[Cite as State v. Bear,
2019-Ohio-466.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
: Case No. 18CA8
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
SAMUEL E. BEAR, :
:
Defendant-Appellant. : Released: 02/08/19
_____________________________________________________________
APPEARANCES:
Samuel E. Bear, Caldwell, Ohio, Pro Se Appellant.
Jason D. Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher,
Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Samuel E. Bear appeals the final judgment of the Gallia County
Common Pleas Court, entered June 4, 2018, which denied his Petition for
Post-Conviction Relief. Appellant’s first assignment of error challenges the
trial court’s denial of his petition without an evidentiary hearing. The
second assignment of error asserts that his conviction is null and void
pursuant to R.C. 2152.12(H). Upon review, we find the trial court did not
abuse its discretion in denying his petition and various subsequent, related
Gallia App. No. 18CA8 2
motions. Accordingly, we overrule Appellant’s assignments of error and
affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} A Bill of Information alleging Appellant committed two acts of
rape in violation of R.C. 2907.02(A)(2), felonies of the first degree, was
filed with the Gallia County Clerk of Courts on June 27, 2017. The
allegations involved two different child victims, John Doe 1 and John Doe 2.
On that same date, Appellant, in open court and with the assistance of legal
counsel, pleaded guilty to both counts.
{¶3} The record reveals Appellant is a Mennonite. The counts stem
from criminal acts which occurred to John Doe 1 and John Doe 2 when
Appellant’s sister, also a Mennonite, provided child care to them in 2009
and 2010 in Gallia County, Ohio. Several years later, Appellant wrote a
letter to the children’s mother confessing his actions and asking forgiveness.
In April 2016, the children’s mother notified the proper authorities and
assisted the Ohio Bureau of Criminal Investigation in obtaining a recorded
statement. On the advice of Appellant’s friends, Appellant thereafter
obtained an attorney. It appears the Gallia County authorities took no action
in the matter for approximately one year.
Gallia App. No. 18CA8 3
{¶4} Appellant was represented by Attorney Jeff Finley. The record
indicates Appellant and his attorney had several discussions in person at
Attorney Finley’s office, and over the telephone, regarding a plea agreement
offered by the prosecutor’s office and later accepted on June 27, 2017. At
the plea hearing, Appellant waived various rights including his right to a
grand jury. He also executed a written waiver of right to a jury trial.
{¶5} The trial court’s journal entry dated June 27, 2017 found that
Appellant was afforded all rights pursuant to Criminal Rules 11 and 32; and
that Appellant’s plea was knowingly, intelligently, and voluntarily made
with a full awareness of the possible consequences of his plea. The court
ordered a pre-sentence investigation report to be completed. Appellant’s
sentencing was continued to July 6, 2017.
{¶6} On July 6, 2017, Appellant was sentenced to a stated prison term
of eight years on each count. The trial court ordered the sentences be served
concurrently. The trial court’s Sentencing Entry dated July 10, 2017 reflects
that Appellant entered an agreed guilty plea with a recommended sentence.
{¶7} Appellant did not pursue a direct appeal. On November 6, 2017,
Appellant filed a Petition for Post-Conviction Relief.1 On June 4, 2018, the
1
Additionally, within a very short time after filing his Post-Conviction Petition, Appellant filed a Motion
for Summary Judgment; Motion to Amend Pleadings and Amended Motion for Summary Judgment with
attached documentation; Motion for Judgment on the Pleadings; Petitioner’s Traverse; and on March 14,
Gallia App. No. 18CA8 4
trial court entered the journal entry denying Appellant’s petition and the
various motions. This timely appeal followed.
ASSIGNMENTS OF ERROR
“I. THE TRIAL ABUSED ITS DISCRETION BY
DISMISSING THE PETITION FOR POST-CONVICTION
RELIEF WITHOUT AN EVIDENTIARY HEARING.”
“THE TRIAL COURT ERRED IN THAT IT HELD TO THE
MISTAKEN BELIEF THAT APPELLANT WAS AN ADULT
AT THE TIME OF COMMITTING THE OFFENSE WHICH
PURSUANT TO R.C. 2152.12(H) NULLIFES APPELLANT’S
CURRENT CONVICTION.”
STANDARD OF REVIEW
{¶8} The post-conviction relief process is a collateral civil attack on a
criminal judgment rather than an appeal of the judgment. State v. Betts, 4th
Dist. Vinton No. 18CA710, 2018-Ohio-2720, at ¶ 11; State v. Calhoun,
86
Ohio St.3d 279, 281,
714 N.E.2d 905 (1999). Post-conviction relief is not a
constitutional right; instead, it is a narrow remedy that gives the petitioner no
more rights than those granted by statute. It is a means to resolve
constitutional claims that cannot be addressed on direct appeal because the
evidence supporting the claims is not contained in the record. State v.
