State v. Slater

[Cite as State v. Slater, 

.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                            No. 111536
                 v.                               :

DANIEL SLATER,                                    :

                 Defendant-Appellant.             :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 2, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-20-651514-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Zachary W. Anderson, Assistant
                 Prosecuting Attorney, for appellee.

                 Richard E. Hackerd, for appellant.

EILEEN A. GALLAGHER, P.J.:

                 Defendant-appellant Daniel Slater (“Slater”) appeals his convictions

for aggravated vehicular assault and operating a vehicle while under the influence

of alcohol, convictions sustained through guilty pleas entered in the Cuyahoga

County Court of Common Pleas. He contends that his trial counsel was ineffective
and that the trial court erred by not dismissing the indictment, sua sponte, to

preserve his speedy-trial rights. For the reasons that follow, we affirm.

I.   Factual Background and Procedural History

             On September 29, 2020, a Cuyahoga County Grand Jury indicted

Slater for aggravated vehicular assault and operating a vehicle while under the

influence of alcohol or drugs. The charges stem from a vehicle collision that

occurred on June 30, 2020. The state related at the sentencing hearing that Slater

was “driving around 60 miles per hour” down a residential street, drove through a

four-way-stop intersection without stopping and struck another vehicle. The state

said the other vehicle flipped over and collided with at least one nearby parked

vehicle. The two occupants of the flipped vehicle were injured; one suffered a broken

arm and the other suffered a fractured pelvis, liver lacerations and spleen damage

significant enough to require surgical removal of the spleen. Hospital staff drew

Slater’s blood at the hospital after the accident and, according to the state, Slater’s

blood alcohol concentration was found to be “about three times the legal limit.”

             On January 11, 2022, the trial court held a hearing and addressed a

letter Slater had written to the court requesting that the court disqualify defense

counsel. Slater complained that his counsel was not communicating with him to his

satisfaction. In discussing that complaint, Slater said the following:

      Like, when this case first happened, you know, he was asking me things
      like he should, like, you know, about the case, like, being at the hospital,
      did I give them my permission to take blood and all that. I never gave
      nobody permission to do any of that. Like, you know what I’m saying?
      Like, it went from that to just straight — just, jail, jail, jail, jail, jail.
              The state described the circumstances of the blood draw at the hearing

as follows:

      The defendant was incapacitated, and there they were trying to perform
      surgery to repair some damage to a wrist. And the blood law, which is
      a non-State action under — counsel and I have gone back and forth
      about this. His blood alcohol content was .243, which is about three
      times the legal limit.

              Slater ultimately changed his mind as to the motion to disqualify,

confirming to the court at the hearing that he could work with defense counsel.

              On March 4, 2022, Slater pleaded guilty to two counts of aggravated

vehicular assault in violation of R.C. 2903.08(A)(1)(a) and one count of operating a

vehicle under the influence of alcohol or drugs (“OVI”) in violation of R.C.

4511.19(A)(1)(g). The remaining counts in the indictment were dismissed.

              On April 5, 2022, the trial court sentenced Slater to four years in prison

on each of the aggravated-vehicular-assault counts and six months in county jail on

the OVI count. The court imposed the felony sentences consecutively; the OVI

sentence was run concurrently to the first felony prison sentence. In the aggregate,

the trial court sentenced Slater to eight years in prison. Slater received jail-time

credit for 182 days.

              Slater appealed and raises two assignments of error for review:

      First Assignment of Error: The trial [c]ourt committed plain error
      when it denied Daniel Slater his constitutional right to a speedy trial as
      guaranteed under the United States and Ohio constitutions.

