COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61328 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT TAYLOR : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 19, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-252082 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES ROBERT E. LEE, ESQ. CUYAHOGA COUNTY PROSECUTOR 25200 Rockside Road KEVIN SPELLACY, ASST. Suite 514C Justice Center - 8th Floor Bedford Hts., Ohio 44146 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DAVID T. MATIA, C.J., Defendant Robert Taylor appeals from his conviction for failing to comply with the order of a police officer, in violation of R.C. 2921.331. Defendant asserts that he was deprived of his statutory right to a speedy trial and that his conviction is against the manifest weight of the evidence. For the reasons set forth below, we affirm. I. THE INDICTMENT On July 6, 1990, defendant was indicted for two counts of felonious assault, aggravated robbery, having a weapon while under disability, unlawful possession of a dangerous ordnance, and failure to comply with the order of a police officer. Defendant pleaded not guilty to the indictment and the matter proceeded to a jury trial on December 12, 1990, with one count of felonious assault severed from the remaining charges. II. THE FACTS The state's evidence indicated that shortly before dark on April 15, 1990, defendant approached Don Johnson who was selling flowers at the intersection of Fulton and Clark in Cleveland and requested flowers. As Johnson gave defendant the flowers, defendant produced a sawed-off shotgun and said, "Give it up." Defendant then chased Johnson, and shot him after Johnson stumbled. - 3 - Joseph and Susan Gargano were proceeding through the intersection of Clark at Fulton and observed the shooting. They followed defendant's vehicle, noting its licence plate number, and then reported the incident to Cleveland Police Officer John Vinson, Jr. who was nearby. Officer Vinson testified that he activated his lights and siren and pursued defendant's vehicle down several streets. He then observed defendant jump out of his vehicle with a shotgun, and flee. Several other officers subsequently responded to the scene and apprehended defendant. At the close of the state's case, the matter was submitted to the jury. The jury subsequently convicted defendant of failing to comply with the order of a police officer, but it remained deadlocked on the remaining charges. On March 13, 1991, the state reached a plea agreement with defendant whereby he pleaded guilty to the charge of aggravated robbery and the remaining counts were nolled. III. DEFENDANT'S FIRST ASSIGNMENT OF ERROR THERE WAS A MOTION FILED BY THE DEFENDANT WHILE HE WAS INCARCERATED IN COUNTY JAIL TO DISMISS THE CHARGES AGAINST HIM BECAUSE HE WAS NOT GIVEN A SPEEDY TRIAL. A. THE LAW In Montpelier v. Greeno (1986), 25 Ohio St.3d 170, 170-171, the Supreme Court stated: - 4 - "the general view is that where an accused enters a plea of guilty he waives his right to raise the denial of his right to a speedy trial on appeal. Annotation (1958), 57 A.L.R. 2d 302, 343. In Partsch v. Haskins (1963), 175 Ohio St. 139, 141 [23 O.O.2d 419], we observed, in relevant part that 'even assuming petitioner had made a demand for a speedy trial, when he entered his plea of guilty ***, it amounted to a withdrawal of such demand and waived his right to insist on *** a speedy trial.' See, also, Everhart v. Maxwell (1964), 175 Ohio St. 514, 516 [26 O.O.2d 177]; Goman v. Maxwell (1964), 176 Ohio St. 236, 237 [27 O.O.2d 130]; 25 Ohio Jurisprudence 3d (1981), 508, 511, Criminal Law, Section 286. A consistent result was recently reached by the Court of Appeals for Cuyahoga County which held that an accused waives any statutory claim to a speedy trial by pleading guilty. State v. Branch (1983), 9 Ohio App.3d 160." B. ANALYSIS In this case, because the jury determined that defendant was guilty of one of the counts of the indictment, and it did not determine the remaining counts, that verdict was interlocutory. See State v. Brown (1991), 59 Ohio App.3d 1. Thus, defendant's subsequent plea agreement whereby defendant pleaded guilty to aggravated robbery, and the remaining charges were nolled, effectively waived the claimed deprivation of statutory speedy trial rights. Defendant's first assignment of error is overruled. IV. DEFENDANT'S SECOND ASSIGNMENT OF ERROR APPELLANT'S CONVICTION ON COUNT FIVE MUST BE REVERSED BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 5 - A. THE LAW In State v. Mattison (1985), 23 Ohio App.3d 10, 14, this court set forth the following guidelines for reviewing challenges to the manifest weight of the evidence supporting a conviction: "'"1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible. *** "'"2. Whether evidence is uncontradicted, *** "'"3. Whether a witness was impeached, *** "'"4. Consideration of what was not proved, *** "'"5. The certainty of the evidence, *** "'"6. The reliability of the evidence, *** "'"7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "'"8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern, ***."'" Moreover, issues of credibility, and the weight to be given the evidence are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St.3d 230, 231. B. ANALYSIS In this case, the unrefuted evidence indicated that upon being pursued by police, defendant fled in his vehicle, then again on foot. This evidence, moreover, was credible, consistent among each of the officers who testified, and not impeached. - 6 - Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J., and BLANCHE KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .