State v. Buchman , 2019 Ohio 4276 ( 2019 )

[Cite as State v. Buchman, 2019-Ohio-4276.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019CA00109
DAVID BUCHMAN
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2018-CR-0959
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 15, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DAVID BUCHMAN
STARK COUNTY PROSECUTOR Inmate No. 753-726
Richland Correctional Institution
KATHLEEN O. TATARSKY P.O. Box 8107
Assistant Prosecuting Attorney Mansfield, Ohio 44901
Appellate Section
110 Central Plaza, South – Suite #510
Canton, Ohio 44702-1413
Stark County, Case No. 2019CA00109 2
Hoffman, P.J.
{¶1} Appellant David Buchman appeals the judgment entered by the Stark
County Common Pleas Court dismissing his petition for post-conviction relief. Appellee
is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On June 29, 2018, Appellant was indicted by the Stark County Grand Jury
on one count of possession of cocaine (R.C. 2925.11(A)(C)(4)(e)), and one count of
trafficking in cocaine (R.C. 2925.03(A)(2)(C)(4)(f)). The bill of particulars provided by the
State stated Appellant was found to be in possession of 28.52 grams of cocaine after a
traffic stop in the area of 111 S. Market Street, Minerva, Stark County, Ohio.
{¶3} Appellant filed a motion to suppress challenging the constitutionality of the
traffic stop. However, prior to a hearing on the motion, Appellant changed his plea to
guilty. The counts were merged and Appellant was sentenced to four years incarceration
on October 2, 2018.
{¶4} On April 15, 2019, Appellant filed a petition for post-conviction relief claiming
his trial counsel was ineffective for failing to challenge the traffic stop and for failing to
challenge venue. He argued while the alleged traffic violation occurred in Stark County,
the stop of his vehicle and attendant discovery of the cocaine occurred in his driveway
which is located in Carroll County. He supported his claim of improper venue with his
own affidavit.
1 A rendition of the facts is unnecessary for the resolution of this appeal.
Stark County, Case No. 2019CA00109 3
{¶5} The trial court dismissed Appellant’s petition without an evidentiary hearing.
It is from the June 25, 2019, judgment of the court dismissing his petition Appellant
prosecutes this appeal, assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
DENYING THE PETITION FOR POST-CONVICTION RELIEF WITHOUT
SUBMITTING ITS FINDINGS OF FACTS AND CONCLUSIONS OF LAW.
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED THE APPELLANT’S PETITION FOR POST-CONVICTION
RELIEF AS THE MATTERS RAISED IN THE PETITION ARE DE HORS
THE RECORD AND COULD NOT HAVE BEEN RAISED ON ANY DIRECT
APPEAL.
I.
{¶6} Appellant argues the trial court erred in failing to make findings of fact and
conclusions of law in violation of R.C. 2953.21(H), which provides in pertinent part:
(H) If the court does not find grounds for granting relief, it shall make
and file findings of fact and conclusions of law and shall enter judgment
denying relief on the petition.
{¶7} Although the trial court did not make findings of fact and conclusions of law,
the court stated in its judgment entry, “Upon full review, the Court adopts the
Stark County, Case No. 2019CA00109 4
Memorandum, contained in the State of Ohio’s response to Defendant’s petition.”
Judgment Entry, June 25, 2019.
{¶8} In a petition for post-conviction relief, “the trial court's adoption of the
findings of fact and conclusions of law submitted by the state does not, by itself, deprive
the petitioner of a meaningful review of his petition for post-conviction relief and does not
constitute error in the absence of demonstrated prejudice.” State v. White, 5th Dist.
Ashland No. 97COA01229, 1998 WL 515944, *11, citing State v. Powell, 90 Ohio App.
3d 260, 629 N.E.2d 13 (1st Dist. Hamilton 1993). Appellant has not demonstrated
prejudice from the trial court’s adoption of the State’s memorandum in this case.
{¶9} The first assignment of error is overruled.
II.
{¶10} In his second assignment of error, Appellant argues the court erred in
dismissing his petition because he submitted evidence outside the record, specifically his
own affidavit, in support of his claim venue was improper in Stark County because the
stop of his vehicle and discovery of the drugs occurred in his driveway in Carroll County.
{¶11} Evidence offered de hors the record must be more than evidence which was
in existence and available to the appellant at the time of the trial and which could and
should have been submitted at trial if the appellant wished to make use of it. State v.
Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶ 89. The purpose of post-
conviction proceedings is not to afford one convicted of a crime a second chance to retry
his case. Id. The evidence submitted by Appellant to support his claim his driveway is in
Carroll County was in existence and available to him at the time of trial. We find the
Stark County, Case No. 2019CA00109 5
evidence should have been submitted at trial if Appellant wished to use it, and is not
properly before the court as evidence de hors the record in a post-conviction proceeding.
{¶12} Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from such judgment, any defense or any claimed lack of
due process which was raised or could have been raised by the defendant at the trial
which resulted in that judgment of conviction, or on direct appeal from the judgment. State
v. Perry, 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the
syllabus (1967). As noted above, evidence of venue was available to Appellant prior to
trial, and could have been raised prior to his plea of guilty. We find his claim of improper
venue is now barred by res judicata.
{¶13} Finally, Appellant pled guilty to the charges in the instant case. A plea of
guilty waives a claim venue was improper. State v. McCartney, 55 Ohio App.3d 170, 563
N.E.2d 350, 351 (9th Dist. Summit 1988).
Stark County, Case No. 2019CA00109 6
{¶14} The second assignment of error is overruled.
{¶15} The judgment of the Stark County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur