STATE OF OHIO, Plaintiff-Appellee, - vs - MICHELE L. KNAPP, Defendant-Appellant.
CASE NO. 2012-A-0035
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
March 11, 2013
2013-Ohio-870
DIANE V. GRENDELL, J.
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2009 CR 452. Judgment: Affirmed.
Jason D. Winter, Holly Marie Wilson, and Courtney J. Trimacco, Reminger Co., L.P.A., 1400 Midland Building, 101 Prospect Avenue West, Cleveland, OH 44115 (For Defendant-Appellant).
OPINION
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Michelle1 L. Knapp, appeals the denial of her Petition for Post-Conviction Relief by the Ashtabula County Court of Common Pleas. The issue before this court is whether a trial court abuses its discretion by denying a postconviction relief petition without hearing, where the petition is based on trial
{¶2} On July 29, 2011, following a jury trial, Michelle Knapp was found guilty of one count of Aggravated Vehicular Homicide, a felony of the second degree in violation of
{¶3} The charges against Knapp arose from the death of Melanie Moretti. The evidence presented at trial is described in State v. Knapp, 11th Dist. No. 2011-A-0064, 2012-Ohio-2354, ¶ 8-47.
{¶4} On September 12, 2011, following a sentencing hearing, the trial court imposed a prison term of six years for second degree Aggravated Vehicular Homicide, merged the third degree Aggravated Vehicular Homicide charge with the second degree charge, imposed a prison term of one year for Failure to Stop after an Accident, and imposed a jail term of six months for Operating a Vehicle while under the Influence. The court ordered the sentences for second degree Aggravated Vehicular Homicide and Failure to Stop after an Accident to be served consecutively with each other and concurrently with the sentence for Operating a Vehicle while under the Influence, for an aggregate prison term of seven years. Additionally, the court imposed a lifetime license suspension and ordered the paying of court costs.
{¶6} On May 18, 2012, Knapp filed a Petition for Post-Conviction Relief, based on ineffective assistance of trial counsel.
{¶7} In support of the Petition, the following evidentiary materials were attached thereto.
{¶8} Michelle Knapp stated that she retained the services of Attorney William Bobulsky on December 14, 2009, prior to her initial contact with law enforcement. Before travelling with her to meet with the State Highway Patrol, Bobulsky did not have “a one-on-one confidential attorney-client communication” with Knapp; did not conduct any investigation of the underlying accident; did not advise her that she could refuse to make a statement or make a statement at a later time and the legal consequences thereof; and did not “discuss what the substance of [her] statement would be.” As a result, Knapp provided law enforcement an incriminating statement, “[u]nder the shock of having just learned that [she] had stricken Melanie Moretti, and having received no guidance from Mr. Bobulsky.”
{¶9} Knapp further stated that she advised Attorney Bobulsky about a potentially incriminating OnStar call from the night of the accident. Bobulsky responded that there was no need for concern because the State had not produced a record of the OnStar call in discovery. At trial, the State sought to introduce the OnStar call as evidence. Despite the failure to produce the call in discovery and the lack of authenticating witnesses, Bobulsky stipulated to the call‘s admissibility. During its
{¶10} Knapp further stated that Attorney Bobulsky advised her that it would be necessary to retain “expert witnesses in the disciplines of human factors, visibility, accident reconstruction, and toxicology.” Knapp authorized Bobulsky to retain any necessary experts and Bobulsky told her that experts would appear on her behalf at trial. Despite Bobulsky‘s assurances, Knapp learned at the commencement of trial that no expert witnesses would be called on her behalf.
{¶11} Knapp further stated that Attorney Bobulsky failed to advise her of the right to use peremptory challenges during jury selection, and failed to make any challenge to the following witnesses: Bonnie Smith, whose husband had been killed in an automobile accident and who worked as a drug and alcohol counselor; Joshua McNutt, who was related to one of the State‘s witnesses; and Sharon Mirando, who stated the belief that it was illegal to consume any amount of alcohol and drive.
