[Cite as State v. Alt, 2012-Ohio-3580.]



                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 98087



                                          STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           SUSAN ALT
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-527674

        BEFORE: Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      August 9, 2012
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Susan Alt, appeals the trial court’s denial of her

petition for postconviction relief without a hearing. She raises two assignments of error

for our review:

       “[1.] Because the trial court failed to make specific findings of fact and

conclusions of law regarding the claim of failure to properly handle appellant’s motion to

withdraw plea hearing, instead of finding it to be res judicata, its judgment entry is not a

final and appealable order.

       “[2.] The trial court abused its discretion by dismissing appellant’s postconviction

petition without a hearing.”

       {¶2} Finding no merit to her appeal, we affirm the judgment of the trial court.

                       Procedural History and Factual Background

       {¶3} In July 2010, Alt pleaded guilty to 31 counts relating to a sophisticated

mortgage fraud scheme.       As part of her plea, Alt agreed to forfeit $2 million to the state.

 Two weeks before the sentencing hearing in December 2010, Alt moved to withdraw her

guilty plea, asserting that her plea should be vacated because she “did not fully

understand all of the ramifications of her plea” and she “maintains her innocence and has

a defense to the charges.”
       {¶4} The trial court held a hearing on Alt’s motion to withdraw her plea before

the sentencing hearing, after which it denied Alt’s motion.    The court sentenced Alt to

an aggregate nine years in prison.   The court also advised Alt that she would be subject

to five years of mandatory postrelease control.

       {¶5} In her direct appeal, Alt appealed the trial court’s denial of her motion to

withdraw her plea. See State v. Alt, 8th Dist. No. 96289, 2011-Ohio-5393. This court

affirmed the trial court, agreeing that Alt “had indeed understood the ramifications of her

plea and her motion was nothing more than a delay tactic.” Id. at ¶ 13.

       {¶6} In June 2011, Alt filed a petition for postconviction relief. She filed an

amended petition two months later. Alt raised two issues in her petition. First, she

claimed that the trial court failed to properly handle her motion to withdraw her plea,

which denied her a right to a fair trial and due process of law.   She further argued that

she received ineffective assistance of counsel because (1) her lawyer failed to properly

handle her motion to withdraw her plea; (2) her lawyer failed to provide proper legal

counsel regarding the impact of forfeiture; and (3) her lawyer failed to timely notify her

of the date of the sentencing hearing, causing her to miss the hearing, which she claims

resulted in her receiving more prison time than she would have otherwise received.

       {¶7} In February 2012, the trial court denied Alt’s request for a hearing on her

postconviction relief petition and subsequently denied her petition.       The trial court

determined that Alt’s first issue was barred by res judicata and found that her second
claim, regarding ineffective assistance of counsel, was “refuted by the documents

attached to her petition.” It is from this judgment that Alt appeals.

                                   Standard of Review

       {¶8} “[A] trial court’s decision granting or denying a postconviction petition

filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a

reviewing court should not overrule the trial court’s finding on a petition for

postconviction relief that is supported by competent and credible evidence.” State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 1. The term “abuse of

discretion” implies that the court’s attitude is unreasonable, arbitrary or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980), citing Steiner v. Custer,

137 Ohio St. 448, 31 N.E.2d 855 (1940).

                               Postconviction Proceedings

       {¶9} Under R.C. 2953.21(A)(1)(a),

       [a]ny person who has been convicted of a criminal offense * * * and who
       claims that there was such a denial or infringement of the person’s rights as
       to render the judgment void or voidable under the Ohio Constitution or the
       Constitution of the United States * * * may file a petition in the court that
       imposed sentence, stating the grounds for relief relied upon, and asking the
       court to vacate or set aside the judgment or sentence or to grant other
       appropriate relief. The petitioner may file a supporting affidavit and other
       documentary evidence in support of the claim for relief.

       ***

       The court shall consider a petition that is timely filed under division (A)(2)
       of this section even if a direct appeal of the judgment is pending. Before
       granting a hearing on a petition filed under division (A) of this section, the
       court shall determine whether there are substantive grounds for relief. In
       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 the petitioner,
       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.

       ***

       Unless the petition and the files and records of the case show the petitioner
       is not entitled to relief, the court shall proceed to a prompt hearing on the
       issues.

