[Cite as State v. Knapp, 2013-Ohio-870.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-A-0035 - vs - :
MICHELE L. KNAPP, :
Defendant-Appellant. :
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2009 CR 452.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Jason D. Winter, Holly Marie Wilson, and Courtney J. Trimacco, Reminger Co., L.P.A., 1400 Midland Building, 101 Prospect Avenue West, Cleveland, OH 44115 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Michelle1 L. Knapp, appeals the denial of her
Petition for Post-Conviction Relief by the Ashtabula County Court of Common Pleas.
The issue before this court is whether a trial court abuses its discretion by denying a
postconviction relief petition without hearing, where the petition is based on trial
1. Although the defendant-appellant’s first name is spelled “Michelle,” the appeal follows the captioning of the Indictment. counsel’s false representations to his client, inadequate voir dire of jurors, and failure to
retain experts capable of rebutting the testimony of the State’s witnesses/evidence. For
the following reasons, we affirm the decision of the court below.
{¶2} On July 29, 2011, following a jury trial, Michelle Knapp was found guilty of
one count of Aggravated Vehicular Homicide, a felony of the second degree in violation
of R.C. 2903.06(A)(1); one count of Aggravated Vehicular Homicide, a felony of the third
degree in violation of R.C. 2903.06(A); one count of Failure to Stop after an Accident, a
felony of the third degree in violation of R.C. 4549.02(A) and (B); and one count of
Operating a Vehicle while under the Influence, a misdemeanor of the first degree in
violation of R.C. 4511.19(A)(1)(a).
{¶3} The charges against Knapp arose from the death of Melanie Moretti. The
evidence presented at trial is described in State v. Knapp, 11th Dist. No. 2011-A-0064,
2012-Ohio-2354, ¶ 8-47.
{¶4} On September 12, 2011, following a sentencing hearing, the trial court
imposed a prison term of six years for second degree Aggravated Vehicular Homicide,
merged the third degree Aggravated Vehicular Homicide charge with the second degree
charge, imposed a prison term of one year for Failure to Stop after an Accident, and
imposed a jail term of six months for Operating a Vehicle while under the Influence.
The court ordered the sentences for second degree Aggravated Vehicular Homicide
and Failure to Stop after an Accident to be served consecutively with each other and
concurrently with the sentence for Operating a Vehicle while under the Influence, for an
aggregate prison term of seven years. Additionally, the court imposed a lifetime license
suspension and ordered the paying of court costs.
2 {¶5} On October 11, 2011, Michelle Knapp filed a Notice of Appeal, assigned
11th Dist. Case No. 2011-A-0064.
{¶6} On May 18, 2012, Knapp filed a Petition for Post-Conviction Relief, based
on ineffective assistance of trial counsel.
{¶7} In support of the Petition, the following evidentiary materials were attached
thereto.
{¶8} Michelle Knapp stated that she retained the services of Attorney William
Bobulsky on December 14, 2009, prior to her initial contact with law enforcement.
Before travelling with her to meet with the State Highway Patrol, Bobulsky did not have
“a one-on-one confidential attorney-client communication” with Knapp; did not conduct
any investigation of the underlying accident; did not advise her that she could refuse to
make a statement or make a statement at a later time and the legal consequences
thereof; and did not “discuss what the substance of [her] statement would be.” As a
result, Knapp provided law enforcement an incriminating statement, “[u]nder the shock
of having just learned that [she] had stricken Melanie Moretti, and having received no
guidance from Mr. Bobulsky.”
{¶9} Knapp further stated that she advised Attorney Bobulsky about a
potentially incriminating OnStar call from the night of the accident. Bobulsky responded
that there was no need for concern because the State had not produced a record of the
OnStar call in discovery. At trial, the State sought to introduce the OnStar call as
evidence. Despite the failure to produce the call in discovery and the lack of
authenticating witnesses, Bobulsky stipulated to the call’s admissibility. During its
3 deliberations, the jury asked to hear the call and review the transcripts. The trial court
also referenced the call in its sentencing deliberations.
{¶10} Knapp further stated that Attorney Bobulsky advised her that it would be
necessary to retain “expert witnesses in the disciplines of human factors, visibility,
accident reconstruction, and toxicology.” Knapp authorized Bobulsky to retain any
necessary experts and Bobulsky told her that experts would appear on her behalf at
trial. Despite Bobulsky’s assurances, Knapp learned at the commencement of trial that
no expert witnesses would be called on her behalf.
{¶11} Knapp further stated that Attorney Bobulsky failed to advise her of the
right to use peremptory challenges during jury selection, and failed to make any
challenge to the following witnesses: Bonnie Smith, whose husband had been killed in
an automobile accident and who worked as a drug and alcohol counselor; Joshua
McNutt, who was related to one of the State’s witnesses; and Sharon Mirando, who
stated the belief that it was illegal to consume any amount of alcohol and drive.
