2019 Ohio 4276
Ohio Ct. App.2019Background
- June 29, 2018: Buchman indicted in Stark County for possession and trafficking of cocaine; state alleged 28.52 grams recovered after a traffic stop near 111 S. Market St., Minerva.
- Buchman moved to suppress the traffic stop but changed his plea to guilty before a suppression hearing; counts were merged and he was sentenced to four years on October 2, 2018.
- April 15, 2019: Buchman filed a petition for post-conviction relief alleging ineffective assistance of counsel for failing to challenge the traffic stop and venue, asserting (by affidavit) that the stop/discovery actually occurred in his driveway in Carroll County.
- The trial court dismissed the petition without an evidentiary hearing and stated it adopted the State’s memorandum in its judgment entry.
- Buchman appealed, asserting (1) the trial court failed to file required findings of fact and conclusions of law under R.C. 2953.21(H), and (2) the court erred by refusing to consider his affidavit de hors the record and by applying res judicata/plea-waiver to bar his venue claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not making independent findings of fact and conclusions of law under R.C. 2953.21(H) | Adoption of the State’s memorandum suffices; no prejudice shown | Trial court abused its discretion by failing to file findings and conclusions | Overruled — adoption of the State’s memorandum is acceptable; appellant showed no prejudice |
| Whether Buchman could rely on evidence de hors the record (affidavit) to attack venue and whether the claim is barred by res judicata or waived by guilty plea | Evidence of venue was available at trial, so post-conviction evidence is not properly de hors the record; res judicata bars claims that could have been raised earlier; guilty plea waives venue challenge | Buchman’s affidavit shows the stop/discovery occurred in Carroll County and counsel was ineffective for not raising venue | Overruled — affidavit was evidence available pre-plea and cannot be treated as de hors the record; claim barred by res judicata; guilty plea also waives venue challenge |
Key Cases Cited
- State v. Powell, 90 Ohio App.3d 260 (1st Dist. 1993) (trial court may adopt opposing party’s findings when no prejudice shown)
- State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (res judicata bars claims that were or could have been raised on direct appeal)
- State v. McCartney, 55 Ohio App.3d 170 (9th Dist. 1988) (guilty plea waives objection to venue)