at issue, and thus, the time did not run. The court informed appellant the real issue was
whether or not he had been prejudiced by the lapse of time, and the court found
appellant had not been prejudiced. Defense counsel also spoke, and offered his
opinion that speedy trial was not an issue in these cases. Thereupon, the appellant
stated he thought he understood his Constitutional rights.
{¶8} The court then explained the maximum penalties for the offenses and
advised him he would be placed on post-release control after he was released from
prison. The court advised him community control “is not being considered and won’t be
considered”. If it were considered, the court could place appellant on community control
for up to five years. The court advised appellant it could allow judicial release before Richland County, Case No. 2010-CA-63 4
appellant completed his sentence. The court also noted there was a potential fine.
Appellant stated he had no questions.
{¶9} The court inquired whether appellant was satisfied with the level of
representation his attorney had provided, and appellant responded that he believed so.
The court inquired of defense counsel whether he was convinced appellant was
entering his plea of his own free will. Counsel responded he had explained everything
to appellant and he had the utmost confidence that appellant understood.
{¶10} The court inquired of appellant his level of formal schooling. Appellant
responded he had GED and a little college, and the court found he was literate.
Thereafter, the court accepted appellant’s pleas of guilty and permitted appellant and
counsel to address the court regarding sentencing.
I.
{¶11} In his first assignment of error, appellant urges his pleas were not made
knowingly, intelligently or voluntarily.
{¶12} Appellant argues when asked what his pleas to the charge would be, he
answered “Guilty, I guess”, and when asked whether anyone had said or done anything
to force him to make the pleas against his will, he responded he felt he had no choice in
life. Defense counsel stated appellant understood the need for a “pragmatic
acceptance” of his situation.
{¶13} Appellant also argues the trial court did not inform him he was not eligible
for probation or community control as required by Civ. R. 11 (C). The court informed
appellant community control sanctions were not being considered and would not be Richland County, Case No. 2010-CA-63 5
considered, but did not specifically tell appellant he was not eligible for community
control.
{¶14} This court has reviewed the extensive dialogue between the court and
appellant, and we find appellant understood the nature of the charges and the
significance of his guilty plea. The record indicates appellant understood his
constitutional rights, and the fact he would not receive community control. Appellant
stated he had reformed during the period of his escape, but also believed the best
outcome he could hope for was to plead guilty. We find no error.
{¶15} The first assignment of error is overruled.
II.
{¶16} In his second assignment of error, appellant argues his speedy trial rights
were violated. Unfortunately, the record does not contain any information regarding
appellant’s arrest or his subsequent incarceration. In their briefs, the parties both
appear to concede appellant was arrested in September on warrants for these charges,
and was held in custody for violation of the conditions of his parole, but this is not a part
of the record on appeal. The record does not indicate if or when the parole violation
was adjudicated, and if or when appellant’s prior sentence was re-imposed.
{¶17} If appellant was arrested on these charges, then the speedy trial time
began to run on the date of his arrest regardless of whether he was also arrested and
held for the parole violation. If appellant was incarcerated for the parole violation, but
had not been arrested on the charges of escape and failure to register, then, as the
state argues, he was required to provide notice pursuant to R.C. 2941.401 to invoke his
right to speedy trial. Richland County, Case No. 2010-CA-63 6
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[Cite as State v. Spillman, 2011-Ohio-310.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-63 EDDIE SPILLMAN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2005- CR-865 & 2006-CR-138H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 26, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. JEFFEREY R. STIFFLER Richland County Prosecutor DAVID C. BADNELL CO., L.P.A. 38 South Park Street 21 North Walnut Street Mansfield, OH 44902 Mansfield, OH 44902 [Cite as State v. Spillman, 2011-Ohio-310.]
Gwin, P.J.
{¶1} Defendant-appellant Eddie Spillman, Jr. appeals two judgments of the
Court of Common Pleas of Richland County, Ohio. In 2005-CR-0865, appellant pled
guilty to one count of escape in violation of R.C. 2921.34 and in 2006-CR-138, appellant
pled guilty to one count of failing to notify of change of address in violation of R.C.
2950.05. Appellant assigns three errors to the trial court:
{¶2} “I. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEAS
OF GUILTY, AS APPELLANT’S PLEAS WERE NOT MADE KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY IN ACCORDANCE WITH CRIMINAL RULE 11
(C)(2).
{¶3} “II. APPELLANT’S RIGHT TO SPEEDY TRIAL, AS GUARANTEED BY
THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, WAS
VIOLATED BECAUSE HE WAS NOT BROUGHT TO TRIAL WITHIN THE
STATUTORILY MANDATED TIME.
{¶4} “III. THE TRIAL COURT ERRED AS APPELLANT’S RIGHTS WERE
VIOLATED BECAUSE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE
OF COUNSEL AT THE TRIAL LEVEL.”
