[Cite as State v. Knoefel, 2019-Ohio-267.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                             LAKE COUNTY, OHIO


 STATE OF OHIO,                                       :      OPINION

                   Plaintiff-Appellee,                :
                                                             CASE NO. 2017-L-150
          - vs -                                      :

 KEVIN D. KNOEFEL,                                    :

                   Defendant-Appellant.               :


 Civil Appeal from the Lake County Court of Common Pleas, Case No. 13 CR 000558.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
 Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
 44077 (For Plaintiff-Appellee).

 Megan M. Patituce and Joseph C. Patituce, Patituce & Associates, LLC, 26777 Lorain
 Road, Suite 1, North Olmsted, OH 44070 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}       Defendant-appellant, Kevin Knoefel, appeals the Judgment Entries of the

Lake County Court of Common Pleas, denying his Motion to Disqualify the Lake County

Prosecutor’s Office, Motion for Post Conviction Relief, and Motion for New Trial. The

issues before this court are whether a prosecutor’s office must be disqualified from

prosecuting a case after hiring a former attorney of the firm representing the defendant

where the attorney has no involvement with the case at the prosecutor’s office; whether

a defendant is entitled to a new trial based on impeachment testimony from fellow inmates

of the State’s leading witness that she lied at trial to implicate the defendant; and whether

a defendant is entitled to post-conviction relief based on ineffective assistance of counsel
where trial counsel’s alleged deficiencies are not supported by the evidentiary materials

submitted with the petition. For the following reasons, we affirm the decision of the court

below.

          {¶2}   In August 2014, following a jury trial in Lake County, Knoefel was sentenced

to an aggregate life term of imprisonment with parole eligibility after thirty years for

Complicity to Aggravated Murder and six counts of Sexual Battery. Knoefel’s convictions

were affirmed on direct appeal. State v. Knoefel, 11th Dist. Lake No. 2014-L-088, 2015-

Ohio-5207.

          {¶3}   On January 28, 2016, Knoefel filed a Motion for Post Conviction Relief on

the grounds that his “right to effective assistance of counsel * * * was violated in this matter

by multiple inexcusable errors caused by Trial Counsel” and the identification of a witness

“who is believed to be willing to testify that Sabrina Zunich has expressly, and repeatedly,

stated that Kevin Knoefel was not involved with the planning, discussion, or execution of

the murder in this matter.”

          {¶4}   On June 13, 2016, Knoefel filed a Supplemental Motion for Post Conviction

Relief, identifying additional witnesses “housed at the Lake County Jail while [Zunich] was

waiting for trial” to whom she spoke about the murder.

          {¶5}   On February 15, 2017, Knoefel filed an Amended Motion for Post Conviction

Relief.

          {¶6}   On May 19, 2017, Knoefel filed a Supplemental Motion for Post Conviction

Relief, requesting an evidentiary hearing, and a Motion for New Trial on the grounds of

“newly discovered exculpatory evidence which could not have been produced at trial.”

          {¶7}   On July 6, 2017, Knoefel filed a Supplemental Motion for Post Conviction

Relief and Supplement to Motion for a New Trial.

                                               2
      {¶8}   On August 30, 2017, Knoefel filed the Expert Report of Attorney Richard

Koblentz in support of Motion for Post Conviction Relief and Motion for New Trial.

      {¶9}   On September 14, 2017, the State filed a Response to the Amended and

Supplemental Motions for Post-Conviction Relief and a Response to the Motion and

Supplement to Motion for New Trial.

       {¶10} On September 21, 2017, Knoefel filed Replies in support of his Motions.

      {¶11} On October 6, 2017, the State filed Supplemental Responses in opposition

to Knoefel’s Motions.

      {¶12} On October 13, 2017, Knoefel filed a Motion to Disqualify the Lake County

Prosecutor’s Office on the grounds that the “Prosecutor’s Office has quite literally hired

one of Kevin Knoefel’s defense attorneys while this matter is actively pending before this

Honorable Court.”

      {¶13} On October 16, 2017, the State filed a Brief in Opposition to the Motion to

Disqualify. Also on this date, an evidentiary hearing was held on the Motion to Disqualify.

      {¶14} On October 27, 2017, the trial court, in separate Judgment Entries, ruled on

Knoefel’s Motion to Disqualify and on the Motions for Post Conviction Relief and New

Trial. All Motions were denied.

      {¶15} On November 15, 2017, Knoefel filed a Notice of Appeal. On appeal, he

raises the following assignments of error:

      {¶16} “[1.] Whether the trial court’s denial of Defendant’s Motion to Disqualify was

an abuse of discretion.”

      {¶17} “[2.] Whether the trial court’s denial of Defendant’s Motion for a New Trial

pursuant to Crim.R. 33 without hearing was an abuse of discretion.”




                                             3
        {¶18} “[3.] Whether the trial court’s denial of Defendant’s Motion for Post

Conviction Relief pursuant to R.C. 2953.21 without hearing was an abuse of discretion.”

