2021 Ohio 3505 - State v. Jensen

[Cite as State v. Jensen,

2021-Ohio-3505

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-20-1042

        Appellee                                  Trial Court No. CR0201701299

v.

David Raymond Jensen                              DECISION AND JUDGMENT

        Appellant                                 Decided: September 30, 2021


                                             …

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        John A. Brikmanis, for appellant.

                                             …

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas, which denied appellant’s applications for postconviction relief. For the reasons set

forth below, this court affirms the judgment of the trial court.
                                      I. Background

       {¶ 2} On November 15, 2017, following submittal of guilty pleas pursuant to

North Carolina v. Alford,

400 U.S. 25

91 S.Ct. 160

27 L.Ed.2d 162

 (1970), the trial

court accepted the guilty pleas and found appellant David Raymond Jensen guilty of two

counts of gross sexual imposition, each a violation of R.C. 2907.05(A)(4) and (B) and a

third-degree felony. The offenses dated back to 1992 when the two victims were under

the age of 13 years. By order journalized on January 16, 2018, the trial court sentenced

appellant to serve a total of five years of incarceration. Appellant appealed his

convictions and sentence, and this court affirmed the judgment of the trial court. State v.

Jensen, 6th Dist. Lucas No. L-18-1034,

2019-Ohio-2474, ¶ 63

, appeal not allowed,

157 Ohio St.3d 1408

2019-Ohio-3731

131 N.E.3d 85

{¶ 3} Then on March 7, 2019, appellant filed three motions with the trial court

collectively seeking postconviction relief, which appellee, the state of Ohio, opposed.

The motions are entitled, “Petition to Vacate or Set Aside Judgment of Conviction or

Sentence, Evidentiary Hearing Requested,” “Motion for Expert Assistance,” and “Motion

for Appointment of Counsel.” While his postconviction relief motions were pending,

appellant filed a “Motion to Dismiss with Prejudice,” as subsequently supplemented, on

November 5, 2019, again seeking postconviction relief, which appellee also opposed.

Finally, on January 2, 2020, appellant sought further postconviction relief by filing a

“Motion for Discovery” and a “Motion to Strike,” which appellee did not oppose.

2.
{¶ 4} By judgment entry journalized on January 24, 2020, the trial court denied

appellant’s six motions for postconviction relief. Appellant appealed1 and set forth two

assignments of error:

FIRST ASSIGNMENT OF ERROR: Trial Court erred to the

prejudice of the Appellant during the plea hearing of November [15],

2017[.] Court fails to use the law at the time of the offense.

SECOND ASSIGNMENT OF ERROR: Delay in indictment was

prejudicial.

II. Alford Pleas and Sentencing

{¶ 5} In support of his first assignment of error, appellant argues the trial court

erred in accepting his November 15, 2017 Alford guilty pleas because they were not

made knowingly, although he admits they were made voluntarily. Appellant argues that

the trial court’s off-record statement “that he was facing a 100 year sentence” prejudiced

his decision to make an Alford guilty plea and accept appellee’s offer of a five-year

sentence for both offenses. Appellant further argues that because of “early release

benefits under the 1992 sentencing guidelines,” he would be “eligible for release as early

as May of 2020.” Appellant finally argues that the trial court erred by requiring him “to

Act were not in effect at that time.” Appellant seeks either reversal of his conviction and

1
On September 22, 2021, appellant’s appellate counsel filed a motion to withdraw
representation of appellant citing differences making “further representation not
possible.”

3.
sentence “or in the alternative that his sentence be adjusted to permit 30% good time, 90

day shock probation, 90 day educational credit and early release availability.”

{¶ 6} Postconviction relief is governed by R.C. 2953.21, and is not a constitutional

right. State v. Broom,

146 Ohio St.3d 60

2016-Ohio-1028

51 N.E.3d 620, ¶ 28

. “A

postconviction proceeding is not an appeal of a criminal conviction but, rather, is a

collateral, civil attack on a criminal judgment.”

Id.

 We review the trial court’s decision

to deny appellant’s applications for postconviction relief for an abuse of discretion. Id. at

¶ 30. We will not reverse the trial court’s determination if there is competent and

credible evidence in the record to support it. Id.

