[Cite as State v. Hibbard, 2014-Ohio-442.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-03-051

                                                   :           OPINION
    - vs -                                                      2/10/2014
                                                   :

ADAM HIBBARD,                                      :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2001-04-0533



Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Adam Hibbard, #A417-705, Pickaway Correctional Institution, P.O. Box 309, Orient, Ohio
43146, defendant-appellant, pro se



        RINGLAND, J.

        {¶ 1} Defendant-appellant Adam Hibbard appeals from the Butler County Court of

Common Pleas decision denying his petition for postconviction relief without first holding an

evidentiary hearing.

        {¶ 2} On March 14, 2001, Hibbard was arrested by Hamilton police based on a

number of outstanding warrants. Hibbard was held on the charges. He subsequently asked
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to speak with Hamilton Police Detective John Marcum, with whom Hibbard had prior contact.

As a result of the meeting, Hibbard was released on bond and volunteered information

regarding multiple break-ins that he and Brian Brandenburg had committed. Detective

Marcum and Hamilton Police Detective James Cifuentes drove Hibbard through Hamilton

while he pointed out homes and garages that he had burglarized, and itemized the things he

had stolen.

      {¶ 3} The information that Hibbard volunteered coincided with police reports

documenting multiple break-ins. In most cases, Hibbard and Brandenburg used bricks or

rocks to break windows and enter homes, businesses, and garages. In several instances,

the pair entered through unlocked doors.       The items Hibbard stole included checks,

household electronics, Christmas gifts, tools, golf clubs, and autos.

      {¶ 4} As a result, Hibbard was indicted on 41 counts, including numerous charges of

burglary, breaking and entering, grand theft, theft, petty theft, and complicity to receiving

stolen property. Hibbard moved to suppress the statements he had made to the police

detectives, alleging that the detectives had promised to limit the number of charges against

him and to assist in diverting the case to drug court, promises which he alleges they later

refused to honor. At a hearing on the motion, both detectives testified that it was Hibbard

who planned to divert the case to drug court by volunteering information about the break-ins.

The detectives testified that they had made no promises to Hibbard in exchange for his

statements, except that they would inform the prosecutor of his cooperation.

      {¶ 5} The motion to suppress was overruled and the matter proceeded to a bench

trial. Hibbard was acquitted on two counts and convicted of one count of grand theft; two

counts of complicity to receiving stolen property; seven counts of burglary; eleven counts of

theft; seven counts of petty theft; and eleven counts of breaking and entering.

      {¶ 6} Hibbard appealed his convictions to this court and argued, among other claims,
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that he received ineffective assistance of counsel and that the trial court erred in denying his

motion to suppress. This court affirmed his convictions. State v. Hibbard, 12th Dist. Butler

Nos. CA2001-12-276, CA2001-12-286, 2003-Ohio-707, appeal dismissed, 99 Ohio St. 3d

1534, 2003-Ohio-4677.

       {¶ 7} Nine years later, on September 27, 2012, Hibbard filed a delayed petition for

postconviction relief and request for an evidentiary hearing with the trial court. Hibbard

argued that two recent United States Supreme Court decisions, Lafler v. Cooper and

Missouri v. Frye, created new rules of constitutional law that apply retroactively to his case.

See Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376 (2012); Missouri v. Frye, __ U.S. __, 132

S.Ct. 1399 (2012). He argued that the Supreme Court held for the first time that erroneous

advice from counsel that causes a defendant to reject a favorable plea offer constitutes

ineffective assistance of counsel.

       {¶ 8} On February 5, 2013, Hibbard filed an amended delayed petition for

postconviction relief and request for an evidentiary hearing. He again made the same

constitutional arguments, but also argued that he was unavoidably prevented from

discovering that his trial counsel was ineffective for erroneously advising him that he would

win his case on appeal until after this court affirmed his convictions on appeal. Hibbard

attached an affidavit by his former cellmate, Ted Marcum, wherein Marcum averred that

Hamilton City Detective John Marcum admitted that he made promises to Hibbard in order to

induce him into making incriminating statements. Marcum further averred that Hibbard's

counsel told him that Hibbard's appeal "should be reversed."

       {¶ 9} The trial court denied Hibbard's delayed petition for postconviction relief as

amended without conducting an evidentiary hearing.

