State v. CrespoState v. Crespo
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 18, 2021
Civil Appeal from the Cuyahoga County Common Pleas Court Case Nos. CR-15-600269-A and CR-15-601495-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.
G. Michael Goins, for appellant.
{¶ 1} Carlos Crespo appeals the denial of an untimely petition for postconviction relief and his sepаrate motion to withdraw his guilty plea filed under Crim.R. 32.1. For the following reasons, we affirm.
{¶ 2} In July 2016, Crespo pleaded guilty to drug trafficking offenses in two separate cases. In CR-15-600269-A, Crespo pleaded guilty to trafficking in cocaine in violation of
{¶ 4} In his petition for postconviction relief, Crespo claims his trial counsel‘s deficient performance deprived him of his constitutional right to counsel. According to Crespo, his trial attorney failed to adequately prepare and pursue the suppression motion and that had such an undertaking occurred, Crespo would have proceeded to trial - an issue he waived by pleading guilty. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 55; State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-130, 595 N.E.2d 351, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (after pleading guilty, a defendant cannot claim the deprivation of constitutiоnal rights with evidence outside the record; he may only claim his plea was not knowing or voluntarily entered but for erroneous advice of counsel). In addition, Crespo claims that his trial counsel provided erroneous legal advice regarding the length of the potential sentences that he fаced because the trial court could not have made the consecutive-sentencing findings under
{¶ 6} A trial court‘s ruling on a petition for postconviction relief is reviewed for an abuse of discretiоn. Curry at ¶ 15, citing State v. Gondor, 112 Ohio St.3d 377,
{¶ 7} Crespo‘s appellate arguments focus on the merits of his petition for postconviction relief, to the exclusion of discussing the trial court‘s jurisdiction to consider the untimely petition. The petition for postconviction relief was filed in March 2019, over two years after his final conviction.
{¶ 8} In this case, Crespo‘s petition is based on issues relating to his counsel‘s alleged failure to pursue a motion to suppress or properly investigate the facts underlying the search of Crespo‘s home that was cоnducted upon his arrest. The affidavits offered in support of his petition came from family members averring that the police failed to provide the search warrant to Crespo and his family during the search of the home and that Crespo‘s trial counsel failed to adequately investigate mattеrs pertaining to the suppression issue. That information was available to Crespo at the time he pleaded guilty, a point of fact acknowledged in Crespo‘s self-serving affidavit. (Crespo stated that his family told him the police officers had not produced the search warrant as the seаrch was being conducted.) A defendant is unavoidably prevented from discovering the new evidence for the purposes of filing an untimely petition for postconviction relief “when that defendant had no knowledge of the evidence supporting the motion for new trial and could not have leаrned of the existence of the evidence within the time prescribed for filing such a motion through the exercise of reasonable diligence.” State v. Bethel, 10th Dist. Franklin No. 19AP-324, 2020-Ohio-1343, ¶ 20, citing State v. Bethel, 10th Dist. Franklin No. 09AP-924, 2010-Ohio-3837, ¶ 13, and State v. Berry, 10th Dist. Franklin No. 06AP-803, 2007-Ohio-2244, ¶ 19.
{¶ 10} And finally, Crespo claims the trial court also erred by separately denying his motion to withdraw his guilty plea, which was filed over two and a half years after the sentence was imposed, based on Crespo‘s claim that his trial counsel
{¶ 12} Although there is no express time limit for moving to withdraw a plea after a sentence is imposed under Crim.R. 33.1, “an undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 15, quoting State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977), and Oksanen v. United States, 362 F.2d 74, 79 (8th Cir.1966). And further, “res judicata bars a defendant from raising claims in a Crim.R. 32.1 post-sentencing motion to withdraw a guilty plea that he raised or could have raised on direct appeal.” Id., citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59.
{¶ 14} In this case, the trial court did not abuse its discretion by denying Crespo‘s postsentence motion to withdraw the guilty plea. Crespo has failed to present any explanation justifying the two and a half year delay in filing the motion. State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-4769, ¶ 15 (two-year delay considered unreasonable); State v. Miley, 8th Dist. Cuyahoga No. 83152, 2004-Ohio-641, ¶ 4 (three-year delay unreasonable); State v. Morgan, 10th Dist. Franklin No. 12AP-241, 2012-Ohio-5773, ¶ 13 (ten-month delay deemed unreasonable in light of defendant‘s failure to present a reason in support of the delay). His credibility аs it relates to his self-serving claims regarding his trial counsel‘s advice is therefore suspect. Straley.
{¶ 15} Further, when considering his argument with respect to the consecutive-sentencing issue, Crespo has failed to demonstrate the inapplicability
{¶ 16} Crespo‘s claim, that his counsel provided an erroneous assessment of whether the trial court could impose consecutive sentences (which according to Crespo impacted his decisiоn to plead guilty), cannot be maintained in light of the incomplete argument. It is immaterial whether the trial court could have made the findings under
{¶ 17} We affirm.
It is ordered that appellee recover from appеllant 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 common pleas court 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and EILEEN A. GALLAGHER, J., CONCUR