STATE OF OHIO, Appellee, - vs - NATHANIEL WILLIAM HAKE, Appellant.
CASE NO. CA2018-08-011
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
4/15/2019
[Cite as State v. Hake, 2019-Ohio-1402.]
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 12CR11095
Georgе A. Katchmer, 1886 Brock Road, N.E., Bloomingburg, Ohio, 43601, for appellant
OPINION
RINGLAND, J.
{¶ 1} Appellant, Nathan Hake, appeals a decision of the Preble County Court of Common Plеas denying his petition for postconviction relief. For the reasons detailed below, we affirm.
{¶ 2} On November 5, 2012, Hake was indicted on one count of forgery in viоlation of
{¶ 3} On April 14, 2014, the morning of trial, Hake‘s new trial counsel moved to withdraw because he had learned that Hake had attempted to tamper with a state‘s witness by negоtiating the settlement of a related civil claim in exchange for the victim‘s promise not to appear or testify in the criminal trial. Based on those circumstances, Hake‘s new trial counsel was permitted to withdraw, but remained as shadow counsel.
{¶ 4} During trial, Hake sought to play a CD recording of a voicemail thе victim left on his phone. Hake alleges that the voicemail provides exculpatory evidence of his guilt. However, for reasons not clear in the rеcord, the CD could not be found. Following the close of evidence, the jury found Hake guilty and the trial court sentenced him to 120 days in jail and ordered him to serve thrеe years of community control. Hake appealed his conviction but failed to file a transcript of proceedings and the appeal was eventually dismissed due to his failure to prosecute. State v. Hake, 12th Dist. Preble No. CA2014-06-003 (Sept. 18, 2014) (Entry of Dismissal).
{¶ 5} On November 22, 2017, Hake filed a petition for postconviction relief. In his petition, Hake alleged that thе Preble County Clerk of Court‘s office had recently discovered the missing CD and he was entitled to a new trial based on the “newly discovered evidence.” The trial court denied Hake‘s petition and he now appeals, raising two assignments of error
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE COURT ERRED IN DENYING A HEARING ON APPELLANT‘S PETITION FOR POST CONVICTION [sic] RELIEF BASED UPON MISSING EVIDENCE.
{¶ 8} Assignment of Error No. 2:
{¶ 9} INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 10} We will address Hake‘s assignments of error together. In his first assignment of error, Hаke argues the trial court erred by denying his petition for postconviction relief based upon purportedly missing evidence. In his second assignment of error, Hake contends he received ineffective assistance of counsel. Hake‘s arguments are without merit.
{¶ 11} A postconviction proceeding is not an appeal of a criminal conviction, but rather, a collateral civil attack on a criminal judgment. State v. Berrien, 12th Dist. Clinton No. CA2015-02-004, 2015-Ohio-4450, ¶ 8. Under
{¶ 12} “In reviewing an appеal of postconviction relief proceedings, this court applies an abuse of discretion standard.” State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 10. The term “abuse of discretiоn” connotes more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 34.
{¶ 13}
{¶ 14} Although untimely,
{¶ 15} As previоusly noted, Hake sought to play a CD allegedly containing an exculpatory voicemail. However, the CD could not be found, and the trial continued, ultimately rеsulting in his conviction. Nearly three years later, the CD was found in the clerk‘s file. Therefore, Hake claims he was unavoidably prevented from discovering the facts.
{¶ 16} Following review, we find Hake has failed to demonstrate either that he was unavoidably prevented from discovering his claim for relief or that his claim arises оut of a newly recognized federal or state right, as contemplated by
{¶ 17} Finally, Hake makes a muddled argument as to having received ineffective assistance of counsel. However, as noted above, Hake‘s new trial counsel withdrew the day of trial because he learned that Hake had аttempted to tamper with a state‘s witness. As a result of Hake‘s actions, his new trial counsel was permitted to withdraw, but remained as shadow counsel. The fact that Hake was required to proceed without counsel was due to his own actions in attempting to tamper with a state‘s witness after he had already been wаrned there would be no further continuances in this case. State v. Nelson, 1st Dist. Hamilton No. C-150480, 2016-Ohio-8064, ¶ 21 (a defendant may waive his right to counsel by conduct). Furthermore, there is no evidence that Hake‘s shadow counsel acted inappropriately during trial. All of the information pertinent to Hake‘s “ineffective assistance” claim was readily availablе and ripe for determination on his direct appeal or in a timely petition for postconviction relief. Hake failed to do so. Even in the present appeal, Hake fails to provide a transcript or any evidence suggesting that he was constitutionally or prejudicially deprived of counsel. As а result, Hake was not deprived of any right or entitled to any relief contemplated by the postconviction relief statute.
{¶ 18} The trial court did not err by denying Hakе‘s petition for postconviction relief. Hake‘s first and second assignments of error are overruled.
{¶ 19} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.