State v. Jensen , 2021 Ohio 3505 ( 2021 )

[Cite as State v. Jensen, 2021-Ohio-3505.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1042
Appellee Trial Court No. CR0201701299
v.
David Raymond Jensen DECISION AND JUDGMENT
Appellant Decided: September 30, 2021
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
John A. Brikmanis, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, which denied appellant’s applications for postconviction relief. For the reasons set
forth below, this court affirms the judgment of the trial court.
I. Background
{¶ 2} On November 15, 2017, following submittal of guilty pleas pursuant to
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the trial
court accepted the guilty pleas and found appellant David Raymond Jensen guilty of two
counts of gross sexual imposition, each a violation of R.C. 2907.05(A)(4) and (B) and a
third-degree felony. The offenses dated back to 1992 when the two victims were under
the age of 13 years. By order journalized on January 16, 2018, the trial court sentenced
appellant to serve a total of five years of incarceration. Appellant appealed his
convictions and sentence, and this court affirmed the judgment of the trial court. State v.
Jensen, 6th Dist. Lucas No. L-18-1034, 2019-Ohio-2474, ¶ 63, appeal not allowed, 157
Ohio St.3d 1408, 2019-Ohio-3731, 131 N.E.3d 85.
{¶ 3} Then on March 7, 2019, appellant filed three motions with the trial court
collectively seeking postconviction relief, which appellee, the state of Ohio, opposed.
The motions are entitled, “Petition to Vacate or Set Aside Judgment of Conviction or
Sentence, Evidentiary Hearing Requested,” “Motion for Expert Assistance,” and “Motion
for Appointment of Counsel.” While his postconviction relief motions were pending,
appellant filed a “Motion to Dismiss with Prejudice,” as subsequently supplemented, on
November 5, 2019, again seeking postconviction relief, which appellee also opposed.
Finally, on January 2, 2020, appellant sought further postconviction relief by filing a
“Motion for Discovery” and a “Motion to Strike,” which appellee did not oppose.
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{¶ 4} By judgment entry journalized on January 24, 2020, the trial court denied
appellant’s six motions for postconviction relief. Appellant appealed1 and set forth two
assignments of error:
FIRST ASSIGNMENT OF ERROR: Trial Court erred to the
prejudice of the Appellant during the plea hearing of November [15],
2017[.] Court fails to use the law at the time of the offense.
SECOND ASSIGNMENT OF ERROR: Delay in indictment was
prejudicial.
II. Alford Pleas and Sentencing
{¶ 5} In support of his first assignment of error, appellant argues the trial court
erred in accepting his November 15, 2017 Alford guilty pleas because they were not
made knowingly, although he admits they were made voluntarily. Appellant argues that
the trial court’s off-record statement “that he was facing a 100 year sentence” prejudiced
his decision to make an Alford guilty plea and accept appellee’s offer of a five-year
sentence for both offenses. Appellant further argues that because of “early release
benefits under the 1992 sentencing guidelines,” he would be “eligible for release as early
as May of 2020.” Appellant finally argues that the trial court erred by requiring him “to
register as a sex offender under the 1992 statues as Megan’s Law and the Adam Walsh
Act were not in effect at that time.” Appellant seeks either reversal of his conviction and
1
On September 22, 2021, appellant’s appellate counsel filed a motion to withdraw
representation of appellant citing differences making “further representation not
possible.”
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sentence “or in the alternative that his sentence be adjusted to permit 30% good time, 90
day shock probation, 90 day educational credit and early release availability.”
{¶ 6} Postconviction relief is governed by R.C. 2953.21, and is not a constitutional
right. State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28. “A
postconviction proceeding is not an appeal of a criminal conviction but, rather, is a
collateral, civil attack on a criminal judgment.” Id. We review the trial court’s decision
to deny appellant’s applications for postconviction relief for an abuse of discretion. Id. at
¶ 30. We will not reverse the trial court’s determination if there is competent and
credible evidence in the record to support it. Id.{¶ 7} In its January 24, 2020 journalized decision, the trial court identified five
claims advanced by appellant for postconviction relief: “1) ‘Amendment XIV Prejudice;
delay in seeking indictment. 13 year delay’; 2) ‘Ineffective assistance of counsel’; 3)
‘Wrong Jurisdiction’; 4) ‘False indictment, Malicious prosecution’; and 5) ‘Coercion by
the Judge and Attorney Popil to plead guilty.’” The trial court determined that
appellant’s five claims for postconviction relief were unsupported by evidence in the
record or by evidence attached to appellant’s applications. The trial court further
determined that all of appellant’s claims for postconviction relief “were either raised or
‘could have been raised * * * on direct appeal’” and are barred by the doctrine of res
judicata, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). We agree.
{¶ 8} Appellant presents in this appeal either identical or substantially similar
claims for postconviction relief, and this court previously addressed and rejected
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appellant’s various claims on direct appeal, Jensen, 6th Dist. Lucas No. L-18-1034, 2019-
Ohio-2474, and on appellant’s request for reconsideration, State v. Jensen, 6th Dist.
Lucas No. L-18-1034, (Aug. 9, 2019). Matters in appellant’s postconviction applications
that he should have raised before the trial court or on direct appeal are now barred by the
doctrine of res judicata. State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997). To the extent appellant now argues new grounds for postconviction relief in this
appeal, those arguments are not properly before us. State v. Wintermeyer, 158 Ohio St.3d
513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 25; App.R. 9(A)(1).
{¶ 9} We find the record contains competent and credible evidence to support the
trial court’s denial of appellant’s postconviction applications. The trial court’s attitude
was not unreasonable, arbitrary or unconscionable, and the trial court did not abuse its
discretion, when it denied appellant postconviction relief.
{¶ 10} Appellant’s first assignment of error is not well-taken.
III. Preindictment Delay
{¶ 11} In support of his second assignment of error, appellant argues that the 25-
year delay between the 1992 offenses and his 2017 indictments prejudiced him.
Specifically, appellant argues he was “materially prejudiced” in the ensuing 25 years by:
(1) the running of the statute of limitations, (2) unreliable memories of the youngest
victim, who was either two or three years old at the time, whose brain was not yet “fully
myelinated” at the time of the incidents, (3) venue disputes between Lucas and Wood
Counties, (4) “no physical evidence, no genetics, no collaboration,” and (5) the
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Perrysburg police “intentionally decid[ing] not to pursue the matter.” Appellant concedes
“the Alford plea of guilty waives the venue argument,” but argues his guilty plea “does
not obviate intentional pre-indictment delay.” Appellant argues the trial court must first
address the pre-indictment delay before accepting his Alford guilty pleas as voluntary and
intelligently made.
{¶ 12} Preindictment delay violates due process when actual prejudice and
unjustified delay are shown in the record. State v. Adkins, 6th Dist. No. WD-16-042,
2018-Ohio-2588, 115 N.E.3d 887, ¶ 10. If the defendant successfully presents evidence
of actual prejudice, then the burden shifts to the prosecution to present evidence
justifying the delay. Id. The actual prejudice factor is scrutinized “‘vis-à-vis the
particular evidence that was lost or unavailable as a result of the delay and, in particular,
considered the relevance of the lost evidence and its purported effect on the defense.’”
Id. at ¶ 21, quoting State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688,
¶ 23. “Actual prejudice exists when missing evidence or unavailable testimony,
identified by the defendant and relevant to the defense, would minimize or eliminate the
impact of the state’s evidence and bolster the defense.” Jones at ¶ 28.
{¶ 13} The record shows that appellant previously challenged the delayed
indictment in his August 14, 2017 motion to dismiss arguing that the applicable statute of
limitations for the six indicted offenses had run. Appellee opposed the motion, and the
hearing on the motion was held on September 11, 2017. Appellant argued the six-year
statute of limitations under R.C. 2901.13(A)(1), in effect in 1992, began running on June
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30, 1992, the last incident date involving the two victims, and expired on July 1, 1998.
Appellant further argued no tolling provision extended the foregoing six-year period
beyond March 9, 1999, when the statute of limitations period under R.C.
2901.13(A)(3)(a) was extended from six to 20 years. Appellant argued that because the
victims’ mother was aware of appellant’s alleged criminal conduct as early as 1993, R.C.
2919.22(A) and 2151.421 required the mother to report the alleged abuse, and her failure
to do so did not toll former R.C. 2901.13(A)(1).
{¶ 14} The trial court disagreed with appellant’s arguments. In its decision
journalized on September 29, 2017, the trial court determined that R.C. 2901.13(J)
controlled. The victims did not reach the age of majority prior to March 9, 1999 under
R.C. 2901.13(J)(1), and the parent of the victims is specifically exempted by the state
legislature from the reporting requirements under R.C. 2901.13(J)(2). As a result, the
statute of limitations had not yet run as of the March 9, 1999 amendments to R.C.
2901.13(A)(3)(a), and the trial court denied appellant’s motion to dismiss the
indictments. The applicable statute of limitations is “‘the primary guarantee against
bringing overly stale criminal charges.’” (Citation omitted.) United States v. Marion, 404
U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We find no error in the trial court’s
determination.
{¶ 15} We further find appellant does not meet his initial burden of showing actual
prejudice. First, the hearsay evidence printed from the internet appellant attaches to his
brief to question the reliability of the memory of the youngest victim is not part of the
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record. App.R. 9(A)(1). Second, the evidence in the record appellant otherwise points to
has been previously argued and addressed by this court on direct appeal, and on
reconsideration of that direct appeal decision, whereby we affirmed the trial court’s
judgment of conviction and sentencing. Third, to the extent previously not addressed by
this court, appellant’s current preindictment delay claim was waived when he entered his
guilty pleas. State v. Cruz, 8th Dist. Cuyahoga No. 107174, 2019-Ohio-792, ¶ 6, citing
State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 105 and State v.
Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus.
{¶ 16} The record shows that after ongoing discovery between the parties, on
November 15, 2017, appellant changed his pleas from not guilty to guilty pursuant to
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. “An Alford plea is ‘[a] guilty plea
that a defendant enters as part of a plea bargain without admitting guilt.’” Akron Bar
Assn. v. Fortado, 159 Ohio St.3d 487, 2020-Ohio-517, 152 N.E.3d 196, ¶ 17, fn. 1,
quoting Black’s Law Dictionary 86 (10th Ed.2014) and citing Alford.
{¶ 17} This court has consistently held that an Alford plea is a guilty plea and
waives all alleged errors committed prior to the entry of the plea except for Crim.R. 11
errors affecting the entry of the guilty plea. State v. Reece, 6th Dist. Lucas No. L-17-
1314, 2019-Ohio-2259, ¶ 5. For the foregoing reasons, and because we previously found
in his direct appeal no such Crim.R. 11 errors, appellant has not presented this court with
any reversible error.
{¶ 18} Appellant’s second assignment of error is not well-taken.
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III. Conclusion
{¶ 19} On consideration whereof, we find that substantial justice has been done in
this matter. The judgment of the Lucas County Court of Common Pleas is affirmed.
Counsel for appellant’s Motion to Withdraw Representation filed September 22, 2021, is
found well-taken and granted. The clerk shall serve the parties. Service on appellant:
David R. Jensen, A741194, P.O. Box 57, Marion, OH 43301. Appellant is ordered to pay
the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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