STATE OF OHIO, Plaintiff-Appellee, v. CURTIS A. KIRSCHENMANN, Defendant-Appellant.
CASE NOS. 2014-P-0031, and 2014-P-0032
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
August 17, 2015
2015-Ohio-3544
OPINION
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.
{¶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
{¶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
{¶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} ”
{¶13} “An appellate court will review the trial court‘s determination of the
{¶14} “Pursuant to
{¶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
{¶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
{¶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
{¶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
{¶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.
{¶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.
{¶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.
{¶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?
{¶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
{¶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}
{¶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
{¶105} Pursuant to
{¶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
{¶107}
{¶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 prevented from discovery” of any of the facts he alleged in his petition claiming ineffective assistance of counsel.
{¶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 (1967), paragraphs eight and nine of the syllabus.
{¶110} Appellant‘s second and third assignments of error are without merit.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.