[Cite as State v. Suntoke, 2014-Ohio-3320.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : KALI SUNTOKE : Case No. CT2014-0017 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2012-0101
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH KALI SUNTOKE 27 North Fifth Street #686-054 Zanesville, OH 43701 Chillicothe Correctional Institution P.O. Box 5500 Chillicothe, OH 45601 Muskingum County, Case No. CT2014-0017 2
Farmer, J.
{¶1} On April 26, 2012, the Muskingum County Grand Jury indicted appellant,
Kali Suntoke, on thirty-three counts of pandering obscenity involving a minor in violation
of R.C. 2907.321. Appellant is in his seventies. On April 9, 2013, appellant pled no
contest to sixteen of the counts. By entry filed April 10, 2013, the trial court found
appellant guilty.
{¶2} A sentencing hearing was held on June 3, 2013. Appellant presented a
handwritten motion to withdraw his pleas. The trial court entertained arguments and
denied the motion. By entry filed June 6, 2013, the trial court sentenced appellant to
seven years in prison. The remaining counts were nolled.
{¶3} Appellant filed an appeal. Thereafter, on February 7, 2014, appellant filed
a petition for postconviction relief, claiming ineffective assistance of counsel. By journal
entry filed February 11, 2014, the trial court denied the petition.
{¶4} On April 2, 2014, this court affirmed appellant's conviction and sentence.
See, State v. Suntoke, 5th Dist. Muskingum No. CT2013-0032, 2014-Ohio-1431.
{¶5} Appellant filed an appeal on the denial of his postconviction petition and
this matter is now before this court for consideration. Assignments of error are as
follows:
I
{¶6} "ATTORNEY VAN HORN WAS INEFFECTIVE."
II
{¶7} "ATTORNEY MEYERS WAS INEFFECTIVE IN HIS RECOMMINDATION
(SIC) TO PLEAD." Muskingum County, Case No. CT2014-0017 3
III
{¶8} "ATTORNEY VAN HORN AND GREGORY MEYERS WERE BOTH
INEFFECTIVE FOR NOT CHALLENGING PROBABLE CAUSE FOR ARREST AND
FOR SEARCH."
I, II, III
{¶9} Appellant claims the trial court erred in denying his petition for
postconviction relief and failed to afford him a hearing. We disagree.
{¶10} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)(2)
states the following in pertinent part:
The court shall consider a petition that is timely filed under division
(A)(2) of this section even if a direct appeal of the judgment is pending.
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. In making such a determination, the court shall consider, in
addition to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings against
the petitioner, including, but not limited to, the indictment, the court's
journal entries, the journalized records of the clerk of the court, and the
court reporter's transcript. Muskingum County, Case No. CT2014-0017 4
{¶11} The trial court's February 11, 2014 journal entry is a bare-bones denial of
appellant's petition for postconviction relief.
{¶12} In his petition filed February 7, 2014, appellant argued ineffective
assistance of counsel regarding both of his trial counsel, Kevin Van Horn, Esq. and
Gregory Meyers, Esq., for advice given prior to him entering his no contest pleas.
Appellant argued Attorney Van Horn failed to provide him a defense, and entered into
plea negotiations without his consent. Appellant argued Attorney Meyers failed to
inform him of the elements of the offenses and "like Van Horn, Meyers left Defendant to
his own devises to prepare his own defense." Appellant argued Attorney Meyers failed
to discover exculpatory evidence and offer any defenses. Appellant argued if either
attorney had been effective and provided him with information on the elements of the
offenses and lesser included offenses, he would not have pled no contest. Attached to
his petition were copies of various emails and letters from both attorneys to him and
Elizabeth Gaba, Esq., who had entered the case on a conditional appearance one day
prior to appellant entering his pleas. None of the emails and letters are authenticated or
of any evidentiary quality.
{¶13} Appellant argues Attorney Meyers's attitude of convincing him to enter no
contest pleas is demonstrated by a March 13, 2013 memo he sent to Attorney Van
Horn:
I am finally getting around to visiting Suntoke again later today (3-
13-13). My plan is to advise him that his only hope of ever getting out of
prison before he dies of old age is to enter guilty pleas that leave Muskingum County, Case No. CT2014-0017 5
sentencing to the judge. If he's open to that idea, I will agree to do gather
at least some of the information he wants when it comes to medical
records he says will confirm his poor health; the Ohio prison system's
general costs for incarcerating older inmates; maybe some "comparable"
child porn case suggesting relatively light sentences (at least as compared
to 10 or 12 years) - although this may create more bad than good because
some "comparables" with this number of images will entail sentences
much longer than 10 years.