{¶12} Knapp further stated that Attorney Bobulsky failed to investigate, “other
than the internet,” the State’s witness, Catherine Rotko, the only witness at trial to
affirmatively testify that Knapp was impaired. Lois Colley, a private investigator,
submitted an affidavit, reporting that Rotko had been previously charged with
possession of drugs and domestic violence, and was fired from BW3 for stealing.
{¶13} Knapp further stated that Attorney Bobulsky failed to inquire about her
problems with her night vision, or hearing loss, both of which she suffered from at the
time of the accident.
4 {¶14} Knapp further stated that Attorney Bobulsky advised her that he would
seek to change venue, due to her inability to receive a fair trial in Ashtabula County.
Despite Bobulsky’s assurances, no effort was made to change venue.
{¶15} Knapp further stated that Attorney Bobulsky failed to argue that “Moretti
was the sole proximate cause of her own death.”
{¶16} Knapp further stated that Attorney Bobulsky instructed her to accept no
plea offer that involved incarceration, despite the State’s willingness to reduce the
charges, because “the State’s case was weak.” Bobulsky failed to advise her of the
“realistic exposure to a conviction and significant period of incarceration, even though
innocent.”
{¶17} Robert B. Forney, Jr., a forensic toxicologist, submitted an opinion
challenging the trial testimony of the State’s toxicologist, Douglas E. Rohde. Forney
opined that Rohde’s opinion regarding Knapp’s blood alcohol concentration was “based
upon inaccuracies, omissions and a drinking history at variance with and challenged by
her court testimony.” Specifically, Rohde misjudged Knapp’s weight, the alcohol
concentration of Great Lakes Christmas Ale, the amount of alcohol Knapp had
consumed, and the conversion rate of fluid ounces to milliliters.
{¶18} Jason Jupe and Brian Weaver, biomechanical engineers, submitted their
opinion that the collision that killed Moretti was unavoidable regardless of the amount of
alcohol consumed by Knapp. Jupe and Weaver concluded that, given the conditions on
Fargo Drive on the night in question, “[t]he earliest Ms. Knapp would have been able to
perceive the unexpected presence of the pedestrian was at a distance between 92 and
101 feet from the point of impact.” Travelling at a speed “between 34 and 37 mph,” if
5 Knapp had reacted at the earliest possible moment, she “would have collided with the
pedestrian at a speed between 16 and 18 mph.” Even at this speed, “[t]here is no
scientific basis to conclude that Ms. Moretti could not have sustained fatal injuries.”
{¶19} Katherine V. Schoenberger, a forensic document examiner, submitted an
opinion regarding the effect of alcohol and handwriting. At trial, the State noted the
contrasting legibility of Knapp’s handwriting when she first arrived at BW3, and two
hours after she had consumed the Christmas Ale. Schoenberger opined that
“[s]ignatures are not reliable in determining the level of intoxication due to the smaller
amount of writing [sample],” and that “[r]esearch has * * * shown that the intoxication
level and the deterioration of handwriting do not always correlate.”
{¶20} On May 25, 2012, Knapp filed a Supplement to Petition for Post-
Conviction Relief. Attached thereto was a report prepared by Robert T. Glickman, a
former county public defender, prosecutor, and common pleas court judge. Glickman
opined, having reviewed the court records and the evidentiary materials in support of
the Petition for Post-Conviction Relief, that, “to a reasonable degree of professional
certainty[,] Mr. Bobulsky’s representation of Ms. Knapp constituted ineffective
assistance of counsel thus adversely affecting the verdict and leading directly to her
conviction in violation of her Sixth Amendment right to effective assistance of counsel.”
{¶21} On May 29, 2012, this court issued its decision in State v. Knapp, 11th
Dist. No. 2011-A-0064, 2012-Ohio-2354, affirming Knapp’s convictions.
{¶22} On June 18, 2012, the State filed a Motion to Dismiss Petition for Post-
Conviction Relief, to which Knapp replied on July 3, 2012.
6 {¶23} On July 9, 2012, the trial court issued a Judgment Entry, ordering the
Petition for Post-Conviction Relief to be dismissed. The court ruled: “Petitioner has
failed to demonstrate that her defense counsel was deficient, or that she was prejudiced
by counsel’s alleged deficiencies. The Court finds that Petitioner has failed to satisfy
her burden of presenting operative facts which sufficiently demonstrate a denial or
infringement of her rights. Petitioner presents no substantive grounds for relief which
would warrant a hearing on her petition.”
{¶24} On August 2, 2012, Knapp filed her Notice of Appeal. On appeal, Knapp
raises the following assignments of error:
{¶25} “[1.] The trial court erred by not conducting an evidentiary hearing in light
of the new evidence provided by Michelle Knapp in her petition for post-conviction
relief.”
{¶26} “[2.] The trial court erred by not granting Michelle Knapp’s petition for post-
conviction relief.”
{¶27} “Any person who has been convicted of a criminal offense * * * and 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). “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.” R.C. 2953.21(C). “If the
court does not find grounds for granting relief, it shall make and file findings of fact and
7 conclusions of law and shall enter judgment denying relief on the petition.” R.C.
2953.21(G).
