No. 06CA009037. | Ohio Ct. App. | Jun 29, 2007
{¶ 1} Defendant-Appellant Jack Carroll has appealed from his convictions and sentence in the Lorain County Court of Common Pleas. This Court affirms.
{¶ 3} On August 2, 2006, the trial court denied Appellant's motion to suppress. Appellant's trial was to start on this date. Before his trial began, Appellant's counsel moved to continue the trial because Ms. Leyva was not available to testify because she was incarcerated. Appellant's counsel had not issued a subpoena for Ms. Leyva. The trial court denied the motion to continue and asked whether Appellant was ready to proceed. At that time, Appellant entered a guilty plea to the indictment. On September 20, 2006, Appellant moved to withdraw his guilty plea. The trial court denied Appellant's motion and continued to sentencing on September 21, 2006. Appellant has timely appealed from his convictions and sentence, raising one assignment of error for review.
"APPELLANT CARROLL WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN CONTRAVENTION OF THESIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION10 , ARTICLE1 OF THE OHIO CONSTITUTION."
{¶ 4} In his sole assignment of error, Appellant has alleged that his trial counsel was ineffective. Specifically, Appellant has asserted that his trial counsel *3 failed to subpoena a witness for his suppression hearing. This Court finds no merit in Appellant's argument.
{¶ 5} A guilty plea waives the right to appeal issues of ineffective assistance of counsel, unless the ineffective assistance of counsel caused the guilty plea to be involuntary. State v. Barnett (1991), 73 Ohio App. 3d 244" court="Ohio Ct. App." date_filed="1991-04-22" href="https://app.midpage.ai/document/state-v-barnett-3751027?utm_source=webapp" opinion_id="3751027">73 Ohio App.3d 244, 248; State v. Dallas, 9th Dist. No. 06CA0033,
{¶ 6} Moreoever, assuming arguendo that Appellant has not waived this issue for review, his assignment of error still must be overruled. A claim of ineffective assistance of counsel requires appellant to satisfy a two-prong test. First, he must prove that trial counsel's performance was deficient. Strickland v. Washington (1984),
{¶ 7} In his argument, Appellant has asserted that his counsel failed to subpoena a witness for trial. However, the record reflects that this witness, Patricia Leyva, in fact testified at the suppression hearing. A review of the record indicates that Ms. Leyva was not later subpoenaed for the trial of this matter. Appellant, however, has not argued how Ms. Leyva's testimony would have altered the result of his trial. In fact, Appellant has not argued the prejudice prong of ineffectiveness of counsel in any manner on appeal. Accordingly, Appellant has failed in his burden of demonstrating prejudice. Appellant's assignment of error, therefore, is overruled.
Judgment affirmed.
*5The Court finds that 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 Lorain, 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(E). 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.
Costs taxed to Appellant.
*1CARR, J., MOORE, J., CONCUR