{¶14} As noted in the facts, appellant filed a direct appeal of his case which this
court affirmed. State v. Suntoke, 5th Dist. Muskingum No. CT2013-0032, 2014-Ohio-
1431. Assignment of Error 3 at ¶ 13 was: "THE DEFENDANT WAS RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE CUMULATIVE EFFECT OF WHICH
DENIED HIM OF HIS CONSTITUTIONAL RIGHT TO COUNSEL." This court's decision
found there was nothing in the record to support the argument that appellant's pleas
were miscounseled or involuntary (¶ 69):
Appellant initially argues that he received ineffective assistance of
trial counsel because he was not given an opportunity to participate in his
own defense. Appellant points out that in a May 29, 2013 letter to his
counsel, which was attached to appellant’s motion seeking to withdraw his
plea, appellant raised the issue that he had not had the chance to consult
with his attorney concerning any trial issues. However, the record is Muskingum County, Case No. CT2014-0017 6
insufficient to demonstrate that counsel acted incompetently in
representing appellant or that actual prejudice resulted from such
representation.
{¶15} Appellant's postconviction petition now seeks to re-litigate the issue with
unauthenticated or affidavit quality material. As to the claim of ineffective assistance of
trial counsel on trial preparation, plea negotiation, and voluntariness of plea, we find the
trial court correctly denied the petition without hearing.
{¶16} In his appellate brief, appellant also argues both trial counsel were
deficient in not challenging probable cause to search and to arrest. These issues are
not proper before this court as they were not raised in the petition to the trial court.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Suntoke, 2014-Ohio-3320.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : KALI SUNTOKE : Case No. CT2014-0017 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2012-0101
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH KALI SUNTOKE 27 North Fifth Street #686-054 Zanesville, OH 43701 Chillicothe Correctional Institution P.O. Box 5500 Chillicothe, OH 45601 Muskingum County, Case No. CT2014-0017 2
Farmer, J.
{¶1} On April 26, 2012, the Muskingum County Grand Jury indicted appellant,
Kali Suntoke, on thirty-three counts of pandering obscenity involving a minor in violation
of R.C. 2907.321. Appellant is in his seventies. On April 9, 2013, appellant pled no
contest to sixteen of the counts. By entry filed April 10, 2013, the trial court found
appellant guilty.
{¶2} A sentencing hearing was held on June 3, 2013. Appellant presented a
handwritten motion to withdraw his pleas. The trial court entertained arguments and
denied the motion. By entry filed June 6, 2013, the trial court sentenced appellant to
seven years in prison. The remaining counts were nolled.
{¶3} Appellant filed an appeal. Thereafter, on February 7, 2014, appellant filed
a petition for postconviction relief, claiming ineffective assistance of counsel. By journal
entry filed February 11, 2014, the trial court denied the petition.
{¶4} On April 2, 2014, this court affirmed appellant's conviction and sentence.
See, State v. Suntoke, 5th Dist. Muskingum No. CT2013-0032, 2014-Ohio-1431.
{¶5} Appellant filed an appeal on the denial of his postconviction petition and
this matter is now before this court for consideration. Assignments of error are as
follows:
I
{¶6} "ATTORNEY VAN HORN WAS INEFFECTIVE."
II
{¶7} "ATTORNEY MEYERS WAS INEFFECTIVE IN HIS RECOMMINDATION
(SIC) TO PLEAD." Muskingum County, Case No. CT2014-0017 3
III
{¶8} "ATTORNEY VAN HORN AND GREGORY MEYERS WERE BOTH
INEFFECTIVE FOR NOT CHALLENGING PROBABLE CAUSE FOR ARREST AND
FOR SEARCH."
I, II, III
{¶9} Appellant claims the trial court erred in denying his petition for
postconviction relief and failed to afford him a hearing. We disagree.
{¶10} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)(2)
states the following in pertinent part:
The court shall consider a petition that is timely filed under division
(A)(2) of this section even if a direct appeal of the judgment is pending.
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. In making such a determination, the court shall consider, in
addition to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings against
the petitioner, including, but not limited to, the indictment, the court's
journal entries, the journalized records of the clerk of the court, and the
court reporter's transcript. Muskingum County, Case No. CT2014-0017 4
{¶11} The trial court's February 11, 2014 journal entry is a bare-bones denial of
appellant's petition for postconviction relief.
{¶12} In his petition filed February 7, 2014, appellant argued ineffective
assistance of counsel regarding both of his trial counsel, Kevin Van Horn, Esq. and
Gregory Meyers, Esq., for advice given prior to him entering his no contest pleas.
Appellant argued Attorney Van Horn failed to provide him a defense, and entered into
plea negotiations without his consent. Appellant argued Attorney Meyers failed to
inform him of the elements of the offenses and "like Van Horn, Meyers left Defendant to
his own devises to prepare his own defense." Appellant argued Attorney Meyers failed
to discover exculpatory evidence and offer any defenses. Appellant argued if either
attorney had been effective and provided him with information on the elements of the
offenses and lesser included offenses, he would not have pled no contest. Attached to
his petition were copies of various emails and letters from both attorneys to him and
Elizabeth Gaba, Esq., who had entered the case on a conditional appearance one day
prior to appellant entering his pleas. None of the emails and letters are authenticated or
of any evidentiary quality.
{¶13} Appellant argues Attorney Meyers's attitude of convincing him to enter no
contest pleas is demonstrated by a March 13, 2013 memo he sent to Attorney Van
Horn:
I am finally getting around to visiting Suntoke again later today (3-
13-13). My plan is to advise him that his only hope of ever getting out of
prison before he dies of old age is to enter guilty pleas that leave Muskingum County, Case No. CT2014-0017 5
sentencing to the judge. If he's open to that idea, I will agree to do gather
at least some of the information he wants when it comes to medical
records he says will confirm his poor health; the Ohio prison system's
general costs for incarcerating older inmates; maybe some "comparable"
child porn case suggesting relatively light sentences (at least as compared
to 10 or 12 years) - although this may create more bad than good because
some "comparables" with this number of images will entail sentences
much longer than 10 years.
{¶14} As noted in the facts, appellant filed a direct appeal of his case which this
court affirmed. State v. Suntoke, 5th Dist. Muskingum No. CT2013-0032, 2014-Ohio-
1431. Assignment of Error 3 at ¶ 13 was: "THE DEFENDANT WAS RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE CUMULATIVE EFFECT OF WHICH
DENIED HIM OF HIS CONSTITUTIONAL RIGHT TO COUNSEL." This court's decision
found there was nothing in the record to support the argument that appellant's pleas
were miscounseled or involuntary (¶ 69):
Appellant initially argues that he received ineffective assistance of
trial counsel because he was not given an opportunity to participate in his
own defense. Appellant points out that in a May 29, 2013 letter to his
counsel, which was attached to appellant’s motion seeking to withdraw his
plea, appellant raised the issue that he had not had the chance to consult
with his attorney concerning any trial issues. However, the record is Muskingum County, Case No. CT2014-0017 6
insufficient to demonstrate that counsel acted incompetently in
representing appellant or that actual prejudice resulted from such
representation.
{¶15} Appellant's postconviction petition now seeks to re-litigate the issue with
unauthenticated or affidavit quality material. As to the claim of ineffective assistance of
trial counsel on trial preparation, plea negotiation, and voluntariness of plea, we find the
trial court correctly denied the petition without hearing.
{¶16} In his appellate brief, appellant also argues both trial counsel were
deficient in not challenging probable cause to search and to arrest. These issues are
not proper before this court as they were not raised in the petition to the trial court.
{¶17} Assignments of Error I, II, and III are denied.
{¶18} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. Patricia A. Delaney
_______________________________ Hon. Craig R. Baldwin Muskingum County, Case No. CT2014-0017 7
SGF/sg 626 [Cite as State v. Suntoke, 2014-Ohio-3320.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : KALI SUNTOKE : : Defendant-Appellant : CASE NO. CT2014-0017
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs
to appellant.
_______________________________ Hon. Craig R. Baldwin