State v. Kirschenmann

Ohio Court of Appeals

State v. Kirschenmann

2015 Ohio 3544

CourtOhio Court of Appeals

DecidedAugust 31, 2015

Docket2014-P-0031, 2014-P-0032

StatusPublished

Cited by5 cases

This text of 2015 Ohio 3544 (State v. Kirschenmann) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Kirschenmann, 2015 Ohio 3544 (Ohio Ct. App. 2015).

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Opinion

[Cite as State v. Kirschenmann, 2015-Ohio-3544.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NOS. 2014-P-0031, - vs - : and 2014-P-0032

CURTIS A. KIRSCHENMANN, :

Defendant-Appellant. :

Civil Appeal from the Portage County Court of Common Pleas, Case Nos. 2012 CR 0050 and 2012 CR 0085.

Judgment: Affirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Thomas Kinsey McInturf, Williams, Welser, Kratcoski & Can, L.L.C., 11 South River Street, Suite A, Kent, OH 44240 (For Defendant-Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} Appellant, Curtis A. Kirschenmann, appeals from the March 31, 2014

judgment of the Portage County Court of Common Pleas, denying his pro se motion to

withdraw his guilty plea and for post-conviction relief without a hearing. For the reasons

that follow, we affirm.

{¶2} This matter involves a guilty plea which stemmed from two trial court Case

Nos., 2012 CR 0050 and 2012 CR 0085. {¶3} In Case No. 2012 CR 0050, the Portage County Grand Jury returned a 14-

count indictment against appellant on January 27, 2012: three counts of receiving stolen

property, felonies of the fifth degree, in violation of R.C. 2913.51; and 11 counts of

forgery, felonies of the fifth degree, in violation of R.C. 2913.31.

{¶4} In Case No. 2012 CR 0085, the Portage County Grand Jury returned a

five-count indictment against appellant and two other individuals on February 15, 2012:

one count of illegal manufacture of drugs, a felony of the first degree, in violation of R.C.

2925.04; one count of assembly or possession of chemicals to manufacture a controlled

substance, a felony of the second degree, in violation of R.C. 2925.041(A) and (C); one

count of aggravated trafficking in drugs, a felony of the third degree, in violation of R.C.

2925.03(A)(2) and (C)(1)(b); aggravated possession of drugs, a felony of the fifth

degree, in violation of R.C. 2925.11(A) and (C)(1)(a); and one count of possessing

criminal tools, a felony of the fifth degree, in violation of R.C. 2923.24(A) and (C).

{¶5} The cases proceeded together. A plea hearing was held on May 17,

2012. Appellant entered an oral and written guilty plea to three counts of receiving

stolen property, felonies of the fifth degree, and five counts of forgery, felonies of the

fifth degree (Case No. 2012 CR 0050). Appellant also entered an oral and written guilty

plea to one count of illegal manufacture of drugs, a felony of the second degree (Case

No. 2012 CR 0085). The trial court accepted appellant’s guilty pleas and entered a

nolle prosequi to the remaining counts.

{¶6} On June 21, 2012, appellant was sentenced to five years in prison for the

felony two offense and one year for each felony five offense, to run concurrent to one

another and concurrent to the five year term. Appellant was ordered to pay restitution

2 and fines. The court notified him regarding post-release control. Appellant did not file a

direct appeal from his sentence.

{¶7} Instead, almost two years later, appellant filed a pro se motion to withdraw

his guilty plea and for post-conviction relief on March 27, 2014. On March 31, 2014, the

trial court denied appellant’s pro se motion without a hearing. Appellant appealed that

judgment, was appointed counsel, and asserts the following three assignments of

error:1

{¶8} “[1.] The trial court erred when it denied defendant’s motion to withdraw a

guilty plea without a hearing.

{¶9} “[2.] The trial court erred when it denied defendant’s motion for post-

conviction relief without a hearing.

{¶10} “[3.] The trial court erred when it failed to file a findings of fact and

conclusions of law when it denied appellant’s motion for post-conviction relief.”

{¶11} In his first assignment of error, appellant argues the trial court erred in

denying his pro se motion to withdraw his guilty plea without a hearing. Appellant

asserts his trial counsel was ineffective and should have filed a motion to suppress

evidence derived from a search of his home. In his appellate brief, appellant states that

“the search may have been lawful” but indicates that he should have had an opportunity

to be heard.

{¶12} “Crim.R. 32.1 states: ‘(a) motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the

1. Appellant filed two appeals: Case No. 2014-P-0031 (regarding trial court Case No. 2012 CR 0050) and Case No. 2014-P-0032 (regarding trial court Case No. 2012 CR 0085). This court later consolidated appellant’s two appeals for all purposes.

3 court after sentence may set aside the judgment of conviction and permit the defendant

to withdraw his or her plea.’

{¶13} “‘An appellate court will review the trial court’s determination of the

Crim.R. 32.1 motion for an abuse of discretion.’ State v. Desellems (Feb. 12, 1999),

11th Dist. No. 98-L-053, 1999 Ohio App. LEXIS 458, at 8, citing State v. Blatnik (1984),

17 Ohio App.3d 201, 202, * * *. ‘The term “abuse of discretion” connotes more than an

error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’ Desellems, supra, at 8, citing State v. Montgomery (1991), 61 Ohio

St.3d 410, 413, * * *. Regarding this standard, we recall the term ‘abuse of discretion’ is

one of art, essentially connoting judgment exercised by a court which neither comports

with reason, nor the record. State v. Ferranto (1925), 112 Ohio St. 667, 676-678, * * *.

{¶14} “‘Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of

sentence, a defendant bears the burden of proving that such a withdrawal is necessary

to correct a manifest injustice.’ State v. Taylor, 11th Dist. No. 2002-L-005, 2003 Ohio

6670, at ¶8, citing State v. Smith (1977), 49 Ohio St.2d 261, * * *, at paragraph one of

the syllabus. ‘A manifest injustice is determined by examining the totality of the

circumstances surrounding the guilty plea.’ Taylor at ¶8, citing State v. Talanca (Dec.

23, 1999), 11th Dist. No. 98-T-0158, 1999 Ohio App. LEXIS 6257, * * * at 2-3.

{¶15} “‘While a trial court must conduct a hearing to determine whether there is

a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is

made before sentencing, the same is not true if the request is made after the trial court

has already sentenced the defendant. State v. Xie (1992), 62 Ohio St.3d 521, * * * (* *

*), paragraph one of the syllabus. In those situations where the trial court must consider

4 a post-sentence motion to withdraw a guilty plea, a hearing is only required if the facts

alleged by the defendant, and accepted as true, would require withdrawal of the plea.

Id.’ State v. Wilkey, 5th Dist. No. CT2005-0050, 2006-Ohio-3276, at ¶25. (Parallel

citation omitted.) ‘Generally, a self-serving affidavit or statement is insufficient to

demonstrate manifest injustice.’ Id. at ¶26, citing State v. Patterson, 5th Dist. No.

2003CA00135, 2004-Ohio-1569, citing State v. Laster, 2d Dist. No. 19387, 2003-Ohio-

1564.

{¶16} “‘Ineffective assistance of counsel is a proper basis for seeking post-

sentence withdrawal of a guilty plea.’ State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-

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