[Cite as State v. Suarez, 2015-Ohio-64.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :       CASE NO. CA2014-02-035

                                                 :              OPINION
    - vs -                                                       1/12/2015
                                                 :

FREDDY SUAREZ,                                   :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 12-CR-28764



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for defendant-
appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Freddy Suarez, appeals a decision of the Warren County

Court of Common Pleas denying his petition for postconviction relief.

        {¶ 2} Appellant was charged with one count of aggravated trafficking in drugs, a first-

degree felony in violation of R.C. 2925.03(A)(2), one count of aggravated possession of

drugs, a first-degree felony in violation of R.C. 2925.11(A), one count of aggravated
                                                                      Warren CA2014-02-035

trafficking in drugs, a third-degree felony in violation of R.C. 2925.03(A)(2), one count of

aggravated possession of drugs, a third-degree felony in violation of R.C. 2925.11(A), and

one count of aggravated possession of drugs, a fifth-degree felony in violation of R.C.

2925.11(A).

       {¶ 3} Appellant subsequently pled guilty to the first-degree felony charge of

aggravated trafficking in drugs. The remaining charges were dropped. On March 5, 2013,

appellant was sentenced to three years in prison, the minimum mandatory sentence.

       {¶ 4} On September 5, 2013, appellant sought postconviction relief. On September

27, 2013, appellant filed a motion for summary judgment on the postconviction relief petition.

On December 9, 2013, appellant filed a motion for status review regarding the petition. On

January 28, 2014, the trial court denied appellant's postconviction relief petition.

       {¶ 5} Appellant now appeals that decision, raising a single assignment of error for

review.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT

GRANTING APPELLANT AN EVIDENTIARY HEARING.

       {¶ 8} Within this assignment of error, appellant argues that the trial court's failure to

grant appellant an evidentiary hearing denied him his Fifth Amendment right to due process.

       {¶ 9} Postconviction relief petitions are governed by R.C. 2953.21, which states, in

pertinent part, the following:

              (A)(1)(a) 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. The petitioner may file a supporting


                                              -2-
                                                                       Warren CA2014-02-035

              affidavit and other documentary evidence in support of the claim
              for relief.

A postconviction proceeding is not an appeal of a criminal conviction, but rather, is a

collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler Nos.

CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8, citing State v. Calhoun, 86 Ohio

St.3d 279, 281 (1999). "In reviewing an appeal of postconviction relief proceedings, this

court applies an abuse of discretion standard." State v. Wilson, 12th Dist. Madison No.

CA2013-10-034, 2014-Ohio-2342, ¶ 15. A reviewing court will not overrule the trial court's

finding on a petition for postconviction relief where the finding is supported by competent and

credible evidence. State v. Mathes, 12th Dist. Clermont No. CA2013-02-014, 2013-Ohio-

4128, ¶ 11.

       {¶ 10} An evidentiary hearing is not automatically guaranteed each time a defendant

files a petition for postconviction relief. Wilson at ¶ 16. Pursuant to R.C. 2953.21(C), a trial

court properly denies a postconviction relief petition without a hearing if the supporting

affidavits, the documentary evidence, the files, and the records of the case do not

demonstrate that the petitioner set forth sufficient operative facts to establish substantive

grounds for relief. State v. Hicks, 12th Dist. Butler No. CA2004-07-170, 2005-Ohio-1237, ¶ 9,

citing Calhoun at paragraph one of the syllabus. Substantive grounds for relief exist where

there was a denial or infringement of the petitioner's constitutional rights so as to render the

judgment void or voidable. State v. Clark, 12th Dist. Warren No. CA2008-09-113, 2009-

Ohio-2101, ¶ 8; R.C. 2953.21(A)(1). The decision to grant or deny the petitioner an

evidentiary hearing is left to the sound discretion of the trial court. Wilson at ¶ 16.

       {¶ 11} In the present case, appellant argued in his postconviction relief petition that his

guilty plea was involuntary due to ineffective assistance of counsel. Specifically, he argued

he was coerced into pleading guilty because of his counsel's failure to attack the sufficiency

                                               -3-
                                                                     Warren CA2014-02-035

of the basis of the search warrant that led to the drug seizure, and because counsel failed to

file a motion to suppress the evidence seized pursuant to that search warrant.

       {¶ 12} In order to establish an ineffective assistance of counsel claim, appellant must

show that his trial counsel's performance was outside the wide range of professionally

competent assistance and that he was prejudiced as a result of counsel's actions.

Dillingham, 2012-Ohio-5841 at ¶ 20; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052 (1984). Trial counsel's performance will not be deemed deficient unless it fell below an

objective standard of reasonableness. Mathes, 2013-Ohio-4128 at ¶ 13. "In the context of a

guilty plea, prejudice will not be found unless a defendant demonstrates there is a

reasonable probability that, if not for counsel's errors, he would not have pled guilty and

would have insisted on going to trial." State v. Isbell, 12th Dist. Butler No. CA2003-06-152,

2004-Ohio-2300, ¶ 10, citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 336, 370 (1985).

       {¶ 13} We note that the failure to file a motion to suppress does not constitute per se

ineffective assistance of counsel. State v. McMahon, 12th Dist. Fayette No. CA2009-06-008,

2010-Ohio-2055, ¶ 36, citing State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). Rather, the

failure to file such a motion amounts to ineffective assistance of counsel only when the

record demonstrates that the motion would have been successful if made.               State v.

McGlosson, 12th Dist. Butler No. CA2012-03-057, 2013-Ohio-774, ¶ 24. Even if some

evidence in the record supports a motion to suppress, counsel is still considered effective if

counsel could reasonably have decided that filing a motion to suppress would have been a

futile act. Id.

       {¶ 14} The record reflects that appellant's counsel did in fact file multiple motions on

behalf of appellant, including a motion to suppress. Further, as the trial court noted in its

entry denying appellant's petition for postconviction relief, there was ample evidence on the

record to support the validity of the search warrant. Appellant has failed to show that but for
                                              -4-
                                                                        Warren CA2014-02-035

his counsel's failure to file a motion to suppress in the manner he felt was most appropriate,

the motion would have been successful, he would not have pled guilty and he would have

instead insisted on going to trial. Thus, appellant has not set forth sufficient operative facts to

establish substantive grounds for relief. Accordingly, we do not find that the trial court erred

in denying appellant's petition for postconviction relief without first conducting an evidentiary

hearing.

       {¶ 15} Finally, appellant argues this court must remand this matter to the trial court

because of the state's failure to respond to his petition for postconviction relief. However, a

defendant's remedy for the failure of the state to respond to a postconviction petition is to

move for ruling without the state's response. State ex rel. Manning v Montgomery, 39 Ohio

St.3d 140 (1988). Here, the trial court did exactly that: ruled without the state's response. In

so doing, the trial court properly complied with R.C. 2953.21. Accordingly, we do not find that

the trial court abused its discretion in denying appellant's postconviction relief petition.

       {¶ 16} In light of the foregoing, having found that (1) the performance of appellant's

counsel was not outside the wide range of professionally competent assistance and appellant

was not prejudiced as a result, and (2) the trial court did not err in ruling without the state's

response, appellant's sole assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       HENDRICKSON and PIPER, JJ., concur.




                                                -5-