      Second Assignment of Error: Appellant’s trial counsel was ineffective
      when he failed to file a motion to suppress evidence or a motion to
      dismiss for want of speedy trial.
II. Law and Analysis

       A. First Assignment of Error – Speedy Trial

              “A criminal defendant has a right to a speedy trial under the Ohio

Revised Code, the Ohio Constitution, and the Fifth and Sixth Amendments to the

United States Constitution.” State v. Adams, 

, 

,

; see also State v. Taylor, 

, 

, 

 (“In addition [to a defendant’s statutory speedy-trial rights], an

accused is guaranteed the constitutional right to a speedy trial pursuant to the Sixth

and Fourteenth Amendments to the United States Constitution and Section 10,

Article I of the Ohio Constitution.”). While Slater’s assignment of error only

references his constitutional right to a speedy trial, he argues that both his statutory

and constitutional speedy-trial rights were violated in this matter. We find no merit

to the argument, because Slater waived his statutory speedy-trial rights by pleading

guilty and there was no violation of his constitutional speedy-trial rights.

       1.   Ohio’s Speedy Trial Act

                Ohio law requires that “[a] person against whom a charge of felony is

pending … [s]hall be brought to trial within two hundred seventy days after the

person’s arrest.” R.C. 2945.71(C)(2).1 “The day of arrest does not count when

computing speedy-trial time.” E.g., Adams at ¶ 82, fn. 7. Further, “each day during


       1   Misdemeanor charges must be brought to trial more quickly — R.C.
2945.71(B) — but where a combination of felonies and misdemeanors in an indictment
“all arose out of the same act or transaction,” as here, the defendant must be brought to
trial “on all of the charges within the time period required for the highest degree of offense
charged.” R.C. 2945.71(D).
which the accused is held in jail in lieu of bail on the pending charge shall be counted

as three days.” R.C. 2945.71(E). But the time in which an accused must be brought

to trial may be extended under certain circumstances. E.g., Cleveland v. Thurman,

8th Dist. Cuyahoga No. 111410, 

; see also R.C. 2945.72.

              The parties agree that certain tolling events occurred in this case but

disagree about the extent of the tolling. Slater says that the speedy-trial computation

between his arrest and guilty plea is 622 days. The state’s computation is 130 days.

We need not address which computation is correct in considering Slater’s statutory-

speedy-trial arguments, though, because Slater waived his statutory speedy-trial

rights.

               When a defendant enters a guilty plea, they generally waive all

appealable errors that may have occurred unless those errors are shown to have

precluded the defendant from entering a knowing and voluntary plea. State v.

Jabbaar, 8th Dist. Cuyahoga No. 98218, 

; State v. Milczewski,

8th Dist. Cuyahoga No. 97138, 

; State v. Kelley, 

, 

 (1991), paragraph two of the syllabus. A defendant waives their

statutory speedy-trial rights by entering a guilty plea. Kelley at paragraph one of the

syllabus (“A plea of guilty waives a defendant’s right to challenge his or her

conviction on statutory speedy trial grounds pursuant to R.C. 2945.71(B)(2).”); see

also, e.g., State v. Branch, 

, 

 (8th Dist.1983).

               Because Slater pleaded guilty, he waived his statutory speedy-trial

rights and cannot assert a violation of them on appeal.
      2. Constitutional Right to a Speedy Trial

               Although a defendant generally waives his statutory right to a speedy

trial by pleading guilty, our court has held that a defendant does not waive his

constitutional right to a speedy trial by doing so. See State v. Forrest, 8th Dist.

Cuyahoga No. 109230, 

 (collecting cases and citing 

).2 A defendant’s constitutional speedy-trial rights under the United States and

Ohio Constitutions are “essentially equivalent.”         See State v. Winn, 8th Dist.

Cuyahoga No. 98172, 

, citing State v. Butler, 

, 

 (1969).

               Our review of an alleged constitutional speedy-trial violation presents

a mixed question of law and fact. State v. Long, 

, 2020-Ohio-

5363, 

; see also, e.g., State v. Miller, 8th Dist. Cuyahoga No.



