[Cite as State v. Alt,
2012-Ohio-3580.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98087
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SUSAN ALT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527674
BEFORE: Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 9, 2012
ATTORNEY FOR APPELLANT
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Susan Alt, appeals the trial court’s denial of her
petition for postconviction relief without a hearing. She raises two assignments of error
for our review:
“[1.] Because the trial court failed to make specific findings of fact and
conclusions of law regarding the claim of failure to properly handle appellant’s motion to
withdraw plea hearing, instead of finding it to be res judicata, its judgment entry is not a
final and appealable order.
“[2.] The trial court abused its discretion by dismissing appellant’s postconviction
petition without a hearing.”
{¶2} Finding no merit to her appeal, we affirm the judgment of the trial court.
Procedural History and Factual Background
{¶3} In July 2010, Alt pleaded guilty to 31 counts relating to a sophisticated
mortgage fraud scheme. As part of her plea, Alt agreed to forfeit $2 million to the state.
Two weeks before the sentencing hearing in December 2010, Alt moved to withdraw her
guilty plea, asserting that her plea should be vacated because she “did not fully
understand all of the ramifications of her plea” and she “maintains her innocence and has
a defense to the charges.”
{¶4} The trial court held a hearing on Alt’s motion to withdraw her plea before
the sentencing hearing, after which it denied Alt’s motion. The court sentenced Alt to
an aggregate nine years in prison. The court also advised Alt that she would be subject
to five years of mandatory postrelease control.
{¶5} In her direct appeal, Alt appealed the trial court’s denial of her motion to
withdraw her plea. See State v. Alt, 8th Dist. No. 96289, 2011-Ohio-5393. This court
affirmed the trial court, agreeing that Alt “had indeed understood the ramifications of her
plea and her motion was nothing more than a delay tactic.” Id. at ¶ 13.
{¶6} In June 2011, Alt filed a petition for postconviction relief. She filed an
amended petition two months later. Alt raised two issues in her petition. First, she
claimed that the trial court failed to properly handle her motion to withdraw her plea,
which denied her a right to a fair trial and due process of law. She further argued that
she received ineffective assistance of counsel because (1) her lawyer failed to properly
handle her motion to withdraw her plea; (2) her lawyer failed to provide proper legal
counsel regarding the impact of forfeiture; and (3) her lawyer failed to timely notify her
of the date of the sentencing hearing, causing her to miss the hearing, which she claims
resulted in her receiving more prison time than she would have otherwise received.
{¶7} In February 2012, the trial court denied Alt’s request for a hearing on her
postconviction relief petition and subsequently denied her petition. The trial court
determined that Alt’s first issue was barred by res judicata and found that her second
claim, regarding ineffective assistance of counsel, was “refuted by the documents
attached to her petition.” It is from this judgment that Alt appeals.
Standard of Review
{¶8} “[A] trial court’s decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a
reviewing court should not overrule the trial court’s finding on a petition for
postconviction relief that is supported by competent and credible evidence.” State v.
Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77, ¶ 1. The term “abuse of
discretion” implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
State v. Adams,
62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980), citing Steiner v. Custer,
137 Ohio St. 448,
31 N.E.2d 855 (1940).
Postconviction Proceedings
{¶9} Under R.C. 2953.21(A)(1)(a),
[a]ny 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. The petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
…
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. … If the court dismisses the petition, it shall make and file
findings of fact and conclusions of law with respect to such dismissal.
…
Unless the petition and the files and records of the case show the petitioner
is not entitled to relief, the court shall proceed to a prompt hearing on the
issues.
R.C. 2953.21(A)(1)(a), (C), and (E).
{¶10} A postconviction proceeding is not an appeal of a criminal conviction, but
rather, a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 410,
639 N.E.2d 67 (1994). In postconviction cases, a trial court acts as a gatekeeper,
determining whether a defendant will even receive a hearing. Gondor, 112 Ohio St.3d
at ¶ 51. In State v. Calhoun,
86 Ohio St.3d 279,
714 N.E.2d 905 (1999), the Ohio
Supreme Court held that the trial court’s gatekeeping function in the postconviction relief
process is entitled to deference, including the court’s decision regarding the sufficiency of
the facts set forth by the petitioner and the credibility of the affidavits submitted.