{¶12} Knapp further stated that Attorney Bobulsky failed to investigate, “other than the internet,” the State‘s witness, Catherine Rotko, the only witness at trial to affirmatively testify that Knapp was impaired. Lois Colley, a private investigator, submitted an affidavit, reporting that Rotko had been previously charged with possession of drugs and domestic violence, and was fired from BW3 for stealing.
{¶13} Knapp further stated that Attorney Bobulsky failed to inquire about her problems with her night vision, or hearing loss, both of which she suffered from at the time of the accident.
{¶15} Knapp further stated that Attorney Bobulsky failed to argue that “Moretti was the sole proximate cause of her own death.”
{¶16} Knapp further stated that Attorney Bobulsky instructed her to accept no plea offer that involved incarceration, despite the State‘s willingness to reduce the charges, because “the State‘s case was weak.” Bobulsky failed to advise her of the “realistic exposure to a conviction and significant period of incarceration, even though innocent.”
{¶17} Robert B. Forney, Jr., a forensic toxicologist, submitted an opinion challenging the trial testimony of the State‘s toxicologist, Douglas E. Rohde. Forney opined that Rohde‘s opinion regarding Knapp‘s blood alcohol concentration was “based upon inaccuracies, omissions and a drinking history at variance with and challenged by her court testimony.” Specifically, Rohde misjudged Knapp‘s weight, the alcohol concentration of Great Lakes Christmas Ale, the amount of alcohol Knapp had consumed, and the conversion rate of fluid ounces to milliliters.
{¶18} Jason Jupe and Brian Weaver, biomechanical engineers, submitted their opinion that the collision that killed Moretti was unavoidable regardless of the amount of alcohol consumed by Knapp. Jupe and Weaver concluded that, given the conditions on Fargo Drive on the night in question, “[t]he earliest Ms. Knapp would have been able to perceive the unexpected presence of the pedestrian was at a distance between 92 and 101 feet from the point of impact.” Travelling at a speed “between 34 and 37 mph,” if
{¶19} Katherine V. Schoenberger, a forensic document examiner, submitted an opinion regarding the effect of alcohol and handwriting. At trial, the State noted the contrasting legibility of Knapp‘s handwriting when she first arrived at BW3, and two hours after she had consumed the Christmas Ale. Schoenberger opined that “[s]ignatures are not reliable in determining the level of intoxication due to the smaller amount of writing [sample],” and that “[r]esearch has * * * shown that the intoxication level and the deterioration of handwriting do not always correlate.”
{¶20} On May 25, 2012, Knapp filed a Supplement to Petition for Post-Conviction Relief. Attached thereto was a report prepared by Robert T. Glickman, a former county public defender, prosecutor, and common pleas court judge. Glickman opined, having reviewed the court records and the evidentiary materials in support of the Petition for Post-Conviction Relief, that, “to a reasonable degree of professional certainty[,] Mr. Bobulsky‘s representation of Ms. Knapp constituted ineffective assistance of counsel thus adversely affecting the verdict and leading directly to her conviction in violation of her Sixth Amendment right to effective assistance of counsel.”
{¶21} On May 29, 2012, this court issued its decision in State v. Knapp, 11th Dist. No. 2011-A-0064, 2012-Ohio-2354, affirming Knapp‘s convictions.
{¶22} On June 18, 2012, the State filed a Motion to Dismiss Petition for Post-Conviction Relief, to which Knapp replied on July 3, 2012.
{¶24} On August 2, 2012, Knapp filed her Notice of Appeal. On appeal, Knapp raises the following assignments of error:
{¶25} “[1.] The trial court erred by not conducting an evidentiary hearing in light of the new evidence provided by Michelle Knapp in her petition for post-conviction relief.”
{¶26} “[2.] The trial court erred by not granting Michelle Knapp‘s petition for post-conviction relief.”
{¶27} “Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.”