      2 The state did not brief  any argument that Slater waived his constitutional speedy-trial rights by pleading guilty. We continue to acknowledge, as our court did in Forrest,
that there is a split among Ohio appellate districts that have considered whether a
defendant waives the constitutional right, as opposed to the statutory right, by pleading
guilty. See Forrest at ¶ 10, fn. 2. In fact, our district may be an outlier in that we
consistently analyze constitutional speedy-trial arguments where a defendant has pleaded
guilty. See, e.g., State v. Robinson, 8th Dist. Cuyahoga No. 110467, 

;
State v. Cooke, 8th Dist. Cuyahoga No. 108824, 

, ¶ 40; compare State v.
Watson, 

, 

 (1st Dist.); State v. Bowman, 3d Dist.
Crawford No. 3-89-18, 

, 17 (Dec. 21, 1990); State v. Dickens,
4th Dist. Meigs No. 05CA14, 

; State v. Phelps, 5th Dist. Fairfield No.
21CA12, 

, 35–36; State v. Glanton, 6th Dist. Wood No. WD-18-091,

; State v. Smith, 7th Dist. Columbiana No. 

, 2007-Ohio-
6913, ¶ 9–10; but see State v. Williams, 9th Dist. Medina No. 2273-M, 

, 4–5 (Apr. 20, 1994) (agreeing that a defendant does not waive their
constitutional speedy-trial rights by pleading guilty); see also State v. Mize, 2022-Ohio-
3163, 

, ¶ 46–50 (2d Dist.) (acknowledging that the Second District has
taken “competing approaches” on the issue), citing State v. Johnson, 2d Dist. Greene No.
2013-CA-1, 

.
109130, 

, citing State v. Barnes, 8th Dist. Cuyahoga No.

90847, 

. We defer to the trial court’s factual findings if they

are supported by competent, credible evidence but we review the application of the

law to those facts de novo. 

. Here, there were no factual findings

because Slater never asserted his speedy-trial rights for consideration by the trial

court.

               ‘“In examining a constitutional claim on speedy trial grounds, the

statutory time requirements of R.C. 2945.71 to 2945.73 are not relevant; instead,

courts should employ the balancing test enunciated by the United States Supreme

Court[.]”’ Miller at ¶ 45, quoting State v. Cochern, 8th Dist. Cuyahoga No. 104960,

; see Barker v. Wingo, 

, 

, 

 (1972). The U.S. Supreme Court identified the balancing test factors as:

(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion

of their right and (4) prejudice to the defendant as a result of the delay. See Barker

at 531–532.

          a. Length of the Delay

              Slater was arrested on June 30, 2020 and pleaded guilty on March 4,

2022. After considering the nature of the charges, we find the delay in this

matter — approximately 20 months — to be presumptively prejudicial. See 

 (“Generally, a delay that approaches one year is presumptively prejudicial.”),

citing Doggett v. United States, 

, 

, 

(1992), fn.1 (“Depending on the nature of the charges, the lower courts have
generally found postaccusation delay ‘presumptively prejudicial’ at least as it

approaches one year.”). Therefore, the first Barker factor weighs in Slater’s favor

and we continue with an analysis of the remaining factors. See Adams, 

, 

, 

 (“[L]ength of delay serves as a

triggering mechanism for the rest of the Barker analysis.”).

          b. Reason for the Delay

               The second factor strongly favors the state, since the vast majority of

the delay in this case was attributable to Slater.

             i. June 30 – October 14, 2020

               Slater was arrested on June 30, 2020 and remained in jail until he

was released on bond on July 3, 2020. The parties agree that these days are

attributable to the state.

               The Grand Jury indicted Slater on September 29, 2020 and a

summons was issued for an arraignment to be held on October 14, 2020. The parties

agree that the time between Slater’s release on bond and the date of the arraignment

is also attributable to the state.3 Thus, the entire three-and-a-half-month period of

June 30 to October 14, 2020, is attributed to the state.




