[Cite as State v. Jabbaar, 2013-Ohio-2897.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98218




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                         ALI JABBAAR
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                     Case No. CR-551246
                                   Application for Reopening
                                      Motion No. 465911

RELEASE DATE:                July 2, 2013
FOR APPELLANT

Ali Jabbaar, pro se
Inmate No. 623-086
Lebanon Correctional Institution
P.O. Box 56
Lebanon, Ohio 45036


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Brent C. Kirvel
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} On June 18, 2013, the applicant, Ali Jabbaar, pursuant to App.R. 26(B) and

State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this

court’s judgment in State v. Jabbaar, 8th Dist. No. 98218, 2013-Ohio-1655, in which this

court affirmed Jabbaar’s convictions for one count of kidnapping with a three-year

firearm specification and sexual motivation specification and one count of rape.   Jabbaar

maintains that his appellate counsel should have argued that the trial court erred in

denying his motion to dismiss on speedy trial grounds. For the following reasons, this

court denies the application to reopen.

       {¶2} In June 2011, the grand jury indicted Jabbaar on one count of kidnapping

with a sexual motivation specification, and three counts of rape with sexually violent

predator specifications, all with one- and three-year firearm specifications.   In January

2012, Jabbaar moved to dismiss on speedy trial grounds.         In February 2012, Jabbaar

accepted a plea bargain under which he pleaded guilty to one count of kidnapping with a

three-year firearm specification and a sexual motivation specification and one count of

rape; all the other counts and specifications were nolled.   The judge sentenced him to 13

years in prison.

       {¶3} On appeal, Jabbaar’s counsel argued that the plea was not knowingly,

voluntarily, and intelligently made because the judge coerced the plea by improper
participation in the plea bargaining.   This court rejected that argument and affirmed.

Jabbaar now argues that his appellate counsel was ineffective because he should have

raised the speedy trial argument that Jabbaar was in jail for more than 90 days, and the

continuances were improper because Jabbaar did not consent to them.

       {¶4} In order to establish a claim of ineffective assistance of appellate counsel,

the applicant must demonstrate that counsel’s performance was deficient and that the

deficient performance prejudiced the defense.     Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990); and

State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).

       {¶5}    In the present case, appellate counsel properly rejected arguing speedy trial

violations. In State v. Kelly, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two

of the syllabus, the Supreme Court of Ohio held that a plea of guilty effectively waives all

appealable errors, unless such errors are shown to have precluded the defendant from

voluntarily entering into the plea. Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d

581 (1986). In both Kelly and Greeno, the Supreme Court of Ohio ruled that a guilty

plea foreclosed the right to assert on appeal the issue of the denial of a speedy trial.

Thus, Jabbaar does not establish a genuine issue as to the effectiveness of appellate

counsel.

       {¶6} Accordingly, this court denies the application to reopen.
__________________________________________________
MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
