[Cite as State v. Ferguson, 2016-Ohio-8537.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                   No. 16AP-307
v.                                               :              (C.P.C. No. 12CR-2698)

Theo Ferguson,                                  :            (ACCELERATED CALENDAR)

                 Defendant-Appellant.            :



                                           D E C I S I O N

                                   Rendered on December 30, 2016


                 On Brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellant.

                 On Brief: Theo Ferguson, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Theo Ferguson, appeals from a judgment of the
Franklin County Court of Common Pleas denying his post-sentence motion to withdraw
guilty plea. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background

        {¶ 2} In 2012, appellant was indicted with six counts of trafficking cocaine and
one count of aggravated trafficking in drugs. On January 10, 2014, he entered a guilty
plea to three felony counts of trafficking cocaine. Appellant signed an "Entry of Guilty
Plea" form which informed him that he faced a total maximum prison term of 21 years.
The trial court accepted his guilty plea and found him guilty. On February 13, 2014, the
trial court sentenced appellant to a total prison term of eight years. According to a journal
entry filed the next day, appellant announced in open court after hearing his sentence that
his trial counsel previously told him that he would only receive a four-year prison
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No. 16AP-307
sentence. His trial counsel disputed that representation. In light of that conflict, the trial
court replaced appellant's trial counsel with an attorney from the Franklin County Public
Defender's Office. The trial court scheduled a status conference for February 21, 2014 to
allow appellant time to consult with his new attorney and to consider whether to file a
motion to withdraw his guilty plea or take other action.
       {¶ 3} On the day of the status conference, the trial court filed a document entitled
"Waiver of Rule 32.1 Motion to Vacate Guilty Pleas." In that form, which appellant
signed, appellant acknowledged that he had considered his options after consulting with
his newly-appointed attorney.      He then stated that he "knowingly, intelligently and
voluntarily waive[d] my opportunity to submit a Criminal Rule 32.1 request to vacate my
guilty pleas." He also stated that "[n]o promises of any sort, and no pressure of any sort
has caused me to forego the opportunity to file a motion to vacate my pleas."
       {¶ 4} Notwithstanding that form, and almost two years later on January 14, 2016,
appellant filed a motion to withdraw his guilty plea. In his motion, appellant argued that
his original trial counsel was ineffective for not filing a motion to dismiss his indictment
due to a violation of his right to a speedy trial. The trial court denied the motion to
withdraw guilty plea, pointing to appellant's waiver and his failure to set forth sufficient
grounds for vacating his plea.
II. Appellant's Appeal

       {¶ 5} Appellant appeals the trial court's decision and assigns the following error:
               The Trial Court erred by Denying the Appellant's Motion to
               Withdraw Plea in violation of the 6th and 14th Amendments to
               the United States and Ohio Constitutions, and Ohio Statutory
               Law.

   A. Did the Trial Court Properly Deny Appellant's Post-Sentence Motion to
      Withdraw?

       {¶ 6} Appellant argues that the trial court erred by denying his motion to
withdraw his guilty plea. We disagree.
   B. Standard of Review

       {¶ 7}   Crim.R. 32.1 permits a motion to withdraw a guilty plea "only before
sentence is imposed; but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to withdraw his or her plea."
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No. 16AP-307
It is the defendant who has the burden of establishing the existence of a manifest injustice
warranting the withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261 (1977),
paragraph one of the syllabus. A manifest injustice has been defined as a "clear or openly
unjust act." State v. Lampson, 10th Dist. No. 09AP-1159, 2010-Ohio-3575, ¶ 6, citing
State v. Honaker, 10th Dist. No. 04AP-146, 2004-Ohio-6256, ¶ 7. A manifest injustice
relates to some fundamental flaw in the proceedings which results in a miscarriage of
justice or is inconsistent with the demands of due process. State v. Chandler, 10th Dist.
No. 13AP-452, 2013-Ohio-4671, ¶ 6. Manifest injustice " 'is an extremely high standard,
which permits a defendant to withdraw his guilty plea only in extraordinary cases.' " State
v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6, quoting State v. Price, 4th
Dist. No. 07CA47, 2008-Ohio-3583, ¶ 11.
       {¶ 8} The decision whether to grant or deny a motion to withdraw guilty plea is
left to the discretion of the trial court. Smith at paragraph two of the syllabus; Chandler
at ¶ 8. Therefore, this court's review of the trial court's denial of a post-sentence motion to
withdraw a guilty plea is limited to a determination of whether the trial court abused its
discretion. State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 16. Absent an
abuse of discretion on the part of the trial court, a decision concerning a post-sentence
motion to withdraw guilty plea must be affirmed. State v. Xie, 62 Ohio St.3d 521, 527
(1992). An abuse of discretion is typically defined as an unreasonable, arbitrary, or
unconscionable decision.      State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-
3654, ¶ 8. However, no court has the authority, within its discretion, to commit an error
of law. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
   C. Analysis