      3 See also, e.g., State v. Tuttle, 8th Dist. Cuyahoga No. 110508, 

 (“When the subsequent charges arise out of the initial arrest and are not based on
any new facts discovered by the state, the date of the original arrest commences the
speedy trial clock.”), citing State v. Parker, 

, 

, 

.
                ii. October 15, 2020 – January 29, 2021

                 Slater failed to appear at the arraignment on October 14 and a capias

was issued for his arrest. Slater was taken back into custody on January 29, 2021.

The parties agree that this three-and-a-half-month period is attributable to Slater.

E.g., Cochern, 8th Dist. Cuyahoga No. 104960, 

.

                iii. January 30 – February 9, 2021

                 After Slater’s rearrest, he was arraigned on February 2, 2021 and was

released on bond on February 4, 2021. The parties agree that the six days Slater

spent in jail between his rearrest and arraignment are attributable to the state.

                 The trial court held a telephonic pretrial hearing on February 9, 2021.

The five days between Slater’s release on bond and this pretrial are also attributed

to the state.

                iv. February 10 – June 16, 2021

                 After the pretrial, the court journalized an order continuing the

pretrial “at the request of Defendant” “for ongoing discovery.” The court’s order also

stated that a continuance of the trial was necessary “for the administration of justice”

due to the challenges posed by the COVID-19 pandemic and pursuant to the

common pleas court’s November 18, 2020 administrative order regarding the

conduct of jury trials.

                 The trial court held another pretrial conference on March 1, 2021,

continuing the case without setting a new trial date for the same reasons — ongoing

discovery at Slater’s request and because of COVID-19.
                 Another pretrial conference was held on March 31, 2021. The court

set a trial date of June 30, 2021 and noted that the continuance of the trial was for

the same two reasons — for ongoing discovery at Slater’s request and because of

COVID-19.

                 The trial court held pretrial hearings on April 22, May 5 and May 25,

2021. Each time, the trial court reiterated that the trial remained set for June 30,

2021 and noted that Slater requested the time “for ongoing discovery.”4

                 The parties disagree about the allocation of the four months and one

week that passed between the February 9, 2021 pretrial and the June 16, 2021

pretrial (discussed further below). Slater says the time should be attributed to the

state because the administrative orders issued by the common pleas court regarding

COVID-19 were unconstitutional and because they do not apply to him. The state

counters that the orders were valid and suspended jury trials until April 26, 2021

and that Slater requested all these continuances to review discovery.

                 We agree with the state and we need not address Slater’s arguments

directed at the COVID-19 administrative orders because Slater requested these

continuances. Slater points to nothing in the record that contradicts the trial court’s

statements in its journal entries that the defense requested these continuances to

exchange and review discovery. See Tuttle, 8th Dist. Cuyahoga No. 110508, 2022-

Ohio-303, at ¶ 38 (“[C]ontinuances at the defendant’s request are tolling events.



      4   The April 22, 2021 pretrial was also continued due to the COVID-19 pandemic.
… Without any evidence or indication from the record that the state was hindering

[the defendant’s] discovery requests or preparation, or that the continuances were

in fact not at [the defendant’s] request, this time period is tolled for speedy trial

purposes.”). It is not unreasonable to expect that the defense would request just

over four months to complete discovery and prepare for trial in this matter.

             v. June 17 – October 30, 2021

               If trial had commenced on June 30, 2021, as scheduled, Slater would

have faced trial approximately five months after his arraignment. Instead, the trial

court was forced to continue the trial date because Slater failed to appear at a pretrial

hearing on June 16, 2021, two weeks before trial. A capias was issued and Slater was

taken back into custody on October 30, 2021. The parties agree that this period of

time, approximately four and a half months, is attributable to Slater.

             vi. October 31 – November 4, 2021

               After Slater’s third arrest, the trial court set a pretrial conference for

November 4, 2021. The trial court indicated that this was a continuance “at the

request of Defendant” “for ongoing discovery,” but there is no indication on the

docket that Slater or his counsel was in court to make such a request or otherwise

made the request. Even attributing the five days Slater spent in jail before this

pretrial to the state, we would not find a speedy-trial violation.

             vii. November 5, 2021 – March 2, 2022

               The trial court held a pretrial hearing on November 4, 2021. The

court continued the pretrial without setting a trial date “at the request of Defendant”
because the “attorney for Defendant has entered into plea negotiations on this case

with the state.” The trial court held pretrial hearings on November 22, November 30

and December 14, 2021, each time continuing the matter for another pretrial

without setting a trial date. Each continuance was noted to have been made at

Slater’s request to allow for plea negotiations or to receive and review discovery.5

                 Slater filed his motion to disqualify his counsel on December 21,

2021.

                 The trial court held another pretrial hearing on January 3, 2022. The

court again continued the pretrial “at the request of defendant” “for ongoing

discovery and hearing on Defendant’s request to disqualify counsel.” The court also

noted that Slater was in medical isolation in the county jail.

                 The trial court held a pretrial hearing on January 11, 2022, during

which it addressed Slater’s motion to disqualify. After this hearing, the court set a

trial date of March 8, 2022.

                 The trial court held a pretrial hearing on February 24, 2022. The

court continued the pretrial “at the request of Defendant” “for ongoing plea

negotiations.”




        5 The continuances granted on November 4, November 22 and November 30, 2021

were attributed to plea negotiations. The continuance granted on December 14, 2021 was
attributed to ongoing discovery.
                 The entire period of time from November 5, 2021 to March 2, 2022 is

attributable to continuances granted at Slater’s request for discovery and plea

negotiations and to address his pro se motion to disqualify his counsel.

                viii. March 3–4, 2022

                 The trial court held another pretrial hearing on March 2, 2022. The

court continued the pretrial “at the request of Defendant” because “Defendant’s

attorney and Defendant discussed plea negotiations” and “Defendant does not want

to take the plea.” The court noted that the trial remains set for March 8, 2022.

Therefore, we attribute the two days between this pretrial and the March 4 hearing

to the state.

                 On March 4, 2022, Slater pleaded guilty.

                ix. Weighing This Factor

                 Approximately 20 months passed between Slater’s initial arrest and

his entry of a guilty plea.

                 At most, the state is responsible for a little over four months of that

delay — (1) June 30 to October 14, 2020 (3.5 months); (2) January 30 to February

9, 2021 (11 days); (3) October 31 to November 4, 2021 (5 days) and (4) March 2 to

March 4, 2022 (2 days). For most of the time chargeable to the state, Slater was not

in pretrial detention.     Moreover, Slater does not allege that any of the delay

chargeable to the state was due to “[d]eliberate attempts to hamper the defense.”

See Barker, 

, 

, 

. Indeed, he does not

even argue that the state was negligent. See 

               On the other hand, Slater is responsible for approximately eight

months of delay by virtue of his failures to appear. His first failure to appear delayed

his arraignment by three and a half months and his second failure to appear

occurred two weeks prior to a scheduled trial and required the continuance of the

trial. During all of this time on capias, Slater was not in pretrial detention.

               More than six months were attributed to continuances made at

Slater’s request for ongoing discovery. As stated above, there is nothing in the record

to suggest that the state was hindering discovery or — with the exception noted

above at paragraph 31, which we have charged to the state — that Slater did not make

these requests. We also note that the timing of the requests supports a conclusion

that Slater’s own failure to appear contributed to these delays. A little over four

months of discovery-related delay occurred between Slater’s arraignment in

February 2021 and the scheduled trial on June 30, 2021, during which it is

reasonable to expect that the defense was obtaining and reviewing the discovery and

preparing for trial. Slater then failed to appear and he was not rearrested for over

four months. The defense requested a little less than three months for discovery-

related purposes after Slater’s rearrest. In the absence of any evidence in the record

to suggest otherwise, we do not find this to be an unreasonable amount of time

necessary for the defense to refresh itself on the evidence and prepare for the new

trial scheduled for June 30, 2022. In particular, we note that the prosecutor stated

on the record that defense counsel had been “back and forth” with the state about
the legality of the hospital’s blood draw.       Around two months of delay were

attributed to continuances made at Slater’s request for plea negotiations.

