COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
 
                       COUNTY OF CUYAHOGA
 
                           No. 83107
 
STATE OF OHIO                :
                             :       JOURNAL ENTRY
    Plaintiff-Appellee       :
                             :           AND
    vs.                      :
                             :         OPINION
FRANK DUVALL                 :
                             :
    Defendant-Appellant      :
                             :
                             :
DATE OF ANNOUNCEMENT
OF DECISION                  :    FEBRUARY 12, 2004
                             :
CHARACTER OF PROCEEDINGS     :    Criminal appeal from
                             :    Common Pleas Court
                             :    Case No. CR-398606
                             :
JUDGMENT                     :    Reversed and Remanded.
 
DATE OF JOURNALIZATION       :
 
 
APPEARANCES:
 
For plaintiff-appellee:      WILLIAM D. MASON, ESQ.
                             Cuyahoga County Prosecutor
                             The Justice Center, 9th Floor
                             1200 Ontario Street
                             Cleveland, Ohio 44113
 
For defendant-appellant:     ROBERT L. TOBIK, ESQ.
                             Cuyahoga County Public Defender
                             BY: JOHN T. MARTIN, ESQ.
                                  Assistant Public Defender
                             1200 West Third Street N.W.
                             100 Lakeside Place
                             Cleveland, Ohio 44113
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -2-
 
FRANK D. CELEBREZZE, JR., J.:
 
     The appellant, Frank Duvall, appeals the ruling of the
 
Cuyahoga County Court of Common Pleas, Criminal Division, which
 
denied his post-sentence motion to withdraw his guilty plea without
 
first holding an evidentiary hearing. The facts of this case are
 
not in dispute; therefore, no exposition is necessary. For the
 
reasons set forth below, we reverse the ruling of the trial court.
 
     The appellant presents the following assignment of error for
 
review.
 
     "THE TRIAL COURT DENIED MR. DUVALL THE RIGHT TO TRIAL AND THE
 
RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND
 
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
 
ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT DENIED HIS MOTION TO
 
WITHDRAW HIS GUILTY PLEA WITHOUT EVEN GIVING HIM THE OPPORTUNITY TO
 
PRESENT EVIDENCE IN SUPPORT OF THE MOTION."
 
     Having considered the entire record on appeal, we are of the
 
opinion that the court abused its discretion by refusing to conduct
 
a hearing on the appellant's Crim.R. 32.1 post-sentence motion to
 
withdraw his guilty plea on the grounds of ineffective assistance
 
of counsel for failing to file a motion to dismiss on speedy trial
 
grounds. Because the record does not contain any evidence of a
 
valid parole holder, which might have tolled the speedy trial time
 
against the appellant, we find sufficient grounds exist to order
 
the court to conduct a hearing that gives the appellant the chance
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -3-
 
to argue his ineffective assistance of counsel claim and permits
 
the State an opportunity to offer whatever evidence it might have
 
to refute the speedy trial argument.
 
    We stress that our mandate is simply that the court conduct a
 
hearing under Crim.R. 32.1; the final decision to grant or deny the
 
motion to withdraw the guilty plea is within the trial court's sole
 
discretion. The appellant's assignment of error is sustained.
 
    Judgment reversed and remanded.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -4-
 
    This cause is reversed and remanded to the lower court for
 
further proceedings consistent with this opinion.
 
    It is, therefore, considered that said appellant recover of
 
said appellee costs herein.
 
    It is ordered that a special mandate issue out of this court
 
directing the common pleas court to carry this judgment into
 
execution.
 
    A certified copy of this entry shall constitute the mandate
 
pursuant to Rule 27 of the Rules of Appellate Procedure.
 
 
 
                                    FRANK D. CELEBREZZE, JR.
                                              JUDGE
MICHAEL J. CORRIGAN, A.J.,   AND
 
PATRICIA A. BLACKMON, J., CONCUR.
 
 
 
 
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. 22. 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 of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).
 
.