COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70146 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION PHILLIP KUKLA : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-300778 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor THOMAS REIN, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN J. DOLATOWSKI East Brunswick Professional Bldg. 3864 Center Road, Suite A9 Brunswick, Ohio 44212 - 2 - O'DONNELL, J.: Phillip Kukla has filed this delayed appeal from a judgment of the common pleas court finding him guilty of felonious assault. On September 2, 1993, a Cuyahoga County Grand Jury indicted Phillip Kukla for crimes of felonious assault and aggravated robbery, each with specifications of prior aggravated felony convictions, and the clerk sent notice for him to appear for arraignment on September 20, 1993. When Kukla failed to appear at his scheduled arraignment, the court issued a capias for his arrest. Thereafter, in June of 1995, a North Carolina police officer stopped Kukla for a traffic violation, arrested him on the outstanding capias, and subsequently returned him to South Carolina to serve a criminal sentence which had been imposed by a South Carolina court. South Carolina then released Kukla to Ohio via an Interstate Detainer Agreement and on June 13, 1995, Kukla was arraigned on the Ohio charges to which he entered pleas of not guilty. On July 7, 1995, in accordance with a plea bargained agreement, Kukla entered a plea of guilty to the charge of felonious assault and the prosecutor recommended that the aggravated robbery charge be dismissed. The court accepted Kukla's plea to felonious assault, made a finding of guilt, - 3 - nolled the charge of aggravated robbery, and referred the matter to the probation department for a pre-sentence report. On July 18, 1995, while the matter was pending sentence, Kukla filed a motion to withdraw his guilty plea. At the sentencing hearing on August 21, 1995, the court inquired as to the status of Kukla's request to withdraw his plea. Kukla's counsel stated that the issue had been resolved; accordingly, the court determined the motion withdrawn, and sentenced appellant to a term of incarceration of 10 to 15 years on the felonious assault charge. Kukla has now filed this delayed appeal from his conviction and assigns three errors for our review. The first states: I. THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON A MOTION TO WITHDRAW A GUILTY PLEA PURSUANT TO CRIMINAL RULE 32.1. Relying on Criminal Rule 32.1 and State v. Xie (1992), 62 Ohio St.3d 521, appellant contends that the trial court should have held a hearing to afford him an opportunity to be heard on his presentence motion to withdraw his guilty plea. The state maintains, however, that an inquiry by the court regarding the motion is sufficient in this case because defense counsel informed the court that issues raised by the motion had been resolved. - 4 - The matter then for our determination is whether the trial court erred by not conducting a hearing on Kukla's motion to withdraw his guilty plea in this case. Criminal Rule 32.1 provides: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. In accord with this rule, Kukla filed a motion to withdraw his plea prior to his sentencing. In State v. Xie, supra, the court stated in paragraph one of its syllabus: 1. A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. In this case, the transcript of proceedings prior to sentencing reflects the following: "THE COURT: All right. There was an earlier request apparently filed, at least July 18th, to withdraw a guilty plea. "MS. FISCHBEIN-COHEN: Yes. "THE COURT: Has that been resolved? "MS. FISCHBEIN-COHEN: That's been resolved. "THE COURT: So I'm going to mark that as withdrawn. Anything that you want to say on behalf of your client?" - 5 - Ms. Fischbein-Cohen then stated to the court, among other things, that her client accepted full responsibility for his actions. Subsequently, the court engaged in a colloquy with the appellant. It is clear from the record that at no time during this exchange did Kukla contradict the assertion of his counsel or attempt to indicate to the court that the issues raised in the motion to withdraw the guilty plea were not resolved. While State v. Xie, supra, requires a court to hold a hearing on a pre-sentence motion to withdraw a guilty plea, the trial court in this case indicated on the record its awareness of the motion suggesting its apparent intention to consider the matter at that time. Having been advised by defense counsel, however, that the motion had been resolved, the court had no obligation to pursue the matter further or to conduct an evidentiary proceeding on a moot issue. Thus, under the special circumstances of this case no hearing on the pre-sentence motion to withdraw the guilty plea was required and the court therefore did not err by failing to conduct such a proceeding. Accordingly, this assignment of error is overruled. The second assignment of error states: II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. - 6 - Kukla asserts the swift disposition of his case