[Cite as State v. Kimpel, 2018-Ohio-2246.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,
                                                          CASE NO. 17-17-12
       PLAINTIFF-APPELLEE,

       v.

DEAN A. KIMPEL,                                           OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 11CR000274

                                      Judgment Affirmed

                              Date of Decision: June 11, 2018



APPEARANCES:

        Jeremy M. Tomb for Appellant

        Aaron D. Lowe for Appellee
Case No. 17-17-12


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Dean A. Kimpel (“Kimpel”) appeals the judgment

of the Shelby County Court of Common Pleas for (1) denying his motion to

withdraw his guilty plea; (2) considering statements that were inadmissible; and (3)

considering charges that were without merit. For the reasons set forth below, the

judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} During his time as Shelby County Sheriff, Kimpel hired Jodi Van

Fossen (“Van Fossen”) as a detective in 2010. Tr. 8. On July 24, 2010, Van Fossen

had a sexual encounter with Kimpel at her home in Auglaize County. Ex. 2. Several

days after this encounter, Kimpel removed Van Fossen from her position on the

drug task force. Ex. 2, F. On August 10, 2010, Van Fossen informed her supervisor

that she had been sexually harassed and sexually assaulted by Kimpel in the lead up

to her removal from the drug task force. Ex. 2, F. She also reported that Kimpel

had performed an Ohio Law Enforcement Gateway (“OHLEG”) search of her

personal information. Ex. F.

       {¶3} On August 31, 2010, Captain Chris Barbuto (“Barbuto”) of the Licking

County Sheriff’s Office was assigned to conduct the internal affairs investigation of

Van Fossen’s allegations of sexual harassment. Tr. 241. Prior to conducting an

interview with Kimpel, Barbuto issued Kimpel a Garrity warning. Tr. 247-248. Ex.



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15. In the subsequent interview, Kimpel admitted that he looked up Van Fossen’s

address on OHLEG for the purpose of sending her flowers. Tr. 244-245. Ex. F.

       {¶4} Van Fossen initially indicated to the prosecutors involved in the

investigation that she was unwilling to initiate a criminal proceeding against

Kimpel. Ex. 1. However, Van Fossen subsequently decided to file a complaint with

the Auglaize County Sheriff’s Office on January 31, 2011. Doc. 1. The complaint

alleged that she was incapacitated at the time of her sexual encounter with Kimpel

on July 24, 2010, and that she, therefore, had been a victim of sexual battery. Ex.

3. Pursuant to this complaint, Auglaize County initiated an investigation. Ex. 11.

The evidence gathered from this investigation was turned over to the Ohio Bureau

of Criminal Investigation (“BCI”). Ex. 11.

       {¶5} On September 21, 2011, Kimpel was charged in Auglaize County with

one count of sexual battery in violation of R.C. 2907.03. On September 29, 2011,

Kimpel was charged in Shelby County with five counts of unauthorized use of

OHLEG in violation of R.C. 2913.04(D). Doc. 1. Kimpel then submitted discovery

requests in Auglaize County and Shelby County. Doc. 16, 32. In response, the

special prosecutor sent Kimpel a discovery packet that contained the materials

produced in the course of the relevant investigations. Ex. 12. However, this packet

did not include the contents of the Auglaize County investigation. Ex. 11, 12. Tr.

107.



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      {¶6} On April 9, 2012, Kimpel filed a motion to dismiss the OHLEG charges

with the trial court. Doc. 52. This motion argued that R.C. 2913.04(D) was void

for vagueness and, therefore, unconstitutional. Doc. 53. Ex. C. As part of a joint

plea agreement, however, Kimpel agreed to plead guilty to one charge of

unauthorized use of OHLEG in violation of R.C. 2913.04(D). As a part of this plea

agreement, the special prosecutor agreed to enter a nolle prosequi as to the sexual

battery charge pending in the Auglaize County Court of Common Pleas, and the

special prosecutor agreed to dismiss four charges of unauthorized use of OHLEG

out of the five OHLEG violations pending in the Shelby County Court of Common

Pleas and amend the remaining OHLEG violation to a charge of unauthorized use

of a computer in violation of R.C. 2913.04(B). Doc. 60. At a hearing on April 13,

2012, Kimpel withdrew his previously filed motion to dismiss and pled guilty to

one charge of unauthorized use of a computer in violation of R.C. 2913.04(B). Doc.

57, 60. The trial court allowed Kimpel to withdraw his motion to dismiss, accepted

his guilty plea, and sentenced Kimpel on June 15, 2012. Doc. 60, 64.

      {¶7} In the summer of 2015, Kimpel came across an article that reported the

sexual battery charges against him had been dropped because Van Fossen refused

to testify. Tr. 188. Subsequently, Kimpel filed a document request with the Ohio

Attorney General’s Office. Tr. 192. On August 12, 2015, he received a copy of the

Auglaize County investigative report. Tr. 192. On October 17, 2016, Kimpel filed

a motion to withdraw his prior plea of guilty in Shelby County. Doc. 86. A hearing

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was held on this motion on May 12, 2017. Doc. 161. At the hearing on his motion

to withdraw, Kimpel claimed that this report showed inconsistencies in Van

Fossen’s stories. Tr. 198. He further claimed that he would not have pled guilty if

he had received the contents of the Auglaize County investigation. Tr. 195.

       {¶8} Kimpel’s trial attorney, Michael A. Rumer (“Rumer”), also testified

after he had reviewed the Auglaize County report in preparation for the hearing on

this motion. Tr. 103. Rumer testified that the Licking County internal affairs report

made him “aware of all of the content of the [Auglaize County] report.” Tr. 119.

Rumer also said that he found the accounts in the Auglaize County report to be

substantially consistent with the other interviews he had in his possession through

discovery, though he noted “there are nuances in each [of Van Fossen’s]

interview[s].” Tr. 121.

       {¶9} In addition to the materials before the trial court, Rumer noted that he

also had the benefit of having Kimpel’s side of the story and “the entire insurance

company defense discovery file on the civil case that Van Fossen had filed.” Tr.

145. At the end of his testimony, Rumer stated that the Auglaize County report

would not have changed the legal advice he gave to Kimpel. Tr. 153. He explained

that he advised Kimpel to plead guilty so that the sexual battery charge would be

dismissed. Rumer testified, however, that he was not concerned about the factual

strength of the State’s case. Tr. 130. Rather, he was primarily concerned about the

political risks of Kimpel standing trial for sexual battery. Tr. 130.

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      {¶10} During the hearing, Kimpel’s counsel challenged the admission of

statements Kimpel had made during the internal affairs investigation, arguing that

these statements could not be used in a criminal proceeding under Garrity v. New

Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Tr. 242, 248. The trial

court determined that the statements Kimpel made in the course of the internal

affairs investigation were inadmissible. Tr. 295. However, in its judgment entry on

Kimpel’s motion to withdraw, the trial court referenced one of Kimpel’s statements

in which he admitted to using OHLEG improperly. Doc. 168. On July 27, 2017,

the trial court denied Kimpel’s motion to withdraw, finding that no Brady violation

had occurred. Doc. 168.

      {¶11} Appellant filed notice of appeal on August 15, 2017. Doc. 165. On

appeal, Kimpel raises the following assignments of error:

                           First Assignment of Error

      The trial court abused its discretion in denying defendant’s
      motion to withdraw guilty plea for the reason that the state failed
      to disclose evidence material to his defense.

                          Second Assignment of Error

      The trial court abused its discretion in considering defendant’s
      statements [in] the Licking County report after it found that these
      statements were not admissible.




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                            Third Assignment of Error

       The trial court abused its discretion when it considered the
       charges against defendant and seemingly found merit in them
       even though, in addition to the evidence withheld regarding the
       Auglaize County case, the charges in the Shelby County case were
       without merit.

We will consider the first and third assignments of error prior to consideration of

the second assignment of error.

                              First Assignment of Error

       {¶12} In his first assignment of error, Kimpel argues that the failure of the

prosecution to disclose the contents of the Auglaize County investigation was a

Brady violation that amounts to a manifest miscarriage of justice. For this reason,

he asserts that the trial court erred in denying his motion to withdraw his guilty plea.

                                   Legal Standard

       {¶13} “[A] counseled plea of guilty is an admission of factual guilt which

removes issues of factual guilt from the case * * *.” State v. Wilson, 58 Ohio St.2d

52, 388 N.E.2d 745, paragraph one of the syllabus. By pleading guilty, a defendant

“forgoes not only a fair trial, but also other accompanying constitutional

guarantees.” United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d

586 (2002). “Given the seriousness of the matter, the Constitution insists, among

other things, that the defendant enter a guilty plea that is ‘voluntary’ and that the

defendant must make related waivers ‘knowing[ly], intelligent[ly], [and] with

sufficient awareness of the relevant circumstances and likely consequences.’” Id.,

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quoting Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed. 2d 747

(1970). However,

       the Constitution, in respect to a defendant’s awareness of relevant
       circumstances, does not require complete knowledge of the
       relevant circumstances, but permits a court to accept a guilty
       plea, with its accompanying waiver of various constitutional
       rights, despite various forms of misapprehension under which a
       defendant might labor.

Ruiz at 630.

