State v. Stefan , 2020 Ohio 1276 ( 2020 )

[Cite as State v. Stefan, 2020-Ohio-1276.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108487
v. :
GREGORY PETER STEFAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-600196-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, and Mary M.
Frey, Assistant Prosecuting Attorneys, for appellee.
G. Michael Goins, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Gregory Peter Stefan (“Stefan”) appeals the trial
court’s denial of his postconviction petition to vacate and set aside his sentences and
the court’s denial of his request for an evidentiary hearing. We find that his petition
was untimely and that the trial court properly denied Stefan’s motion. We find also
that the trial court did not abuse its discretion in denying his request for a hearing.
For the foregoing reasons, we affirm.
Facts
Pursuant to an investigation by the Ohio Internet Crimes Against
Children task force, Stefan was found to be engaging in sexually explicit
conversations with an undercover officer posing as a 14-year-old child. Stefan was
arrested on October 13, 2015, after traveling to meet the “child” for the purpose of
engaging in sexual activity. A search warrant was executed at his city of Lorain home
the following day to recover numerous electronic devices, some of which required
additional passcodes, and others that were accessible and contained child
pornography.
On November 24, 2015, Stefan was indicted on a thirteen count
indictment as follows: Count 1, importuning, a fifth-degree felony; Count 2,
attempted unlawful sexual conduct with a minor, a fifth-degree felony; Counts 3
through 7, pandering sexually oriented material or performance in violation of R.C.
2907.322(A)(1), all second-degree felonies; Counts 8 through 12, pandering sexually
oriented material or performance, in violation of R.C. 2907.322(A)(5), all fourth-
degree felonies; and Count 13, possession of criminal tools, a fifth-degree felony.
Stefan pleaded not guilty to all charges.
According to emails between Stefan’s trial counsel and the state of
Ohio (“the State”) — attached to his petition as exhibits — during the course of plea
negotiations the State presented a plea agreement to Stefan. Under that agreement,
the State would nolle counts 3-7 — pandering, all second-degree felonies — in
exchange for Stefan’s plea of guilty and all passwords and access codes to the devices
recovered at his home. According to the emails provided, the State made clear that
depending on what was found on Stefan’s devices, he could face additional charges
regardless of the existing terms of the deal. Stefan was prepared to accept that plea
deal on May 31, 2016, the day the trial was to begin.
Instead, when Stefan’s attorney met with the State on May 31, 2016,
the State proposed a new plea agreement. The State would nolle counts 8-12 —
pandering, all fourth-degree felonies. The State also agreed not to charge him for
additional pornographic material found on his devices. Stefan agreed to this new
deal. That same day, Stefan pled guilty to: count 1 of importuning, a fifth-degree
felony; count 2 of attempted unlawful sexual conduct with a minor, a fifth-degree
felony; counts 3-7, pandering, all second-degree felonies; and count 13 of possession
of criminal tools, a fifth-degree felony.
On August 23, 2016, the court sentenced Stefan to the maximum
sentence on each count. Stefan received eight-year sentences for each of counts 3-
7, which were to run concurrent with each other. Stefan also received one-year
sentences for each of counts 1, 2 and 13, to all run consecutive to each other as well
as consecutive to his 8-year sentence. His total sentence was 11 years’ incarceration,
a Tier II sex offender classification as well as five years of mandatory postrelease
control.
Stefan timely appealed from that judgment and presented two
assignments of error. State v. Stefan, 8th Dist. Cuyahoga No. 104979, 2018-Ohio-
266 (“Stefan I”). Stefan argued that his counsel was ineffective for advising that he
plead guilty on the grounds that several of his charges were potentially time barred.
Stefan also argued that his sentence was contrary to law. We found his arguments
lacked merit and affirmed the trial court on January 25, 2018, in Stefan I.
Stefan timely filed an application to reopen his direct appeal pursuant
to Crim.R. 26(B) on April 25, 2018. He alleged that his appellate counsel was
deficient and should have raised additional arguments regarding the performance
of his trial counsel. Stefan alluded to the initial, more favorable, plea offer and
argued that his trial counsel had forced him to take the second offer because counsel
was not aware the State would propose a new deal and had not prepared for trial.
