[Cite as State v. Koch, 2019-Ohio-591.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




STATE OF OHIO,                                  :

        Appellee,                               :       CASE NO. CA2018-08-158

                                                :              OPINION
    - vs -                                                      2/19/2019
                                                :

JUSTIN M. KOCH,                                 :

        Appellant.                              :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2016-01-0081



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Wendy R. Calaway, 810 Sycamore Street, Suite 117, Cincinnati, Ohio 45202, for appellant



        RINGLAND, J.

        {¶ 1} Justin Koch appeals from the decision of the Butler County Court of Common

Pleas, which denied his petition for postconviction relief without granting him an evidentiary

hearing. For the reasons discussed below, this court affirms the lower court decision.

        {¶ 2} A Butler County grand jury indicted Koch on seven felony counts including

murder, aggravated robbery, and aggravated burglary. The charges stemmed from Koch's

involvement in a residential armed robbery where a victim was shot and killed.
                                                                       Butler CA2018-08-158

        {¶ 3} Koch and the state entered into a plea agreement whereby Koch would plead

guilty to murder, a violation of R.C. 2903.02(B), and the state would dismiss the remaining

charges. At the plea hearing, the state summarized Koch's involvement in the robbery. Koch

and the other codefendants planned the robbery by surveilling the victim, obtaining a firearm,

and wearing clothing or items to mask their identities. Koch drove the vehicle used in the

robbery. He parked the vehicle outside the victim's residence and stayed inside the vehicle

while two codefendants entered the residence. The codefendants began fighting with the

occupants of the home, including the victim. Ultimately, one of the codefendants shot the

victim, killing him. The codefendants returned to the waiting vehicle and Koch drove them

away.

        {¶ 4} The trial court sentenced Koch to 15 years to life in prison. Koch did not file a

direct appeal of his conviction. Koch later petitioned for postconviction relief.

        {¶ 5} The petition alleged that Koch submitted to a police interview prior to being

charged.     The interview was audio recorded, and later transcribed.               Two lawyers

accompanied Koch during the interview.

        {¶ 6} Koch argued that both lawyers provided constitutionally defective performance

for failing to advise him not to submit to the police interview and to remain silent. Koch

alleged that he made numerous inculpatory statements during the interview, including lying to

police concerning facts of which police were already aware of from their investigation. Koch

also alleged that he provided police with access to his cellular phone where police uncovered

incriminating evidence. Koch argues that the inculpatory evidence that he provided to the

state via the interview was "overwhelming" and ultimately identified him as the "mastermind"

of the robbery. Koch further contended that because of the evidence against him he was

unable to obtain a satisfactory plea agreement.

        {¶ 7} The court denied the petition without conducting an evidentiary hearing. The
                                              -2-
                                                                       Butler CA2018-08-158

court noted that the interview transcript showed that counsel had advised Koch to remain

silent several times. The court found that Koch had not demonstrated that he received

ineffective assistance of counsel and denied the petition.

       {¶ 8} Koch appeals, raising one assignment of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED IN DISMISSING MR. KOCH'S PETITION

WITHOUT AN EVIDENTIARY HEARING BECAUSE MR. KOCH PROVIDED SUFFICIENT

EVIDENCE THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS

GURANTEED BY THE SIXTH AMENDMENT.

       {¶ 11} Koch argues that he submitted sufficient evidence necessary to demonstrate

his right to an evidentiary hearing on a petition for postconviction relief. Specifically, Koch

contends that the transcript of the police interview demonstrated that his lawyers provided

him with constitutionally defective representation by failing to advise him to remain silent.

Koch also argues that his lawyers were deficient by failing to investigate his defense,

interview witnesses, or conduct any investigation, prior to advising him to submit to the

interview.

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

rather, a collateral civil attack on a criminal judgment. State v. Bayless, 12th Dist. Clinton

Nos. CA2013-10-020 and CA2013-10-021, 2014-Ohio-2475, ¶ 8, citing State v. Calhoun, 86

Ohio St.3d 279, 281 (1999). A petition may be filed by any convicted person who claims that

there was such a denial or infringement of their rights as to render the judgment void or

voidable under the Ohio Constitution or the Constitution of the United States.            R.C.

2953.21(A)(1)(a). A court has several options in responding to a petition, including granting a

hearing on the petition, dismissing the petition, or granting summary judgment. R.C.

2953.21(D), (E), and (H).
                                              -3-
                                                                         Butler CA2018-08-158

       {¶ 13} A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing will not be reversed absent an abuse of discretion. State v.

Simon, 12th Dist. Butler No. CA2014-12-255, 2015-Ohio-2989, ¶ 11. An abuse of discretion

implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v.

Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 14.

       {¶ 14} A convicted defendant alleging ineffective assistance of counsel must

demonstrate that (1) defense counsel's performance was so deficient that he or she was not

functioning as the counsel guaranteed under the Sixth Amendment to the United States

Constitution, and (2) that defense counsel's errors prejudiced the defendant, depriving him or

her of a trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

be entitled to a hearing on an ineffective assistance of counsel claim in a petition for

postconviction relief, the petitioner bears the initial burden of submitting evidentiary materials

containing sufficient operative facts which, if believed, would establish defense counsel had

substantially violated at least one of a defense attorney's essential duties to his client and

that the defendant was prejudiced as a result. State v. Cole, 2 Ohio St.3d 112, 114 (1982);

State v. Jackson, 64 Ohio St.2d 107 (1980), at syllabus. "Judicial scrutiny of counsel's

performance must be highly deferential * * *. A court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance * * *."

Strickland at 689.

       {¶ 15} The transcript reflects that counsel informed Koch that police could use his

statements against him, and repeatedly admonished him that he must assume that police

had already investigated the case and thus it was crucial that he only tell the truth. Koch

repeatedly assured his counsel that he understood this and was telling the truth. Koch told

police his version of events, which was that he drove the two codefendants to the home, that

he understood that they would be buying marijuana, and that he had no knowledge that they
                                               -4-
                                                                         Butler CA2018-08-158

intended to commit a robbery or possessed a gun. However, as became clear later in the

interview, Koch was lying about his level of involvement in the robbery. When police directly

accused Koch of having knowledge of the robbery, counsel appropriately told Koch to remain

silent.

          {¶ 16} Koch did not meet his burden of submitting sufficient operative facts indicating

that his lawyers provided him with constitutionally defective performance. To the contrary,

Koch's lawyers correctly advised not to lie to the police unless his exculpatory story was the

truth. Koch chose to disregard this advice. And counsel repeatedly advised Koch to remain

silent when police confronted Koch directly about his involvement in the robbery.

          {¶ 17} Koch also claims that his attorneys should have investigated the case before

allowing him to submit to police questioning. Counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary. Strickland at 691. "In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel's judgments." Id.

          {¶ 18} The record reflects that Koch and his attorneys participated in the police

interview in the early morning hours. The robbery had occurred the prior day. Thus, counsel

was recently retained. The transcript suggests that Koch misled his attorneys about his level

of participation in the robbery prior to the interview. Koch's lawyers cannot be deficient for

relying on their client to be honest. Under these facts, Koch has not demonstrated sufficient

operative facts that his attorneys provided him with ineffective assistance for an alleged

failure to investigate.

          {¶ 19} For the foregoing reasons, this court does not find that the lower court abused

its discretion in dismissing Koch's petition without an evidentiary hearing.          This court

overrules Koch's sole assignment of error.
                                                -5-
                                                Butler CA2018-08-158

{¶ 20} Judgment affirmed.


S. POWELL, P.J., and HENDRICKSON, J., concur.




                                -6-