       {¶ 10} Hibbard now appeals the trial court's decision, raising four assignments of error

for our review. For ease of discussion, we will address these assignments of error together.
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     {¶ 11} Assignment of Error No. 1:

     {¶ 12} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, TO THE

PREJUDICE OF [HIBBARD], WHEN THE TRIAL COURT ERRONEOUSLY RULED THAT IT

"LACKED AUTHORITY," TO ENTERTAIN [HIBBARD'S] DELAYED/AMENDED PETITION

FOR POST-CONVICTION RELIEF, AS A RESULT OF THE TRIAL COURT'S FAILURE TO

IDENTIFY THAT [HIBBARD'S] PETITION DID, IN FACT, RAISE A CLAIM THAT HE "WAS

UNAVOIDABLY PREVENTED FROM DISCOVERING THE FACTS" UPON WHICH HIS

PETITION RELIED, FOR PURPOSES OF BEING ALLOWED TO FILE A DELAYED

PETITION FOR POST-CONVICTION RELIEF, AS AUTHORIZED BY OHIO REV. CODE

SECTION 2953.21(A)(2); AS WELL AS BY SECTION 2953.23(A)(1)(a) & (b). THUS,

[HIBBARD'S] 14TH AMENDMENT RIGHT, TO PROCEDURAL DUE PROCESS, AS

GUARANTEED BY THE FEDERAL CONSTITUTION, WAS VIOLATED BY THE TRIAL

COURT.

     {¶ 13} Assignment of Error No. 2:

     {¶ 14} THE TRIAL COURT ERRORED [SIC], WITH PREJUDICE, IN ITS DECISION

ENTRY, TO THE PREJUDICE AGAINST [HIBBARD], AND IN VIOLATION OF THE DUE

PROCESS CLAUSE OF THE 14TH AMENDMENT TO [SIC] UNITED STATES

CONSTITUTION, AND IN VIOLATION OF OHIO REV. CODE SEC. 2953.21(A)(2); (C), (E),

(F) ANG [SIC] (G) AND 2953.23(A)(1)(a) & (b), AS A RESULT OF THE TRIAL COURT'S

FAILURE TO (1) MAKE AND FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS

TO EACH AND EVERY CLAIM ASSERTED FOR RELIEF, CONTRARY TO OHIO LAW

WHICH REQUIRES SUCH FINDINGS TO BE MADE; (2) ON GROUNDS THAT THE TRIAL

COURT FAILED TO RECOGNIZE THAT THE DEFENDANT PROPERLY FILED AN

"AMENDED PLEADING" AS AUTHORIZED BY OHIO LAW UNDER DIVISION (F); AND ON

GROUNDS THAT THE TRIAL COURT VIOLATED OHIO LAW BY NOT REVIEWING THE
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FILES, RECORDS, AND TRANSCRIPTS OF THE CASE, PRIOR TO DISMISSING

[HIBBARD'S] PETITION FOR POST-CONVICTION RELIEF.

       {¶ 15} Assignment of Error No. 3:

       {¶ 16} [HIBBARD] IS ENTITLED TO HAVE HIS SENTENCE AND CONVICTION

VACATED, BASED ON NEW SUPREME COURT CASE LAW, MADE "RETRO-ACTIVE

APPLICABLE" IN COLLATERAL REVIEW POST-CONVICTION PROCEEDINGS; THUS,

ENTITLING [HIBBARD] TO POST-CONVICTION RELIEF, PURSUANT TO OHIO REV.

CODE SEC. 2953.23(A)(1)(a) & (b) AND BASED ON A VIOLATION OF THE 6TH AND 14TH

AMENDMENTS TO THE U.S. CONSTITUTION.

       {¶ 17} Assignment of Error No. 4:

       {¶ 18} [HIBBARD] IS ENTITLED TO POST-CONVICTION RELIEF UNDER

2953.23(A)(1)(a) & (b), BASED ON VIOLATIONS OF [HIBBARD'S] 6TH AND 14TH

AMENDMENT RIGHT TO "EFFECTIVE ASSISTANCE OF COUNSEL," AS A RESULT OF

DEFENSE COUNSEL'S ERRONEOUS LEGAL ADVICE, WHICH CREATED A "DELAY" IN

FILING THE CONSTITUTIONAL CLAIM.

       {¶ 19} Hibbard claims the trial court erred in denying his petition for postconviction

relief because he received ineffective assistance of counsel both before and after his trial.

       {¶ 20} 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. "In reviewing an appeal of

postconviction relief proceedings, this court applies an abuse of discretion standard." State

v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 10,

citing State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 15. For this

court to find an abuse of discretion we must find more than an error of judgment; we must

find that the trial court's ruling was unreasonable, arbitrary, or unconscionable.              Id.
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Furthermore, 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.

       {¶ 21} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court's judgment or sentence vacated or set aside

pursuant to a petition for postconviction relief. State v. Piasecki, 8th Dist. Cuyahoga No.

98952, 2013-Ohio-1191, ¶ 12. R.C. 2953.21(A)(2) provides that a petition for postconviction

relief must be filed no later than 180 days after the date on which the trial transcript is filed

with the court of appeals in the direct appeal, or, if a direct appeal was not pursued, 180 days

after the expiration of the time in which a direct appeal could have been filed. Here, Hibbard

did not file his motion until well beyond the 180-day expiration date. Hibbard's trial transcripts

were filed on April 18, 2002. His petition was not filed until September 27, 2012, which is

clearly outside the applicable time period.

       {¶ 22} However, R.C. 2953.23(A)(1)(a) allows a trial court to entertain an untimely filed

petition for postconviction relief if the petitioner demonstrates either: (1) he was unavoidably

prevented from discovering the facts necessary for the claim for relief; or (2) the United

States Supreme Court has recognized a new federal or state right that applies retroactively to

persons in the petitioner's situation and the petitioner asserts a claim based on that right. If

the petitioner is able to satisfy one of these threshold conditions, he must then demonstrate

that, but for the constitutional error at trial, no reasonable fact finder would have found him

guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b); State v. Chattams,

12th Dist. Butler No. CA2009-01-011, 2009-Ohio-6172, ¶ 17.

       {¶ 23} After a thorough review of the record, we find that Hibbard has failed to provide

evidence that he was unavoidably prevented from discovering facts necessary to establish

his claim of relief. Hibbard alleges that his counsel was ineffective because he convinced

Hibbard not to accept a plea agreement by advising him that the court would grant his motion
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to suppress evidence and the charges against him would be "thrown out." The trial court

instead denied the motion to suppress. Hibbard argues that he could not raise the issue of

ineffective assistance of counsel on that basis because trial counsel allegedly advised him

that the trial court's decision would be reversed on appeal. We disagree.

       {¶ 24} All of the facts necessary to assert a claim for ineffective assistance existed at

the time of Hibbard's conviction. Hibbard had already rejected the plea agreement, allegedly

based on his counsel's assurances that the motion to suppress would be granted. Hibbard

could not simply wait and see if the appeal would be successful before deciding whether to

advance an ineffective assistance claim. Even if we were to accept Hibbard's claim that his

counsel advised him that he would have his conviction reversed on appeal, it does not follow

that he was therefore unavoidably prevented from discovering the facts that were necessary

to establish an ineffective assistance claim prior to the appeal. Those facts existed and

Hibbard was aware of them at the time of his original appeal. Relying on his counsel's belief

that an appeal would be successful does not somehow render those facts undiscoverable.

       {¶ 25} Nevertheless, Hibbard also argues the trial court erred by denying his

postconviction relief petition because the United States Supreme Court had recently

recognized a “new right” that applied retroactively to him in Lafler v. Cooper, __ U.S. __, 132

S.Ct. 1376 (2012) and Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399 (2012).

       {¶ 26} However, contrary to Hibbard's claim, many Ohio appellate courts, as well as a

number of federal courts, have already determined that Lafler and Frye did not create a new

retroactive right. State v. Anderson, 11th Dist. Trumbull No. 2013-T-0041, 2013-Ohio-4426,

¶ 20. In fact, as noted by the Eleventh District Court of Appeals, the United States Supreme

Court "was rather explicit that it was not creating a new right, but applying the existing right to

effective assistance of counsel and test from Strickland." Id., quoting State v. Hicks, 8th Dist.

Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 13.
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       {¶ 27} Accordingly, we find that the trial court did not err in determining that it lacked

jurisdiction to entertain Hibbard's untimely petition. In turn, the trial court was not required to

make findings of fact and conclusions of law. E.g., State v. McMullen, 12th Dist. Butler No.

CA2006-04-086, 2007-Ohio-125, ¶ 21.

       {¶ 28} Similarly, the court was not required to hold an evidentiary hearing on the self-

serving affidavits attached to the petition where it found that it lacked jurisdiction. State v.

Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 27. Nor was the court

required to hold an evidentiary hearing based on the affidavit of Ted Marcum. Marcum

averred that Detective John Marcum informed him that he had made false promises to

Hibbard in order to obtain statements from Hibbard. This court cannot determine how that

information pertains to Hibbard's claim of ineffective assistance of counsel that is the basis of

his petition for postconviction relief. Marcum also averred that Hibbard's counsel told him

that Hibbard's case "should be reversed." Here again we fail to see how the belief of

Hibbard's counsel that an appeal should be successful gives support to a claim of ineffective

assistance.

       {¶ 29} In light of the foregoing, having found that (1) Hibbard's petition for

postconviction relief was untimely, (2) Hibbard's untimely petition for postconviction relief

failed to meet the requirements of R.C. 2953.23(A)(1) or (2), (3) the trial court did not err in

declining to make findings of fact and conclusions of law, and (4) Hibbard was not entitled to

an evidentiary hearing based on a self-serving affidavit and an affidavit that gave no support

to his claim of ineffective assistance of counsel, Hibbard's four assignments of error are

overruled.

       {¶ 30} Judgment affirmed.


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


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