[Cite as State v. Kirschenmann, 2015-Ohio-3544.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


STATE OF OHIO,                                     :     OPINION

                 Plaintiff-Appellee,               :
                                                         CASE NOS. 2014-P-0031,
        - vs -                                     :           and 2014-P-0032

CURTIS A. KIRSCHENMANN,                            :

                 Defendant-Appellant.              :


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.
       {¶3}   In Case No. 2012 CR 0050, the Portage County Grand Jury returned a 14-

count indictment against appellant on January 27, 2012: three counts of receiving stolen

property, felonies of the fifth degree, in violation of R.C. 2913.51; and 11 counts of

forgery, felonies of the fifth degree, in violation of R.C. 2913.31.

       {¶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 R.C.

2925.04; one count of assembly or possession of chemicals to manufacture a controlled

substance, a felony of the second degree, in violation of R.C. 2925.041(A) and (C); one

count of aggravated trafficking in drugs, a felony of the third degree, in violation of R.C.

2925.03(A)(2) and (C)(1)(b); aggravated possession of drugs, a felony of the fifth

degree, in violation of R.C. 2925.11(A) and (C)(1)(a); and one count of possessing

criminal tools, a felony of the fifth degree, in violation of R.C. 2923.24(A) and (C).

       {¶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




                                              2
and fines. The court notified him regarding post-release control. Appellant did not file a

direct appeal from his sentence.

          {¶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} “Crim.R. 32.1 states: ‘(a) motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the



1. Appellant filed two appeals: Case No. 2014-P-0031 (regarding trial court Case No. 2012 CR 0050) and
Case No. 2014-P-0032 (regarding trial court Case No. 2012 CR 0085). This court later consolidated
appellant’s two appeals for all purposes.


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court after sentence may set aside the judgment of conviction and permit the defendant

to withdraw his or her plea.’

       {¶13} “‘An appellate court will review the trial court’s determination of the

Crim.R. 32.1 motion for an abuse of discretion.’ State v. Desellems (Feb. 12, 1999),

11th Dist. No. 98-L-053, 1999 Ohio App. LEXIS 458, at 8, citing State v. Blatnik (1984),

17 Ohio App.3d 201, 202, * * *. ‘The term “abuse of discretion” connotes more than an

error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’ Desellems, supra, at 8, citing State v. Montgomery (1991), 61 Ohio

St.3d 410, 413, * * *. Regarding this standard, we recall the term ‘abuse of discretion’ is

one of art, essentially connoting judgment exercised by a court which neither comports

with reason, nor the record. State v. Ferranto (1925), 112 Ohio St. 667, 676-678, * * *.

       {¶14} “‘Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of

sentence, a defendant bears the burden of proving that such a withdrawal is necessary

to correct a manifest injustice.’ State v. Taylor, 11th Dist. No. 2002-L-005, 2003 Ohio

6670, at ¶8, citing State v. Smith (1977), 49 Ohio St.2d 261, * * *, at paragraph one of

the syllabus.   ‘A manifest injustice is determined by examining the totality of the

circumstances surrounding the guilty plea.’ Taylor at ¶8, citing State v. Talanca (Dec.

23, 1999), 11th Dist. No. 98-T-0158, 1999 Ohio App. LEXIS 6257, * * * at 2-3.

       {¶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




                                             4
a post-sentence motion to withdraw a guilty plea, a hearing is only required if the facts

alleged by the defendant, and accepted as true, would require withdrawal of the plea.

Id.’ State v. Wilkey, 5th Dist. No. CT2005-0050, 2006-Ohio-3276, at ¶25. (Parallel

citation omitted.)   ‘Generally, a self-serving affidavit or statement is insufficient to

demonstrate manifest injustice.’    Id. at ¶26, citing State v. Patterson, 5th Dist. No.

2003CA00135, 2004-Ohio-1569, citing State v. Laster, 2d Dist. No. 19387, 2003-Ohio-

1564.

        {¶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




                                             5
proceeding] would have differed if the motion had been filed or pursued.’” State v.