        {¶19} In the first assignment of error, Knoefel challenges the denial of his Motion

to Disqualify the Lake County Prosecutor’s Office.

        {¶20} When reviewing a motion for disqualification based on conflict of interest

directed against the office of the prosecutor, Ohio courts have consistently held that there

must be evidence of an actual breach of confidence resulting in prejudice to the

defendant. State v. Bachman, 5th Dist. Stark No. 2014CA00198, 2015-Ohio-2054, ¶ 24

(cases cited); State v. Richardson, 2014-Ohio-3541, 17 N.E.3d 644, ¶ 32 (3d Dist.) (cases

cited); State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013-Ohio-42, ¶ 61 (cases cited);

State v. White, 8th Dist. Cuyahoga No. 82066, 2004-Ohio-5200, ¶ 25-26 (cases cited);

State v. Waggaman, 9th Dist. Medina No. 96CA0078, 1997 WL 537680, *5-6 (Aug. 20,

1997) (cases cited). Concomitantly, it has been held that the mere appearance of

impropriety is insufficient to merit disqualification of the office of the prosecutor.1

        {¶21} The trial court summarized the testimony presented at the disqualification

hearing as follows:

               Adam Downing, Esq.,] was an associate attorney with the Firm [of
        Patituce & Associates LLC] from December 5, 2016 to September 15, 2017.
        Downing interviewed for a position in the Juvenile Division of the
        Prosecutor’s Office on September 8, 2017 and September 11, 2017; he was

1. The one exception to this authority appears to be this court’s decision in State v. Wiles, 126 Ohio App.3d
71, 709 N.E.2d 898 (11th Dist.1998), in which this court held that, when faced with a motion for
disqualification, “the trial court must hold a hearing and allow the state the opportunity to rebut that
presumption [of shared confidences].” Id. at 83. The Wiles decision, while sound with respect to the
necessity of holding a hearing when a conflict of interest is alleged, see In re Disqualification of Cirigliano,
105 Ohio St.3d 1223, 1229, 826 N.E.2d 287 (2004), is not binding on this court. Neither of the other two
judges on the panel concurred in the opinion. One concurred in judgment only and the other concurred
separately on the grounds that she was “not convinced that when a government attorney is involved, there
is the same presumption that applies when there is a private attorney.” Wiles at 85 (Christley, J., concurring
separately). This concurring judge further noted that, “in footnote 3 of Kala, the Supreme Court of Ohio
acknowledges the American Bar Association Model Rules of Professional Conduct as well as the distinction
that the American Bar Association makes between government lawyers and private lawyers in matters of
disqualification.” Id.
                                                       4
offered the position and accepted it on September 11, 2017. Downing
informed the Firm of his resignation and new position on September 12,
2017, and the Firm informed Downing on September 13, 2017 that his last
day would be September 15, 2017. Megan Patituce, a partner in the Firm,
also informed Downing that the Firm would likely file a motion to disqualify.

       Downing’s first day at the Prosecutor’s Office was September 18,
2017. Charles E. Coulson, Esq. (“Coulson”), the Lake County Prosecuting
Attorney, sent an email to all attorneys and staff in the Prosecutor’s Office
on September 18, 2017 at 8:59 a.m. attaching a Screening Memorandum
spelling out the policy in place to screen Downing “from participating in
matters of former clients of his and/or the law firm of Patituce & Associates,
LLC,” including – but not limited to – the Knoefel matter (“Screening
Memo”). The Screening Memo specifically prohibits both Downing and the
other employees of the Prosecutor’s office from discussing the Knoefel
matter.

        Joseph C. Patituce, Esq. (“Patituce”), the Managing Partner of the
Firm, claims that he notified Coulson of the potential conflict regarding
Downing by leaving him a voice mail message on September 26, 2017.
However, the Prosecutor’s Office has no record of a phone call from
Patituce during that entire week, and neither Coulson, the Office
Administrator, nor the main switchboard has a voice mail mailbox. On
October 4, 2017, Patituce faxed a letter to Coulson raising the potential
conflict. On October 5, 2017, Coulson placed Downing on administrative
leave pending resolution of this issue. On October 10, 2017, the parties
raised the issue with the court.

         During the hearing, Laura Nielsen (“Nielsen”) – the Office
Administrator – testified that the Prosecutor’s Office employs 33 attorneys
in five divisions, and that the offices of attorneys assigned to the Juvenile
Division are in the Juvenile Justice Center, which is across the street from
the other divisions. Terri Daniel, Esq., who has primary responsibility for
the Knoefel matter on the State’s behalf, testified that she has never met or
spoken to Downing, and has never received an email or text from Downing.
Daniel testified that the hard-copy Knoefel file is under her control, and that
the only documents related to the Knoefel matter that are kept electronically
where they could be accessed by other attorneys are publicly-available
filings.

       Downing testified that he had minimal involvement with the Knoefel
matter while employed at the Firm, and that his involvement was ministerial.
Specifically, Downing filed documents with the Clerk of Courts three times
because he lives in Lake County, and once retrieved public documents from
the Clerk of Courts regarding potential witness Brian Allen (“Allen”) and
provided them to Megan Patituce. Defendant did not produce any evidence
that Downing performed any other work for Defendant. Downing was never
assigned to the Knoefel matter, never did any legal research or drafting,
                                      5
never entered an appearance, never met Defendant, and never provided
any analysis or strategy. Although Downing did not check the Firm’s time-
keeping records prior to his departure to determine how much time (if any)
he billed to the Knoefel matter, Defendant did not produce any time-keeping
records showing that Downing billed any time to the Knoefel matter.

       Downing agreed that he was copied on all emails sent to
“attorney@patitucelaw.com”, and that those emails would have included
attorney work-product regarding the Knoefel matter, but testified that he
usually did not read them because he was not assigned to the case.
Downing admitted to being curious about the Knoefel matter, but only
discussed the Knoefel matter with Patituce once, for approximately 15
minutes, and did not offer any strategy or analysis.

        Before he left the Firm, Downing deleted a number of emails sent to
the “attorney@patitucelaw.com” address and to his individual Firm address,
and also inserted a removable flashdrive into his Firm laptop. Downing
testified that all of the emails he deleted still exist in other Firm recipients’
inboxes, or in the Firm’s shared drives, and that he inserted the flashdrive
to make sure that anything he worked on from home was also in the Firm’s
network drive. Defendant did not produce any evidence that Downing
deleted documents that are not otherwise available to the Firm.

       Downing testified that during his interview Coulson told him that he
did not want to discuss the Knoefel matter at all, and that there would be a
screening process in place. He has never met Terri Daniel or Lisa Neroda
from the Criminal Division of the Prosecutor’s Office, and he has only met
Karen Kowall (Chief Assistant, Criminal Division) due to an unrelated
juvenile matter. He has not reviewed or attempted to access the Knoefel
file.

***

        Here, the court finds that (1) Downing did not have any substantive
responsibility for or involvement in the Knoefel matter while at the Firm, (2)
the screening mechanism is sufficient, (3) the size of the prosecutor’s office
is sufficient to insulate Downing from any involvement in the Knoefel matter,
and (4) Downing has had no involvement in the State’s case and no
communications with the Prosecutor’s Office regarding the State’s case.
The only other prejudice Defendant alleges is delay, but Defendant argues
that this will occur even if the court grants his motion to disqualify.

        In addition, the court notes that the State filed its responses to
Defendant’s motion for new trial under Crim.R. 33(A)(6) and Defendant’s
petition for post-conviction relief pursuant to R.C. 2953.21 on September
14, 2017, while Downing was still with the Firm. There is no evidence before
the court that Downing assisted in drafting those responses or provided
information to the State to use in those responses before he started his
                                       6
        employment with the Prosecutor’s Office. Accordingly, the court finds no
        actual prejudice to Defendant.

(Footnotes omitted.)

        {¶22} Knoefel argues that the evidence does not substantiate the trial court’s

conclusion that Downing did not have any substantive responsibility for or involvement in

the Knoefel matter while at Patituce & Associates. He notes that Downing did possess

confidential    information      by   virtue    of   being    copied     on    emails     sent    to   the

“attorney@patitucelaw.com” email address; did conduct research on a potential witness;

did acknowledge his curiosity about the firm’s “big case”; did have at least one

conversation about the case; and did delete materials from his firm-owned computer prior

to his departure. He further notes that Knoefel’s case has not concluded simply because

the State filed its final responsive pleading. Appellant’s brief at 15-16.

        {¶23} None of Knoefel’s claims regarding the evidence amount to a colorable

argument that there has been an actual breach of confidence resulting in prejudice. The

fact remains uncontroverted that Downing has had no involvement with Knoefel’s case

since leaving Patituce & Associates and there is no evidence that Downing was

indispensable to Patituce in handling Knoefel’s case. Without evidence of an actual

breach of confidence and resulting prejudice, the issue of whether Downing had

substantive responsibility for the Knoefel case while at Patituce & Associates is immaterial

as to whether the prosecutor’s office should have been disqualified.2 As the cases cited


2. The relevant Rule from the Ohio Rules of Professional Conduct provides: “a lawyer currently serving as
a public officer or employee * * * shall not * * * participate in a matter in which the lawyer participated
personally and substantially while in private practice or nongovernmental employment, unless the
appropriate government agency gives its informed consent, confirmed in writing * * *.” Rule 1.11(d)(2)(i).
It follows that, even if Downing was personally and substantially involved in the Knoefel matter while at
Patituce & Associates, there has been no violation of the Rule as long as he has not participated in the
matter as a public officer or employee. We point out that comment [2] to Rule 1.11 provides: “division (d)
does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to
other associated government officers or employees, although ordinarily it will be prudent to screen such
lawyers.”
                                                     7
above assert, there is no presumption of prejudice. White, 2004-Ohio-5200, at ¶ 26

(“[p]rejudice will not be presumed by an appellate court where none is demonstrated”);

also In re Disqualification of Carr, 105 Ohio St.3d 1233, 2004-Ohio-7357, 826 N.E.2d 294,

¶ 15 (“[a]s long as the government attorney whose conflict of interest prevents him or her

from handling a particular matter is effectively screened from any participation in the case,

other attorneys in the office can, in most circumstances, continue to handle the case”).

       {¶24} Knoefel relies on two cases in support of disqualification. The first, NexGen

Energy Partners, LLC v. Reflecting Blue Technologies, Inc., 2017-Ohio-5855, 94 N.E.3d

924 (11th Dist.), is inapposite inasmuch as it did not involve a prosecutor’s office or other

government office and this court merely affirmed the lower court’s decision, in the

exercise of its “wide discretion,” to disqualify a law firm from representing a client based

on the conflict of interest of one of its members. Id. at ¶ 60.

       {¶25} Knoefel also relies on State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070

(C.P.1980), a trial court decision from Hancock County in which the court ruled that “[t]he

Prosecuting Attorney of Hancock County, as well as his assistants in his public capacity

and his partners and associates in his private capacity are relieved from the prosecution

of these cases.” Id. at 7. The court so ruled not because of any breach of confidence (in

fact, the court specifically found there had been no improper communication), but

because “of the overriding requirement that the public must be able to maintain the right

to believe in the total integrity of the Bar as a whole.” Id. at 6. We find the Cooper decision

to be neither binding nor persuasive as the decision of a common pleas court. It is

inconsistent with subsequent case law as well as the Rules of Professional Conduct.

       {¶26} In sum, the issue of disqualification turns on Knoefel’s ability to demonstrate

“an actual breach of confidence resulting in prejudice to the defendant.” The trial court’s

                                              8
conclusion that there was no such breach and/or prejudice is supported by competent

and credible evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376

N.E.2d 578 (1978), syllabus. Accordingly, the first assignment of error is without merit.

       {¶27} In the second assignment of error, Knoefel challenges the denial of his

Motion for a New Trial.

       {¶28} As to a motion for new trial based on newly discovered evidence, Criminal

Rule 33 provides:

              A new trial may be granted on motion of the defendant * * * [w]hen
              new evidence material to the defense is discovered which the
              defendant could not with reasonable diligence have discovered and
              produced at the trial. When a motion for a new trial is made upon
              the ground of newly discovered evidence, the defendant must
              produce at the hearing on the motion, in support thereof, the
              affidavits of the witnesses by whom such evidence is expected to be
              given, and if time is required by the defendant to procure such
              affidavits, the court may postpone the hearing of the motion for such
              length of time as is reasonable under all the circumstances of the
              case. The prosecuting attorney may produce affidavits or other
              evidence to impeach the affidavits of such witnesses.

Crim.R. 33(A)(6).

       {¶29} “To warrant the granting of a motion for a new trial in a criminal case, based

on the ground of newly discovered evidence, it must be shown that the new evidence (1)

discloses a strong probability that it will change the result if a new trial is granted, (2) has

been discovered since the trial, (3) is such as could not in the exercise of due diligence

have been discovered before the trial, (4) is material to the issues, (5) is not merely

cumulative to former evidence, and (6) does not merely impeach or contradict the former

evidence.” State v. Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993), citing

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶30} “The allowance of a motion for a new trial on the grounds of newly

discovered evidence is within the competence and discretion of the trial judge; and in the
                                               9
absence of a clear showing of abuse such decision will not be disturbed.” State v.

Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975), paragraph two of the syllabus; State

v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of the syllabus.

      {¶31} In support of his Motion for New Trial, Knoefel submitted the following

evidence:

      {¶32} Affidavits by James Amacher were submitted, who claimed to have spoken

with Zunich “personally while [an inmate] at the Lake County Jail.”         According to

Amacher’s affidavits: Zunich murdered Lisa Knoefel because “she was mad at [her]

regarding a situation with a person Sabrina wanted to date that Lisa * * * did not approve

of”; “planned the murder * * * with her friend Autumn [Pavlik] and another individual, not

Kevin Knoefel”; and “decided to blame Kevin Knoefel for planning the murder for different

reasons.”

      {¶33} A videotaped interview with and affidavit of Kari Saunders were submitted,

who was “in a relationship” and “in love with” Zunich while they were inmates at the Lake

County Jail. In the interview which took place on December 16, 2014, Saunders claimed

that Zunich planned the murder with Pavlik and an ex-boyfriend, Ed Lanning. Lanning

wanted Kevin Knoefel “out of Sabrina’s life” because Kevin “took Sabrina from him.” The

statements that Zunich ascribed to Knoefel at trial, such as about twisting the knife and

making the crime look like a robbery, were actually made by Lanning. Saunders said she

did not come forward with the information sooner because she was in love with Zunich,

did not want to hurt her, and thought she (Zunich) was “going to get this major time off

her sentence which she really didn’t even get.”

      {¶34} In her affidavit, Saunders claimed that Zunich told her “she decided to kill

Lisa on her own after learning Lisa may be pregnant by Kevin” and that Zunich “lied to

                                           10
have Kevin locked up” because “if she couldn’t have him, no one would” and “because

he wasn’t there for her during her incarceration.”

       {¶35} The affidavit of Megan Boyer was submitted, who claimed to have spoken

“frequently” with Zunich while at the Lake County Jail “from approximately May 23, 2014

until about May 8, 2015.” According to Boyer’s affidavit: Zunich “was mad at Lisa Knoefel”

because she “wanted to date an older boy that [she] did not approve of”; “planned the

murder with * * * with her friend Autumn and a male friend whom she had been dating”;

and “decided to blame Kevin Knoefel” because, “if she did not * * *[,] she would spend

her whole life in prison.”

       {¶36} In response, the State submitted another, subsequent affidavit by Amacher

and the transcripts of interviews with Amacher, Saunders, and Boyer. Amacher recanted

his prior statements in both his interview and affidavit, in particular: he denied that he

communicated with Zunich personally, but, rather, they communicated by letters sent

through a third person; she “never mentioned anyone else who was involved in the

murder”; they “did not discuss the details of the murder”; and the content of their letters

(which have not survived) “largely included the topics of sex and life in jail.”

       {¶37} The trial court decided not to question the credibility of the affidavits

submitted by Knoefel but denied Knoefel’s motion on the grounds that the newly

discovered evidence would not have changed the result at trial:

              The affidavits do not disclose a strong probability that this testimony
              would change the result at trial. The jury heard from Zunich herself
              that she initially denied any memory of the night of Lisa’s murder,
              and that she told two different stories to police investigators. Further,
              Defendant admits that the State brought out on direct that Zunich
              was a liar, and that his Trial Counsel attempted to impeach her using
              her mental health issues. Defendant has not established a strong
              probability that, if a jury found Zunich to be “more” of a liar than she
              already admitted to being on the stand, it would find that Defendant
              had no involvement in Lisa’s murder. [FN. Defendant has submitted
                                             11
              no evidence to support a new trial on the sexual battery charges.]
              Moreover, Defendant completely ignores the rest of the evidence
              presented at trial. See State v. Knoefel, 11th Dist. No. 2014-L-088,
              2015-Ohio-5207, ¶146 (“We note that there was a great abundance
              of circumstantial evidence corroborating the essential aspects of
              Zunich’s testimony.”).

       {¶38} Bearing in mind the deference owed to the lower court’s determination with

respect to granting a new trial, we find no abuse of discretion in the trial court’s conclusion.

The statements of the three Lake County Jail inmates constitute impeachment evidence

which is largely cumulative with itself and the evidence presented at trial even without

considering the credibility issues with the statements. State v. West, 4th Dist. Scioto No.

17CA3810, 2018-Ohio-1784, ¶ 15 (“‘new evidence’ [that] would merely impeach the

testimony    of   a   codefendant    who    did    testify   at   trial   and/or   contradict   the

previous statements that Breon Kelly had given to the officers” was insufficient to render

the denial of a motion for new trial an abuse of discretion).

       {¶39} The only evidentiary value of the inmate affidavits would be to impeach

Zunich’s trial testimony; they do not, strictly speaking, exonerate Knoefel. As noted by

the trial court, Zunich’s trial testimony was already impeached by her prior inconsistent

statements to the police, six-month period of silence regarding Knoefel’s involvement,

and by the testimony of several witnesses that Zunich was a habitual liar. This point was

duly impressed upon the jury by trial counsel:

              [To find Knoefel guilty beyond a reasonable doubt] you would have
              to believe the testimony of Sabrina Zunich who is an admitted liar
              who admitted that she has mental illness, who admitted that she
              manipulates people. This is one of the greatest jobs ever.
              Manipulation, I’ve seen she manipulated the State of Ohio into giving
              her a dramatically reduced sentence * * *. Somewhere along the line
              she figures out I got to come up with something otherwise * * * I will
              never get out of prison * * *.

              ***

                                              12
              So look what we have in this case, the things that the State of Ohio
              expects you to believe in order for you to convict Kevin Knoefel.
              They want you to believe that an eighteen year old foster child with
              a serious history of mental illness, acting out, anger, medications,
              failure to follow rules, who admittedly hated her mother conspired
              with my client to murder his wife over life insurance proceeds and
              lead a new life. You have to believe that. You can’t believe it without
              believing Sabrina Zunich.

