State v. Jabbaar

2013 Ohio 2897

Opinion

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98218

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ALI JABBAAR

DEFENDANT-APPELLANT

JUDGMENT:

APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-551246

Application for Reopening Motion No. 465911

RELEASE DATE: July 2, 2013

FOR APPELLANT

Ali Jabbaar, pro se Inmate No. 623-086 Lebanon Correctional Institution P.O. Box 56 Lebanon, Ohio 45036

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Brent C. Kirvel Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, P.J.:

{¶1} On June 18, 2013, the applicant, Ali Jabbaar, pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court’s judgment in State v. Jabbaar, 8th Dist. No. 98218, 2013-Ohio-1655, in which this court affirmed Jabbaar’s convictions for one count of kidnapping with a three-year firearm specification and sexual motivation specification and one count of rape. Jabbaar maintains that his appellate counsel should have argued that the trial court erred in denying his motion to dismiss on speedy trial grounds. For the following reasons, this court denies the application to reopen.

{¶2} In June 2011, the grand jury indicted Jabbaar on one count of kidnapping with a sexual motivation specification, and three counts of rape with sexually violent predator specifications, all with one- and three-year firearm specifications. In January 2012, Jabbaar moved to dismiss on speedy trial grounds. In February 2012, Jabbaar accepted a plea bargain under which he pleaded guilty to one count of kidnapping with a three-year firearm specification and a sexual motivation specification and one count of rape; all the other counts and specifications were nolled. The judge sentenced him to 13 years in prison.

{¶3} On appeal, Jabbaar’s counsel argued that the plea was not knowingly, voluntarily, and intelligently made because the judge coerced the plea by improper participation in the plea bargaining. This court rejected that argument and affirmed. Jabbaar now argues that his appellate counsel was ineffective because he should have raised the speedy trial argument that Jabbaar was in jail for more than 90 days, and the continuances were improper because Jabbaar did not consent to them.

{¶4} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990); and State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).

{¶5} In the present case, appellate counsel properly rejected arguing speedy trial violations. In State v. Kelly, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus, the Supreme Court of Ohio held that a plea of guilty effectively waives all appealable errors, unless such errors are shown to have precluded the defendant from voluntarily entering into the plea. Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986). In both Kelly and Greeno, the Supreme Court of Ohio ruled that a guilty plea foreclosed the right to assert on appeal the issue of the denial of a speedy trial. Thus, Jabbaar does not establish a genuine issue as to the effectiveness of appellate counsel.

{¶6} Accordingly, this court denies the application to reopen.

__________________________________________________

MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and KATHLEEN ANN KEOUGH, J., CONCUR