       {¶ 9} In light of appellant's express waiver of the opportunity to submit a motion
to withdraw his guilty plea, coupled with the two-year delay in filing his motion, we
cannot say that the trial court abused its discretion by denying the motion. Appellant
signed the waiver after consulting with a new attorney who would have reviewed
appellant's case. Appellant expressly acknowledged that he signed the waiver knowingly,
intelligently, and voluntarily. Further, an " 'undue delay between the occurrence of the
alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1
is a factor adversely affecting the credibility of the movant and militating against the
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No. 16AP-307
granting of the motion.' " State v. Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 14,
quoting State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 14; State v. Carmon, 10th
Dist. No. 11AP-818, 2012-Ohio-1615, ¶ 9. Here, appellant alleges that the speedy trial
violation occurred as early as his arraignment in the trial court on February 1, 2013. Yet,
he did not file this motion until January 14, 2016, almost three years after the alleged
violation and almost two years after he raised the withdrawal issue and then expressly
waived the opportunity to file a motion to withdraw after consulting with a new attorney.
Appellant does not explain this lengthy delay. This unexplained delay supports the trial
court's denial of his motion.
       {¶ 10} We also reject appellant's argument that he should be permitted to
withdraw his guilty pleas because his trial counsel was ineffective. Ineffective assistance
of counsel can form the basis for a claim of manifest injustice to support withdrawal of a
guilty plea pursuant to Crim.R. 32.1. State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-
3813, ¶ 18 (10th Dist.). A defendant seeking to withdraw a guilty plea based on ineffective
assistance of counsel must show first that counsel's performance was deficient, and
second that there is a reasonable probability that, but for counsel's errors, the defendant
would not have agreed to plead guilty.         Xie at 524.     In order to show counsel's
performance was deficient, the appellant must prove that counsel's performance fell
below an objective standard of reasonable representation. State v. Jackson, 107 Ohio
St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687
(1984). The appellant must overcome the strong presumption that defense counsel's
conduct falls within a wide range of reasonable professional assistance. Id. at 689. To
show prejudice, the appellant must establish that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 204.
       {¶ 11} Appellant specifically contends his counsel was ineffective for failing to file a
motion to dismiss the charges because his statutory speedy trial rights were violated.
When a claim of ineffective assistance of counsel is based on counsel's failure to file a
particular motion, a defendant must show that the motion had a reasonable probability of
success. Carmon; State v. Barbour, 10th Dist. No. 07AP-841, 2008-Ohio-2291, citing
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No. 16AP-307
State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577 (4th Dist.). Appellant fails to meet
that burden in this case.
        {¶ 12} An accused is guaranteed the constitutional right to a speedy trial pursuant
to the Sixth and Fourteenth Amendments of the United States Constitution and Ohio
Constitution, Article I, Section 10. State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017,
¶ 32. Ohio's speedy trial statutes, found in R.C. 2945.71 et seq., were implemented to
enforce those constitutional guarantees. Brecksville v. Cook, 75 Ohio St.3d 53, 55 (1996);
State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, ¶ 10. The proper standard of
review in speedy trial cases is to simply count the number of days passed, while
determining to which party the time is chargeable, as directed in R.C. 2945.71 and
2945.72. State v. Jackson, 10th Dist. No. 02AP-468, 2003-Ohio-1653, ¶ 32, citing State v.
DePue, 96 Ohio App.3d 513, 516 (4th Dist.1994). Because appellant faced felony charges
in this case, the state had to bring him to trial within 270 days of his arrest. R.C.
2945.71(C)(2).
        {¶ 13} Appellant argues that the 270 days should be counted beginning on April 7,
2012, the date of his initial arrest and arraignment in the Franklin County Municipal
Court.1    Accordingly, appellant argues that the 270 days had elapsed when he was
subsequently arrested and arraigned in the trial court for this indictment on February 1,
2013. He argues that his trial counsel was ineffective for not requesting the dismissal of
the indictment based on the violation of his right to a speedy trial. We disagree.
        {¶ 14} Appellant's argument does not take into account the dismissal of the initial
municipal court charges on April 17, 2012, an act that stopped the speedy trial clock until
his arrest and indictment on the present charges. State v. Bayless, 10th Dist. No. 02AP-
215, 2002-Ohio-5791, ¶ 20, citing State v. Broughton, 62 Ohio St.3d 253 (1991). Because
we do not count the days between the municipal court dismissal and subsequent
indictment in this case, appellant's argument fails.2 State v. Loel, 10th Dist. No. 13AP-
874, 2014-Ohio-3045, ¶ 9-13 (rejecting same argument because "the days between the
dismissal of the complaint in the municipal court and the filing of the indictment in the

1 Appellant concedes that he was not being held in jail during this time, so the triple-counting provisions in

R.C. 2945.71(E) do not apply.

2 Additionally, after his arrest, appellant agreed to multiple continuances and waivers of his right to a speedy
trial which tolled most, if not all, of the remaining days before his guilty plea.
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No. 16AP-307
common pleas court based on the same facts are not counted in this speedy trial analysis.
Without those days, appellant cannot establish a statutory violation of his right to a
speedy trial"); State v. Diallo, 10th Dist. No. 12AP-388, 2013-Ohio-1248, ¶ 17 (same).
Because a motion based on this argument does not have a reasonable probability of
success, appellant's ineffective assistance of counsel claim also fails.
III. Conclusion

       {¶ 15} The trial court did not abuse its discretion when it concluded that appellant
failed to demonstrate a manifest injustice that would warrant the withdrawal of his guilty
plea. Accordingly, we overrule appellant's assignment of error and affirm the judgment of
the Franklin County Court of Common Pleas.
                                                                           Judgment affirmed.
                             TYACK and HORTON, JJ., concur.