       {¶40} Even as impeachment evidence, the affidavits are of limited value. State v.

Jalowiec, 2015-Ohio-5042, 52 N.E.3d 244, ¶ 38 (9th Dist.) (“[e]vidence that impeaches or

contradicts the evidence at trial is not excluded from consideration per se, but the

character of that evidence is relevant to whether a different result is a strong probability”).

Admittedly, they contradict Zunich’s trial testimony with respect to Knoefel’s involvement

in the murder.    In some respects, however, they are consistent with Zunich’s trial

testimony. For example, Zunich testified that she did feel abandoned by and resentful

toward Knoefel and these feelings, at least in part, motivated her to implicate him in the

murder. Knoefel, 2015-Ohio-5207, at ¶ 64. In other respects, the statements in the

affidavits conflict with direct evidence presented at trial. The statements in the affidavits

indicate that Lisa Knoefel disapproved of Zunich’s desire to date an older boy. At trial,

Zunich’s probation officer (Melissa Jevack) testified that Knoefel (not the wife) contacted

her in an agitated state about Zunich’s wanting to date an older boy and asked her to

discuss the matter with Zunich. When told she would have to abide by Knoefel’s rules,

Zunich became distressed and began to cry. Id. at ¶ 70. Arguably Lisa Knoefel could

have also disapproved of Zunich dating an older boy, but the trial evidence strongly

suggests that her more immediate concern was Zunich’s relationship with her husband

rather than with older boys. Id. at ¶ 118.

       {¶41} Knoefel claims that the affidavits “provide evidence of other actors involved

in the murder of Lisa Knoefel,” such as Autumn Pavlik and Edward Lanning. In fact, the
                                              13
statements are not admissible as evidence of Lanning’s involvement and nothing in the

trial record suggests his involvement.3 Pavlik’s rather dubious participation in planning

the murder and subsequent efforts to implicate Knoefel were thoroughly presented at trial.

Thus, the trial court properly noted the circumstantial evidence at trial corroborating

Zunich’s testimony in court in its decision to deny the Motion for New Trial.

        {¶42} The second assignment of error is without merit.

        {¶43} In the third assignment of error, Knoefel challenges the denial of his Motion

for Post Conviction Relief.

        {¶44} “Any person who has been convicted of a criminal offense * * * 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. ” R.C. 2953.21(A)(1)(a).

        {¶45} “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.” R.C. 2953.21(D).




3. In an affidavit attached to the State’s Response to the Motion for New Trial, Lanning testified that he
and Zunich “never had any conversations about a plan to murder Lisa Knoefel.”
                                                   14
       {¶46} “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 even if

a direct appeal of the case is pending.” R.C. 2953.21(F).

       {¶47} “[A] trial court’s decision regarding a postconviction petition filed pursuant

to R.C. 2953.21 will be upheld absent an abuse of discretion when the trial court’s finding

is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 60; State v. Clark, 11th Dist. Trumbull No. 2017-T-

0081, 2018-Ohio-794, ¶ 6 (purely legal issues, however, are reviewed de novo).

       {¶48} “In a petition for post-conviction relief, which asserts ineffective assistance

of counsel, the petitioner bears the initial burden to submit evidentiary documents

containing sufficient operative facts to demonstrate the lack of competent counsel and

that the defense was prejudiced by counsel’s ineffectiveness.” State v. Jackson, 64 Ohio

St.2d 107, 413 N.E.2d 819 (1980), syllabus. Specifically, a petitioner must show “(1)

deficient performance by counsel, i.e., performance falling below an objective standard

of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel’s errors, the proceeding’s result would have been different.” State v. Martin, 151

Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 48.

       {¶49} Knoefel’s Motion for Post Conviction Relief raised multiple claims regarding

the constitutional ineffectiveness of trial counsel. Several of these claims are based on

trial counsel’s failure to call and/or prepare witnesses for trial, including: Knoefel, Dr.

Libbie Stansifer, Joseph Sutton, Krisanne Sutton, and Carrie Ward.

       {¶50} Collectively, the trial court dismissed these claims on the grounds of res

judicata inasmuch as Knoefel was represented by his present counsel, not trial counsel,

on appeal and, therefore, could have raised these issues on direct appeal. Alternatively,

                                             15
the trial court found that Knoefel failed to provide “any evidence of what these witnesses

would have said at trial” so as to establish “sufficient operative facts” entitling him to relief:

“the court cannot find a reasonable probability that the trial result would have been

different with these witnesses testifying when the court does not know what their

testimony would be or even who some of these witnesses would be.”                                      Specific

applications of the court’s holding are discussed below.

        {¶51} Knoefel maintained that trial counsel denied him the fundamental

constitutional right of testifying on his own behalf. According to Knoefel’s affidavit, he

desired to testify in his own defense but was told by counsel: “it was [their] choice who

got on the witness stand.”