R.C. 2953.21(A)(1)(a), (C), and (E).

       {¶10} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994).       In postconviction cases, a trial court acts as a gatekeeper,

determining whether a defendant will even receive a hearing. Gondor, 112 Ohio St.3d

at ¶ 51.   In State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), the Ohio

Supreme Court held that the trial court’s gatekeeping function in the postconviction relief

process is entitled to deference, including the court’s decision regarding the sufficiency of

the facts set forth by the petitioner and the credibility of the affidavits submitted.

                                   Final Appealable Order

       {¶11} In her first assignment of error, Alt argues that because the trial court failed

to make findings of fact and conclusions of law regarding the first claim of her

postconviction petition (“trial court’s failure to properly conduct a motion to withdraw

plea hearing”), that the judgment is not a final appealable order.    We disagree.
       {¶12} R.C. 2953.21(C) provides that “If the court dismisses the petition, it shall

make and file findings of fact and conclusions of law with respect to such dismissal.”

       {¶13} Here, the trial court found that Alt’s claims regarding her motion to

withdraw her plea were barred by res judicata.     In her direct appeal, Alt argued that the

trial court erred when it denied her motion to withdraw her plea.      This court reviewed

the transcript of the plea hearing, as well as the transcript for the hearing on Alt’s motion

to withdraw her plea.   We concluded:

               [T]he trial court afforded Alt a full hearing on her motion to
       withdraw. The record reflects that the court held a lengthy hearing at
       which defense counsel argued why Alt should be allowed to withdraw her
       plea. The trial court considered the state’s objections to the motion and,
       after full and fair consideration, denied Alt’s motion. The trial court stated
       that it was denying the motion because Alt had indeed understood the
       ramifications of her plea and her motion was nothing more than a delay
       tactic.

Alt, 2011-Ohio-5393, at ¶ 13.

       {¶14} It is well settled that the doctrine of res judicata applies in postconviction

relief proceedings. State v. Blalock, 8th Dist. No. 94198, 2010-Ohio-4494, ¶ 19.

       Under the doctrine of res judicata, a final judgment of conviction bars a
       convicted defendant who was represented by counsel from raising and
       litigating in any proceeding except an appeal from that judgment, any
       defense or any claimed lack of due process that was raised or could have
       been raised by the defendant at the trial, which resulted in that judgment or
       conviction, or on an appeal from that judgment.

State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982), citing State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
       {¶15} Alt raised this exact argument — regarding the trial court’s handling of her

motion to withdraw her plea — in her direct appeal.       Accordingly, the trial court was

correct in concluding that res judicata bars its consideration in a proceeding for

postconviction relief. Alt’s first assignment of error is overruled.

                                   Evidentiary Hearing

       {¶16} In her second assignment of error, Alt maintains that the trial court erred

when it denied her petition for postconviction relief without a hearing because she asserts

that her claim of ineffective assistance of counsel, with supporting documentation,

warranted a hearing.

               [A] trial court properly denies a defendant’s petition for
       postconviction relief without holding an evidentiary hearing [if] the
       petition, the supporting affidavits, the documentary evidence, the files, and
       the records do not demonstrate that petitioner set forth sufficient operative
       facts to establish substantive grounds for relief.

 Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905, at paragraph two of the syllabus.

According to the Ohio Supreme Court, it is “not unreasonable to require the defendant to

show in his petition for postconviction relief that such errors resulted in prejudice before

a hearing is scheduled.” Id. at 283.

       {¶17} Here, the trial court stated that it considered Alt’s petition, case law, and

exhibits, and found that the documents attached to the petition refuted Alt’s claim that her

counsel was ineffective.   We agree.

       {¶18} Alt claims that her counsel representation was deficient because (1) he

coerced her into pleading guilty, (2) did not properly prepare for and handle her motion to
withdraw her plea, (3) failed to inform the judge that she missed the first hearing on her

motion to withdraw her plea and sentencing due to her flight being delayed due to

weather, (4) failed to object to her forfeiting $2 million to the state, and (5) did not

prepare for her sentencing hearing.