Weimer, 11th Dist. Lake No. 2013-L-008, 2013-Ohio-5651, ¶38, quoting State v.

Walker, 11th Dist. Lake No. 2009-L-155, 2010-Ohio-4695, ¶15.

       {¶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




                                               6
prison term, a six-month to five-year license suspension and a $7,500.00 fine up to a

$15,000.00 fine; and in Case Number 12 CR 50, counts one, eight and twelve, all

receiving stolen property, felonies of the fifth degree; and count two, five, seven, eleven

and fourteen, forgeries, felonies of the fifth degree, each of those bringing with them up

to one year imprisoned and a $2,500.00 fine and court costs.

       {¶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 Ohio Revised Code

2967.28?

       {¶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.




                                            7
       {¶33} “If you violate those conditions you could be given a longer period, greater

restrictions or a prison term of eight years on Case Number 12 CR 85 as a sanction,

and twelve months on each of the felonies in Case Number 12 CR 50 as sanctions; do

you understand that?

       {¶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.




                                            8
      {¶49} “THE COURT: Sir, do you understand you have the right to confront and

cross-examine witnesses against you?

      {¶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.




                                           9
      {¶67} “THE COURT: And you are waiving that right, sir?

      {¶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?




                                          10
        {¶84} “DEFENDANT: No.

        {¶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




                                            11
further establishes that the trial court complied with the Crim.R. 11(C) requirements in

their entirety.

       {¶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} R.C. 2953.21(A)(2) states in part:

       {¶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




                                             12
petition shall be filed no later than one hundred eighty days after the expiration of the

time for filing the appeal.”

       {¶105} Pursuant to R.C. 2953.21, “a trial court is statutorily mandated to compose

and issue findings of fact and conclusions of law on each claim stated in a

postconviction petition.” State v. Osco, 11th Dist. Portage No. 2014-P-0010, 2015-

Ohio-45, ¶14. “However, this duty does not apply if the petition is subject to dismissal

on the basis that it was untimely filed.” Id., citing State ex rel. James v. Coyne, 114

Ohio St.3d 45, 2007-Ohio-2716, ¶5.

       {¶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 R.C. 2953.21(A)(2), appellant was required to file his petition for post-

conviction relief “no later than one hundred eighty days after the expiration of the time

for filing the appeal.” However, appellant failed to comply with the statute because he

did not file his petition for post-conviction relief until March 27, 2014, well outside of the

mandated time frame. Thus, appellant’s petition for post-conviction relief was clearly

untimely.

       {¶107} R.C. 2953.23 sets forth exceptions to the 180-day requirement under R.C.

2953.21. “R.C. 2953.23(A)(1) describes the two-part test most petitioners must meet

before this time limit is waived * * *.2 First, the petitioner must show either: (1) that he

was unavoidably prevented from timely discovering the facts on which the petition is

based; or (2) that the United States Supreme Court has recognized a new, retroactive

2. R.C. 2953.23(A)(2) concerns cases dependent on DNA evidence, and is irrelevant to this appeal.


                                                  13
federal or state right that applies to the petitioner’s case. R.C. 2953.23(A)(1)(a). If –

and only if – the petitioner can leap this first hurdle, does the second arise: i.e., the

petitioner must show, 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 (* * *) (.)’            R.C.

2953.23(A)(1)(b).” State v. Jordan, 11th Dist. Trumbull No. 2006-T-0087, 2007-Ohio-

1067, ¶7.

      {¶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 presented from discovery” of any of the facts he alleged in his petition

claiming ineffective assistance of counsel. R.C. 2953.23(A)(1)(a). Thus, appellant fails

to meet the first prong of the R.C. 2953.23(A)(1)(a) test for untimely petitions. In any

event, we note that appellant also has not presented clear and convincing evidence that

his guilty plea was not knowing, intelligent, and voluntary, thereby failing to meet the

second prong as well. R.C. 2953.23(A)(1)(b).

      {¶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,

paragraphs eight and nine of the syllabus (1967).

      {¶110} Appellant’s second and third assignments of error are without merit.




                                           14
      {¶111} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Portage County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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