Final Appealable Order
{¶11} In her first assignment of error, Alt argues that because the trial court failed
to make findings of fact and conclusions of law regarding the first claim of her
postconviction petition (“trial court’s failure to properly conduct a motion to withdraw
plea hearing”), that the judgment is not a final appealable order. We disagree.
{¶12} R.C. 2953.21(C) provides that “If the court dismisses the petition, it shall
make and file findings of fact and conclusions of law with respect to such dismissal.”
{¶13} Here, the trial court found that Alt’s claims regarding her motion to
withdraw her plea were barred by res judicata. In her direct appeal, Alt argued that the
trial court erred when it denied her motion to withdraw her plea. This court reviewed
the transcript of the plea hearing, as well as the transcript for the hearing on Alt’s motion
to withdraw her plea. We concluded:
[T]he trial court afforded Alt a full hearing on her motion to
withdraw. The record reflects that the court held a lengthy hearing at
which defense counsel argued why Alt should be allowed to withdraw her
plea. The trial court considered the state’s objections to the motion and,
after full and fair consideration, denied Alt’s motion. The trial court stated
that it was denying the motion because Alt had indeed understood the
ramifications of her plea and her motion was nothing more than a delay
tactic.
Alt, 2011-Ohio-5393, at ¶ 13.
{¶14} It is well settled that the doctrine of res judicata applies in postconviction
relief proceedings. State v. Blalock, 8th Dist. No. 94198, 2010-Ohio-4494, ¶ 19.
Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and
litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that judgment or
conviction, or on an appeal from that judgment.
State v. Cole, 2 Ohio St.3d 112, 113,
443 N.E.2d 169 (1982), citing State v. Perry,
10
Ohio St.2d 175,
226 N.E.2d 104 (1967), paragraph nine of the syllabus.
{¶15} Alt raised this exact argument — regarding the trial court’s handling of her
motion to withdraw her plea — in her direct appeal. Accordingly, the trial court was
correct in concluding that res judicata bars its consideration in a proceeding for
postconviction relief. Alt’s first assignment of error is overruled.
Evidentiary Hearing
{¶16} In her second assignment of error, Alt maintains that the trial court erred
when it denied her petition for postconviction relief without a hearing because she asserts
that her claim of ineffective assistance of counsel, with supporting documentation,
warranted a hearing.
[A] trial court properly denies a defendant’s petition for
postconviction relief without holding an evidentiary hearing [if] 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.
Calhoun, 86 Ohio St.3d 279,
714 N.E.2d 905, at paragraph two of the syllabus.
According to the Ohio Supreme Court, it is “not unreasonable to require the defendant to
show in his petition for postconviction relief that such errors resulted in prejudice before
a hearing is scheduled.”
Id. at 283.
{¶17} Here, the trial court stated that it considered Alt’s petition, case law, and
exhibits, and found that the documents attached to the petition refuted Alt’s claim that her
counsel was ineffective. We agree.
{¶18} Alt claims that her counsel representation was deficient because (1) he
coerced her into pleading guilty, (2) did not properly prepare for and handle her motion to
withdraw her plea, (3) failed to inform the judge that she missed the first hearing on her
motion to withdraw her plea and sentencing due to her flight being delayed due to
weather, (4) failed to object to her forfeiting $2 million to the state, and (5) did not
prepare for her sentencing hearing.
{¶19} Regarding her first two claims — that her counsel coerced her into pleading
guilty and was deficient in handling her motion to withdraw her plea, Alt did not attach
any documentation to her petition that establishes her plea was anything but voluntarily
entered into, or that her counsel improperly prepared or handled her motion to withdraw
her plea. Alt attached many email conversations between her and her counsel to her
postconviction relief petition. Nothing in the emails even suggests that she did not enter
into her plea voluntarily, knowingly, and intelligently. One email from her counsel to
her, dated May 13, 2010, states, “I am very aware you will not plead to any felonies.”
