COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73689 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY vs. : : AND MICHAEL BOLDING : : OPINION Defendant-Appellant : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-338932 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor R. PAUL CUSHION, II, ESQ. Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: MICHAEL L. BOLDING, Pro Se Inmate No. 340-815 Belmont Correctional Inst. P. O. Box 540 St. Clairsville, Ohio 43950 PER CURIAM: Appellant Michael Bolding appeals his convictions for drug trafficking and criminal tools. Bolding argues the trial court should have granted his pre-sentence motion to withdraw his guilty -2- plea to these charges. He assigns the following errors for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING THE DEFENDANT-APPELLANT THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEAS PRIOR TO SENTENCING. II. THE DEFENDANT-APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE AND THE CUMULATIVE EFFECT OF HIS ERRORS RESULTED IN A DENIAL OF THE DEFENDANT- APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Having reviewed the record and legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Appellant Michael Bolding was charged under a three count indictment of aggravated drug trafficking; drug trafficking; and possession of criminal tools. Thereafter, he entered into plea negotiations with the state and pleaded guilty to drug trafficking and possession of criminal tools. The aggravated trafficking count was dismissed by the state. The prosecutor outlined for the court the sentence. In substance he stated on the record that Bolding would serve two years for drug trafficking and one year for possession of criminal tools. The prosecution then set forth the penalty for felonies Bolding was charged with as eighteen months or two years for count two, and twelve to eighteen months for count three. He also stated the fines. The judge then asked Bolding's lawyer if this was his understanding, to which he replied yes. The court then addressed Bolding. The following sets forth the court's and Bolding's dialogue: -3- THE COURT: Are you happy with the representation of Mr. Giuliani as your attorney? THE DEFENDANT: Very. THE COURT: The bottom line is that I could send you to jail for a year, 18 months, two years. And you and your attorney's agreed sentence is two years actual incarcera- tion, which means you have to do two years. Do you understand that? THE DEFENDANT: Yes, your Honor. THE COURT: All right. In Count Three what you are pleading to is a felony of the fourth degree. That's a lesser felony. The bottom line is I could sentence you to jail for six, 12 or 18 months. And the agreement is that you will serve a year on that actual, and that year will be served consecutive which means you do the first two years first and then you do the second year. Do you understand that? THE DEFENDANT: Yes. Thereafter, he pleaded guilty and the matter was set for sentencing. However, before sentencing, Bolding and his new counsel appeared before the court on a motion to withdraw his guilty pleas and proceeded to trial. His attorney in argument stated to the court that Bolding knew what he was doing at the plea hearing and was satisfied with his lawyer. He argues Bolding was expecting a suppression hearing at the time of plea bargaining, but was told by his lawyer that he would be crazy to go forward. He also argued his lawyer led him to believe that he would serve no more than two years but with good -4- behavior could be out in 15 to 18 months. After hearing this argument, the trial court reviewed the transcript of the plea hearing with Bolding, and thereafter, denied his motion. He was sentenced accordingly. In his first assignment of error he argues the trial court erred in not granting his motion to withdraw his guilty pleas. The withdrawal of a guilty plea is not an absolute right. The trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal. It is within the sound discretion of the trial court to grant the motion or not. State v. Xie (1992), 62 Ohio St.3d 521. A trial court abuses that discretion when it acts unreasonably, arbitrarily, and unconscionably. Id. at 527. The issue for us is whether the trial court acted unreasonably in denying the motion to withdraw Bolding's plea prior to sentence. During the argument his attorney stated that his argument was not that Bolding did not understand the sentence, knowingly plea, or was unhappy with his lawyer's representation, but that Bolding was misled and under duress when he pled, and as such, the plea is defective. We disagree. The trial court held a hearing and reviewed the plea hearing transcript and in that transcript, it showed that the trial court and prosecution stated numerous times that Bolding would be in prison for three years. Consequently, we conclude his first assigned error is overruled. In his second assigned error, he argues his lawyer was ineffective. We disagree. It is axiomatic that a claim of -5- ineffective assistance of counsel must be raised with sufficient clarity to indicate a substantive violation of an essential duty. State v. Wilcox (1984), 16 Ohio App.3d 273, 276. This means that the defendant must show deficient performance and prejudice. Both showings must be made. Id., Strickland v. Washington (1984), 466 U.S. 668, 697; State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, certiorari denied (1990), 497 U.S. 1011. In applying this test to the facts herein, we cannot conclude that Bolding's lawyer's conduct was deficient or prejudicial. Deficient performance means that the lawyer's conduct is so serious as to deprive Bolding of a fair trial; a trial whose results are reliable. Strickland, supra at 687. The record showed Bolding stated to the court that he was satisfied with his lawyer's performance. In the plea negotiations, the lawyer was successful in getting the aggravated drug trafficking dismissed. Based on this record, we cannot say the lawyer's performance was deficient. Consequently, we do not reach the second prong of Strickland. Nevertheless, Bolding argues the lawyer's misinformation resulted in the plea. There is nothing in this record that validates this allegation. Every aspect of the record validates the contrary. Regardless of Bolding's indication that his lawyer misled him, he learned in open court that the term of prison was three years from the judge and the prosecution. The pretrial motions became moot once Bolding knowingly entered into the plea bargaining. His attorney, who argued the motion to withdraw in his argument, stated that Bolding understood -6- the consequences of his plea. One of the consequences of the plea is that all motions become moot once the plea is entered. Bolding could have had a valid argument to support his motion to suppress but opted to waive in light of the plea bargaining. This is not unusual. During the May 30, 1997 hearing, Bolding was represented by Attorney Libert Pinto. Attorney Pinto argued the motion to withdraw. Thereafter, the trial court rescheduled for sentencing with Bolding's original attorney Giuliani. He was scheduled for sentencing on June 4, 1997. However, the matter was continued until June 6, 1997, and Bolding appeared with new counsel Wolf and was sentenced. This court is at a loss to see how Bolding was prejudiced by Giuliani's failed appearance. Apparently, he was no longer Bolding's lawyer. Consequently, Bolding's second assigned error is overruled. Judgment affirmed. 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. ______________________________ PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE ______________________________ JOSEPH J. NAHRA, JUDGE ______________________________ MICHAEL J. CORRIGAN, JUDGE 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 .