State v. Hibbard , 2014 Ohio 442 ( 2014 )

[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
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:
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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