{¶5} The record indicates appellant absconded from a half-way house while he
was on parole for prior offenses. At the hearing on the change of plea, the trial court
informed appellant he had the right to a trial either before a jury or a judge. The court
advised appellant he was entitled to the presumption of innocence and the right to be
represented by an attorney. The court informed appellant if the State did not convince a Richland County, Case No. 2010-CA-63 3
jury of his guilt, it would find him not guilty. The court advised appellant he did not have
to prove his innocence.
{¶6} The trial court informed appellant he had the right to confront witnesses.
The court explained appellant’s right to cross examination, and the State’s subpoena
power. The court advised appellant he had the right to testify and call witnesses, but he
could not be forced to testify against himself. The court informed appellant the State
had to prove beyond a reasonable doubt that he was guilty of the charged offenses.
The court also advised appellant the jury determines guilt, but not punishment.
{¶7} The court then inquired whether appellant understood his Constitutional
rights. Appellant raised the issue of speedy trial, informing the court he believed the
speedy trial time had run, if it was counted from the time he was arrested or jailed. The
court responded that appellant was in custody on another charge in addition to the two
at issue, and thus, the time did not run. The court informed appellant the real issue was
whether or not he had been prejudiced by the lapse of time, and the court found
appellant had not been prejudiced. Defense counsel also spoke, and offered his
opinion that speedy trial was not an issue in these cases. Thereupon, the appellant
stated he thought he understood his Constitutional rights.
{¶8} The court then explained the maximum penalties for the offenses and
advised him he would be placed on post-release control after he was released from
prison. The court advised him community control “is not being considered and won’t be
considered”. If it were considered, the court could place appellant on community control
for up to five years. The court advised appellant it could allow judicial release before Richland County, Case No. 2010-CA-63 4
appellant completed his sentence. The court also noted there was a potential fine.
Appellant stated he had no questions.
{¶9} The court inquired whether appellant was satisfied with the level of
representation his attorney had provided, and appellant responded that he believed so.
The court inquired of defense counsel whether he was convinced appellant was
entering his plea of his own free will. Counsel responded he had explained everything
to appellant and he had the utmost confidence that appellant understood.
{¶10} The court inquired of appellant his level of formal schooling. Appellant
responded he had GED and a little college, and the court found he was literate.
Thereafter, the court accepted appellant’s pleas of guilty and permitted appellant and
counsel to address the court regarding sentencing.
I.
{¶11} In his first assignment of error, appellant urges his pleas were not made
knowingly, intelligently or voluntarily.
{¶12} Appellant argues when asked what his pleas to the charge would be, he
answered “Guilty, I guess”, and when asked whether anyone had said or done anything
to force him to make the pleas against his will, he responded he felt he had no choice in
life. Defense counsel stated appellant understood the need for a “pragmatic
acceptance” of his situation.
{¶13} Appellant also argues the trial court did not inform him he was not eligible
for probation or community control as required by Civ. R. 11 (C). The court informed
appellant community control sanctions were not being considered and would not be Richland County, Case No. 2010-CA-63 5
considered, but did not specifically tell appellant he was not eligible for community
control.
{¶14} This court has reviewed the extensive dialogue between the court and
appellant, and we find appellant understood the nature of the charges and the
significance of his guilty plea. The record indicates appellant understood his
constitutional rights, and the fact he would not receive community control. Appellant
stated he had reformed during the period of his escape, but also believed the best
outcome he could hope for was to plead guilty. We find no error.
{¶15} The first assignment of error is overruled.
II.
{¶16} In his second assignment of error, appellant argues his speedy trial rights
were violated. Unfortunately, the record does not contain any information regarding
appellant’s arrest or his subsequent incarceration. In their briefs, the parties both
appear to concede appellant was arrested in September on warrants for these charges,
and was held in custody for violation of the conditions of his parole, but this is not a part
of the record on appeal. The record does not indicate if or when the parole violation
was adjudicated, and if or when appellant’s prior sentence was re-imposed.
{¶17} If appellant was arrested on these charges, then the speedy trial time
began to run on the date of his arrest regardless of whether he was also arrested and
held for the parole violation. If appellant was incarcerated for the parole violation, but
had not been arrested on the charges of escape and failure to register, then, as the
state argues, he was required to provide notice pursuant to R.C. 2941.401 to invoke his
right to speedy trial. Richland County, Case No. 2010-CA-63 6
{¶18} Because the information concerning appellant’s arrest and incarceration
before the change of plea is not a part of the record on appeal, we must find appellant
cannot demonstrate the error he alleges. The issue must be raised in a petition for post-
conviction relief.
{¶19} The second assignment of error is overruled.
III.
{¶20} In his third assignment of error, appellant argues he was deprived of the
effective assistance of counsel at the trial level because counsel did not pursue the
issue of his speedy trial rights. Because of the lack of information in the record, this
court cannot find counsel was ineffective.
{¶21} The third assignment of error is overruled.
{¶22} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. SHEILA G. FARMER
_________________________________ HON. PATRICIA A. DELANEY WSG:clw 0110 [Cite as State v. Spillman, 2011-Ohio-310.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : EDDIE SPILLMAN : : : Defendant-Appellant : CASE NO. 2010-CA-63
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to
appellant.
_________________________________ HON. PATRICIA A. DELANEY