[Cite as State v. Stefan, 2020-Ohio-1276.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                              No. 108487
                 v.                                :

GREGORY PETER STEFAN,                              :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 2, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-15-600196-A


                                             Appearances:

                 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.:

                   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
that the trial court did not abuse its discretion in denying his request for a hearing.

For the foregoing reasons, we affirm.

                                        Facts

               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.

               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 R.C.

2907.322(A)(1), all second-degree felonies; Counts 8 through 12, pandering sexually

oriented material or performance, in violation of R.C. 2907.322(A)(5), all fourth-

degree felonies; and Count 13, possession of criminal tools, a fifth-degree felony.

Stefan pleaded not guilty to all charges.

               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,
the State would nolle counts 3-7 — pandering, all second-degree felonies — in

exchange for Stefan’s plea of guilty and all passwords and access codes to the devices

recovered at his home. According to the emails provided, the State made clear that

depending on what was found on Stefan’s devices, he could face additional charges

regardless of the existing terms of the deal. Stefan was prepared to accept that plea

deal on May 31, 2016, the day the trial was to begin.

               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.

               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.
              Stefan timely appealed from that judgment and presented two

assignments of error. State v. Stefan, 8th Dist. Cuyahoga No. 104979, 2018-Ohio-

266 (“Stefan I”). Stefan argued that his counsel was ineffective for advising that he

plead guilty on the grounds that several of his charges were potentially time barred.

Stefan also argued that his sentence was contrary to law. We found his arguments

lacked merit and affirmed the trial court on January 25, 2018, in Stefan I.

              Stefan timely filed an application to reopen his direct appeal pursuant

to Crim.R. 26(B) on April 25, 2018. He alleged that his appellate counsel was

deficient and should have raised additional arguments regarding the performance

of his trial counsel. Stefan alluded to the initial, more favorable, plea offer and

argued that his trial counsel had forced him to take the second offer because counsel

was not aware the State would propose a new deal and had not prepared for trial.

We denied his application on August 24, 2018. On December 12, 2018, the Ohio

Supreme Court declined to review our denial of his application.

              On March 15, 2019, Stefan filed this petition for postconviction relief

pursuant to R.C. 2953.21 and 2953.23. Stefan again argued that his trial counsel

had been deficient and that his pleas were not valid because he had been forced into

pleading guilty. Stefan attached email records between the State and his trial

counsel referencing the initial plea offer. Stefan also attached affadavits from

members of his family that asserted Stefan was ready to plead guilty only to the first

agreement and that he had been caught off guard by the second plea offer. He again

asserted that his counsel’s advice was to plead guilty because counsel was not
prepared for a trial. The State opposed his petition arguing that it was untimely and

that an evidentiary hearing was unnecessary.

               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.

               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 Fifth, Sixth, and Fourteenth
      amendments to the United States Constitution.

               Stefan’s argument is that he is entitled to relief under R.C. 2953.21(A)

because he has presented evidence dehors the record that his counsel was ineffective

and his plea was therefore not valid.

               As an initial matter we must note that his petition for postconviction

relief is not timely. R.C. 2953.21(A)(2) provides that a petition for postconviction

relief must be filed “no later than three hundred sixty-five 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.” Stefan’s petition for postconviction relief was filed over

two and a half years after the trial transcript in his direct appeal was filed in the court

of appeals; his petition is therefore untimely. An untimely petition can still be

reviewed however.
               R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an

untimely filed petition for postconviction relief only if both of the following apply:

      (a) 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.

      (b) 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.

               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.

               Pursuant to R.C. 2953.23(A)(1)(a), Stefan’s argument can be

summarized as follows. He was unavoidably prevented from discovering the initial

plea offer was absent from the record. If he had this evidence he could prove that

he and his counsel showed up on May 31, 2016, the day of trial, ready for Stefan to

plead guilty to the terms of the initial plea offer. Instead, Stefan was presented with

an alternative plea deal, defense counsel was unprepared to go to trial, and Stefan,

therefore, had no choice but to plead guilty to the terms of the new agreement. In

short, if not for the existence of the first plea offer, Stefan would have never pled

guilty to the second. His arguments are without merit.
                               R.C. 2953.23(A)(1)(a)

               In order for the trial court to address the merits of his untimely

petition Stefan must first show that, pursuant to R.C. 2953.23(A)(1)(a), he was

“unavoidably prevented from discovery of the fact upon which the petitioner must

rely to present the claim for relief.” In this case then, Stefan must show he was

unavoidably prevented from discovering that his initial plea was not a part of the

record. Stefan cannot do so.

               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.

               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.

               Stefan fails to meet the requirements under R.C. 2953.23(A)(1)(a),

but even if he did qualify, he would still not meet the requirements of R.C.

2953.23(A)(1)(b).
                              R.C. 2953.23(A)(1)(b)

               Under R.C. 2953.23(A)(1)(b), the petitioner, after meeting the

requirements of R.C. 2953.23(A)(1)(a), must show “by clear and convincing

evidence that, but for the constitutional error at trial, no reasonable factfinder would

have found the petitioner guilty * * *.”

               Generally, a petitioner who pled guilty and then files an untimely

petition for postconviction relief does not qualify under R.C. 2953.23(A)(1)(b).

Because the defendant has pled guilty, there is no trial; he cannot, therefore

demonstrate that “but for constitutional error at trial” he would not have been found

guilty. The defendant simply has no basis for arguing that reasonable factfinders

would not have found him guilty when he himself is admitting guilt of a substantive

crime. See State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 34,

citing State v. Cool, 9th Dist. Summit No. 24518, 2009-Ohio-4333, ¶ 14; see also

State v. Estridge, 2d Dist. Greene No. 2005 CA 136, 2006-Ohio-5310, ¶ 8 (appellant

did not meet burden under R.C. 2953.23(A)(1)(b) “because his guilty pleas operate

as a waiver. [A] counseled plea of guilty is an admission of factual guilt so reliable

that, where voluntary and intelligent, it quite validly removes the issue of factual

guilt from the case.”).

               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 R.C. 2953.23(A)(1)(b) where the appellant is alleging that,

because of ineffective assistance of counsel, his plea was not valid.
               Moon differs substantially from our case however. In Moon, counsel

was alleged to have failed to file a motion to suppress that, if successful, would have

prevented the State from presenting any evidence of the appellant’s guilt. We could

safely reason in Moon then that, absent evidence, a reasonable factfinder could not

have found Moon guilty at trial. That is not the case here.

               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 R.C. 2953.23(A)(1)(b) as a result.

               Stefan has failed to prove that he deserves relief under either prong of

R.C. 2953.23(A)(1). Therefore, his petition is untimely and was properly dismissed.

               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.

               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,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

                 We have consistently held that when a trial court lacks jurisdiction to

hear a petition under R.C. 2953.23(A)(1), it is not an abuse of discretion to not

conduct an evidentiary hearing. See, e.g., State v. Bates, 8th Dist. Cuyahoga No.

105766, 2017-Ohio-8408; State v. Chapman, 8th Dist. Cuyahoga No. 99960, 2014-

Ohio-1059; State v. Werber, 8th Dist. Cuyahoga No. 100290, 2014-Ohio-609; State

v. Piasecki, 8th Dist. Cuyahoga No. 98952, 2013-Ohio-1191, ¶ 21 (where the trial

court lacked jurisdiction to hear petition under R.C. 2953.23(A)(1), trial court did

not err in failing to conduct a hearing).

                 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.

                 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

EILEEN T. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR
