State v. Kirschenmann , 2015 Ohio 3544 ( 2015 )

[Cite as State v. Kirschenmann, 2015-Ohio-3544.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2014-P-0031,
- vs - : and 2014-P-0032
CURTIS A. KIRSCHENMANN, :
Defendant-Appellant. :
Civil Appeal from the Portage County Court of Common Pleas, Case Nos. 2012 CR
0050 and 2012 CR 0085.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Thomas Kinsey McInturf, Williams, Welser, Kratcoski & Can, L.L.C., 11 South River
Street, Suite A, Kent, OH 44240 (For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Curtis A. Kirschenmann, appeals from the March 31, 2014
judgment of the Portage County Court of Common Pleas, denying his pro se motion to
withdraw his guilty plea and for post-conviction relief without a hearing. For the reasons
that follow, we affirm.
{¶2} This matter involves a guilty plea which stemmed from two trial court Case
Nos., 2012 CR 0050 and 2012 CR 0085.
{¶3} In Case No. 2012 CR 0050, the Portage County Grand Jury returned a 14-
count indictment against appellant on January 27, 2012: three counts of receiving stolen
property, felonies of the fifth degree, in violation of R.C. 2913.51; and 11 counts of
forgery, felonies of the fifth degree, in violation of R.C. 2913.31.
{¶4} In Case No. 2012 CR 0085, the Portage County Grand Jury returned a
five-count indictment against appellant and two other individuals on February 15, 2012:
one count of illegal manufacture of drugs, a felony of the first degree, in violation of R.C.
2925.04; one count of assembly or possession of chemicals to manufacture a controlled
substance, a felony of the second degree, in violation of R.C. 2925.041(A) and (C); one
count of aggravated trafficking in drugs, a felony of the third degree, in violation of R.C.
2925.03(A)(2) and (C)(1)(b); aggravated possession of drugs, a felony of the fifth
degree, in violation of R.C. 2925.11(A) and (C)(1)(a); and one count of possessing
criminal tools, a felony of the fifth degree, in violation of R.C. 2923.24(A) and (C).
{¶5} The cases proceeded together. A plea hearing was held on May 17,
2012. Appellant entered an oral and written guilty plea to three counts of receiving
stolen property, felonies of the fifth degree, and five counts of forgery, felonies of the
fifth degree (Case No. 2012 CR 0050). Appellant also entered an oral and written guilty
plea to one count of illegal manufacture of drugs, a felony of the second degree (Case
No. 2012 CR 0085). The trial court accepted appellant’s guilty pleas and entered a
nolle prosequi to the remaining counts.
{¶6} On June 21, 2012, appellant was sentenced to five years in prison for the
felony two offense and one year for each felony five offense, to run concurrent to one
another and concurrent to the five year term. Appellant was ordered to pay restitution
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and fines. The court notified him regarding post-release control. Appellant did not file a
direct appeal from his sentence.
{¶7} Instead, almost two years later, appellant filed a pro se motion to withdraw
his guilty plea and for post-conviction relief on March 27, 2014. On March 31, 2014, the
trial court denied appellant’s pro se motion without a hearing. Appellant appealed that
judgment, was appointed counsel, and asserts the following three assignments of
error:1
{¶8} “[1.] The trial court erred when it denied defendant’s motion to withdraw a
guilty plea without a hearing.
{¶9} “[2.] The trial court erred when it denied defendant’s motion for post-
conviction relief without a hearing.
{¶10} “[3.] The trial court erred when it failed to file a findings of fact and
conclusions of law when it denied appellant’s motion for post-conviction relief.”
{¶11} In his first assignment of error, appellant argues the trial court erred in
denying his pro se motion to withdraw his guilty plea without a hearing. Appellant
asserts his trial counsel was ineffective and should have filed a motion to suppress
evidence derived from a search of his home. In his appellate brief, appellant states that
“the search may have been lawful” but indicates that he should have had an opportunity
to be heard.
{¶12} “Crim.R. 32.1 states: ‘(a) motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the
1. Appellant filed two appeals: Case No. 2014-P-0031 (regarding trial court Case No. 2012 CR 0050) and
Case No. 2014-P-0032 (regarding trial court Case No. 2012 CR 0085). This court later consolidated
appellant’s two appeals for all purposes.
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court after sentence may set aside the judgment of conviction and permit the defendant
to withdraw his or her plea.’
{¶13} “‘An appellate court will review the trial court’s determination of the
Crim.R. 32.1 motion for an abuse of discretion.’ State v. Desellems (Feb. 12, 1999),
11th Dist. No. 98-L-053, 1999 Ohio App. LEXIS 458, at 8, citing State v. Blatnik (1984),
17 Ohio App. 3d 201, 202, * * *. ‘The term “abuse of discretion” connotes more than an
error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’ Desellems, supra, at 8, citing State v. Montgomery (1991), 61 Ohio
St.3d 410, 413, * * *. Regarding this standard, we recall the term ‘abuse of discretion’ is
one of art, essentially connoting judgment exercised by a court which neither comports
with reason, nor the record. State v. Ferranto (1925), 112 Ohio St. 667, 676-678, * * *.
{¶14} “‘Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of
sentence, a defendant bears the burden of proving that such a withdrawal is necessary
to correct a manifest injustice.’ State v. Taylor, 11th Dist. No. 2002-L-005, 2003 Ohio
6670, at ¶8, citing State v. Smith (1977), 49 Ohio St. 2d 261, * * *, at paragraph one of
the syllabus. ‘A manifest injustice is determined by examining the totality of the
circumstances surrounding the guilty plea.’ Taylor at ¶8, citing State v. Talanca (Dec.
23, 1999), 11th Dist. No. 98-T-0158, 1999 Ohio App. LEXIS 6257, * * * at 2-3.
{¶15} “‘While a trial court must conduct a hearing to determine whether there is
a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is
made before sentencing, the same is not true if the request is made after the trial court
has already sentenced the defendant. State v. Xie (1992), 62 Ohio St. 3d 521, * * * (* *
*), paragraph one of the syllabus. In those situations where the trial court must consider
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a post-sentence motion to withdraw a guilty plea, a hearing is only required if the facts
alleged by the defendant, and accepted as true, would require withdrawal of the plea.
Id.’ State v. Wilkey, 5th Dist. No. CT2005-0050, 2006-Ohio-3276, at ¶25. (Parallel
citation omitted.) ‘Generally, a self-serving affidavit or statement is insufficient to
demonstrate manifest injustice.’ Id. at ¶26, citing State v. Patterson, 5th Dist. No.
2003CA00135, 2004-Ohio-1569, citing State v. Laster, 2d Dist. No. 19387, 2003-Ohio-
1564.
{¶16} “‘Ineffective assistance of counsel is a proper basis for seeking post-
sentence withdrawal of a guilty plea.’ State v. Turner, 171 Ohio App. 3d 82, 2007-Ohio-
1346, at ¶27, * * *, citing State v. Dalton, 153 Ohio App. 3d 286, 2003-Ohio-3813, * * *;
State v. Hamed (1989), 63 Ohio App. 3d 5, * * *. In order to prevail on an ineffective
assistance of counsel claim, a petitioner must satisfy the two-prong test set forth in
Strickland v. Washington (1984), 466 U.S. 668, * * *. State v. Ziefle, 11th Dist. No.
2007-A-0019, 2007-Ohio-5621, at ¶20. Thus, appellant must show that counsel’s
performance was deficient and ‘must also show prejudice resulting from the deficient
performance.’ State v. Jackson, 11th Dist. No. 2002-A-0027, 2004-Ohio-2442, at ¶9.”
(Parallel citations omitted.) State v. Balch, 11th Dist. Portage No. 2008-P-0014, 2008-
Ohio-6780, ¶14-18.
{¶17} “‘Failure to file a suppression motion does not constitute per se ineffective
assistance of counsel.’” State v. Madrigal, 87 Ohio St. 3d 378, 389 (2000), quoting
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “‘When claiming ineffective
assistance due to failure to file or pursue a motion to suppress, an appellant must point
to evidence in the record showing there was a reasonable probability the result of [the
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proceeding] would have differed if the motion had been filed or pursued.’” State v.
Weimer, 11th Dist. Lake No. 2013-L-008, 2013-Ohio-5651, ¶38, quoting State v.
Walker, 11th Dist. Lake No. 2009-L-155, 2010-Ohio-4695, ¶15.