We denied his application on August 24, 2018. On December 12, 2018, the Ohio
Supreme Court declined to review our denial of his application.
On March 15, 2019, Stefan filed this petition for postconviction relief
pursuant to R.C. 2953.21 and 2953.23. Stefan again argued that his trial counsel
had been deficient and that his pleas were not valid because he had been forced into
pleading guilty. Stefan attached email records between the State and his trial
counsel referencing the initial plea offer. Stefan also attached affadavits from
members of his family that asserted Stefan was ready to plead guilty only to the first
agreement and that he had been caught off guard by the second plea offer. He again
asserted that his counsel’s advice was to plead guilty because counsel was not
prepared for a trial. The State opposed his petition arguing that it was untimely and
that an evidentiary hearing was unnecessary.
The trial court denied his petition on March 28, 2019, without holding
an evidentiary hearing; the court did not provide any reasoning. Stefan now appeals
the denial of his untimely petition.
Stefan provides two assignments of error for our review. We will
address them in turn.
Assignment of Error No. 1
The trial court abused its discretion when it denied Stefan’s petition for
postconviction relief in violation of the Fifth, Sixth, and Fourteenth
amendments to the United States Constitution.
Stefan’s argument is that he is entitled to relief under R.C. 2953.21(A)
because he has presented evidence dehors the record that his counsel was ineffective
and his plea was therefore not valid.
As an initial matter we must note that his petition for postconviction
relief is not timely. R.C. 2953.21(A)(2) provides that a petition for postconviction
relief must be filed “no later than three hundred sixty-five days after the date on
which the trial transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction.” Stefan’s petition for postconviction relief was filed over
two and a half years after the trial transcript in his direct appeal was filed in the court
of appeals; his petition is therefore untimely. An untimely petition can still be
reviewed however.
R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an
untimely filed petition for postconviction relief only if both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code or
to the filing of an earlier petition, the United States Supreme Court
recognized a new federal or state right that applies retroactively to
persons in the petitioner’s situation, and the petition asserts a claim
based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted
or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable factfinder
would have found the petitioner eligible for the death sentence.
Stefan concedes that his petition is untimely, but contends that he
was unaware that the initial plea offer was not part of the record until April 25, 2018,
when he filed his application to reopen.
Pursuant to R.C. 2953.23(A)(1)(a), Stefan’s argument can be
summarized as follows. He was unavoidably prevented from discovering the initial
plea offer was absent from the record. If he had this evidence he could prove that
he and his counsel showed up on May 31, 2016, the day of trial, ready for Stefan to
plead guilty to the terms of the initial plea offer. Instead, Stefan was presented with
an alternative plea deal, defense counsel was unprepared to go to trial, and Stefan,
therefore, had no choice but to plead guilty to the terms of the new agreement. In
short, if not for the existence of the first plea offer, Stefan would have never pled
guilty to the second. His arguments are without merit.
R.C. 2953.23(A)(1)(a)
In order for the trial court to address the merits of his untimely
petition Stefan must first show that, pursuant to R.C. 2953.23(A)(1)(a), he was
“unavoidably prevented from discovery of the fact upon which the petitioner must
rely to present the claim for relief.” In this case then, Stefan must show he was
unavoidably prevented from discovering that his initial plea was not a part of the
record. Stefan cannot do so.
Stefan states that he believed the initial plea offer was a part of the
record. He also argues that the mere existence of the first plea offer proves that he
would have never pled guilty to the second plea but for ineffective assistance of
counsel. But even if that were all true, Stefan still fails to prove that he was prevented
from discovering the plea offer was not in the record.
Stefan was in court on May 31, 2016, the day the record was created,
and knew that no mention was made of his first plea offer. Further, he had access
to the emails of his defense counsel — attached as affidavits to his petition — which
prove the existence of the plea outside of the record. Finally, he had multiple
opportunities during the pendency and resolution of his appeal to discover the plea
offer. Stefan’s discovery of the plea offer was not unavoidably prevented within the
required 365-day statutory timeline.