{¶28} It is well-established that R.C. 2953.21 “does not expressly mandate a
hearing for every post-conviction relief petition and, therefore, a hearing is not
automatically required.” State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819
(1980). “Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s
petition for postconviction relief without holding an evidentiary hearing where the
petition, the supporting affidavits, the documentary evidence, the files, and the records
do not demonstrate that petitioner set forth sufficient operative facts to establish
substantive grounds for relief.” State v. Callhoun, 86 Ohio St.3d 279, 714 N.E.2d 905
(1999), paragraph two of the syllabus.
{¶29} “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.” Jackson at syllabus.
Thus, “the defendant, in order to secure a hearing on his petition [based on ineffective
assistance of counsel], must proffer evidence which, if believed, would establish not
only that his trial counsel had substantially violated at least one of a defense attorney’s
essential duties to his client but also that said violation was prejudicial to the defendant.”
State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982). “[W]here a petitioner
relies upon affidavit testimony as the basis of entitlement to postconviction relief, and
the information in the affidavit, even if true, does not rise to the level of demonstrating a
8 constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.”
Callhoun at 284.
{¶30} “[I]n a postconviction case involving a claim of ineffective assistance of
trial counsel[,] ‘[a]bsent a showing of abuse of discretion, a reviewing court will not
overrule the trial court’s finding on a petition for post-conviction relief which is supported
by competent and credible evidence.’” (Citation omitted.) State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 50. The trial court’s discretion in
postconviction relief proceedings encompasses the determination of “whether a
defendant will even receive a hearing.” Id. at ¶ 51; State v. Hendrex, 11th Dist. No.
2010-T-0103, 2011-Ohio-1588, ¶ 28 (cases cited)2; State v. Holmes, 8th Dist. No.
96479, 2011-Ohio-5848, ¶ 4.
{¶31} The two assignments of error collectively maintain that the trial court erred
by dismissing Knapp’s Petition without holding a hearing. Accordingly, the assignments
will be addressed jointly.
{¶32} As an initial matter, Knapp argues that the trial court improperly applied
the doctrine of res judicata to perfunctorily reject some of Knapp’s arguments in favor of
relief.
2. Knapp cites two Eleventh District Court of Appeals cases for the proposition that, “[i]n cases where no hearing was held, such as the case sub judice, an appellate court reviews the trial court’s decision to grant or deny a petition for postconviction relief de novo.” State v. Gau, 11th Dist. No. 2008-A-0030, 2008-Ohio-6988, ¶ 13. Gau fails to cite or discuss the impact of the Ohio Supreme Court’s decision in Gondor and, therefore, is not persuasive. In the other case, State v. Williams, 11th Dist. No. 2007-T- 0105, 2008-Ohio-3257, a de novo standard was applied because the trial court dismissed the petition in a summary judgment exercise, pursuant to R.C. 2953.21(D). This court expressly held: “Calhoun [applying an abuse of discretion standard] is * * * distinguishable since the Supreme Court expressly stated that such dismissal was ‘pursuant to R.C. 2953.21(C),’ rather than R.C. 2953.21(D) which addresses the use of summary judgment to dismiss a petition.” Id. at ¶ 30. In the present case, the State did not support its Motion to Dismiss with extrinsic evidence or otherwise act to convert the matter into a summary judgment exercise.
9 {¶33} “The Supreme Court of Ohio will apply the doctrine of res judicata in
determining whether postconviction relief should be given under Section 2953.21 et
seq., Revised Code.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph eight of the syllabus. “Where defendant, represented by new counsel upon
direct appeal, fails to raise therein the issue of competent trial counsel and said issue
could fairly have been determined without resort to evidence dehors the record, res
judicata is a proper basis for dismissing defendant’s petition for postconviction relief.”
Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, at syllabus.
{¶34} In the present case, appellate and postconviction counsel for Knapp filed
his formal Notice of Appearance in the trial court on September 2, 2011, ten days prior
to sentencing and while Knapp was still represented by Attorney Bobulsky. Current
counsel for Knapp filed and prosecuted her direct appeal, in which Bobulsky did not
take part, as well as the Petition for Post-Conviction Relief. Accordingly, the issue
becomes whether the competence of Bobulsky’s representation could fairly have been
determined without resort to evidence dehors the record.
{¶35} Many of the arguments raised in Knapp’s Petition for Post-Conviction
Relief could have been raised without resort to extrinsic evidence. Knapp’s affidavit
demonstrates her awareness of Attorney Bobulsky’s alleged deficiencies with respect to
the lack of counsel prior to making a statement to law enforcement, the failure to contest
the admissibility of the OnStar call, the failure to present expert testimony on her behalf
after having advised her that such testimony was necessary for her defense, the failure
to challenge jurors, the failure to argue that Moretti was the sole proximate cause of the
accident, and the inadequacy of his advice in plea negotiations. At several points in her
10 affidavit, Knapp attests that, had she been aware of these deficiencies prior to trial, she
“would have terminated [Bobulsky’s] services and hired new counsel.” It is inexplicable,
then, that she should have neglected to challenge the competency of his representation
on direct appeal.