        {¶52} “Generally, the defendant’s right to testify is regarded both as a fundamental

and a personal right that is waivable only by an accused.” State v. Bey, 85 Ohio St.3d

487, 499, 709 N.E.2d 484 (1999) (cases cited). However, “a trial court is not required to

conduct an inquiry with the defendant concerning the decision whether to testify in his

defense.” Id. As a practical matter, then, the right to testify on one’s own behalf cannot

be vindicated on direct appeal unless the defendant has asserted it personally so that

some evidence of its denial is in the record. See, e.g., State v. Thomas, 97 Ohio St.3d

309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 43 (claim that defendant was denied his right

to testify on his own behalf was rejected where “[n]othing in the record suggests that

defendant wanted to testify and was denied the opportunity to do so”).4                                  These




4. The dilemma has been illustrated thus: “[T]he defendant complains that he was denied the right to testify
because the decision that he not testify was made by his counsel without the understanding [or] knowledge
of the defendant. If this be a ground for error it is not a ground which is portrayed by the record. It is,
perhaps, available in appropriate cases as a ground for relief under the post conviction remedy provisions
of R.C. 2953.21, but it is not a ground for reversal on direct appeal when the record of trial is silent as to its
existence.” State v. Gibson, 3d Dist. Paulding No. 11-77-4, 1978 WL 215725, *3 (Jan. 10, 1978).
                                                       16
considerations make the application of res judicata to Knoefel’s claim of ignorance of the

right on account of counsel’s misrepresentations inequitable.

       {¶53} Knoefel, nevertheless, was required to make some demonstration that he

was prejudiced by the denial of this right. Ortega v. O’Leary, 843 F.2d 258, 262 (7th

Cir.1988) (“the Chapman standard [for constitutional violations] applies when a petitioner

has been denied the right to testify”); Skeens v. Haskins, 4 Fed.Appx. 236, 238 (6th

Cir.2001) (“the state appellate court properly applied the harmless-error test

of Chapman to Skeens’s claim” that he was denied his right to testify on his own behalf).

Here, Knoefel’s affidavit gave no indication of what the nature of the testimony he would

have given or argument as to how it might have affected the outcome of the trial.

       {¶54} Res judicata more properly applies to Knoefel’s claim that trial counsel was

deficient for not calling Dr. Stansifer, one of Zunich’s treating physicians, to testify. In the

words of Knoefel’s expert in the field of ineffective assistance of counsel, Attorney Richard

Koblentz, trial counsel “failed to investigate and discover Miss Zunich’s full medical

records containing her mental health diagnosis and violent past which would have

corroborated their argument that Miss Zunich was a ‘psycho.’” This argument was raised

and rejected in Knoefel’s direct appeal. Knoefel, 2015-Ohio-5207, at ¶ 155. Moreover,

evidence of Zunich’s past psychotic episode was before the jury as well as her current

psychological diagnoses, which did not include psychosis. Id. at ¶ 34 (“Zunich was

removed from the grandmother’s home due to * * * psychological (heard voices, anger),

substance abuse, and behavioral issues (lying and being manipulative”)), 50 (“[w]hen

placed in the Knoefels’ home, Zunich was taking nine different medications for bipolar

disorder, ADHD, and insomnia” and had previously “heard voices as a side-effect of




                                              17
medicines she was taking at the time”), and 155 (“evidence of her current diagnoses,

bipolar, ADHD, and PTSD, were already in evidence”).5

        {¶55} Krisanne Sutton is Knoefel’s sister and Joseph is her husband. Carrie Ward

was Lisa Knoefel’s co-worker. Krisanne testified at trial regarding the emotional impact

the murder had on Knoefel. Her affidavit submitted in support of the Amended Motion for

Post Conviction Relief states, without further detail, that she had “information and

evidence that would directly contradict material portions of the testimony of Sabrina

Zunich, David Strunk, and other witnesses.” The expert report of Attorney Koblentz

indicates that Krisanne referred Knoefel to a therapist following the murder out of concern

for his well-being.6 Ward testified at trial regarding the distress Zunich’s presence in the

Knoefels’ home was causing, particularly with regard for Lisa’s children. Ward did not

submit an affidavit although Attorney Koblentz’ report suggests that Ward warned Lisa

about Zunich and that she did not believe Knoefel and Zunich were having a sexual

relationship. Joseph did not testify at trial. In an affidavit, Joseph stated that he had

“information and evidence that would directly contradict material portions of the testimony

of Sabrina Zunich and David Strunk” but that trial counsel refused to meet with him or call

him as a witness.

        {¶56} We agree with the trial court that the claims raised with respect to these

witnesses fail to demonstrate substantive grounds for relief. Even accepting Attorney

Koblenz’ report as evidence of how the witnesses could have testified, the suggested

evidence would have been consistent with, if not cumulative to, the evidence presented


5. In a progress note of October 19, 2012 (about a month before the murder), attached to the State’s
Response to the Amended Motion for Post-Conviction Relief, Dr. Stansifer records that Zunich “is
functioning well on her present medication regimen” and “[i]mminent risk for suicide or violence is low.”
6. Knoefel claims that the “Koblentz Report was submitted as evidence.” Appellant’s brief at 30. While it
is evidence of Koblentz’ opinions, it is not evidence of what Krisanne Sutton or other witnesses would have
proffered as testimony.
                                                   18
at trial. Several witnesses (mandatory reporters) testified that they did not suspect a

sexual relationship between Knoefel and Zunich; there was testimony that Knoefel was

upset by his wife’s murder; and Zunich testified that she was fully aware that Lisa wanted

her out of the home.

       {¶57} Knoefel raises additional arguments regarding the Amended Motion for

Post Conviction Relief, such as the State’s delay in turning over the video of the Saunders

interview to defense counsel7, that the trial court erred by not allowing Knoefel to depose

his former trial counsel, that the court erred by canceling the hearing on the Motions, and

that trial counsel did not possess the necessary experience and/or inclination to properly

investigate Knoefel’s case. As with Knoefel’s other arguments, these arguments are not

supported by credible instances of resulting prejudice.

       {¶58} The third assignment of error is without merit.

       {¶59} For the foregoing reasons, the Judgment Entries of the Lake County Court

of Common Pleas, denying Knoefel’s Motion to Disqualify the Lake County Prosecutor’s

Office, Motion for Post Conviction Relief, and Motion for New Trial are affirmed. Costs to

be taxed against appellant.



COLLEEN MARY O’TOOLE, J., concurs,

CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.


                         __________________________________




7. The interview was conducted December 16, 2014, about four months after Knoefel’s conviction and
sentence. The video was attached to Knoefel’s Supplemental Motion for Post Conviction Relief filed on
May 19, 2017.
                                                 19
CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.


       {¶60} I concur with the disposition of the first assignment of error upholding the

trial court’s denial of appellant’s Motion to Disqualify. I also concur with the majority’s

disposition and analysis of the third assignment of error affirming the denial of appellant’s

Motion for Post Conviction Relief. I dissent and write separately to address the second

assignment of error regarding the denial of the Motion for New Trial.

       {¶61} The state’s case was founded on the testimony of the codefendant, Sabrina

Zunich, and extensive circumstantial evidence. In the initial appeal, this court noted “that

there was a great abundance of circumstantial evidence corroborating the essential

aspects of Zunich’s testimony.” State v. Knoefel, 11th Dist. No. 12014-L-088, 2015-Ohio-

5207, ¶146.

       {¶62} The record is replete with efforts the defense made to attack her credibility

and establish her propensity to lie. In denying appellant’s motion for new trial, the trial

court relied on this in determining that the proposed newly discovered witness testimony

where she admitted to falsely implicating the appellant in the murder was merely

cumulative of former evidence. The trial court found that this evidence does not establish

a strong probability that the outcome at trial would have been different. The trial court

specifically found that the proposed testimony at a new trial would not establish “if a jury

found Zunich to be ‘more’ of a liar than she already admitted to being on the stand, it

would find that Defendant had no involvement in Lisa’s murder.”

       {¶63} The majority concludes that the additional testimony is merely cumulative

to former evidence and merely impeaches or contradicts Zunich’s former testimony. This

is where I disagree. Direct evidence of her motivations and plan to falsely implicate

                                             20
appellant goes beyond what was available and offered at trial. Although defense counsel

at trial argued that her motivation to testify against appellant was to obtain a lesser

sentence, the fact that she made statements acknowledging she falsely implicated

appellant in the conspiracy could have had an impact on the jury’s assessment of her

credibility. It’s one thing to imply someone lied and yet another when they admit they lied.

The weight of the admission could have resulted in a different outcome at trial.

       {¶64} The appellant offered affidavits of multiple people who claimed Zunich had

made up her testimony regarding appellant’s involvement in the murder. The State also

offered competing affidavits of the same people. In the war of the affidavits, it seems

essential that a neutral party observe and evaluate the value of the proposed testimony.

       {¶65} Based upon the foregoing points, I would hold the trial court acted

fundamentally unreasonable in denying the motion for a new trial without a hearing. The

direct evidence and affidavits were not merely cumulative and do not simply impeach or

contradict evidence submitted at appellant’s trial. Rather, they represent substantive new

and direct evidence that Zunich actually lied. As such, the trial court abused its discretion

in overruling appellant’s motion without conducting a hearing to more carefully examine

the substance of the evidence offered in support of the motion. In this respect, I would

reverse the trial court’s judgment and remand the matter for the trial court to conduct a

hearing on the motion for a new trial as to the conspiracy and complicity to murder

charges only.

       {¶66} I consequently concur in part, and dissent in part from the majority opinion.




                                             21
