State v. HartState v. Hart
Decided: March 12, 2021
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Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Adam Hart, pro se.
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OSOWIK, J.
{¶ 1} This is a pro se appeal from a June 9, 2020 judgment of the Lucas County Court of Common Pleas, denying appellant‘s November 5, 2019 petition for postconviction relief, filed after this court‘s September 27, 2019 denial of appellant‘s direct appeal. State v. Hart, 6th Dist. Lucas No. L-18-1204, 2019-Ohio-3926. For the reasons set forth below, this court affirms the judgment of the trial court.
ONE[:] THE TRIAL COURT [] ERRED BY DENYING APPELLANT[‘S MOTION FOR] LEAVE TO AMEND HIS PETITION PURSUANT TO OHIO CIVIL RULE 15(A).
TWO[:] THE TRIAL COURT‘S FINDINGS OF FACT AND CONCLUSIONS OF LAW, WHICH DISMISSED APPELLANT‘S PETITION[,] [WERE] IMPROPER.
{¶ 3} The following undisputed facts are relevant to this appeal. During the winter of 2015, appellant participated in a string of commercial robberies in Toledo. Over a one-month period of time, appellant and several codefendants robbed three separate Subway restaurants and a Family Video store.
{¶ 4} All of the targeted businesses were located in West Toledo. Appellant‘s principal role in the crimes was to serve as the getaway driver. Following these robberies, appellant and the codefendants used the proceeds of the crimes to acquire and consume unlawful drugs.
{¶ 5} On February 18, 2015, appellant was indicted on four counts of robbery, in violation of
{¶ 6} On April 30, 2015, pursuant to a plea agreement, appellant entered guilty pleas to the charges. Appellant was sentenced to a three-year term of incarceration on the first count of robbery, along with a five-year term of community control on the remaining three counts.
{¶ 8} In light of early release and a favorably modified sentence, the trial court ordered appellant to successfully complete the Lucas County Drug Court program. Attempts by the codefendants to be similarly granted early release were not successful.
{¶ 9} Despite being afforded the above-described beneficent opportunity by the trial court, appellant subsequently committed multiple violations of the terms and conditions of community control and the drug treatment program.
{¶ 10} On August 23, 2018, the trial court conducted a hearing on appellant‘s accumulated violations. The transcript of the proceedings reflects that the trial court advised appellant and his counsel that evidence had been brought to the trial court‘s attention reflecting one dozen violations.
{¶ 11} The trial court described the nature of the violations at the onset of the hearing. The violations included the failure to refrain from the continued use of unlawful drugs, the failure to refrain from continued criminal activity, the failure to report new law enforcement encounters to the probation department, and the failure to abide by curfew.
{¶ 12} The record reflects that appellant, by and through counsel, elected to enter admissions to the violations. In conjunction, appellant requested and received an opportunity to make a statement to the trial court on his own behalf. Contrary to present
{¶ 13} Appellant stated, in relevant part, “You know, I just -- I don‘t want to just take it as a loss and just get locked up and then come out and still have to deal with the same problems that I -- that I have now, you know, asking, you know, for this last opportunity to work on my treatment.” (Emphasis added).
{¶ 14} The trial court responded, in relevant part, ”[T]he last time was your last, last chance. I remember making the comment to you that if a piece of lint fell out of your pocket and touched the ground, I would impose the reserve sentence, trying to let you know how little rope you had.” (Emphasis added).
{¶ 15} The trial court further elaborated, “I get a report today that * * * [T]here‘s been other incidents, encounters with the police, and you haven‘t been honest. You committed four separate serious offenses within our community * * * [Y]ou‘re given the opportunity to work on the issues that sent you into the system, and you have completely blown that.”
{¶ 16} The trial court noted the seriousness of the offenses, the need to punish the defendant, the need to protect the public, and sentenced appellant to a total term of incarceration of 12 years. In addition, appellant was given a 998-day credit for time served. Costs were waived. A timely, direct appeal was filed.
{¶ 18} This court held, in relevant part “[W]e find that the trial court properly imposed appellant‘s original sentence * * * There is no requirement that the court make any considerations or findings of fact regarding reimposition of the reduced sentence * * * Having found that the trial court did not commit error prejudicial to appellant and that substantial justice has been done, the judgment of the Lucas County Court of Common Pleas is affirmed.” State v. Hart, 6th Dist. Lucas L-18-1204, 2018-Ohio-3926, ¶ 13-16.
{¶ 19} On November 5, 2019, appellant filed a petition for postconviction relief, again challenging the propriety of the August 23, 2018 sentence, along with ineffective assistance of counsel claims.
{¶ 20} On June 9, 2020, the trial court denied appellant‘s petition for postconviction relief. The trial court held, in relevant part, “Defendant argues that his sentence is void * * * [T]hese arguments * * * are barred by res judicata since they could have been raised on appeal * * * Because defendant has failed to present any evidence dehors the record to support his ineffective assistance of counsel claim, he is not entitled to discovery.”
{¶ 21} Accordingly, the trial court further held, in relevant part, “Defendant in his motion states that if his motion for leave to seek discovery is granted, then he seeks leave
{¶ 22} In the first assignment of error, appellant alleges that the trial court erred in denying appellant‘s motion to amend his petition for postconviction relief. We do not concur.
{¶ 23} Pursuant to
{¶ 24} A disputed trial court decision denying a motion for leave to amend will not be overturned absent the demonstration of an abuse of discretion. State v. Oteng, 10th Dist. Franklin No. 18-AP-058, 2018-Ohio-3138, ¶ 15.
{¶ 25} Demonstrating an abuse of discretion requires more than showing a mere error of law or judgment. It must be shown that the disputed trial court action was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E. 2d 1140 (1983).
{¶ 26} In principal support of the first assignment, appellant asserts that the trial court incorrectly construed appellant‘s motion for leave to amend as being contingent upon the trial court‘s determination in response to appellant‘s motion for leave to seek discovery. We do not concur.
{¶ 27} Appellant‘s motion for leave to amend the petition specifically stated to the trial court, in relevant part, ”The Petitioner has also filed a Motion for Leave to seek
{¶ 28} The plain meaning of appellant‘s own motion language requesting discretionary leave to amend the petition clearly reflects it to be contingent upon the trial court‘s determination in response to appellant‘s motion to seek discovery.
{¶ 29} In addition, appellant mistakenly asserts, “The Court failed to give notice of these additional [community control] violations that the Appellant would face.” The record of evidence belies such claims.
{¶ 30} The transcript of the August 23, 2018 community control violation hearing clearly reflects that the trial court notified appellant of the specific violations being lodged against appellant.
{¶ 31} The trial court expressly stated at the hearing, “The violations are as follows: Number 1, [appellant] failed to refrain from the use of illicit substances; Number 2, [appellant] failed to refrain from further criminal activity; Number 3, [appellant] failed to report police contact * * * Number 4, [appellant] failed to adhere to * * * curfew.”
{¶ 32} The transcript reflects that neither appellant, nor his counsel, expressed any confusion regarding the matter. Consistently, the record reflects no deficiencies of notice or information, reflects that the admissions were voluntarily entered, and reflects that appellant voluntarily addressed the court in mitigation.
{¶ 34} Wherefore, we find that the trial court‘s denial of appellant‘s motion for leave to amend the petition was not unreasonable, arbitrary, or unconscionable. We find appellant‘s first assignment of error not well-taken.
{¶ 35} In appellant‘s second assignment of error, appellant alleges that the trial court‘s findings of fact and conclusions of law in dismissing the petition were improper. We do not concur.
{¶ 36} Specifically, appellant again disputes the legitimacy of the August 23, 2018 trial court sentencing. In addition, appellant alleges ineffectiveness of counsel at the August 23, 2018 hearing.
{¶ 37} As set forth by the Ohio Supreme Court, “We hold the trial court‘s decision granting or denying a postconviction petition filed pursuant to
{¶ 38} As further held in Gondor at ¶ 47, “In the interest of providing finality to judgments of conviction, courts construe the post-conviction relief allowed under
{¶ 40} As discussed above, this court found no impropriety in appellant‘s sentence and rejected same on direct appeal. State v. Hart, 6th Dist. Lucas No. L-18-1204, 2019-Ohio-3926.
{¶ 41} In addition, in response to appellant‘s sentencing arguments raised in appellant‘s petition for postconviction relief, the trial court correctly held that the arguments presented were, “[B]arred by res judicata since they could have been raised on appeal.”
{¶ 42} In support of the current ineffective assistance of counsel claims, appellant argues that, “The decision to allow a client to be sentenced on a violation that he had no notice of, was not a competent decision to make.”
{¶ 43} As discussed in detail above, the transcripts of the proceedings clearly reflect that appellant had clear, substantive, and direct notice of the community control violations in the course of the August 23, 2018 hearing. Appellant voluntarily entered admissions, by and through counsel, and elected to speak in mitigation on his own behalf.
{¶ 45} As this court held in State v. Hill, 6th Dist. Lucas No. L-19-1248, 2020 WL 4249984, 2020-Ohio-3824, ¶ 6, “To avoid dismissal of a petition under res judicata grounds, the petitioner must identify competent, relevant, and material evidence outside the trial record supporting their claims.”
{¶ 46} With respect to the instant ineffective assistance of counsel claims related to the August 23, 2018 hearing, the trial court held in its denial of the petition, “Because defendant has failed to present any evidence dehors the record to support his ineffective assistance of counsel claim, he is not entitled to discovery.” We concur.
{¶ 47} The record reflects that appellant simply asserts, without evidentiary support, that counsel was ineffective in not objecting to the trial court sentencing appellant on August 23, 2018. The claim is premised upon appellant‘s inaccurate assertion that he had no notice of the community control violations.
{¶ 48} We find that even if, assuming arguendo, the ineffective assistance of counsel claims are properly before this court, despite res judicata considerations, they are nevertheless without merit.
{¶ 49} The record shows that the trial court directly described the violations to appellant, and counsel for appellant, during the course of the August 23, 2018 hearing.
{¶ 51} Wherefore, we found appellant‘s second assignment of error to be without merit and not well-taken.
{¶ 52} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE
Thomas J. Osowik, J. _______________________________
Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.