{¶36} We reject Knapp’s contention that the expert opinions attached to her
Motion for Post-Conviction Relief constituted evidence dehors the record sufficient to
avoid the application of res judicata. The claims against Attorney Bobulsky’s
competency are based on his failure to investigate the underlying events, conduct a
vigorous defense, and/or retain experts on Knapp’s behalf. Evidence of these failures
was in the record itself or was otherwise known to Knapp inasmuch as she claimed that
Bobulsky told her it was necessary to retain experts, she was aware of the State’s
failure to produce the OnStar call in discovery, and Bobulsky’s preformance fell short of
her expectations. The substance of the expert reports is relevant to an assessment of
the prejudicial impact of not presenting such testimony at trial; it is not relevant, in this
case, to the issue of whether Bobulsky’s deficient performance was apparent so as to
have been raised on direct appeal.
{¶37} Assuming, arguendo, that res judicata did not apply to Knapp’s Petition,
she failed to demonstrate sufficient operative facts demonstrating that Attorney
Bobulsky’s performance was constitutionally deficient.
{¶38} With respect to the claim that Attorney Bobulsky failed to advise her or
dissuade her from making a statement to law enforcement, we note that Knapp’s
statement was voluntary, regardless of whether it was made with the advice of counsel.
On the written statement, Knapp acknowledged that she was advised of, and waived,
11 her right to remain silent, and that anything she said could be used against her in court.
Knapp has not alleged that her statement was false or that Bobulsky had any reason to
believe that her statement was less than truthful. Ohio courts have been reluctant to
find a violation of the Sixth Amendment right to counsel in these circumstances. State
v. Thomas, 6th Dist. No. L-06-1331, 2009-Ohio-1748, ¶ 48 (the failure of trial counsel to
“dissuade [his client] from participating in interviews with police” did not “establish that
his counsel’s performance was such as to undermine the integrity of the adversarial
process”); State v. Reker, 2nd Dist. No. CA 14124, 1994 Ohio App. LEXIS 1926, *15
(May 6, 1994) (to hold that an attorney rendered constitutionally ineffective assistance
by not dissuading a client from being interviewed by the police “would be tantamount to
permanently precluding all police interviews of suspects with their counsel present in the
course of an investigation”).
{¶39} Moreover, the most incriminating part of Knapp’s written statement was
that she had “about three” drinks, i.e., twenty-three ounce Christmas Ales. At trial, she
qualified this statement by testifying that she only finished about one and a half beers,
and that she poured the remainder into her brother’s glass. Nothing Attorney Bobulsky
did, or failed to do, prevented her from disclosing this fact in her initial statement to law
enforcement. It is worth noting, also, that Jeffrey Knapp and Connie Braat also stated
that Knapp had had three or four Christmas Ales in their initial statements to law
enforcement. Accordingly, we find no deficiency in Bobulsky’s performance in this
regard.
{¶40} With respect to the claim that Attorney Bobulsky failed to object to the
admission of the OnStar call based on the State’s failure to produce the recording in
12 discovery or authenticate it, there was no prejudice. The recording is not probative of
the charges for Aggravated Vehicular Homicide or Operating a Vehicle while under the
Influence. As to the charge of Failure to Stop after an Accident, Knapp’s conviction was
supported by other substantial evidence, such as the damage to her vehicle, Nicholas
Magda’s testimony that Knapp continued driving without stopping after striking Moretti,
and Knapp’s own conduct during the two days following the accident. We note that
Knapp mentioned the OnStar to law enforcement in her written statement and that, at
trial, the State produced a letter from an OnStar records coordinator identifying the
account associated with the recording and acknowledging that the information was
produced in response to a subpoena issued on December 15, 2009. There is no
reason to believe that authenticating the recording would have presented the State any
difficulty.
{¶41} With respect to the claim that Attorney Bobulsky failed to seek a change of
venue, there was no prejudice. The only evidence submitted that Knapp could not
obtain a fair trial were comments, not entirely hostile to Knapp, posted on the internet in
response to news stories. During voir dire, Bobulsky directly addressed each juror who
had prior knowledge about the case and ascertained whether that would affect his or
her ability to be impartial. State v. Swiger, 5 Ohio St.2d 151, 214 N.E.2d 417 (1966),
paragraph one of the syllabus (“[t]he examination of jurors on their voir dire affords the
best test as to whether prejudice exists in the community against the defendant”).
{¶42} With respect to the claim that Attorney Bobulsky failed to challenge certain
potentially hostile jurors, there was no prejudice. Juror Bonnie Smith lost her husband
in an automobile accident and interned as a drug and alcohol counselor. Smith
13 believed she could be impartial, stating that “[e]ach individual is different,” and that
“[t]here’s two sides to every story.” Juror Joshua McNutt was related to the State’s
witness, Marcus DeCamillo, and admitted that could affect his ability to be fair and
impartial. When questioned by Bobulsky, McNutt stated he was “not sure” how he
would react to DeCamillo’s testimony “until the time comes.” McNutt also affirmed he
would have no difficulty returning a “not guilty” verdict if the State failed to prove its
case. As a practical matter, DeCamillo’s testimony had little, if any probative, value. At
trial, he testified that he had no difficulty seeing Nicholas Magda waving for help,
because the “area was lit up.”
{¶43} Knapp claimed that Juror Sharon Mirando stated that she believed that it
was illegal to consume any amount of alcohol and drive. The voir dire transcript does
not support this contention:
{¶44} Mr. Bobulsky: Do you believe that it is illegal to drink and
drive, simply to have a drink and drive?
{¶45} Sharon Mirando: One drink?
{¶46} Mr. Bobulsky: Well, my question is, if you have something to
drink and you are not impaired, do you believe that in itself is
illegal?
{¶47} Sharon Mirando: And you are not impaired?
{¶48} Mr. Bobulsky: That’s correct. That’s -- that’s my question to
you. Would you accept that fact?
{¶49} Sharon Mirando: Yes.
14 {¶50} Mr. Bobulsky: All right. And my question then further is, at
this point in time, you have heard no evidence, correct?
{¶51} Sharon Mirando: Correct.
{¶52} Although somewhat confusing, Juror Mirando appears to be affirming the
fact that one could have a drink and not be impaired. Elsewhere, Mirando affirmed that
her judgment would be based on the evidence presented at trial. After Juror Smith
previously stated that she did not believe having one drink rendered a person impaired,
Attorney Bobulsky asked the jurors collectively “the same thing,” whether “they would
hold [having a drink] against a person if * * * there is no evidence of impairment?”
There was no affirmative response from the jury.
{¶53} With respect to the claim that Attorney Bobulsky failed to investigate the
State’s witness, Catherine Rotko’s, background and credibility, there was no prejudice.
Rotko’s trial testimony was important, because she affirmatively testified that Knapp
was intoxicated before leaving BW3. However, Knapp has not presented any
admissible evidence that could have been used to impeach her. The private
investigator’s affidavit stated that “Rotko was reported to have been charged on August
8, 2008, with Felony Possession of Drugs, Misdemeanor Possession of Drug Abuse
Instruments and Misdemeanor Domestic Violence.” The source of this information is
not identified and no case number or other corroborating information was provided. The
investigator further stated that a former BW3 employee, Michael Maurer, advised that
Rotko was “fired for stealing,” but could not recall any particulars and believed that the
whole matter had been “swept under the rug” by management.
15 {¶54} With respect to the claim that Attorney Bobulsky failed to inquire about
Knapp’s night vision and hearing disabilities, there was no deficiency. Knapp submitted
no corroborating evidence of these disabilities beyond her own affidavit. If Knapp does
suffer from significantly limited night vision and hearing, it would have been more
reasonable and credible for her to have brought these disabilities to Bobulsky’s
attention, rather than expect him to discover them on his own.
{¶55} With respect to the claim that Attorney Bobulsky failed to argue that
Moretti was the sole proximate cause of her own death, there was no deficiency. In the
present case, the trial court duly instructed the jury that Knapp could be held criminally
liable for Moretti’s death, “unless you find that the decedent’s conduct, that’s Melanie
Moretti, was the sole and proximate cause of her death.” In his closing argument before
the jury, Bobulsky emphasized that the State’s own witnesses acknowledged that
Moretti was wearing dark clothing, walking in the street when sidewalks were available,
and walking on the wrong side of the street, i.e., with traffic. In light of these
circumstances, Bobulsky assured the jury “that there was not a proximate cause
between any driver who was impaired or under the influence.”
{¶56} With respect to the claim that Attorney Bobulsky failed to properly counsel
Knapp in plea negotiations, the United States Supreme Court has recently affirmed that
criminal defendants are entitled to the effective assistance of counsel during plea
negoations. Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398
(2012); Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 1407-1408, 182 L.Ed.2d 379
(2012). Claims of ineffective assistance may be based on trial counsel’s advice to reject
a plea offer on the grounds that the defendant could not be convicted at trial. Lafler at
16 1384. To satisfy the prejudice requirement in such circumstances, “a defendant must
show that but for the ineffective advice of counsel there is a reasonable probability that
the plea offer would have been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have withdrawn it in light of
intervenining circumstances), that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were imposed.” Id. at 1385; Frye at
1409.
{¶57} In the her affidavit, Knapp made the following claims regarding Attorney
Bobulsky’s performance during plea negotiations:
{¶58} 41. From the commencement of his representation of me on
December 14, 2009 through the conclusion of trial, Mr. Bobulsky
instructed me that I would take no plea offer which involved
incarceration.
{¶59} 42. I understand now that the State was prepared to reduce the
charges if I were willing to accept some period of incarceration.
{¶60} 43. Had Mr. Bobulsky advised me of my realistic exposure to a
conviction and significant period of incarceration, even though
innocent, I would have agreed to plead guilty and do some period
of incarceration so as to minimize the effect of these proceedings
on my daughter and family.
17 {¶61} 44. Instead, Mr. Bobulsky led me to believe that the State’s case
was weak and that I had nothing to be concerned with which would
warrant consideration of a guilty plea or incarceration.
{¶62} In considering this argument, the trial court found that Knapp’s “affidavit
provide[d] no credible information which would overcome the strong presumption that
Petitioner’s experienced attorney advised her of the possible consequences of rejecting
any plea offers by the prosecution.”
{¶63} There was no abuse of discretion in the trial court’s rejection of Knapp’s
claims. Knapp bore the burden of demonstrating sufficient operative facts of trial
counsel’s lack of competence and resulting prejudice. In the affidavit, there are no
specific details about the plea negotations or Attorney Bobulsky’s performance, apart
from the statements that “the State was prepared to reduce the charges” and that
“Bobulsky led me to believe the State’s case was weak.” Bobulsky’s professional
estimation that the State’s case was “weak,” without more, does not rise the level of
ineffective assistance. There are no unequivocal statements as to what offers, if any,
the State was willing to entertain or that Bobulsky failed to communicate such offers or
that he rejected such offers without her consent. Without the details of an actual plea
offer, it is impossible to evaluate the probability of such an offer being accepted by the
court and how the outcome of such a plea might have differed from the outcome at trial.
{¶64} Also, the trial court was within its discretion to doubt the credibility of
Knapp’s claims. State v. Calhoun, 86 Ohio St.3d 279, 714 N.Ed.2d 905 (1999), at
paragraph one of the syllabus (“[i]n reviewing a petition for postconviction relief filed
pursuant to R.C. 2953.21, a trial court should give due deference to affidavits sworn to
18 under oath and filed in support of the petition, but may, in the sound exercise of
discretion, judge their credibility in determining whether to accept the affidavits as true
statements of fact”). That Attorney Bobulsky failed to advise her, or that she failed to
appreciate, the “realistic exposure to a conviction and signficant * * * incarceration” is
questionable in light of the seriousness of the charges and the undisputed fact that
Knapp struck and killed Moretti with her vehicle after drinking for several hours. State v.
Fry, 9th Dist. No. 26121, 2012-Ohio-2602, ¶ 19 (rejecting claim, based on “self-serving
affidavit,” that the petitioner would have accepted a plea offer if trial counsel had
consulted outside counsel or his family members).
{¶65} The report of Forensic Toxicologist Forney failed to demonstrate sufficient
operative facts that Attorney Bobulsky was ineffective. The Ohio Supreme Court has
often affirmed that the failure to call an expert witness and the decision to instead rely
on cross-examination does not necessarily constitute ineffective assistance of counsel.
State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Knapp must also
demonstrate a reasonable likelihood that the outcome of trial would have been different
had Forney’s report been introduced. State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-
4836, 873 N.E.2d 828, ¶ 118.
{¶66} It is not reasonably likely that Forney’s report would have changed the
outcome of trial. The State’s expert, Douglas Rohde, testified that three twenty-three
ounce Christmas Ales contained 120.8 grams of alcohol. Forney opined that Knapp
had only consumed 51.5 grams of alcohol on the date in question. Instead of relying on
the testimony that Knapp had consumed three Christmas Ales, Forney relied on
Knapp’s trial testimony that she had only consumed one and a half Christmas Ales.
19 Forney also noted that, according to the distributor, the alcohol content of the Christmas
Ale was between 6.38% and 7.63% by volume. Rohde has relied upon the
manufacturer’s stated content of 7.5%, but frankly acknowledged that the actual content
varied from the printed label. Rohde testified that 7.5% was the highest possible
alcohol content, while Forney’s report, in contrast, recognized the possibility of the
alcohol content exceeding 7.5%. Forney also claimed that Rohde applied the incorrect
conversion rate of 29.9 milliliters per fluid ounce, rather than 29.57 milliliters per fluid
ounce.
{¶67} Forney also opined that the “head” of foam on a glass of Christmas Ale
could reduce the volume of beer by as much as two ounces per glass.
{¶68} In determining Knapp’s blood alcohol concentration, Forney opined that it
would have been 0.06 g/100 ml, based on the consumption of two Christmas Ales and a
body weight of 160 pounds. Rhode’s calculation of Knapp’s blood alcohol concentration
under these circumstances was 0.075 g/100 ml. Significantly, both sets of calculations
put Knapp above the level at which impairment is possible (0.05 BAC), and, if
extrapolated for the consumption of three Christmas Ales, would put her above the legal
limit in Ohio (0.08 BAC).
{¶69} In sum, Forney’s report does not significantly impeach Rohde’s testimony.
The amount of alcohol actually consumed by Knapp was a matter of judging witnesses’
credibility, and not properly the subject of expert testimony. Rohde acknowledged that
actual alcohol content of a Christmas Ale differed from the labeling but, according to
Forney’s report, this could have the effect of increasing the amount of alcohol actually
consumed, as well as decreasing it. Finally, it was not demonstrated that different
20 factors for converting milliliters into fluid ounces significantly affected the determinations
of Knapp’s blood alcohol concentration.