       {¶14} In Brady v. Maryland, the United States Supreme Court held that a

defendant is denied due process when the prosecution fails, upon the request of the

Defense, to disclose material evidence that is favorable to the accused. Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evidence is material

       only if there is a reasonable probability that, had the evidence
       been disclosed to the defense, the result of the proceeding would
       have been different. A ‘reasonable probability’ is a probability
       sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Since a defendant must have “a sufficient awareness of relevant circumstances and

likely consequences,” a Brady violation may affect the validity of a guilty plea.

Ruiz at 629.

       {¶15} However, “[t]he Brady rule exists principally to protect a criminal

defendant’s right to a fair trial.” State v. Riley, 4th Dist. Washington No. 16CA29,

2017-Ohio-5819, ¶ 24, citing Bagley at 675-676.



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      [I]mpeachment information is special in relation to the fairness of
      a trial, not in respect to whether a plea is voluntary (‘knowing,’
      ‘intelligent,’ and ‘sufficient[ly] aware’). Of course, the more
      information the defendant has, the more aware he is of the likely
      consequences of a plea, waiver, or decision, and the wiser that
      decision will likely be. But the Constitution does not require the
      prosecutor to share all useful information with the defendant.

(Emphasis sic). Ruiz at 629, citing Weatherford v. Bursey, 429 U.S. 545, 559, 97

S.Ct. 837, 51 L.Ed.2d 30 (1977). For this reason, “the Constitution does not require

the Government to disclose material impeachment evidence prior to entering a plea

agreement with a criminal defendant.” Ruiz at 633.

      {¶16} A defendant may make a motion to withdraw a guilty plea pursuant to

Crim.R. 32.1, which reads as follows:

      [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 court after sentence may set aside the judgment of conviction
      and permit the defendant to withdraw his or her plea.

Crim.R. 32.1. The defendant bears the burden of establishing the presence of a

manifest injustice. State v. Howard, 3d Dist. Logan Nos. 8-17-02 and 8-17-09,

2017-Ohio-8020, ¶ 43. A manifest injustice is “a clear or openly unjust act.” State

ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 207, 699 N.E.2d 83 (1998). “[A]

postsentence withdrawal motion is allowable only in extraordinary cases.” State v.

Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “A defendant is not entitled

to withdraw his plea merely because he discovers long after the plea has been




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accepted that his calculus misapprehended the quality of the State’s case or the

likely penalties attached to alternative courses of action.” Brady at 757.

       {¶17} A trial court’s ruling on a postsentence motion to withdraw a guilty

plea pursuant to Crim.R. 32.1 will not be disturbed absent an abuse of discretion.

State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). An abuse of

discretion not merely an error of judgment. State v. Sullivan, 2017-Ohio-8937, ---

N.E.3d ---, ¶ 20 (3d Dist.). Rather, an abuse of discretion is present where the trial

court’s decision was arbitrary, unreasonable, or capricious. State v. Howton, 3d

Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23. When the abuse of discretion

standard applies, an appellate court is not to substitute its judgment for that of the

trial court. State v. Thompson, 2017-Ohio-792, 83 N.E.3d 1108, ¶ 11 (3d Dist.).

                                   Legal Analysis

       {¶18} At the hearing on Kimpel’s motion to withdraw his guilty plea, Kimpel

testified that the content of the Auglaize County investigation was different from

the other materials he received. Tr. 192-195. He also testified that he would not

have pled guilty if he had the contents of this investigation. Tr. 195. However,

Rumer testified that the disclosures that the Defense received from the State

contained the information that was in the undisclosed Auglaize County report and

that Van Fossen’s statements in the Auglaize County investigation were consistent

with the statements that he had obtained in discovery. Tr. 119. Rumer noted that

there were nuanced differences between Van Fossen’s accounts, but said that these

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differences would go to her credibility and to Kimpel’s credibility. Tr. 121. Rumer

also testified that his primary concern in advising Kimpel to plead guilty was not

the factual strength of the State’s case. Doc. 168. Tr. 130. Rather, Rumer was

primarily concerned with the political risks of a former Sheriff being tried in

Auglaize County on a sexual battery charge filed by a former employee. Doc. 168.

Tr. 130. Further, Rumer also said that he would not have changed his advice based

upon the information that was in the Auglaize County investigation. Tr. 153.

       {¶19} After reviewing the information in the record, we find that the trial

court’s determination was correct.     The trial court found that Van Fossen’s

statements in the Auglaize County investigation were consistent with her prior

statements. Doc. 168. Since the Defense was aware of the information obtained

through the Auglaize County investigation through different materials contained in

other discovery disclosures, the prosecution did not withhold material, exculpatory

evidence.   Doc. 168.    As Rumer testified, this information was substantially

duplicative of materials already in the possession of the Defense and would not have

changed Rumer’s advice to Kimpel. Tr. 153. This duplicative information would

not have changed the outcome of this case.

       {¶20} Further, the information from the Auglaize County investigation, at

best, may have been useful in testing Van Fossen’s credibility on cross examination.

However, under Brady and its progeny, the State is not constitutionally required to

disclose evidence that might be useful for impeachment purposes at trial while a

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plea agreement is being negotiated. Ruiz, supra, at 633. In hindsight, Kimpel may

wish that he had made a different decision, but he failed to establish that he was

unfairly deprived of the opportunity to make an informed decision. For these

reasons, we find that no Brady violation occurred. Kimpel has not, therefore, carried

the burden of establishing a manifest miscarriage of justice. For this reason,

Kimpel’s first assignment of error is overruled.

                            Third Assignment of Error

       {¶21} In his third assignment of error, Kimpel makes a second argument

against the trial court’s decision to deny his motion to withdraw his guilty plea. In

its judgment entry, the trial court stated that the plea agreement secured “a

significant reduction in the original charges,” leading to five of the six charges

against Kimpel being dropped. Doc. 168. Kimpel argues that the trial court should

have recognized that the five unauthorized use of OHLEG charges were “weak” and

that Kimpel only pled guilty because of the risks associated with the sexual battery

charge.

                                  Legal Standard

       {¶22} We herein reincorporate the legal standard set forth under the first

assignment of error.

                                  Legal Analysis

       {¶23} On appeal, Kimpel argues that he pled guilty to one count of

unauthorized use of a computer in violation of R.C. 2913.04(B) to avoid the risks

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of standing trial on the sexual battery charge against him. This position is supported

by Rumer’s testimony and the fact that he argued the OHLEG charges were weak

in his motion to dismiss prior to his guilty plea. Doc. 52. Tr. 130-131. However,

Kimpel did not demonstrate that the undisclosed information in the Auglaize County

investigation contained material, exculpatory evidence regarding the sexual battery

charge. Thus, he was aware of the relevant circumstances at the time that he made

his guilty plea.

       {¶24} Since he did not establish a Brady violation occurred, Kimpel has

failed to demonstrate that he was unfairly deprived of the opportunity to assess the

risks associated with the sexual battery charge and his decision to plead guilty.

Further, we also note that, in this assignment of error, Kimpel merely challenges

one of a number of factors on which the trial court based its decision to deny his

motion to withdraw. This argument does not establish a manifest miscarriage of

justice. For this reason, his third assignment of error is overruled.

                            Second Assignment of Error

       {¶25} In his second assignment of error, Kimpel challenges the trial court’s

use of statements he made during a Garrity interview. He argues that the trial court

based its decision on evidence that it had previously deemed inadmissible and, in so

doing, abused its discretion.




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                                   Legal Standard

       {¶26} Under Crim.R. 52(A), “[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.” Crim.R. 52(A). “In

most cases, in order to be viewed as ‘affecting substantial rights,’ ‘the error must

have been prejudicial.’” (Emphasis sic.) State v. Harris, 142 Ohio St.3d 211, 2015-

Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-

Ohio-2761, 789 N.E.2d 222, ¶ 7.

                                   Legal Analysis

       {¶27} In this case, Kimpel was subject to an internal affairs investigation.

Ex. F. During an interview as part of this investigation, he made an incriminating

statement. Ex. F. However, prior to making this statement, he was given a Garrity

warning, which advised him that the statements he gave in this interview would not

be used against him in a criminal proceeding. Ex. 15. See Garrity, supra. On

appeal, Kimpel has not identified an instance in which this statement was used

during the course of the original action. Rather, he identifies one reference to this

incriminating statement in the trial court’s ruling on his motion to withdraw his

guilty plea. Doc. 168. Thus, this alleged violation is not related to the original

guilty plea.

       {¶28} In this particular case, the use of this particular Garrity statement does

not affect the disposition of Kimpel’s motion to withdraw. In Kimpel’s motion to

withdraw his guilty plea, he alleges that the State committed a Brady violation that

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amounts to a miscarriage of justice. If Kimpel’s Garrity statement is excised from

the judgment entry, the trial court’s reasoning and determination remains the same

because the disposition of this case rests on facts related to the alleged Brady

violation and not the contents of a Garrity interview that was not considered in the

original action. The trial court ultimately denied his motion to withdraw because

Kimpel failed to establish a manifest injustice occurred. If the trial court erred in

referencing this incriminating statement, it was a harmless error because Kimpel did

not suffer any prejudice. Thus, Kimpel’s third assignment of error is overruled.

                                    Conclusion

       {¶29} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Shelby County Court of Common Pleas is

affirmed.

                                                                Judgment Affirmed

PRESTON and HALL, J.J., concur.

** Judge Michael Hall of the Second District Court of Appeals, sitting by
Assignment of the Chief Justice of the Supreme Court of Ohio.

/hls




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