State v. Moore, 2007 Ca 123 (10-10-2008)State v. Moore, 2007 Ca 123 (10-10-2008)
- Reporters:
- ,
- Before:
- Donovan
{¶ 1} This matter is before the Court on the Notice of Appeal of George Moore, filed October 24, 2007. On January 3, 2006, Moore was indicted on one count of aggravated robbery, in violation of
{¶ 2} Moore did not file a direct appeal but instead filed several pro se motions in the trial court as follows: On November 7, 2006, Moore filed, without any evidence supporting his claims, a Petition to Vacate or Set Aside Judgment of Conviction or Sentence, pursuant to
{¶ 3} On September 14, 2007, the trial court, without a hearing, issued a “Decision, Entry Order Overruling Petitioner‘s Motion for Post-Conviction Relief and Motions for the Appointment of Counsel and Expert Assistance.”
{¶ 4} The State initially asserts that Moore‘s appeal is untimely and subject to dismissal. Moore‘s October 24 Notice of Appeal was filed 40 days after the trial court‘s decision. Pursuant to App. R. 4, “[a] party shall file the notice of appeal required by App. R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three
{¶ 5} Moore asserts three assignments of error, which we will address together. They are as follows:
{¶ 6} “PETITIONER CLAIMS THAT HE WAS DENIED A `QUICK AND SPEEDY TRIAL’ GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND AS REQUIRED BY
{¶ 7} “THE PETITIONER HAS CONTENDED THAT HE WAS QUESTIONED AND PHYSICALLY AND MEDICALLY ABUSED AFTER INVOKING HIS MIRANDA
{¶ 8} “PETITIONER CONTENDS THAT * * * THE COURT APPOINTED COUNSEL WAS AN ATTORNEY IN NAME ONLY AND HIS REPRESENTATION WAS THE SAME AS HAVE (sic) NO COUNSEL AT ALL. THE CONSTITUTION OF THE UNITED STATES NOT ONLY GRANTS THE RIGHT TO COUNSEL IT REQUIRES THE RIGHT TO A REASONABLY EFFECTIVE COUNSEL.”
{¶ 9} Moore‘s speedy trial arguments are unpersuasive for two reasons. First, “[a]ny claim for relief based directly upon Speedy Trial grounds is barred by [Moore‘s] guilty plea, since a plea of guilty effectively waives any defenses that could have been raised at, or prior to, trial.” State v. Hurt (May 3, 1996), Miami App. No. 95-CA-43. Second, as the trial court noted, the doctrine of res judicata barred Moore from asserting a violation of his speedy trial rights since Moore could have raised the issue in a direct appeal. State v. Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (“Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating, in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment“); See State v. Metcalf, Montgomery App. No. 22367, 2008-Ohio-4535.
{¶ 10} Moore‘s arguments regarding abuse suffered after invoking his Miranda rights are similarly unpersuasive. Moore did not meet his
{¶ 11} Moore‘s ineffective assistance of counsel argument must also fail. Moore did not provide any cogent evidence of “a substantial violation of an essential duty owed by the defense counsel” to Moore such that he was prejudiced by the violation. State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448 N.E.2d 452;
{¶ 12} We note that the trial court erred in determining that Moore‘s claim of ineffective assistance of counsel was barred by the doctrine of res judicata. Cooperrider; State v. Petrey (June 26, 1998), Montgomery App. No. 16712 (res judicata “does not bar a claim of ineffective assistance of trial counsel as grounds for post-conviction relief when no direct appeal is taken from the conviction“). The error is harmless however, since Moore “failed to satisfy a substantive requirement of
{¶ 13} Moore‘s arguments are overruled, and the judgment of the trial court is affirmed.
BROGAN, J. and GRADY, J., concur.