Almost two months later, Alt pleaded guilty to 31 counts, all felonies. Defendants often
change their mind regarding whether to enter into a plea when facing trial. When Alt
entered into her plea, her case had been pending for 11 months and was scheduled for
trial two weeks later. As this court determined in Alt’s direct appeal, “[t]he record
overwhelmingly demonstrates that Alt understood the ramifications of her plea and that it
was made knowingly, voluntarily, and intelligently.” Alt at ¶ 12. None of the emails
attached to Alt’s petition contradicts this conclusion.
{¶20} Alt further claims that her counsel was deficient because he informed her
that if she pled guilty, she could avoid prison time by paying a substantial amount of
money. In support of this claim, Alt cites to emails attached to her petition where she
claims that her counsel’s use of the word “payola” meant exactly that, i.e., if she paid, she
would not go to prison or could avoid felony convictions altogether. But a review of the
emails establishes that her counsel was attempting to get her to pay the $2 million
forfeiture to the state before sentencing, as she agreed to do as part of her plea. Alt pled
guilty in early July 2010. The trial court delayed sentencing at her request so that she
had time to procure the $2 million. Her counsel advised her to pay the money in an
attempt to mitigate her sentence. As the trial court found in denying her petition, a
review of the plea hearing makes it “abundantly clear” that Alt entered into her plea
without threats or promises. Nothing in the emails attached to her petition establish that
her counsel coerced her to enter into the plea.
{¶21} Further, with respect to Alt’s argument that her counsel did not properly
prepare for or handle her motion to withdraw her plea, we disagree that the documents
attached to her petition support this claim. Although Alt’s counsel informed her in the
emails that courts liberally grant a presentence motion to withdraw a plea, he also
informed her that the trial court could and had the discretion to deny it. Accordingly, we
agree with the trial court that the documents attached to Alt’s petition actually refute Alt’s
claim that her counsel was deficient in preparing for and handling her motion to withdraw
her plea.
{¶22} Moreover, we do not have a transcript of the hearing on Alt’s motion to
withdraw her plea. But this court found in Alt’s direct appeal “that the trial court
afforded Alt a full hearing on her motion to withdraw,” and “the court held a lengthy
hearing at which defense counsel argued why Alt should be allowed to withdraw her
plea.” Alt did not provide any documentation in her petition that refutes this conclusion.
{¶23} With respect to Alt’s assertion that her counsel was ineffective because he
failed to inform the judge that she missed her first sentencing hearing (also the hearing on
her motion to withdraw) due to the fact that her flight was delayed because of weather,
the documents attached to her petition support no such thing. The emails attached to her
petition show that she was angry with her counsel due to a miscommunication regarding
the date of sentencing. In the emails, Alt argues with her counsel that his secretary told
her the wrong date. But her counsel’s reply indicates that he told her that he orally
informed her on the telephone of the correct date. Her counsel further informed her that
she would have the chance to explain to the judge why she missed the first hearing. This
does not rise to deficient performance.
{¶24} Alt further claims that her counsel was ineffective for failing to object to her
having to forfeit $2 million to the state. Alt did not raise this issue in her petition for
postconviction relief. But we note that as part of her plea agreement, Alt voluntarily,
knowingly, and intelligently agreed to forfeit $2 million to the state.
{¶25} Alt’s final claim, that her counsel failed to prepare for her sentencing
hearing, is also not supported by the documentation attached to her petition. The trial
court found that the record reflected that “defense counsel attempted to mitigate
sentence.” We do not have the transcript from the sentencing hearing. But none of the
documents that Alt attached to her petition contradicts the trial court’s finding.
{¶26} Alt’s second assignment of error is overruled.
{¶27} Judgment affirmed.
It is ordered that appellee recover of 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