{¶28} It is well-established that
{¶29} “In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel‘s ineffectiveness.” Jackson at syllabus. Thus, “the defendant, in order to secure a hearing on his petition [based on ineffective assistance of counsel], must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney‘s essential duties to his client but also that said violation was prejudicial to the defendant.” State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982). “[W]here a petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a
{¶30} “[I]n a postconviction case involving a claim of ineffective assistance of trial counsel[,] ‘[a]bsent a showing of abuse of discretion, a reviewing court will not overrule the trial court‘s finding on a petition for post-conviction relief which is supported by competent and credible evidence.‘” (Citation omitted.) State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 50. The trial court‘s discretion in postconviction relief proceedings encompasses the determination of “whether a defendant will even receive a hearing.” Id. at ¶ 51; State v. Hendrex, 11th Dist. No. 2010-T-0103, 2011-Ohio-1588, ¶ 28 (cases cited)2; State v. Holmes, 8th Dist. No. 96479, 2011-Ohio-5848, ¶ 4.
{¶31} The two assignments of error collectively maintain that the trial court erred by dismissing Knapp‘s Petition without holding a hearing. Accordingly, the assignments will be addressed jointly.
{¶32} As an initial matter, Knapp argues that the trial court improperly applied the doctrine of res judicata to perfunctorily reject some of Knapp‘s arguments in favor of relief.
{¶34} In the present case, appellate and postconviction counsel for Knapp filed his formal Notice of Appearance in the trial court on September 2, 2011, ten days prior to sentencing and while Knapp was still represented by Attorney Bobulsky. Current counsel for Knapp filed and prosecuted her direct appeal, in which Bobulsky did not take part, as well as the Petition for Post-Conviction Relief. Accordingly, the issue becomes whether the competence of Bobulsky‘s representation could fairly have been determined without resort to evidence dehors the record.
{¶35} Many of the arguments raised in Knapp‘s Petition for Post-Conviction Relief could have been raised without resort to extrinsic evidence. Knapp‘s affidavit demonstrates her awareness of Attorney Bobulsky‘s alleged deficiencies with respect to the lack of counsel prior to making a statement to law enforcement, the failure to contest the admissibility of the OnStar call, the failure to present expert testimony on her behalf after having advised her that such testimony was necessary for her defense, the failure to challenge jurors, the failure to argue that Moretti was the sole proximate cause of the accident, and the inadequacy of his advice in plea negotiations. At several points in her
{¶36} We reject Knapp‘s contention that the expert opinions attached to her Motion for Post-Conviction Relief constituted evidence dehors the record sufficient to avoid the application of res judicata. The claims against Attorney Bobulsky‘s competency are based on his failure to investigate the underlying events, conduct a vigorous defense, and/or retain experts on Knapp‘s behalf. Evidence of these failures was in the record itself or was otherwise known to Knapp inasmuch as she claimed that Bobulsky told her it was necessary to retain experts, she was aware of the State‘s failure to produce the OnStar call in discovery, and Bobulsky‘s preformance fell short of her expectations. The substance of the expert reports is relevant to an assessment of the prejudicial impact of not presenting such testimony at trial; it is not relevant, in this case, to the issue of whether Bobulsky‘s deficient performance was apparent so as to have been raised on direct appeal.
{¶37} Assuming, arguendo, that res judicata did not apply to Knapp‘s Petition, she failed to demonstrate sufficient operative facts demonstrating that Attorney Bobulsky‘s performance was constitutionally deficient.
{¶38} With respect to the claim that Attorney Bobulsky failed to advise her or dissuade her from making a statement to law enforcement, we note that Knapp‘s statement was voluntary, regardless of whether it was made with the advice of counsel. On the written statement, Knapp acknowledged that she was advised of, and waived,
{¶39} Moreover, the most incriminating part of Knapp‘s written statement was that she had “about three” drinks, i.e., twenty-three ounce Christmas Ales. At trial, she qualified this statement by testifying that she only finished about one and a half beers, and that she poured the remainder into her brother‘s glass. Nothing Attorney Bobulsky did, or failed to do, prevented her from disclosing this fact in her initial statement to law enforcement. It is worth noting, also, that Jeffrey Knapp and Connie Braat also stated that Knapp had had three or four Christmas Ales in their initial statements to law enforcement. Accordingly, we find no deficiency in Bobulsky‘s performance in this regard.
{¶40} With respect to the claim that Attorney Bobulsky failed to object to the admission of the OnStar call based on the State‘s failure to produce the recording in
{¶41} With respect to the claim that Attorney Bobulsky failed to seek a change of venue, there was no prejudice. The only evidence submitted that Knapp could not obtain a fair trial were comments, not entirely hostile to Knapp, posted on the internet in response to news stories. During voir dire, Bobulsky directly addressed each juror who had prior knowledge about the case and ascertained whether that would affect his or her ability to be impartial. State v. Swiger, 5 Ohio St.2d 151, 214 N.E.2d 417 (1966), paragraph one of the syllabus (“[t]he examination of jurors on their voir dire affords the best test as to whether prejudice exists in the community against the defendant“).
{¶42} With respect to the claim that Attorney Bobulsky failed to challenge certain potentially hostile jurors, there was no prejudice. Juror Bonnie Smith lost her husband in an automobile accident and interned as a drug and alcohol counselor. Smith
{¶43} Knapp claimed that Juror Sharon Mirando stated that she believed that it was illegal to consume any amount of alcohol and drive. The voir dire transcript does not support this contention:
{¶44} Mr. Bobulsky: Do you believe that it is illegal to drink and drive, simply to have a drink and drive?
{¶45} Sharon Mirando: One drink?
{¶46} Mr. Bobulsky: Well, my question is, if you have something to drink and you are not impaired, do you believe that in itself is illegal?
{¶47} Sharon Mirando: And you are not impaired?
{¶48} Mr. Bobulsky: That‘s correct. That‘s -- that‘s my question to you. Would you accept that fact?
{¶49} Sharon Mirando: Yes.
{¶51} Sharon Mirando: Correct.
{¶52} Although somewhat confusing, Juror Mirando appears to be affirming the fact that one could have a drink and not be impaired. Elsewhere, Mirando affirmed that her judgment would be based on the evidence presented at trial. After Juror Smith previously stated that she did not believe having one drink rendered a person impaired, Attorney Bobulsky asked the jurors collectively “the same thing,” whether “they would hold [having a drink] against a person if * * * there is no evidence of impairment?” There was no affirmative response from the jury.
{¶53} With respect to the claim that Attorney Bobulsky failed to investigate the State‘s witness, Catherine Rotko‘s, background and credibility, there was no prejudice. Rotko‘s trial testimony was important, because she affirmatively testified that Knapp was intoxicated before leaving BW3. However, Knapp has not presented any admissible evidence that could have been used to impeach her. The private investigator‘s affidavit stated that “Rotko was reported to have been charged on August 8, 2008, with Felony Possession of Drugs, Misdemeanor Possession of Drug Abuse Instruments and Misdemeanor Domestic Violence.” The source of this information is not identified and no case number or other corroborating information was provided. The investigator further stated that a former BW3 employee, Michael Maurer, advised that Rotko was “fired for stealing,” but could not recall any particulars and believed that the whole matter had been “swept under the rug” by management.
{¶55} With respect to the claim that Attorney Bobulsky failed to argue that Moretti was the sole proximate cause of her own death, there was no deficiency. In the present case, the trial court duly instructed the jury that Knapp could be held criminally liable for Moretti‘s death, “unless you find that the decedent‘s conduct, that‘s Melanie Moretti, was the sole and proximate cause of her death.” In his closing argument before the jury, Bobulsky emphasized that the State‘s own witnesses acknowledged that Moretti was wearing dark clothing, walking in the street when sidewalks were available, and walking on the wrong side of the street, i.e., with traffic. In light of these circumstances, Bobulsky assured the jury “that there was not a proximate cause between any driver who was impaired or under the influence.”
{¶56} With respect to the claim that Attorney Bobulsky failed to properly counsel Knapp in plea negotiations, the United States Supreme Court has recently affirmed that criminal defendants are entitled to the effective assistance of counsel during plea negoations. Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012); Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 1407-1408, 182 L.Ed.2d 379 (2012). Claims of ineffective assistance may be based on trial counsel‘s advice to reject a plea offer on the grounds that the defendant could not be convicted at trial. Lafler at 1384.
{¶57} In the her affidavit, Knapp made the following claims regarding Attorney Bobulsky‘s performance during plea negotiations:
{¶58} 41. From the commencement of his representation of me on December 14, 2009 through the conclusion of trial, Mr. Bobulsky instructed me that I would take no plea offer which involved incarceration.
{¶59} 42. I understand now that the State was prepared to reduce the charges if I were willing to accept some period of incarceration.
{¶60} 43. Had Mr. Bobulsky advised me of my realistic exposure to a conviction and significant period of incarceration, even though innocent, I would have agreed to plead guilty and do some period of incarceration so as to minimize the effect of these proceedings on my daughter and family.
{¶62} In considering this argument, the trial court found that Knapp‘s “affidavit provide[d] no credible information which would overcome the strong presumption that Petitioner‘s experienced attorney advised her of the possible consequences of rejecting any plea offers by the prosecution.”
{¶63} There was no abuse of discretion in the trial court‘s rejection of Knapp‘s claims. Knapp bore the burden of demonstrating sufficient operative facts of trial counsel‘s lack of competence and resulting prejudice. In the affidavit, there are no specific details about the plea negotations or Attorney Bobulsky‘s performance, apart from the statements that “the State was prepared to reduce the charges” and that “Bobulsky led me to believe the State‘s case was weak.” Bobulsky‘s professional estimation that the State‘s case was “weak,” without more, does not rise the level of ineffective assistance. There are no unequivocal statements as to what offers, if any, the State was willing to entertain or that Bobulsky failed to communicate such offers or that he rejected such offers without her consent. Without the details of an actual plea offer, it is impossible to evaluate the probability of such an offer being accepted by the court and how the outcome of such a plea might have differed from the outcome at trial.
{¶64} Also, the trial court was within its discretion to doubt the credibility of Knapp‘s claims. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), at paragraph one of the syllabus (“[i]n reviewing a petition for postconviction relief filed pursuant to
{¶65} The report of Forensic Toxicologist Forney failed to demonstrate sufficient operative facts that Attorney Bobulsky was ineffective. The Ohio Supreme Court has often affirmed that the failure to call an expert witness and the decision to instead rely on cross-examination does not necessarily constitute ineffective assistance of counsel. State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Knapp must also demonstrate a reasonable likelihood that the outcome of trial would have been different had Forney‘s report been introduced. State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 118.
{¶66} It is not reasonably likely that Forney‘s report would have changed the outcome of trial. The State‘s expert, Douglas Rohde, testified that three twenty-three ounce Christmas Ales contained 120.8 grams of alcohol. Forney opined that Knapp had only consumed 51.5 grams of alcohol on the date in question. Instead of relying on the testimony that Knapp had consumed three Christmas Ales, Forney relied on Knapp‘s trial testimony that she had only consumed one and a half Christmas Ales.
{¶67} Forney also opined that the “head” of foam on a glass of Christmas Ale could reduce the volume of beer by as much as two ounces per glass.
{¶68} In determining Knapp‘s blood alcohol concentration, Forney opined that it would have been 0.06 g/100 ml, based on the consumption of two Christmas Ales and a body weight of 160 pounds. Rhode‘s calculation of Knapp‘s blood alcohol concentration under these circumstances was 0.075 g/100 ml. Significantly, both sets of calculations put Knapp above the level at which impairment is possible (0.05 BAC), and, if extrapolated for the consumption of three Christmas Ales, would put her above the legal limit in Ohio (0.08 BAC).
{¶69} In sum, Forney‘s report does not significantly impeach Rohde‘s testimony. The amount of alcohol actually consumed by Knapp was a matter of judging witnesses’ credibility, and not properly the subject of expert testimony. Rohde acknowledged that actual alcohol content of a Christmas Ale differed from the labeling but, according to Forney‘s report, this could have the effect of increasing the amount of alcohol actually consumed, as well as decreasing it. Finally, it was not demonstrated that different
{¶70} The report of Biomechanical Engineers Jupe and Weaver similarly failed to demonstrate that such testimony would have altered the trial‘s outcome, despite the claim that the report “demonstrates, as a matter of scientific and mathematical certainty, that on the night of the accident, even a non-impaired driver would have been unable to avoid colliding with Ms. Moretti.”
{¶71} Jupe and Weaver‘s report contains several shortcomings compromising its credibility. The first is the conclusion that Knapp could not possibly have seen Moretti until she was at a distance between 92 and 101 feet. Several witnesses testified that there were no adverse lighting conditions on the night in question that would have so drastically limited visibility. Timothy Talso had no difficulty seeing Moretti‘s shoe, left under a street light at the point of impact, from a distance of approximately 100 feet. Nicholas Magda testified that several cars were able to pass him and Moretti on Fargo Drive while successfully avoiding the scientifically and mathematically certain collision posited by Jupe and Weaver. Finally, Jupe and Weaver did not account for the possibility of Knapp swerving to avoid collision.
{¶72} In addition to these credibility issues, Jupe and Weaver‘s report contained opinions potentially prejudicial to Knapp‘s defense. Jupe and Weaver opined that Knapp was travelling “between 34 and 37 mph at the moment of impact.” The speed limit on Fargo Drive is 25 mph, and Knapp testified she was driving the speed limit. At trial, when one of the State‘s witnesses stated that Knapp may have been travelling in excess of 35 mph, Attorney Bobulsky moved for a mistrial. On direct appeal, Knapp‘s
{¶73} Jupe and Weaver‘s report further opined the Moretti‘s occipital skull fractures were caused by Moretti‘s head impacting the hood of Knapp‘s Saturn. The testimony that Moretti‘s head and torso impacted the top of the Saturn‘s hood, in relatively close proximity to the windshield, could be used to impeach Knapp‘s claims to have not seen the object she struck and carried for a distance of about 70 feet.
{¶74} Lastly, the report of Forensic Document Examiner Schoenberger failed to demonstrate sufficient operative facts warranting a hearing on the Petition or relief from conviction. The substance of this report, that a signature is not a reliable indicator of intoxication, is not beyond an unaided jury‘s comprehension. The evidence of Knapp‘s signature was circumstantial evidence consistent with, but not equal in weight to, Rotko‘s testimony and Knapp‘s own admissions, along with those of her brother and Connie Braat, to law enforcement. It is also worth noting that Knapp signed her written statement eleven times and that her signature was consistent with her signature upon arrival at BW3, before consuming the Christmas Ales.
{¶75} The facts of the present case are distinguishable from those in State v. Henderson, 11th Dist. No. 2001-T-0047, 2002-Ohio-6715, and State v. Brant, 11th Dist. No. 97-P-0037, 2000 Ohio App. LEXIS 3540 (Aug. 4, 2000), which Knapp relies on for the proposition that the failure to call an available expert witness constitutes ineffective assistance of counsel. In Henderson, a child-rape case, trial counsel failed to call a doctor who would have testified that “the medical findings reveal[ed] no indications of
{¶76} The expert opinions attached to Knapp‘s Petition did not have the same probative value as the testimony at issue in Henderson and Brant. In those cases, the expert testimony would have been directly probative of the defendant‘s guilt or innocence. In the present case, Forney‘s toxicology report merely qualified the testimony of the State‘s expert. As noted above, if the jury chose to believe that Knapp had consumed three to four Christmas Ales, she would have been legally intoxicated under either expert‘s calculations. Jupe and Weaver‘s report was exculpatory in that it concluded the collision was inevitable regardless of impairment. However, there are credibility issues with the report and, in other respects, the report was inculpatory in that Knapp‘s excessive speed and Moretti‘s impact with the hood of the Saturn indicated
{¶77} Knapp‘s two assignments of error are without merit.
{¶78} For the foregoing reasons, the Judgment of the Ashtabula County Court of Common Pleas, denying without hearing Knapp‘s Petition for Post-Conviction Relief, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellee, - vs - MICHELE L. KNAPP, Defendant-Appellant.
CASE NO. 2012-A-0035
TIMOTHY P. CANNON, P.J., concurring.
{¶80}
{¶81} The appellant shall include in its brief, under the headings and in the order indicated, all of the following:
{¶82} * * *
{¶83} (3) A statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected.
{¶84} (4) A statement of the issues presented for review, with references to the assignments of error to which each issue relates.
{¶85} * * *
{¶86} (6) A statement of facts relevant to the assignments of error presented for review, with appropriate references to the record in accordance with division (D) of this rule.
{¶87} (7) An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary. * * *
{¶88} There may be many reasons why appellant has failed to address the issue on appeal. However, the reason for requiring that the issue be addressed in the appellate brief, according to
STATE OF OHIO, Plaintiff-Appellee, - vs - MICHELE L. KNAPP, Defendant-Appellant.
CASE NO. 2012-A-0035
CYNTHIA WESTCOTT RICE, J., concurring and dissenting.
{¶90} It is well settled that an evidentiary hearing is not automatically required for every petition seeking postconviction relief. If, however, a petitioner has shown a substantive ground for relief, based upon the petition, the supporting affidavits, and the files and records in the case, a hearing is warranted. State v. Jackson, 64 Ohio St.2d 107, 110 (1980); see
{¶91} According to appellant‘s affidavit, trial counsel failed to advise her that she would be exposed to a significant period of incarceration if she were convicted after a trial. And, appellant averred, trial counsel instructed her to take no plea offer involving incarceration because, she was led to believe, the state‘s case was weak. After her trial, however, appellant allegedly discovered that the prosecution was prepared to reduce the charges if she was willing to accept some period of incarceration. Given
{¶92} The averments of appellant‘s affidavit suggest trial counsel may not have communicated the state‘s alleged plea offer(s) to appellant prior to trial. In Missouri v. Frye, 132 S.Ct. 1399 (2012), the Supreme Court of the United States held that an attorney‘s failure to inform a defendant of a written plea offer before it expires is sufficient to show deficient performance under Strickland v. Washington, 466 U.S. 668. Frye, supra, at 1409. And, the court held, prejudice is demonstrated if a defendant is able to show a reasonable probability both that she would have accepted the more favorable plea offer had it been communicated and that the plea would have been entered without the prosecution canceling it or the court refusing it. Id.
{¶93} Appellant‘s theory for postconviction relief is based upon her attorney‘s representations prior to trial and alleged information that he may have withheld from her in the course of plea negotiations. The majority concludes that the lack of “operative facts” supporting her claim of ineffectiveness is sufficient to affirm the trial court‘s decision to dismiss the issue without a hearing. In my view, and in light of Frye, this is not a basis for dismissal, but the justification for holding a hearing on the issue.
{¶94} Where a petitioner has raised a substantive ground for relief, which cannot be resolved as a matter of law, a court is statutorily obligated to hold a hearing to determine whether the claim justifies relief. Appellant‘s theory of ineffectiveness presents a substantive ground for relief pursuant to Frye. And it is necessarily premised upon evidence outside the record that cannot be fairly adjudicated without a hearing. I
{¶95} For the above reasons, I dissent, in part, to the majority opinion.