                At the January 11, 2022 hearing, Slater’s defense counsel related

that COVID-19 had made it difficult to meet with Slater while he was detained in jail.

The trial court also recognized at the hearing that the difficulty lawyers had

encountered trying to visit with their clients at the county jail “is a problem that is

ongoing with our jail and COVID.” The trial court continued as follows:

       [T]he jail situation for visitation during COVID is difficult, and it’s that
      way across the United States. I’m sure it’s that way in Germany and
      South Africa and anywhere else. I mean, there’s infection that is
      rampant.

               Finally, a little over a week of delay was attributed to the trial court’s

need to set a hearing for consideration of Slater’s motion to disqualify his counsel.

               Slater does not argue that the defense did not need the continuances

it requested for discovery and plea negotiations. He does not complain that the state

was dragging its feet, so to speak, or intentionally hampering his defense. Slater

primarily takes issue with the delays occasioned by the trial court’s administrative

orders related to the COVID-19 pandemic. But, as discussed above, the delays

attributed to COVID-19 amounted to only about three months and occurred

immediately following Slater’s first rearrest and arraignment; the delays overlapped

with continuances that the defense requested to receive and review discovery. Slater

failed to appear and remained on capias for months after these COVID-related

continuances were ordered. Nothing in the record suggests that these orders added
any delay to the case and at no point did the defense object to the trial court’s

scheduling of the case.

               After a thorough consideration of the reasons for the delay in this

matter, we find that Slater is responsible for the vast majority of the delay. The

second Barker factor strongly weighs in favor of the state.

          c. Slater’s Non-Assertion of His Right

               Slater never moved for dismissal or asserted his right to a speedy

trial, facts that weigh strongly against him. See Doggett, 

, 

, 

 (assertion of speedy trial must be in due course and timely);

Barker, 

, 

, 

 (“We emphasize that

failure to assert the right will make it difficult for a defendant to prove that he was

denied a speedy trial.”); Taylor, 

, 

, 

 (“[The defendant’s] failure to file a motion to dismiss on speedy trial grounds

prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue

on appeal.”), citing State v. Thompson, 

, 186–187, 

 (6th Dist.1994); cf. Crider v. Maxwell, 

, 192, 

(1963) (stating, while reviewing a petition for release by habeus corpus, that

“[a]lthough the right to a speedy trial is provided by the Constitution for all persons

accused of crimes, such right must be urged, and the failure to so urge it will

constitute a waiver thereof.”).
          d. Prejudice to Slater

               We consider the fourth factor — prejudice — “‘in the light of the

interests of defendants[,] which the speedy trial right was designed to protect.’”

Long, 

, 

, 

, quoting

. These interests are: “(i) to prevent oppressive pretrial incarceration;

(ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility

that the defense will be impaired.” 

 The third interest is the greatest concern

because it “‘skews the fairness of the entire system.’” 

               Slater does not argue that his pretrial incarceration was oppressive to

him or that the delay in this case increased his anxiety or concern. Slater was

released on bond twice in this case and so, with the exception of the three days after

his arrest and pending an arraignment, each instance of his pretrial incarceration

was pursuant to a capias issued because he failed to appear as required and the

revocation of his bond. Slater also makes no argument that the delay impaired his

ability to prepare a defense. He has not claimed, for example, that his ability to

gather evidence or contact witnesses was hindered. See 

.

               While a defendant need not point to “affirmative proof of

particularized prejudice” in every case — Doggett at 655 — we see no reason why

this factor should weigh in Slater’s favor here. As discussed above, the vast majority

of the delay in this case was attributable to Slater. “[I]f delay is attributable to the

defendant, then his waiver may be given effect under standard waiver doctrine.”

. In other words, “under the prejudice inquiry, we look at the portion
of the delay that is attributable to the government.” 

 (DeWine, J.,

dissenting), citing Barker at 533–534.        In the absence of any alleged actual

prejudice, we do not find the four-month delay attributable to the state here to have

prejudiced Slater.

       e. Balancing the Barker factors

               Balancing the Barker factors, we find no violation of Slater’s

constitutional speedy-trial rights. The only factor that weighs in his favor is the

length of the delay. The length of the delay is not excessive enough to outweigh

Slater’s failure to assert his rights, especially where the delay was mostly attributable

to Slater and no particular prejudice to the defense was shown.

               Because Slater waived his statutory speedy-trial right and there was

no violation of his constitutional speedy-trial right, we overrule Slater’s first

assignment of error.

      B. Second Assignment of Error – Ineffective Assistance of Counsel

               Slater contends that his trial counsel was ineffective because counsel

did not move for dismissal of the indictment based on a speedy-trial violation and

because counsel did not file a motion to suppress the results of the blood draw taken

at the hospital after the car accident. We find no merit to the argument.

               A claim of ineffective assistance of counsel is generally waived by a

guilty plea, except to the extent that the ineffective assistance of counsel caused the

defendant’s plea to be less than knowing and voluntary. State v. Williams, 8th Dist.

Cuyahoga No. 100459, 

, citing State v. Spates, 

, 

 (1991), citing Tollett v. Henderson, 

, 

, 

 (1973). As our court has previously said:

      “A failure by counsel to provide advice [which impairs the knowing and
      voluntary nature of the plea] may form the basis of a claim of ineffective
      assistance of counsel, but absent such a claim it cannot serve as the
      predicate for setting aside a valid plea.” Accordingly, a guilty plea
      waives the right to claim that the accused was prejudiced by
      constitutionally ineffective counsel, except to the extent the defects
      complained of caused the plea to be less than knowing and voluntary.

(Citation omitted.) Milczewski, 8th Dist. Cuyahoga No. 97138, 

, quoting United States v. Broce, 

, 

, 

 (1989).

               Slater never moved to withdraw his guilty plea. He does not claim on

appeal that his plea was less than knowing or voluntary and he asserts no complaints

about his counsel’s advice with respect to the plea. In short, he has not put forth any

valid basis for us to reverse his convictions. Even if he had framed his argument

around the validity of his plea, the argument would be meritless.

               Slater waived the argument that his counsel was ineffective for not

filing a motion to dismiss based on statutory-speedy-trial issues. E.g., Forrest, 8th

Dist. Cuyahoga No. 109230, 

.          A motion to dismiss on

constitutional-speedy-trial issues would have been meritless because there was no

constitutional-speedy-trial violation for the reasons stated above. See Forrest at

¶ 26. With respect to Slater’s claim that his counsel was ineffective for not filing a

motion to suppress the blood-draw evidence, Slater merely argues that defense

counsel had discussed the legality of the blood draw with Slater and did not file a
motion to suppress; he does not address the merits of any particular theory of

suppression. “Failing to file a motion to suppress does not constitute ineffective

assistance of counsel per se.” State v. Brown, 

, 

,

. Even if Slater had not pleaded guilty, he would have to “prove

that there was a basis to suppress the evidence in question,” among other things, to

prevail on an ineffective-assistance claim based on a failure to file a motion to

suppress. 

 He puts forth no argument on appeal with respect to the merits of any

particular theory of suppression and, for this additional reason, we consider his

argument no further.

                 Because    Slater   waived    all   ineffective-assistance-of-counsel

arguments except those that would affect the validity of his plea, because he raised

no arguments regarding the validity of his plea and because his substantive

arguments are meritless anyway, we overrule Slater’s second assignment of error.

III. Conclusion

                 Having overruled Slater’s assignments of error for the reasons stated

above, we affirm his convictions.

         It is ordered that the appellee recover from the appellant the 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

Cuyahoga County Court of Common Pleas 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.


_________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR