State v. PishokState v. Pishok
{¶ 1} The defendant-appellant, David J. Pishok (“Pishok“), appeals from the judgment of the Seneca County Common Pleas Court dismissing his petition for post conviction relief without an evidentiary hearing.
{¶ 2} Pishok was indicted on nine charges by the Seneca County Grand Jury after robbing The Gallery, an antique store located in Tiffin, Seneca County, Ohio. Pishok entered pleas of not guilty on each charge. Prior to trial, Pishok‘s attorney, Derek DeVine (“DeVine“), filed a motion to dismiss based on speedy trial rights. On January 8, 2002, the trial court overruled the motion to dismiss and held a change of plea hearing. Pishok pled guilty to seven of the nine charges, and the State of Ohio (“State“) agreed to dismiss the remaining two charges, strike the repeat violent offender specification on two charges, and recommend a twenty-one year prison sentence. On January 15, 2002, the trial court held a sentencing hearing and sentenced Pishok in accordance with the State‘s recommendation.
{¶ 3} Pishok failed to file a timely appeal, but did file a petition for post conviction relief with the trial court. The trial court granted one ground for relief and re-sentenced Pishok, which allowed him to file a direct appeal. Pishok‘s appeal asserted five assignments of error, which we overruled. See State v. Pishok, 3rd Dist. No. 13-03-43, 2003-Ohio-7118. On November 6, 2003, while his appeal was pending, Pishok filed a second petition for post conviction relief. The trial court dismissed the petition without a hearing on March 10, 2005. Pishok appeals the trial court‘s dismissal of his petition for post conviction relief and asserts the following assignments of error:
In violation of due process, the trial court denied Mr. Pishok a fair and impartial hearing on his pre-trial motion to dismiss for speedy trial violation pursuant to
{¶ 4} We begin by addressing the third assignment of error. When a petitioner files a petition for post conviction relief under
[i]n making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against he petition, including, but not limited to, the indictment, the court‘s journal entries, the journalized records of the clerk of the court, and the court reporter‘s transcript. . . . If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.
{¶ 5} Pishok‘s petition for post conviction relief essentially argues that his Sixth Amendment right to a speedy trial was violated. Pishok also argues that he was denied the effective assistance of counsel because DeVine did not advise him of his appellate rights before he changed his pleas. In reviewing Pishok‘s petition, the trial court filed a judgment entry on March 10, 2005, which set forth a history of the case, findings of fact, and conclusions of law. Under its findings of fact, the trial court stated in pertinent part:
19. Pishok was completely advised of his appellate rights at his plea hearing. 20. The plea agreement did not expressly reserve any special right to appeal the speedy trial claim. 21. Pishok stated at the plea hearing that he was satisfied with [the] advice, counsel and competence of his trial attorney. 22. Pishok‘s testimony at the November 21, 2002 hearing was not credible or reliable. 23. Pishok‘s affidavits attached to his petition and amended petition are also not credible or reliable. His bare accusations that Seneca County Prosecuting Attorney Ken Egbert, Jr. and his trial attorney, Derek DeVine, willfully, and with conscious design, submitted false evidence and perjured testimony to this Court are completely and utterly without merit and without any proof.
J. Entry, Mar. 10, 2005, 5-6. Likewise, under its conclusions of law, the trial court found the Adult Parole Authority holders filed against Pishok after his arrest in this matter were valid; the valid parole holders “precluded the application of the triple-count provision of
{¶ 6} After making its findings of fact and conclusions of law, the trial court found there were no substantive grounds for relief. Based on this record, we cannot find that the trial court acted unreasonably, arbitrarily, or unconscionably. The third assignment of error is overruled.
{¶ 7} Having overruled Pishok‘s third assignment of error, the remaining assignments of error are moot. However, we note that the arguments presented in the first and second assignments of error have been previously overruled by this Court. See State v. Pishok, supra. Therefore, res judicata would bar any argument concerning those issues. The judgment of the Seneca County Common Pleas Court is affirmed.
Judgment affirmed.
CUPP, P.J., and ROGERS, J., concur.