{¶18} In this case, appellant has failed to establish any prejudice as a result of
his counsel’s representation. Appellant has not presented any evidence to show his
plea was not knowingly, intelligently, and voluntarily entered as a result of the lack of a
motion to suppress. Appellant indicated he had several discussions with his counsel
and that his counsel informed him that the arrest and search were legal and that the
indictment presented probable cause. Drugs and drug paraphernalia were discovered
by police in plain view in the residence.
{¶19} Upon review, we determine that the failure to file a motion to suppress in
this case does not amount to ineffective assistance of counsel. We further determine
that appellant’s guilty plea was knowingly, intelligently, and voluntarily made and that
the trial court properly denied his pro se motion to withdraw his plea without a hearing.
{¶20} At the May 17, 2012 plea hearing, the following exchange took place
between the trial court judge and appellant:
{¶21} “THE COURT: Okay. Mr. Kirschenmann, I’m going to ask you some
questions, you need to answer yes or no out loud; do you understand?
{¶22} “DEFENDANT: Yes.
{¶23} “THE COURT: Sir, have you been informed by your Attorney and do you
understand the nature of the charges to which you are pleading, which in Case Number
12 CR 85, illegal manufacturing of drugs, methamphetamine, a felony of the second
degree, which may bring with it up to eight years imprisoned, mandatory minimum
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prison term, a six-month to five-year license suspension and a $7,500.00 fine up to a
$15,000.00 fine; and in Case Number 12 CR 50, counts one, eight and twelve, all
receiving stolen property, felonies of the fifth degree; and count two, five, seven, eleven
and fourteen, forgeries, felonies of the fifth degree, each of those bringing with them up
to one year imprisoned and a $2,500.00 fine and court costs.
{¶24} “DEFENDANT: Yes.
{¶25} “* * *
{¶26} “THE COURT: Again, sir, since I’ve already gone over the penalties for
these charges, do you understand that if I impose a prison term, which I’m going to be
asked to do, that will be a term certain?
{¶27} “DEFENDANT: Yes.
{¶28} “THE COURT: Do you understand that if you are imprisoned, after
release, you will be subject to Post Release Control pursuant to Ohio Revised Code
2967.28?
{¶29} “DEFENDANT: Yes.
{¶30} “THE COURT: On Case Number 12 CR 85, Post Release Control period
will be a mandatory three years and your penalty could be, if you were sentenced,
would be four years on Case Number 12 CR 85, with a recommended sentence it will
be two and a half years; do you understand that?
{¶31} “DEFENDANT: Yes.
{¶32} “THE COURT: And, sir, do you understand at some point, you may be
placed on Community Control Sanctions and you will have conditions to follow.
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{¶33} “If you violate those conditions you could be given a longer period, greater
restrictions or a prison term of eight years on Case Number 12 CR 85 as a sanction,
and twelve months on each of the felonies in Case Number 12 CR 50 as sanctions; do
you understand that?
{¶34} “DEFENDANT: Yes.
{¶35} “THE COURT: Sir, do you understand the effect of your guilty plea and its
consequences?
{¶36} “DEFENDANT: Yes.
{¶37} “THE COURT: Do you accept those consequences?
{¶38} “DEFENDANT: Yes.
{¶39} “THE COURT: Do you understand upon accepting your guilty plea, the
Court may immediately proceed with sentencing?
{¶40} “DEFENDANT: Yes.
{¶41} “THE COURT: Sir, do you understand you have a right to a trial in this
matter; either to the Court or to a Jury?
{¶42} “DEFENDANT: Yes.
{¶43} “THE COURT: Are you waiving that right today, sir?
{¶44} “DEFENDANT: Yes.
{¶45} “THE COURT: Sir, did you sign these two waivers of right to Jury Trial?
{¶46} “DEFENDANT: Yes.
{¶47} “THE COURT: Did you do so voluntarily?
{¶48} “DEFENDANT: Yes.
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{¶49} “THE COURT: Sir, do you understand you have the right to confront and
cross-examine witnesses against you?
{¶50} “DEFENDANT: Yes.
{¶51} “THE COURT: Are you waiving that right?
{¶52} “DEFENDANT: Yes.
{¶53} “THE COURT: Sir, do you understand you have the right to subpoena
witnesses to come in and testify on your behalf?
{¶54} “DEFENDANT: Yes.
{¶55} “THE COURT: Are you waiving that right?
{¶56} “DEFENDANT: Yes.
{¶57} “THE COURT: Sir, do you understand it is the obligation of the
Prosecutor’s office to prove your (sic) guilty beyond a reasonable doubt?
{¶58} “DEFENDANT: Yes.
{¶59} “THE COURT: Are you waiving that right?
{¶60} “DEFENDANT: Yes.
{¶61} “THE COURT: Sir, do you understand you’re not required to testify against
yourself?
{¶62} “DEFENDANT: Yes.
{¶63} “THE COURT: Are you waiving that right?
{¶64} “DEFENDANT: Yes.
{¶65} “THE COURT: Sir, do you understand by entering a guilty plea, you waive
your right to appeal any issue that may have been brought up at trial?
{¶66} “DEFENDANT: Yes.
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{¶67} “THE COURT: And you are waiving that right, sir?
{¶68} “DEFENDANT: Yes.
{¶69} “THE COURT: Sir, have you been promised, coerced, threatened in any
way into entering a plea?
{¶70} “DEFENDANT: No.
{¶71} “THE COURT: Are you doing this of your own free will?
{¶72} “DEFENDANT: Yes.
{¶73} “THE COURT: Sir, you signed a written plea of guilty, waiver of rights
document, is that your signature?
{¶74} “DEFENDANT: Yes.
{¶75} “THE COURT: Did you sign these documents voluntarily?
{¶76} “DEFENDANT: Yes.
{¶77} “THE COURT: Did you review this document thoroughly with your
Attorney?
{¶78} “DEFENDANT: Yes.
{¶79} “THE COURT: Do you have any questions at all regarding anything
contained within this document?
{¶80} “DEFENDANT: No.
{¶81} “THE COURT: Sir, you are a U.S. citizen; is that correct?
{¶82} “DEFENDANT: Yes.
{¶83} “THE COURT: Sir, I’ve briefly gone over your rights with you, I know your
Attorney’s gone over your rights with you, you’ve gone over them, do you have any
questions regarding your Constitutional Rights?
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{¶84} “DEFENDANT: No.
{¶85} “THE COURT: Do you waive those rights at this time?
{¶86} “DEFENDANT: Yes.
{¶87} “THE COURT: And, sir, in Case Number 12 CR 85, the charge of illegal
manufacturing of drugs, a felony of the second degree, how do you plea?
{¶88} “DEFENDANT: Guilty.
{¶89} “THE COURT: Sir, in Case Number 12 CR 50, the charge of receiving
stolen property, a felony of the fifth degree, counts one, eight and twelve, how do you
plea?
{¶90} “DEFENDANT: Guilty.
{¶91} “THE COURT: And, sir, in counts two, five, seven, eleven and fourteen, all
forgeries, felony of the fifth degree, how do you plea?
{¶92} “DEFENDANT: Guilty.
{¶93} “THE COURT: Again, on all of those counts, sir?
{¶94} “DEFENDANT: Yes.
{¶95} “THE COURT: Thank you, sir.”
{¶96} Thereafter, the court accepted appellant’s guilty plea.
{¶97} The foregoing colloquy reveals that appellant was informed by the trial
court of the sentence he faced as well as his constitutional rights before he entered his
guilty plea. The record establishes from the plea hearing and the written plea of guilty
that appellant’s plea was knowing, intelligent, and voluntary. Appellant provided no
indication that he was dissatisfied with the representation of his counsel. The record
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further establishes that the trial court complied with the Crim.R. 11(C) requirements in
their entirety.
{¶98} Appellant has failed to demonstrate that a withdrawal of his guilty plea was
necessary to correct a manifest injustice. Upon review, the trial court did not abuse its
discretion in denying appellant’s post-sentence motion to withdraw his guilty plea. In
addition, appellant has failed to demonstrate that his counsel’s performance was
deficient or that the alleged deficiency resulted in prejudice.
{¶99} Appellant’s first assignment of error is without merit.
{¶100} In his second assignment of error, appellant contends the trial court erred
in denying his pro se motion for post-conviction relief without a hearing.
{¶101} In his third assignment of error, appellant alleges the trial court erred
because it failed to file findings of fact and conclusions of law when it denied his motion
for post-conviction relief.
{¶102} Because appellant’s second and third assignments of error both concern
his request for post-conviction relief and are thus interrelated, we will address them
together.
{¶103} R.C. 2953.21(A)(2) states in part:
{¶104} “Except as otherwise provided in section 2953.23 of the Revised Code, a
petition under division (A)(1) of this section shall be filed no later than one hundred
eighty days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction or adjudication * * *. If no appeal is
taken, except as otherwise provided in section 2953.23 of the Revised Code, the
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petition shall be filed no later than one hundred eighty days after the expiration of the
time for filing the appeal.”
{¶105} Pursuant to R.C. 2953.21, “a trial court is statutorily mandated to compose
and issue findings of fact and conclusions of law on each claim stated in a
postconviction petition.” State v. Osco, 11th Dist. Portage No. 2014-P-0010, 2015-
Ohio-45, ¶14. “However, this duty does not apply if the petition is subject to dismissal
on the basis that it was untimely filed.” Id., citing State ex rel. James v. Coyne, 114
Ohio St. 3d 45, 2007-Ohio-2716, ¶5.
{¶106} In the case at bar, as stated, appellant was sentenced on June 21, 2012
for both trial court Case Nos. 2012 CR 0050 and 2012 CR 0085. Appellant had 30 days
to file a direct appeal, i.e., until July 21, 2012. However, appellant never filed a direct
appeal. Instead, appellant waited and filed a pro se petition for post-conviction relief.
Pursuant to R.C. 2953.21(A)(2), appellant was required to file his petition for post-
conviction relief “no later than one hundred eighty days after the expiration of the time
for filing the appeal.” However, appellant failed to comply with the statute because he
did not file his petition for post-conviction relief until March 27, 2014, well outside of the
mandated time frame. Thus, appellant’s petition for post-conviction relief was clearly
untimely.
{¶107} R.C. 2953.23 sets forth exceptions to the 180-day requirement under R.C.
2953.21. “R.C. 2953.23(A)(1) describes the two-part test most petitioners must meet
before this time limit is waived * * *.2 First, the petitioner must show either: (1) that he
was unavoidably prevented from timely discovering the facts on which the petition is
based; or (2) that the United States Supreme Court has recognized a new, retroactive
2. R.C. 2953.23(A)(2) concerns cases dependent on DNA evidence, and is irrelevant to this appeal.
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federal or state right that applies to the petitioner’s case. R.C. 2953.23(A)(1)(a). If –
and only if – the petitioner can leap this first hurdle, does the second arise: i.e., the
petitioner must show, by clear and convincing evidence, that, ‘(* * *) but for
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty of the offense of which the petitioner was convicted (* * *) (.)’ R.C.
2953.23(A)(1)(b).” State v. Jordan, 11th Dist. Trumbull No. 2006-T-0087, 2007-Ohio-
1067, ¶7.
{¶108} Upon review, appellant failed to assert any of the permissible reasons for
an exception to the 180-day requirement. Appellant has not shown he was
“unavoidably presented from discovery” of any of the facts he alleged in his petition
claiming ineffective assistance of counsel. R.C. 2953.23(A)(1)(a). Thus, appellant fails
to meet the first prong of the R.C. 2953.23(A)(1)(a) test for untimely petitions. In any
event, we note that appellant also has not presented clear and convincing evidence that
his guilty plea was not knowing, intelligent, and voluntary, thereby failing to meet the
second prong as well. R.C. 2953.23(A)(1)(b).
{¶109} Based on the facts and evidence presented, the trial court was not
required to grant a hearing or issue findings of fact and conclusions of law.
Furthermore, since this was a matter which appellant could have raised on direct
appeal, it is res judicata, and barred from consideration by way of a petition for post-
conviction relief. Jordan, supra, at ¶10, citing State v. Perry, 10 Ohio St. 2d 175,
paragraphs eight and nine of the syllabus (1967).
{¶110} Appellant’s second and third assignments of error are without merit.
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{¶111} For the foregoing reasons, appellant’s assignments of error are not well-
taken. The judgment of the Portage County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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