{¶70} The report of Biomechanical Engineers Jupe and Weaver similarly failed
to demonstrate that such testimony would have altered the trial’s outcome, despite the
claim that the report “demonstrates, as a matter of scientific and mathematical certainty,
that on the night of the accident, even a non-impaired driver would have been unable to
avoid colliding with Ms. Moretti.”
{¶71} Jupe and Weaver’s report contains several shortcomings compromising its
credibility. The first is the conclusion that Knapp could not possibly have seen Moretti
until she was at a distance between 92 and 101 feet. Several witnesses testified that
there were no adverse lighting conditions on the night in question that would have so
drastically limited visibility. Timothy Talso had no difficulty seeing Moretti’s shoe, left
under a street light at the point of impact, from a distance of approximately 100 feet.
Nicholas Magda testified that several cars were able to pass him and Moretti on Fargo
Drive while successfully avoiding the scientifically and mathematically certain collision
posited by Jupe and Weaver. Finally, Jupe and Weaver did not account for the
possibility of Knapp swerving to avoid collision.
{¶72} In addition to these credibility issues, Jupe and Weaver’s report contained
opinions potentially prejudicial to Knapp’s defense. Jupe and Weaver opined that
Knapp was travelling “between 34 and 37 mph at the moment of impact.” The speed
limit on Fargo Drive is 25 mph, and Knapp testified she was driving the speed limit. At
trial, when one of the State’s witnesses stated that Knapp may have been travelling in
excess of 35 mph, Attorney Bobulsky moved for a mistrial. On direct appeal, Knapp’s
21 present counsel argued that the prejudice caused by this testimony could not be undone
by curative instruction, since “[i]t is axiomatic that speeding is an indicia of impairment.”
Knapp, 2012-Ohio-2354, at ¶ 80.
{¶73} Jupe and Weaver’s report further opined the Moretti’s occipital skull
fractures were caused by Moretti’s head impacting the hood of Knapp’s Saturn. The
testimony that Moretti’s head and torso impacted the top of the Saturn’s hood, in
relatively close proximity to the windshield, could be used to impeach Knapp’s claims to
have not seen the object she struck and carried for a distance of about 70 feet.
{¶74} Lastly, the report of Forensic Document Examiner Schoenberger failed to
demonstrate sufficient operative facts warranting a hearing on the Petition or relief from
conviction. The substance of this report, that a signature is not a reliable indicator of
intoxication, is not beyond an unaided jury’s comprehension. The evidence of Knapp’s
signature was circumstantial evidence consistent with, but not equal in weight to,
Rotko’s testimony and Knapp’s own admissions, along with those of her brother and
Connie Braat, to law enforcement. It is also worth noting that Knapp signed her written
statement eleven times and that her signature was consistent with her signature upon
arrival at BW3, before consuming the Christmas Ales.
{¶75} The facts of the present case are distinguishable from those in State v.
Henderson, 11th Dist. No. 2001-T-0047, 2002-Ohio-6715, and State v. Brant, 11th Dist.
No. 97-P-0037, 2000 Ohio App. LEXIS 3540 (Aug. 4, 2000), which Knapp relies on for
the proposition that the failure to call an available expert witness constitutes ineffective
assistance of counsel. In Henderson, a child-rape case, trial counsel failed to call a
doctor who would have testified that “the medical findings reveal[ed] no indications of
22 sexual abuse.” 2002-Ohio-6715, at ¶ 24. This evidence was deemed crucial since it
was inconsistent with the victim’s testimony and potentially raised other doubts about
the defendant’s guilt. Id. at ¶ 24-29. In Brant, also a rape case, the issue was whether
the intercourse was forced or consensual. The State presented the testimony of a
nurse that there was physical evidence of forced intercourse. 2000 Ohio App. LEXIS
3540, at *8. Prior to trial, a doctor had examined the same physical evidence and
concluded that it was consistent with consensual intercourse. Id. at *13. Although the
doctor was available and willing to testify, defense counsel did not call her as a witness.
This court concluded that the failure to call the doctor as a witness was prejudicial, since
the physical evidence was the only “objective” evidence by which the jury could judge
the credibility of the defendant’s and the victim’s contradictory version of events. Id. at
*24.
{¶76} The expert opinions attached to Knapp’s Petition did not have the same
probative value as the testimony at issue in Henderson and Brant. In those cases, the
expert testimony would have been directly probative of the defendant’s guilt or
innocence. In the present case, Forney’s toxicology report merely qualified the
testimony of the State’s expert. As noted above, if the jury chose to believe that Knapp
had consumed three to four Christmas Ales, she would have been legally intoxicated
under either expert’s calculations. Jupe and Weaver’s report was exculpatory in that it
concluded the collision was inevitable regardless of impairment. However, there are
credibility issues with the report and, in other respects, the report was inculpatory in that
Knapp’s excessive speed and Moretti’s impact with the hood of the Saturn indicated
23 impairment. Finally, Schoenberger’s handwriting report was not exculpatory, but merely
went to the weight of the circumstantial handwriting evidence.