gave defense counsel no opportunity to investigate the facts and circumstances of his case nor prepare his defense which denied him effective assistance of counsel. The state, on the other hand, contends Kukla has failed to prove that he was denied effective assistance of counsel. The issue for us to resolve is whether Kukla has established denial of effective assistance of counsel in this case. To demonstrate denial of effective assistance of counsel, Kukla must meet the standards established in Strickland v. Washington (1984), 466 U.S. 668, as applied to guilty pleas in Hill v. Lockhart (1985), 474 U.S. 55: "that counsel's performance was deficient," and, "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty." In this regard, the record establishes the efforts undertaken by counsel: "MS. FISCHBEIN-COHEN: Your Honor, I have had numerous pretrial meetings with the prosecution. I've had substantial discovery. Furthermore, I have satisfied myself. Judge Michael Corrigan ordered Mount Sinai to make records available to me. I was able to see them at Mount Sinai. "Your Honor, I'm familiar with the case. I [have] explained all this to him in jail. I've seen him in the holding cell. We've spoken for a long time. Phillip, he knows what t h e evidence would be. He knows what his constitutional rights are. He knows what he is doing with this. - 7 - "Mr. Phillip on his own suggested to me that he wants to withdraw his previously entered plea of not guilty ***. This record establishes that Kukla's attorney, Ms. Fischbein-Cohen, became knowledgeable about the case and acted in accordance with her client's wishes regarding the plea bargain. Based upon this record, appellant failed to establish deficient performance by counsel. We cannot, therefore, conclude denial of effective assistance of counsel because the record demonstrates his counsel fully investigated all relevant surrounding facts and circumstances of the case in the course of her representation of him. Accordingly, this assignment of error is not well taken and it is overruled. The third assignment of error is as follows: III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO RAISE THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS PROVIDED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTI- TUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Kukla contends he has been denied effective assistance of counsel because his attorney failed to raise the issue of speedy trial, and because a delay of almost two years occurred between the time of his indictment and his trial. The state maintains that there are no grounds to Kukla's claim of ineffective counsel because Kukla's trial commenced within the statutorily defined period referred in R.C. 2945.71 and 2945.72. - 8 - The issue then for our determination is whether Kukla has established deficient performance by counsel in failing to raise the issue of speedy trial, and if so, whether such performance prejudiced his defense. To ascertain whether Kukla trial counsel was deficient in failing to raise the issue of speedy trial, we must initially review whether he was denied this right. To support his claim, Kukla argues that Doggett v. U.S. (1992), 505 U.S. 647, holds that a one year post-indictment delay is presumptively prejudicial to an accused and therefore, because there was a delay of almost two years between his indictment and trial, his right to speedy trial has presumptively been violated. However,the facts in Doggett are distinguishable from those in this case. That case concerned an eight and one-half year delay between indictment and arrest, predominately attributable to the government's negligence, which prejudiced the defendant's ability to present a defense. Here the delay between Kukla's indictment and trial is less than two years, attributable to Kukla who fled the state, not attributable to governmental negligence, and no evidence exists to suggest that the delay interfered with his ability to present a defense. Based on the foregoing, we conclude that Kukla's reliance on Doggett is misplaced. - 9 - In addition, relying on R.C. 2945.71, Kukla argues statutory denial of speedy trial, defined as 270 days, or 90 days if incarcerated. However, Kukla neglects to reference that time commences from the date of arrest, not indictment. Kukla's arrest on these charges did not occur until June, 1995 and the court scheduled his trial to commence on July 7, 1995, a period of only 37 days, which does not violate his right to speedy trial. Accordingly, we find that Kukla's right to a speedy trial was not violated in this case. Consequently, we conclude that Kukla has failed to demonstrate that his attorney's performance was deficient in failing to raise the issue of speedy trial. Accordingly, the assignment of error is without merit. In accordance with the foregoing analysis, the judgment of the trial court is affirmed. Judgment affirmed. - 10 - 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 Common Pleas Court 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. PORTER, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .