State v. StefanState v. Stefan
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, and Mary M. Frey, Assistant Prosecuting Attorneys, for appellee.
G. Michael Goins, for appellant.
MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant Gregory Peter Stefan (“Stefan“) appeals the trial court‘s denial of his postconviction petition to vacate and set aside his sentences and the court‘s denial of his request for an evidentiary hearing. We find that his petition was untimely and that the trial court properly denied Stefan‘s motion. We find also
Facts
{¶ 2} Pursuant to an investigation by the Ohio Internet Crimes Against Children task force, Stefan was found to be engaging in sexually explicit conversations with an undercover officer posing as a 14-year-old child. Stefan was arrested on October 13, 2015, after traveling to meet the “child” for the purpose of engaging in sexual activity. A search warrant was executed at his city of Lorain home the following day to recover numerous electronic devices, some of which required additional passcodes, and others that were accessible and contained child pornography.
{¶ 3} On November 24, 2015, Stefan was indicted on a thirteen count indictment as follows: Count 1, importuning, a fifth-degree felony; Count 2, attempted unlawful sexual conduct with a minor, a fifth-degree felony; Counts 3 through 7, pandering sexually oriented material or performance in violation of
{¶ 4} According to emails between Stefan‘s trial counsel and the state of Ohio (“the State“) — attached to his petition as exhibits — during the course of plea negotiations the State presented a plea agreement to Stefan. Under that agreement,
{¶ 5} Instead, when Stefan‘s attorney met with the State on May 31, 2016, the State proposed a new plea agreement. The State would nolle counts 8-12 — pandering, all fourth-degree felonies. The State also agreed not to charge him for additional pornographic material found on his devices. Stefan agreed to this new deal. That same day, Stefan pled guilty to: count 1 of importuning, a fifth-degree felony; count 2 of attempted unlawful sexual conduct with a minor, a fifth-degree felony; counts 3-7, pandering, all second-degree felonies; and count 13 of possession of criminal tools, a fifth-degree felony.
{¶ 6} On August 23, 2016, the court sentenced Stefan to the maximum sentence on each count. Stefan received eight-year sentences for each of counts 3-7, which were to run concurrent with each other. Stefan also received one-year sentences for each of counts 1, 2 and 13, to all run consecutive to each other as well as consecutive to his 8-year sentence. His total sentence was 11 years’ incarceration, a Tier II sex offender classification as well as five years of mandatory postrelease control.
{¶ 8} Stefan timely filed an application to reopen his direct appeal pursuant to
{¶ 9} On March 15, 2019, Stefan filed this petition for postconviction relief pursuant to
{¶ 10} The trial court denied his petition on March 28, 2019, without holding an evidentiary hearing; the court did not provide any reasoning. Stefan now appeals the denial of his untimely petition.
{¶ 11} Stefan provides two assignments of error for our review. We will address them in turn.
Assignment of Error No. 1
The trial court abused its discretion when it denied Stefan‘s petition for postconviction relief in violation of the
{¶ 12} Stefan‘s argument is that he is entitled to relief under
{¶ 13} As an initial matter we must note that his petition for postconviction relief is not timely.
- Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right.
- The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 15} Stefan concedes that his petition is untimely, but contends that he was unaware that the initial plea offer was not part of the record until April 25, 2018, when he filed his application to reopen.
{¶ 16} Pursuant to
R.C. 2953.23(A)(1)(a)
{¶ 17} In order for the trial court to address the merits of his untimely petition Stefan must first show that, pursuant to
{¶ 18} Stefan states that he believed the initial plea offer was a part of the record. He also argues that the mere existence of the first plea offer proves that he would have never pled guilty to the second plea but for ineffective assistance of counsel. But even if that were all true, Stefan still fails to prove that he was prevented from discovering the plea offer was not in the record.
{¶ 19} Stefan was in court on May 31, 2016, the day the record was created, and knew that no mention was made of his first plea offer. Further, he had access to the emails of his defense counsel — attached as affidavits to his petition — which prove the existence of the plea outside of the record. Finally, he had multiple opportunities during the pendency and resolution of his appeal to discover the plea offer. Stefan‘s discovery of the plea offer was not unavoidably prevented within the required 365-day statutory timeline.
{¶ 20} Stefan fails to meet the requirements under
R.C. 2953.23(A)(1)(b)
{¶ 21} Under
{¶ 22} Generally, a petitioner who pled guilty and then files an untimely petition for postconviction relief does not qualify under
{¶ 23} We have, however, recognized that this rule must have exceptions. For example, in State v. Moon, we held that a guilty plea does not necessarily preclude relief under
{¶ 25} Stefan alleges that he only pled guilty to the second plea agreement because his counsel was not prepared for trial, and that his counsel was not prepared for trial in anticipation of a different plea agreement being agreed to. Central to that argument is the admission that Stefan was prepared to plead guilty. True to a different plea agreement, but not to different facts. He is not alleging, like in Moon, that there is a scenario where he would not have admitted guilt; he cannot credibly meet the requirements of
{¶ 26} Stefan has failed to prove that he deserves relief under either prong of
{¶ 27} We turn now to his second assignment of error.
Assignment of Error No. 2
The trial court erred in denying Stefan‘s petition for postconviction relief where he presented sufficient evidence dehors the record to merit an evidentiary hearing.
{¶ 28} A trial court‘s decision to deny a postconviction petition without a hearing is reviewed for abuse of discretion. State v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 16. An “abuse of discretion” requires more than an error of law or of judgment; it “implies that the court‘s attitude is unreasonable,
{¶ 29} We have consistently held that when a trial court lacks jurisdiction to hear a petition under
{¶ 30} The trial court was well within its discretion to deny Stefan‘s request for a hearing because the court lacked jurisdiction. His arguments are without merit.
{¶ 31} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
MARY EILEEN KILBANE, JUDGE
EILEEN T. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR