[Cite as State v. Suntoke, 2014-Ohio-3320.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :      Hon. Patricia A. Delaney, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
KALI SUNTOKE                                  :      Case No. CT2014-0017
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2012-0101




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 21, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

RON WELCH                                            KALI SUNTOKE
27 North Fifth Street                                #686-054
Zanesville, OH 43701                                 Chillicothe Correctional Institution
                                                     P.O. Box 5500
                                                     Chillicothe, OH 45601
Muskingum County, Case No. CT2014-0017                                                    2

Farmer, J.

       {¶1}   On April 26, 2012, the Muskingum County Grand Jury indicted appellant,

Kali Suntoke, on thirty-three counts of pandering obscenity involving a minor in violation

of R.C. 2907.321. Appellant is in his seventies. On April 9, 2013, appellant pled no

contest to sixteen of the counts. By entry filed April 10, 2013, the trial court found

appellant guilty.

       {¶2}   A sentencing hearing was held on June 3, 2013. Appellant presented a

handwritten motion to withdraw his pleas. The trial court entertained arguments and

denied the motion. By entry filed June 6, 2013, the trial court sentenced appellant to

seven years in prison. The remaining counts were nolled.

       {¶3}   Appellant filed an appeal. Thereafter, on February 7, 2014, appellant filed

a petition for postconviction relief, claiming ineffective assistance of counsel. By journal

entry filed February 11, 2014, the trial court denied the petition.

       {¶4}   On April 2, 2014, this court affirmed appellant's conviction and sentence.

See, State v. Suntoke, 5th Dist. Muskingum No. CT2013-0032, 2014-Ohio-1431.

       {¶5}   Appellant filed an appeal on the denial of his postconviction petition and

this matter is now before this court for consideration. Assignments of error are as

follows:

                                              I

       {¶6}   "ATTORNEY VAN HORN WAS INEFFECTIVE."

                                              II

       {¶7}   "ATTORNEY MEYERS WAS INEFFECTIVE IN HIS RECOMMINDATION

(SIC) TO PLEAD."
Muskingum County, Case No. CT2014-0017                                                  3




                                             III

       {¶8}   "ATTORNEY VAN HORN AND GREGORY MEYERS WERE BOTH

INEFFECTIVE FOR NOT CHALLENGING PROBABLE CAUSE FOR ARREST AND

FOR SEARCH."

                                          I, II, III

       {¶9}   Appellant claims the trial court erred in denying his petition for

postconviction relief and failed to afford him a hearing. We disagree.

       {¶10} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)(2)

states the following in pertinent part:




              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.
Muskingum County, Case No. CT2014-0017                                                  4


        {¶11} The trial court's February 11, 2014 journal entry is a bare-bones denial of

appellant's petition for postconviction relief.

        {¶12} In his petition filed February 7, 2014, appellant argued ineffective

assistance of counsel regarding both of his trial counsel, Kevin Van Horn, Esq. and

Gregory Meyers, Esq., for advice given prior to him entering his no contest pleas.

Appellant argued Attorney Van Horn failed to provide him a defense, and entered into

plea negotiations without his consent.        Appellant argued Attorney Meyers failed to

inform him of the elements of the offenses and "like Van Horn, Meyers left Defendant to

his own devises to prepare his own defense." Appellant argued Attorney Meyers failed

to discover exculpatory evidence and offer any defenses. Appellant argued if either

attorney had been effective and provided him with information on the elements of the

offenses and lesser included offenses, he would not have pled no contest. Attached to

his petition were copies of various emails and letters from both attorneys to him and

Elizabeth Gaba, Esq., who had entered the case on a conditional appearance one day

prior to appellant entering his pleas. None of the emails and letters are authenticated or

of any evidentiary quality.

        {¶13} Appellant argues Attorney Meyers's attitude of convincing him to enter no

contest pleas is demonstrated by a March 13, 2013 memo he sent to Attorney Van

Horn:




              I am finally getting around to visiting Suntoke again later today (3-

        13-13). My plan is to advise him that his only hope of ever getting out of

        prison before he dies of old age is to enter guilty pleas that leave
Muskingum County, Case No. CT2014-0017                                                   5


        sentencing to the judge. If he's open to that idea, I will agree to do gather

        at least some of the information he wants when it comes to medical

        records he says will confirm his poor health; the Ohio prison system's

        general costs for incarcerating older inmates; maybe some "comparable"

        child porn case suggesting relatively light sentences (at least as compared

        to 10 or 12 years) - although this may create more bad than good because

        some "comparables" with this number of images will entail sentences

        much longer than 10 years.




        {¶14} As noted in the facts, appellant filed a direct appeal of his case which this

court affirmed. State v. Suntoke, 5th Dist. Muskingum No. CT2013-0032, 2014-Ohio-

1431.    Assignment of Error 3 at ¶ 13 was: "THE DEFENDANT WAS RENDERED

INEFFECTIVE ASSISTANCE OF COUNSEL, THE CUMULATIVE EFFECT OF WHICH

DENIED HIM OF HIS CONSTITUTIONAL RIGHT TO COUNSEL." This court's decision

found there was nothing in the record to support the argument that appellant's pleas

were miscounseled or involuntary (¶ 69):




              Appellant initially argues that he received ineffective assistance of

        trial counsel because he was not given an opportunity to participate in his

        own defense. Appellant points out that in a May 29, 2013 letter to his

        counsel, which was attached to appellant’s motion seeking to withdraw his

        plea, appellant raised the issue that he had not had the chance to consult

        with his attorney concerning any trial issues.     However, the record is
Muskingum County, Case No. CT2014-0017                                                     6


       insufficient   to   demonstrate   that   counsel      acted   incompetently   in

       representing appellant or that actual prejudice resulted from such

       representation.



       {¶15} Appellant's postconviction petition now seeks to re-litigate the issue with

unauthenticated or affidavit quality material. As to the claim of ineffective assistance of

trial counsel on trial preparation, plea negotiation, and voluntariness of plea, we find the

trial court correctly denied the petition without hearing.

       {¶16} In his appellate brief, appellant also argues both trial counsel were

deficient in not challenging probable cause to search and to arrest. These issues are

not proper before this court as they were not raised in the petition to the trial court.

       {¶17} Assignments of Error I, II, and III are denied.

       {¶18} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.


By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.

                                                _______________________________
                                                Hon. Sheila G. Farmer



                                                _______________________________
                                                Hon. Patricia A. Delaney



                                                _______________________________
                                                Hon. Craig R. Baldwin
Muskingum County, Case No. CT2014-0017   7



SGF/sg 626
[Cite as State v. Suntoke, 2014-Ohio-3320.]


                 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
KALI SUNTOKE                                   :
                                               :
        Defendant-Appellant                    :       CASE NO. CT2014-0017




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs

to appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer




                                               _______________________________
                                               Hon. Patricia A. Delaney




                                               _______________________________
                                               Hon. Craig R. Baldwin