McDougald, 4th Dist. Scioto No. 16CA3736,
2016-Ohio-5080, ¶ 19-20,
citing State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 18.
2018, a Motion to Proceed to Judgment. These later motions continue Appellant’s primary arguments that
his sentence is a nullity under R.C. 2152.12(H) and his counsel was ineffective.
Gallia App. No. 18CA8 5
{¶9} “[A] trial court's decision granting or denying a post-conviction
relief 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 post-conviction relief that is supported by
competent and credible evidence.” Betts, supra, at ¶ 12, quoting State v.
Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679,
860 N.E.2d 77, ¶ 58. A trial
court abuses its discretion when its decision is unreasonable, arbitrary, or
unconscionable. In re H.V.,
138 Ohio St.3d 408, 2014–Ohio–812,
7 N.E.3d
1173, ¶ 8.
{¶10} A petitioner seeking post-conviction relief is not automatically
entitled to an evidentiary hearing. Betts, supra, at ¶ 13, citing State v. Black,
4th Dist. Ross No. 15CA3509, 2016-Ohio-3104, ¶ 9, citing State v. Calhoun,
86 Ohio St.3d 279, 282,
714 N.E.2d 905 (1999); State v. Slagle, 4th Dist.
Highland No. 11CA22, 2012–Ohio–1936, ¶ 13. Rather, before granting a
hearing on a petition, the trial court must first determine that substantive
grounds for relief exist. R.C. 2953.21(C). “Substantive grounds for relief
exist and a hearing is warranted if the petitioner produces sufficient credible
evidence that demonstrates the petitioner suffered a violation of the
petitioner's constitutional rights.” In re B.C.S., 4th Dist. Washington No.
07CA60, 2008–Ohio–5771, ¶ 11. Furthermore, in order to merit a hearing,
Gallia App. No. 18CA8 6
the petitioner must show that the claimed “errors resulted in prejudice.”
Id.,
quoting
Calhoun at 283.
{¶11} Additionally, res judicata applies to proceedings involving post-
conviction relief. Betts at ¶ 14 citing Black at ¶ 10, citing State v. Szefcyk, 77
Ohio St.3d 93, 95,
671 N.E.2d 233 (1996). “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 of conviction, or on an appeal from
that judgment.” State v. Perry,
10 Ohio St.2d 175,
226 N.E.2d 104 (1967),
paragraph nine of the syllabus. “Therefore, ‘any issue that could have been
raised on direct appeal and was not is res judicata and not subject to review
in subsequent proceedings.’ ” Black at ¶ 10, citing State v. Segines, 8th Dist.
Cuyahoga No. 99789, 2013–Ohio–5259, ¶ 8, quoting State v. Saxon,
109
Ohio St.3d 176, 2006–Ohio–1245,
846 N.E.2d 824, ¶ 16.
LEGAL ANALYSIS
{¶12} For ease of analysis, we consider Appellant’ assignments of
error jointly. In Appellant’s Petition for Post-Conviction Relief, he asserted
that he was rendered ineffective assistance of counsel due to his counsel’s
Gallia App. No. 18CA8 7
alleged collusion with the prosecution and a failure to raise an allied
offenses argument. He further asserted that his sentence is unauthorized by
law, in essence, because the crimes were perpetrated at “one scene” and
“during the same time period.” In one of the supplemental pleadings,
Appellant attached a letter he received from his counsel prior to sentencing
and purported the letter was evidence that his counsel was advocating for the
State of Ohio. In another supplemental pleading, Appellant’s Amended
Motion for Summary Judgment, Appellant asserted that he was a juvenile
when the rapes occurred.
{¶13} The trial court’s decision denying the motion for post-
conviction relief, as well as all of Appellant’s subsequent related motions,
states:
“The Court finds the Petitioner has failed to present any
credible evidence that demonstrates the Petitioner suffered a
violation of his constitutional rights; he has not shown
substantive grounds for relief and Petitioner is not entitled to an
evidentiary hearing.”
{¶14} In his brief, Appellant re-argues some of the issues raised in his
petition and subsequent trial court pleadings.2 We summarize and organize
the issues he has raised as follows:
(1) R.C. 2152.12(H) mandates that his conviction is null and
void;
2
Appellant has abandoned the allied-offenses argument.
Gallia App. No. 18CA8 8
(2) The trial court failed to acknowledge his age, overlooking
R.C. 2152.12(H);
(3) Appellant was not put on notice that he was being
prosecuted for offenses which occurred when he was a
juvenile;
(4) Counsel was ineffective for colluding with the prosecutor
and ignoring the fact Appellant was a juvenile when the
criminal acts occurred; and,
(5) Counsel was ineffective for coercing Appellant to sign the
plea agreement.