Stefan fails to meet the requirements under R.C. 2953.23(A)(1)(a),
but even if he did qualify, he would still not meet the requirements of R.C.
2953.23(A)(1)(b).
R.C. 2953.23(A)(1)(b)
Under R.C. 2953.23(A)(1)(b), the petitioner, after meeting the
requirements of R.C. 2953.23(A)(1)(a), must show “by clear and convincing
evidence that, but for the constitutional error at trial, no reasonable factfinder would
have found the petitioner guilty * * *.”
Generally, a petitioner who pled guilty and then files an untimely
petition for postconviction relief does not qualify under R.C. 2953.23(A)(1)(b).
Because the defendant has pled guilty, there is no trial; he cannot, therefore
demonstrate that “but for constitutional error at trial” he would not have been found
guilty. The defendant simply has no basis for arguing that reasonable factfinders
would not have found him guilty when he himself is admitting guilt of a substantive
crime. See State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 34,
citing State v. Cool, 9th Dist. Summit No. 24518, 2009-Ohio-4333, ¶ 14; see also
State v. Estridge, 2d Dist. Greene No. 2005 CA 136, 2006-Ohio-5310, ¶ 8 (appellant
did not meet burden under R.C. 2953.23(A)(1)(b) “because his guilty pleas operate
as a waiver. [A] counseled plea of guilty is an admission of factual guilt so reliable
that, where voluntary and intelligent, it quite validly removes the issue of factual
guilt from the case.”).
We have, however, recognized that this rule must have exceptions.
For example, in State v. Moon, we held that a guilty plea does not necessarily
preclude relief under R.C. 2953.23(A)(1)(b) where the appellant is alleging that,
because of ineffective assistance of counsel, his plea was not valid.
Moon differs substantially from our case however. In Moon, counsel
was alleged to have failed to file a motion to suppress that, if successful, would have
prevented the State from presenting any evidence of the appellant’s guilt. We could
safely reason in Moon then that, absent evidence, a reasonable factfinder could not
have found Moon guilty at trial. That is not the case here.
Stefan alleges that he only pled guilty to the second plea agreement
because his counsel was not prepared for trial, and that his counsel was not prepared
for trial in anticipation of a different plea agreement being agreed to. Central to that
argument is the admission that Stefan was prepared to plead guilty. True to a
different plea agreement, but not to different facts. He is not alleging, like in Moon,
that there is a scenario where he would not have admitted guilt; he cannot credibly
meet the requirements of R.C. 2953.23(A)(1)(b) as a result.
Stefan has failed to prove that he deserves relief under either prong of
R.C. 2953.23(A)(1). Therefore, his petition is untimely and was properly dismissed.
We turn now to his second assignment of error.
Assignment of Error No. 2
The trial court erred in denying Stefan’s petition for postconviction
relief where he presented sufficient evidence dehors the record to merit
an evidentiary hearing.
A trial court's decision to deny a postconviction petition without a
hearing is reviewed for abuse of discretion. State v. Abdussatar, 8th Dist. Cuyahoga
No. 92439, 2009-Ohio-5232, ¶ 16. An “abuse of discretion” requires more than an
error of law or of judgment; it “implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
We have consistently held that when a trial court lacks jurisdiction to
hear a petition under R.C. 2953.23(A)(1), it is not an abuse of discretion to not
conduct an evidentiary hearing. See, e.g., State v. Bates, 8th Dist. Cuyahoga No.
105766, 2017-Ohio-8408; State v. Chapman, 8th Dist. Cuyahoga No. 99960, 2014-
Ohio-1059; State v. Werber, 8th Dist. Cuyahoga No. 100290, 2014-Ohio-609; State
v. Piasecki, 8th Dist. Cuyahoga No. 98952, 2013-Ohio-1191, ¶ 21 (where the trial
court lacked jurisdiction to hear petition under R.C. 2953.23(A)(1), trial court did
not err in failing to conduct a hearing).
The trial court was well within its discretion to deny Stefan’s request
for a hearing because the court lacked jurisdiction. His arguments are without
merit.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN T. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR