[Cite as State v. Tyburski, 2018-Ohio-4248.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.      18CA011291

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JANET L. TYBURSKI                                   COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   15CR091745

                                 DECISION AND JOURNAL ENTRY

Dated: October 22, 2018



        CALLAHAN, Judge.

        {¶1}     Defendant-Appellant, Janet Tyburski, appeals from the judgment of the Lorain

County Court of Common Pleas, denying her petition for post-conviction relief. This Court

affirms.

                                               I.

        {¶2}     Ms. Tyburski was arrested for the murder of her daughter after the police

discovered her daughter’s body in a field in North Ridgeville. While speaking with the police,

she verbally confessed to the murder and to moving her daughter’s body with the help of her

other daughter. She also completed an eleven-page written statement at the police station,

confessing to the murder.

        {¶3}     A grand jury indicted Ms. Tyburski on one count of aggravated murder, two

counts of murder, two counts of felonious assault, one count of tampering with evidence, and one

count of abuse of a corpse. She was appointed counsel and, over the next two years, her attorney
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filed numerous motions on her behalf.          Those motions included requests for competency

evaluations, for funds to secure a psychologist to act as a consultant, and for funds to secure an

investigator. Counsel also filed notices of Ms. Tyburski’s intent to argue self-defense, and later,

to plead not guilty by reason of insanity.

       {¶4}    Ms. Tyburski ultimately withdrew her initial plea and signed a written plea

agreement. The agreement provided that her aggravated murder count would be dismissed, she

would plead guilty to her remaining counts, and she would receive a sentence of 19 years to life

in prison. It further provided that her surviving daughter would be charged strictly with a

misdemeanor for helping conceal her sister’s body. As a condition of her plea, Ms. Tyburski

affirmed at her plea hearing that the statement she made to the police, confessing to her

daughter’s murder, was true.       Consistent with the parties’ plea agreement, the trial court

sentenced her to 19 years to life in prison.

       {¶5}    Subsequently, Ms. Tyburski filed a pro se petition for post-conviction relief. The

State responded in opposition, and, on review, the trial court denied the petition without holding

a hearing.

       {¶6}    Ms. Tyburski now appeals from the trial court’s judgment, denying her petition

for post-conviction relief. She raises one assignment of error for this Court’s review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT’S
       PETITION FOR POST-CONVICTION RELIEF BASED UPON: INEFFECTIVE
       ASSISTANCE OF TRIAL COUNSEL BECAUSE TRIAL COUNSEL FAILED
       TO FILE A MOTION TO SUPPRESS CONFESSION BASED UPON THE
       SANITY AND COMPETENCY OF THE DEFENDANT AT THE TIME OF
       THE CONFESSION AS WELL AS OTHER RELEVANT FACTORS.
                                                   3


        {¶7}    In her sole assignment of error, Ms. Tyburski argues that the trial court erred

when it denied her petition for post-conviction relief. She asks this court to vacate her plea or, in

the alternative, to remand this matter for an evidentiary hearing on her petition. Upon review,

this Court does not agree that the trial court erred when it denied her petition.

        {¶8}    The decision to grant or deny a petition for post-conviction relief is committed to

the sound discretion of the trial court. State v. Glynn, 9th Dist. Medina No. 02CA0090-M, 2003-

Ohio-1799, ¶ 4. Accordingly, this Court will not overturn the decision of a trial court regarding a

petition for post-conviction relief absent an abuse of discretion. Id. An abuse of discretion

indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion

standard, this Court may not substitute its judgment for that of the trial court. Pons v. Ohio State

Med. Bd., 66 Ohio St.3d 619, 621 (1993).

        {¶9}    “When a petitioner’s post-conviction claim sounds in ineffective assistance of

counsel, a trial court must analyze * * * her claim under the two-step test set forth in Strickland

v. Washington, 466 U.S. 668 (1984).” State v. Muzic, 9th Dist. Summit No. 28646, 2017-Ohio-

8563, ¶ 8. The petitioner must show that (1) counsel’s performance was deficient, and (2) the

deficiency prejudiced her. Strickland, 466 U.S. at 687. In the context of a guilty plea, prejudice

will lie only if “there is a reasonable probability that, but for [her] counsel’s error, [the petitioner]

would not have pleaded guilty and would have insisted on going to trial.” State v. Evans, 9th

Dist. Medina No. 09CA0049-M, 2010-Ohio-3545, ¶ 4. To that end, “‘ineffective assistance will

only be found to have affected the validity of the plea when it precluded the defendant from

entering the plea knowingly and voluntarily.’” State v. Gegia, 157 Ohio App.3d 112, 2004-

Ohio-2124, ¶ 17 (9th Dist.), quoting State v. Doak, 7th Dist. Columbiana Nos. 03 CO 15, 03 CO
                                                4


31, 2004-Ohio-1548, ¶ 55. That is because “[a] guilty plea ‘represents a break in the chain of

events that preceded it in the criminal process * * *.’” State v. Allen, 9th Dist. Summit Nos.

27494, 28213, 2017-Ohio-2831, ¶ 37. “[I]neffective assistance of counsel arguments that do not

relate to the voluntary and knowing character of the defendant’s plea, and involve errors that

occurred prior to the plea, are waived by a guilty plea.” State v. Emich, 9th Dist. Medina No.

17CA0039-M, 2018-Ohio-627, ¶ 16.

       {¶10} To determine whether a defendant knowingly, intelligently, and voluntarily

entered her plea, an appellate court asks whether the trial court, in accepting the plea,

“[c]ompli[ed] with the mandates of Crim.R. 11(C) * * *.” State v. Ross, 9th Dist. Wayne No.

13CA0015, 2014-Ohio-1675, ¶ 6.        That rule requires a trial court to personally address a

defendant and to ensure that she understands the items listed therein, including her charges, the

maximum penalty she faces, the effect of her plea, and the constitutional rights she will waive as

a result of her plea. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 27, quoting

Crim.R. 11(C).

       Where the record affirmatively discloses that: (1) [the] defendant’s guilty plea
       was not the result of coercion, deception or intimidation; (2) counsel was present
       at the time of the plea; (3) counsel’s advice was competent in light of the
       circumstances surrounding the indictment; (4) the plea was made with the
       understanding of the nature of the charges; and, (5) [the] defendant was motivated
       either by a desire to seek a lesser penalty or a fear of the consequences of a jury
       trial, or both, the guilty plea has been voluntarily and intelligently made.

State v. Piacella, 27 Ohio St.2d 92 (1971), syllabus. “[A]n appellate court must look to the

totality of the circumstances * * *.” State v. Ru Liu, 9th Dist. Summit No. 24112, 2008-Ohio-

6793, ¶ 21.

       {¶11} Ms. Tyburski sought post-conviction relief on the basis of ineffective assistance

of counsel. In her pro se petition, she argued that she received ineffective assistance because her
                                                  5


attorney did not file a motion to suppress her confession. According to Ms. Tyburski, she did not

kill her daughter, but confessed to the murder due to police coercion and her fragile mental

state.1 She argued that, once the State obtained her involuntary confession, she “was essentially

forced into pleading guilty to a crime she did not commit.” Had her attorney filed a motion to

suppress, she argued, the motion likely would have been granted, and she would have insisted on

going to trial. In support of her petition, she filed an affidavit, describing her mental state at the

time of her confession and the tactics the police employed to elicit her confession.

          {¶12} The trial court determined that Ms. Tyburski had knowingly, intelligently, and

voluntarily entered her plea, and thus, had waived her claim of ineffective assistance of counsel.

The court noted that she had signed a written plea agreement, outlining the details of her plea. It

further noted that, during the plea colloquy, she had admitted (1) she was thinking clearly, (2)

her confession was true, and (3) she was satisfied with her attorney’s services insofar as they

concerned her plea and the deal she received. The court determined that Ms. Tyburski was “well

aware” that her plea would have the effect of eliminating her most serious charge and “spar[ing]

her co-defendant daughter from any incarceration or further charges.” Concluding that she had

entered into a knowing, intelligent, and voluntary plea, it denied her petition for post-conviction

relief.

          {¶13} On appeal, Ms. Tyburski maintains that her attorney engaged in ineffective

assistance of counsel when he failed to file a motion to suppress her confession. She argues, at

length, that a motion to suppress would have succeeded because her confession was a product of

coercion. She claims that her attorney failed to mount any feasible defense because he did not



1
 Ms. Tyburski did not dispute that she moved her daughter’s body and concealed it in a field.
She only claimed to be innocent of the actual murder.
                                                 6


investigate her claim of innocence, he told their consulting psychologist not to file a report, and

he advised her that, if she went to trial, he intended to place the blame for the murder on her

surviving daughter. According to Ms. Tyburski, she had no choice but to accept the State’s plea

offer “because she was left with absolutely no defense.”

        {¶14} Initially, this Court notes that Ms. Tyburski has attempted to raise new issues on

appeal. Her petition for post-conviction relief contained only one claim for relief. That claim

was that her trial attorney was ineffective for not filing a motion to suppress her confession. She

did not argue that he was ineffective for failing to conduct an adequate investigation, ensure the

filing of the psychologist’s report, or tender competent advice. This Court will not address new

arguments for the first time on appeal. See Gegia, 2004-Ohio-2124, at ¶ 26; State v. Nelson, 9th

Dist. Summit No. 20808, 2002-Ohio-3745, ¶ 6.            Because Ms. Tyburski moved for post-

conviction relief strictly on the basis of her attorney’s failure to file a motion to suppress, this

Court limits its review to that issue.

        {¶15} Having reviewed the record, this Court cannot conclude that the trial court abused

its discretion by denying Ms. Tyburski’s petition for post-conviction relief. See Glynn, 2003-

Ohio-1799, at ¶ 4. The vast majority of her petition addressed the involuntary nature of her

confession and the likelihood that she would have succeeded upon a properly filed motion to

suppress.   The dispositive issue, however, was whether she knowingly, intelligently, and

voluntarily pleaded guilty; not whether she knowingly, intelligently, and voluntarily confessed.

That is because her guilty plea waived any ineffective assistance of counsel argument that did

not relate to the validity of her plea. See Emich, 2018-Ohio-627, at ¶ 16.

        {¶16} Ms. Tyburski did not specifically address Crim.R. 11(C) in her petition or

otherwise argue that the trial court failed to comply with its strictures. See Ross, 2014-Ohio-
                                               7


1675, at ¶ 6 (“Compliance with the mandates of Crim.R. 11(C) allows for the determination of

whether the defendant’s plea was entered in a knowing, intelligent, and voluntary manner.”).

She never claimed that she entered into her plea without understanding her charges, the effect of

her plea, or any of her rights. Moreover, the record does not support her assertion that she was

forced to plead guilty due to her attorney’s decision not to file a motion to suppress. Ms.

Tyburski faced extremely serious charges. By pleading guilty, she avoided her aggravated

murder charge and secured the State’s promise of an agreed sentence, as well as its promise of

leniency in the prosecution of her surviving daughter. She signed a written plea agreement that

outlined her charges, the maximum penalties she faced, her rights, and the terms of her plea.

During her plea colloquy, she acknowledged that she understood the written agreement and had

signed it voluntarily.    She also acknowledged that she understood the conditions and

repercussions of her plea and that no one had threatened her to secure her plea. See Crim.R.

11(C). Ms. Tyburski had the benefit of counsel and indicated that she was satisfied with his

advice insofar as it pertained to her plea. She never claimed that she was being forced to plead

guilty or that she did not understand the terms of her plea. The record, therefore, supports the

trial court’s conclusion that she knowingly, voluntarily, and intelligently entered her plea. See

Piacella, 27 Ohio St.2d 92 at syllabus.

       {¶17} The only evidence that Ms. Tyburski appended to her petition for post-conviction

relief was her self-serving affidavit. In her affidavit, she outlined the factual circumstances

surrounding her confession and averred that it was a product of coercion. Once again, however,

the issue before the trial court was whether Ms. Tyburski tendered a valid plea, not whether she

tendered a valid confession. Ms. Tyburski failed to set forth any evidence that her attorney’s

alleged ineffective assistance “‘precluded [her] from entering [her] plea knowingly and
                                                 8


voluntarily.’”   Gegia, 2004-Ohio-2124, at ¶ 17, quoting Doak, 2004-Ohio-1548, ¶ 55.

Accordingly, her guilty plea waived her ineffective assistance of counsel argument, and the trial

court did not err by denying her petition for post-conviction relief. See Allen, 2017-Ohio-2831,

at ¶ 37-38. Ms. Tyburski’s sole assignment of error is overruled.

                                                III.

       {¶18} Ms. Tyburski’s sole assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
                                        9




SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

JANET L. TYBURSKI, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