       {¶ 7} In its January 24, 2020 journalized decision, the trial court identified five

claims advanced by appellant for postconviction relief: “1) ‘Amendment XIV Prejudice;

delay in seeking indictment. 13 year delay’; 2) ‘Ineffective assistance of counsel’; 3)

‘Wrong Jurisdiction’; 4) ‘False indictment, Malicious prosecution’; and 5) ‘Coercion by

the Judge and Attorney Popil to plead guilty.’” The trial court determined that

appellant’s five claims for postconviction relief were unsupported by evidence in the

record or by evidence attached to appellant’s applications. The trial court further

determined that all of appellant’s claims for postconviction relief “were either raised or

‘could have been raised … on direct appeal’” and are barred by the doctrine of res

judicata, citing State v. Steffen,

70 Ohio St.3d 399, 410

639 N.E.2d 67

 (1994). We agree.

       {¶ 8} Appellant presents in this appeal either identical or substantially similar

claims for postconviction relief, and this court previously addressed and rejected



4.
appellant’s various claims on direct appeal, Jensen, 6th Dist. Lucas No. L-18-1034, 2019-

Ohio-2474, and on appellant’s request for reconsideration, State v. Jensen, 6th Dist.

Lucas No. L-18-1034, (Aug. 9, 2019). Matters in appellant’s postconviction applications

that he should have raised before the trial court or on direct appeal are now barred by the

doctrine of res judicata. State v. Reynolds,

79 Ohio St.3d 158, 161

679 N.E.2d 1131


(1997). To the extent appellant now argues new grounds for postconviction relief in this

appeal, those arguments are not properly before us. State v. Wintermeyer,

158 Ohio St.3d 513

2019-Ohio-5156

145 N.E.3d 278

, ¶ 25; App.R. 9(A)(1).

{¶ 9} We find the record contains competent and credible evidence to support the

trial court’s denial of appellant’s postconviction applications. The trial court’s attitude

was not unreasonable, arbitrary or unconscionable, and the trial court did not abuse its

discretion, when it denied appellant postconviction relief.

{¶ 10} Appellant’s first assignment of error is not well-taken.

III. Preindictment Delay

{¶ 11} In support of his second assignment of error, appellant argues that the 25-

year delay between the 1992 offenses and his 2017 indictments prejudiced him.

Specifically, appellant argues he was “materially prejudiced” in the ensuing 25 years by:

(1) the running of the statute of limitations, (2) unreliable memories of the youngest

victim, who was either two or three years old at the time, whose brain was not yet “fully

myelinated” at the time of the incidents, (3) venue disputes between Lucas and Wood

Counties, (4) “no physical evidence, no genetics, no collaboration,” and (5) the

5.
Perrysburg police “intentionally decid[ing] not to pursue the matter.” Appellant concedes

“the Alford plea of guilty waives the venue argument,” but argues his guilty plea “does

not obviate intentional pre-indictment delay.” Appellant argues the trial court must first

address the pre-indictment delay before accepting his Alford guilty pleas as voluntary and

intelligently made.

{¶ 12} Preindictment delay violates due process when actual prejudice and

unjustified delay are shown in the record. State v. Adkins, 6th Dist. No. WD-16-042,

2018-Ohio-2588

115 N.E.3d 887, ¶ 10

. If the defendant successfully presents evidence

of actual prejudice, then the burden shifts to the prosecution to present evidence

justifying the delay.

Id.

 The actual prejudice factor is scrutinized “‘vis-à-vis the

particular evidence that was lost or unavailable as a result of the delay and, in particular,

considered the relevance of the lost evidence and its purported effect on the defense.’”

Id. at ¶ 21, quoting State v. Jones,

148 Ohio St.3d 167

2016-Ohio-5105

69 N.E.3d 688, ¶ 23

. “Actual prejudice exists when missing evidence or unavailable testimony,

identified by the defendant and relevant to the defense, would minimize or eliminate the

impact of the state’s evidence and bolster the defense.” Jones at ¶ 28.

       {¶ 13} The record shows that appellant previously challenged the delayed

indictment in his August 14, 2017 motion to dismiss arguing that the applicable statute of

limitations for the six indicted offenses had run. Appellee opposed the motion, and the

hearing on the motion was held on September 11, 2017. Appellant argued the six-year

statute of limitations under R.C. 2901.13(A)(1), in effect in 1992, began running on June



6.
30, 1992, the last incident date involving the two victims, and expired on July 1, 1998.

Appellant further argued no tolling provision extended the foregoing six-year period

beyond March 9, 1999, when the statute of limitations period under R.C.

2901.13(A)(3)(a) was extended from six to 20 years. Appellant argued that because the

victims’ mother was aware of appellant’s alleged criminal conduct as early as 1993, R.C.

2919.22(A) and 2151.421 required the mother to report the alleged abuse, and her failure

to do so did not toll former R.C. 2901.13(A)(1).

       {¶ 14} The trial court disagreed with appellant’s arguments. In its decision

journalized on September 29, 2017, the trial court determined that R.C. 2901.13(J)

controlled. The victims did not reach the age of majority prior to March 9, 1999 under

R.C. 2901.13(J)(1), and the parent of the victims is specifically exempted by the state

legislature from the reporting requirements under R.C. 2901.13(J)(2). As a result, the

statute of limitations had not yet run as of the March 9, 1999 amendments to R.C.

2901.13(A)(3)(a), and the trial court denied appellant’s motion to dismiss the

indictments. The applicable statute of limitations is “‘the primary guarantee against

bringing overly stale criminal charges.’” (Citation omitted.) United States v. Marion,

404 U.S. 307, 322

92 S.Ct. 455

30 L.Ed.2d 468

 (1971). We find no error in the trial court’s

determination.

       {¶ 15} We further find appellant does not meet his initial burden of showing actual

prejudice. First, the hearsay evidence printed from the internet appellant attaches to his

brief to question the reliability of the memory of the youngest victim is not part of the



7.
record. App.R. 9(A)(1). Second, the evidence in the record appellant otherwise points to

has been previously argued and addressed by this court on direct appeal, and on

reconsideration of that direct appeal decision, whereby we affirmed the trial court’s

judgment of conviction and sentencing. Third, to the extent previously not addressed by

this court, appellant’s current preindictment delay claim was waived when he entered his

guilty pleas. State v. Cruz, 8th Dist. Cuyahoga No. 107174,

2019-Ohio-792, ¶ 6

, citing

State v. Ketterer,

111 Ohio St.3d 70

2006-Ohio-5283

855 N.E.2d 48

, ¶ 105 and State v.

Kelley,

57 Ohio St.3d 127

566 N.E.2d 658

 (1991), paragraph two of the syllabus.

       {¶ 16} The record shows that after ongoing discovery between the parties, on

November 15, 2017, appellant changed his pleas from not guilty to guilty pursuant to

Alford,

400 U.S. 25

91 S.Ct. 160

27 L.Ed.2d 162

. “An Alford plea is ‘[a] guilty plea

that a defendant enters as part of a plea bargain without admitting guilt.’” Akron Bar

Assn. v. Fortado,

159 Ohio St.3d 487

2020-Ohio-517

152 N.E.3d 196, ¶ 17, fn. 1

,

quoting Black’s Law Dictionary 86 (10th Ed.2014) and citing Alford.

       {¶ 17} This court has consistently held that an Alford plea is a guilty plea and

waives all alleged errors committed prior to the entry of the plea except for Crim.R. 11

errors affecting the entry of the guilty plea. State v. Reece, 6th Dist. Lucas No. L-17-

1314,

2019-Ohio-2259, ¶ 5

. For the foregoing reasons, and because we previously found

in his direct appeal no such Crim.R. 11 errors, appellant has not presented this court with

any reversible error.

{¶ 18} Appellant’s second assignment of error is not well-taken.

8.
III. Conclusion

{¶ 19} On consideration whereof, we find that substantial justice has been done in

this matter. The judgment of the Lucas County Court of Common Pleas is affirmed.

Counsel for appellant’s Motion to Withdraw Representation filed September 22, 2021, is

found well-taken and granted. The clerk shall serve the parties. Service on appellant:

David R. Jensen, A741194, P.O. Box 57, Marion, OH 43301. Appellant is ordered to pay

the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.