1. Applicability of R.C. 2152.12(H) to Appellant’s Case
{¶15} We reject Appellant’s arguments hereunder for two reasons.
First, it is obvious that Appellant’s misreads the transfer statute. R.C.
2152.12, regarding the transfer of cases from juvenile court provides as
follows in pertinent part:
(H) No person, either before or after reaching eighteen years of
age, shall be prosecuted as an adult for an offense committed
prior to becoming eighteen years of age, unless the person has
been transferred as provided in division (A) or (B) of this
section or unless division (J) of this section applies. Any
prosecution that is had in a criminal court on the mistaken
belief that the person who is the subject of the case was
eighteen years of age or older at the time of the commission of
the offense shall be deemed a nullity, and the person shall not
be considered to have been in jeopardy on the offense. …
(J) If a person under eighteen years of age allegedly commits an
act that would be a felony if committed by an adult and if the
person is not taken into custody or apprehended for that act
until after the person attains twenty-one years of age, the
juvenile court does not have jurisdiction to hear or determine
Gallia App. No. 18CA8 9
any portion of the case charging the person with committing
that act. In those circumstances, divisions (A) and (B) of this
section do not apply regarding the act, and the case charging
the person with committing the act shall be a criminal
prosecution commenced and heard in the appropriate court
having jurisdiction of the offense as if the person had been
eighteen years of age or older when the person committed the
act. All proceedings pertaining to the act shall be within the
jurisdiction of the court having jurisdiction of the offense, and
that court has all the authority and duties in the case as it has in
other criminal cases in that court.”
{¶16} Age relates to the personal jurisdiction of the court. In re S.S.,
4th Dist. Vinton No. 10CA682, 2011-Ohio-5081, at ¶ 15. See In re Patrick,
4th Dist. Scioto No. 1618,
1987 WL 4899 (May 13, 1987), at *2, citing In re
Fudge, 2nd Dist. Clark No.
59 Ohio App.2d 129, 132,
392 N.E.2d 1262,
(2nd Dist.1977). Personal jurisdiction is established by “the presence of the
person or thing involved in the litigation within the forum's territorial
boundaries or the consent [express or implied] of the party.” State v. Smith,
5th Dist. Muskingum No. CT2017-0066,
2018-Ohio-5121, quoting State v.
Haddix, 5th Dist. No. 2018CA00035,
2018-Ohio-2833 ¶ 6, citing McBride v.
Coble Express, Inc.,
92 Ohio App.3d 505, 509,
636 N.E.2d 356, 359 (3rd
Dist.1993), and Nehls v. Quad-K. Advertising, Inc.,
106 Ohio App.3d 489,
495,
666 N.E.2d 579, 582 (8th Dist.1995). “Personal jurisdiction can be
waived expressly or by failure to object.”
Id. The Smith court found because
Smith never objected, he waived the matter of personal jurisdiction.
Gallia App. No. 18CA8 10
{¶17} It is obvious that division “J” of R.C. 2152.12 is applicable to
Appellant. Appellant committed his criminal conduct in 2009 or 2010, when
he alleges he would have been 16 or 17. He submitted himself to the
jurisdiction of the court and entered a guilty plea to the conduct on June 27,
2017, at which time he had previously attained the age of 21. We are not
sure what Appellant finds unclear in this statute. Therefore, we do not find
merit to Appellant’s contention that R.C. 2152.12(H) mandates that his
conviction is a nullity.
{¶18} Secondly, Appellant waived his right to a jury trial and entered
a guilty plea. Having entered a guilty plea and received an agreed sentence,
Appellant waived the right to contest the state’s evidence or his guilt. “Such
a plea is a complete admission of appellant’s guilt” and “removed all issues
of factual guilt from his case.” Betts, supra, at ¶ 20, quoting State v.
Spangler, 4th Dist. Lawrence No. 16CA1, 2016-Ohio-8583, ¶ 16-18; State v.
Brunner, 4th Dist. Ross No. 1654,
1991 WL 99669, *2 (June 4, 1991).
{¶19} In this case, the transcript of Appellant’s plea hearing, held
June 24, 2017, reveals the trial court engaged in a detailed colloquy about
Appellant’s constitutional rights, the plea agreement, and Appellant’s
understanding of all the information. Appellant acknowledged reviewing
the Bill of Information. In response to the court’s further questioning, he
Gallia App. No. 18CA8 11
responded that his age was 24. Appellant also affirmed that his counsel had
discussed with him the elements of the offenses to which he was pleading,
and that he was satisfied with his counsel’s services. Later, at sentencing,
Appellant spoke on his own behalf as follows:
“… [B]ut just first of all I’d like to tell […] publicly here
that I am sorry for um, what occurred there and I just wanted to
apologize publicly with, for what happened. And like was
mentioned, I want to take full responsibility for that. … [T]he
crime that I committed back there when I was 16 or 17, it was
wrong.”
{¶20} In State v. Neguse, 71 Ohio App.3d 596,
594 N.E.2d 1115 (10th
Dist.1991), the defendant also made an age-related argument on appeal.
Neguse asserted his alleged minority at the time alleged crimes occurred and
challenged the court's denial of his pretrial motion to dismiss his indictment
for murder and weapons counts on the ground of lack of jurisdiction. The
appellate court observed:
“In criminal cases in common pleas court, the court's
jurisdiction must be proved beyond a reasonable doubt as an
element of the offense because the validity of any judgment
depends upon the court having obtained jurisdiction. …
Hence, appellant's age, as an element of subject matter
jurisdiction, was necessary for guilt to be determined in the
common pleas court and must have been proved beyond a
reasonable doubt by the prosecution.”
{¶21} However, the appellate court also observed that it was generally
agreed that appellant had admitted for the purpose of pleas in prior criminal
Gallia App. No. 18CA8 12
cases that he was eighteen years old or more and had stipulated the
authenticity of documents evidencing his age. The appellate court found,
having never objected to the admission of the documents, Neguse stipulated
to their admissibility and had not shown that admission of the records was
plain error which affected a substantial right of appellant as required by
Crim.R. 52(B).
{¶22} Here, the record reflects Appellant did not interpose objections
relating to his age or the court’s personal jurisdiction over him at any time
during the, admittedly limited, trial court proceedings. The colloquy at his
plea hearing demonstrates that age was discussed. Appellant’s assertion that
he was not put on notice that he was being prosecuted for offenses occurring
when he was a juvenile is not credible. And, the record shows the trial court
did not fail to recognize his age at the time of the offenses.
{¶23} For the foregoing reasons, we find no merit to the arguments
asserted in Appellant’s second assignment of error. Application of R.C.
2152.12(H) does not nullify Appellant’s convictions. Accordingly, the
second assignment of error is hereby overruled.
2. Ineffective Assistance Claims
{¶24} Appellant asserts that his legal counsel (1) colluded with the
prosecution; (2) ignored the fact Appellant was allegedly a juvenile; and (3)
Gallia App. No. 18CA8 13
coerced the Appellant to sign the plea agreement. However, Appellant has
failed to provide any credible evidence outside of the record to support these
contentions. Furthermore, “[a] claim of ineffective assistance of counsel is
… waived by a guilty plea, unless the ineffective assistance of counsel
precluded the defendant from knowingly, intelligently, and voluntarily
entering a guilty plea.” Betts, supra, at ¶ 26, quoting State v. Grove, 8th Dist.
Cuyahoga No. 103042, 2016–Ohio–2721, ¶ 26; State v. Guerra, 2nd Dist.
Miami No.2015–CA–28, 2016–Ohio–5647, ¶ 18. See generally Katz,
Martin, Lipton, Giannelli, and Crocker, Baldwin's Ohio Criminal Law,
Section 43:20 (3rd Ed.2014). Appellant could have raised an ineffective
assistance of counsel claim with regard to the informed and voluntary nature
of his plea on a direct appeal but did not do so. Consequently, he is barred
by res judicata from raising it now.
3. Evidentiary Hearing
{¶25} As set forth above, pursuant to R.C. 2953.21(D), before
granting a hearing on a post-conviction petition, 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, and all the files and
records pertaining to the proceedings against the petitioner. In this case, it is
Gallia App. No. 18CA8 14
obvious that the trial court undertook a meticulous review of the record. The
trial court’s journal entry denying the Petition for Post-Conviction Relief,
although not identified as such, contains lengthy findings of fact and
conclusions of law.
{¶26} Our review demonstrates the trial court did not err and abuse its
discretion in finding no substantive grounds to support the claims asserted in
Appellant’s post-conviction petition. Therefore, the trial court also did not
abuse its discretion in failing to conduct an evidentiary hearing. Appellant’s
first assignment of error is hereby overruled.
{¶27} Having overruled Appellant’s assignments of error, we affirm
the trial court's judgment.
JUDGMENT AFFIRMED.
Gallia App. No. 18CA8 15
Harsha, J., concurring:
{¶28} I concur in judgment and opinion except for the statement in
paragraph 1 that purports to adopt an abuse of discretion standard of review
for the second assignment of error. The analysis of the second assignment
of error in paragraphs 15-23 correctly applies a de novo standard of review
without expressly stating so; however, paragraph 1 indicates the opinion
applies an abuse of discretion standard throughout the court’s analysis of the
assignments of error.
Gallia App. No. 18CA8 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallia County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.