       {¶19} Regarding her first two claims — that her counsel coerced her into pleading

guilty and was deficient in handling her motion to withdraw her plea, Alt did not attach

any documentation to her petition that establishes her plea was anything but voluntarily

entered into, or that her counsel improperly prepared or handled her motion to withdraw

her plea.   Alt attached many email conversations between her and her counsel to her

postconviction relief petition. Nothing in the emails even suggests that she did not enter

into her plea voluntarily, knowingly, and intelligently. One email from her counsel to

her, dated May 13, 2010, states, “I am very aware you will not plead to any felonies.”

Almost two months later, Alt pleaded guilty to 31 counts, all felonies. Defendants often

change their mind regarding whether to enter into a plea when facing trial.    When Alt

entered into her plea, her case had been pending for 11 months and was scheduled for

trial two weeks later.    As this court determined in Alt’s direct appeal, “[t]he record

overwhelmingly demonstrates that Alt understood the ramifications of her plea and that it

was made knowingly, voluntarily, and intelligently.” Alt at ¶ 12.     None of the emails

attached to Alt’s petition contradicts this conclusion.

       {¶20} Alt further claims that her counsel was deficient because he informed her

that if she pled guilty, she could avoid prison time by paying a substantial amount of
money. In support of this claim, Alt cites to emails attached to her petition where she

claims that her counsel’s use of the word “payola” meant exactly that, i.e., if she paid, she

would not go to prison or could avoid felony convictions altogether. But a review of the

emails establishes that her counsel was attempting to get her to pay the $2 million

forfeiture to the state before sentencing, as she agreed to do as part of her plea.   Alt pled

guilty in early July 2010.   The trial court delayed sentencing at her request so that she

had time to procure the $2 million.      Her counsel advised her to pay the money in an

attempt to mitigate her sentence.     As the trial court found in denying her petition, a

review of the plea hearing makes it “abundantly clear” that Alt entered into her plea

without threats or promises. Nothing in the emails attached to her petition establish that

her counsel coerced her to enter into the plea.

       {¶21} Further, with respect to Alt’s argument that her counsel did not properly

prepare for or handle her motion to withdraw her plea, we disagree that the documents

attached to her petition support this claim. Although Alt’s counsel informed her in the

emails that courts liberally grant a presentence motion to withdraw a plea, he also

informed her that the trial court could and had the discretion to deny it. Accordingly, we

agree with the trial court that the documents attached to Alt’s petition actually refute Alt’s

claim that her counsel was deficient in preparing for and handling her motion to withdraw

her plea.

       {¶22} Moreover, we do not have a transcript of the hearing on Alt’s motion to

withdraw her plea.     But this court found in Alt’s direct appeal “that the trial court
afforded Alt a full hearing on her motion to withdraw,” and “the court held a lengthy

hearing at which defense counsel argued why Alt should be allowed to withdraw her

plea.” Alt did not provide any documentation in her petition that refutes this conclusion.



       {¶23} With respect to Alt’s assertion that her counsel was ineffective because he

failed to inform the judge that she missed her first sentencing hearing (also the hearing on

her motion to withdraw) due to the fact that her flight was delayed because of weather,

the documents attached to her petition support no such thing.      The emails attached to her

petition show that she was angry with her counsel due to a miscommunication regarding

the date of sentencing.     In the emails, Alt argues with her counsel that his secretary told

her the wrong date.       But her counsel’s reply indicates that he told her that he orally

informed her on the telephone of the correct date.     Her counsel further informed her that

she would have the chance to explain to the judge why she missed the first hearing.      This

does not rise to deficient performance.

       {¶24} Alt further claims that her counsel was ineffective for failing to object to her

having to forfeit $2 million to the state. Alt did not raise this issue in her petition for

postconviction relief. But we note that as part of her plea agreement, Alt voluntarily,

knowingly, and intelligently agreed to forfeit $2 million to the state.

       {¶25} Alt’s final claim, that her counsel failed to prepare for her sentencing

hearing, is also not supported by the documentation attached to her petition. The trial

court found that the record reflected that “defense counsel attempted to mitigate
sentence.”   We do not have the transcript from the sentencing hearing.       But none of the

documents that Alt attached to her petition contradicts the trial court’s finding.

       {¶26} Alt’s second assignment of error is overruled.

       {¶27} Judgment affirmed.

       It is ordered that appellee recover of 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.      Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

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