{¶77} Knapp’s two assignments of error are without merit.
{¶78} For the foregoing reasons, the Judgment of the Ashtabula County Court of
Common Pleas, denying without hearing Knapp’s Petition for Post-Conviction Relief, is
affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
_____________________
TIMOTHY P. CANNON, P.J., concurring.
{¶79} I respectfully concur in the majority opinion. I write separately to address
the issue raised by the dissent. I agree with the dissent that the concern about
communication with counsel and the defendant concerning pre-trial plea bargaining
would typically warrant a hearing. I agree with the dissent’s analysis; however, I do not
believe appellant has properly presented the issue on appeal. In the postconviction
petition filed in the trial court, appellant made a general statement that counsel did not
properly advise her with regard to plea negotiations. However, on appeal, there is no
error assigned with regard to the plea negotiation issue, no issue raised under any
24 separate assignment of error, and in fact, no mention of the plea negotiation issue
anywhere in appellant’s brief.
{¶80} App.R. 16(A) states:
{¶81} The appellant shall include in its brief, under the headings and in
the order indicated, all of the following:
{¶82} * * *
{¶83} (3) A statement of the assignments of error presented for review,
with reference to the place in the record where each error is
reflected.
{¶84} (4) A statement of the issues presented for review, with references
to the assignments of error to which each issue relates.
{¶85} * * *
{¶86} (6) A statement of facts relevant to the assignments of error
presented for review, with appropriate references to the record in
accordance with division (D) of this rule.
{¶87} (7) An argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant
relies. The argument may be preceded by a summary. * * *
{¶88} There may be many reasons why appellant has failed to address the issue
on appeal. However, the reason for requiring that the issue be addressed in the
appellate brief, according to App.R. 16(A), is clear: appellee must be given notice of the
25 theory of law upon which appellant relies and an opportunity to refute or respond to that
theory. Therefore, I find no error on the part of the trial court for not granting a hearing
on the issue of whether appellant was properly advised concerning pretrial plea
negotiations.
______________________
CYNTHIA WESTCOTT RICE, J., concurring and dissenting.
{¶89} Because I conclude appellant has demonstrated a substantive ground for
relief regarding her counsel’s alleged failure to properly advise her during plea
negotiations, I would hold she is entitled to a hearing on this point. As a result, I
respectfully dissent from the majority opinion on this issue alone. I concur in all other
respects.
{¶90} It is well settled that an evidentiary hearing is not automatically required
for every petition seeking postconviction relief. If, however, a petitioner has shown a
substantive ground for relief, based upon the petition, the supporting affidavits, and the
files and records in the case, a hearing is warranted. State v. Jackson, 64 Ohio St.2d
107, 110 (1980); see R.C. 2953.21.
{¶91} According to appellant’s affidavit, trial counsel failed to advise her that she
would be exposed to a significant period of incarceration if she were convicted after a
trial. And, appellant averred, trial counsel instructed her to take no plea offer involving
incarceration because, she was led to believe, the state’s case was weak. After her
trial, however, appellant allegedly discovered that the prosecution was prepared to
reduce the charges if she was willing to accept some period of incarceration. Given
26 counsel’s advice, appellant maintains she did not have the opportunity to accept a plea
to a lesser charge, but would have had she been fully apprised of what was at stake.
{¶92} The averments of appellant’s affidavit suggest trial counsel may not have
communicated the state’s alleged plea offer(s) to appellant prior to trial. In Missouri v.
Frye, 132 S.Ct. 1399 (2012), the Supreme Court of the United States held that an
attorney’s failure to inform a defendant of a written plea offer before it expires is
sufficient to show deficient performance under Strickland v. Washington, 466 U.S. 668.
Frye, supra, at 1409. And, the court held, prejudice is demonstrated if a defendant is
able to show a reasonable probability both that she would have accepted the more
favorable plea offer had it been communicated and that the plea would have been
entered without the prosecution canceling it or the court refusing it. Id.
{¶93} Appellant’s theory for postconviction relief is based upon her attorney’s
representations prior to trial and alleged information that he may have withheld from her
in the course of plea negotiations. The majority concludes that the lack of “operative
facts” supporting her claim of ineffectiveness is sufficient to affirm the trial court’s
decision to dismiss the issue without a hearing. In my view, and in light of Frye, this is
not a basis for dismissal, but the justification for holding a hearing on the issue.
{¶94} Where a petitioner has raised a substantive ground for relief, which cannot
be resolved as a matter of law, a court is statutorily obligated to hold a hearing to
determine whether the claim justifies relief. Appellant’s theory of ineffectiveness
presents a substantive ground for relief pursuant to Frye. And it is necessarily premised
upon evidence outside the record that cannot be fairly adjudicated without a hearing. I
27 would therefore hold appellant is entitled to a hearing on whether counsel could be held
ineffective for allegedly failing to communicate a potential plea offer or offers.
{¶95} For the above reasons, I dissent, in part, to the majority opinion.