[Cite as State v. Hamm,
2024-Ohio-1621.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2023CA00030
CHRISTOPHER HAMM :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 2021 CR 0059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 26, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT CHRISTOPHER J. HAMM, PRO SE
Fairfield County Prosecutor Pickaway Correctional Institute
BY: CHRISTOPHER A. REAMER 11781 St. Route 72
239 West Main Street, Ste. 101 Orient, OH 43146
Lancaster, OH 43130
Fairfield County, Case No. 2023CA00030 2
Gwin, J.
{¶1} Defendant-appellant Christopher Hamm [“Hamm”] appeals from the July
24, 2023 Judgment Entry of the Fairfield County Court of Common Pleas dismissing his
Petition to Vacate or Set Aside Judgment.
Facts and Procedural History
{¶2} On February 25, 2021, Hamm was Indicted by the Fairfield County Grand
Jury for seven felony offenses stemming from an altercation that resulted in the stabbing
and death of K.S.J., to wit:
Aggravated Murder, an unclassified felony with a maximum
sentence of imprisonment for life without parole;
Murder, an unclassified felony with a maximum sentence of
imprisonment for an indefinite term of 15 years to life;
Aggravated Burglary, a felony of the first degree with a maximum
sentence of imprisonment for an indefinite term of 11 to 16.5 years;
Aggravated Robbery, a felony of the first degree with a maximum
sentence of imprisonment for an indefinite term of 11 to 16.5 years;
Tampering with Evidence, a felony of the third degree with a
maximum sentence of imprisonment for 36 months;
Trafficking in marijuana, a felony of the third degree with a maximum
sentence of imprisonment for 36 months; and
Aggravated possession of drugs, a felony of the fifth degree with a
maximum sentence of imprisonment for 12 months.
Fairfield County, Case No. 2023CA00030 3
{¶3} A jury trial was scheduled for May 5, 2021. Upon motion of the state, based
on ongoing plea negotiations and the need for further investigative test results from The
Ohio Attorney General's Bureau of Criminal Investigation ("BCI") and the County Coroner,
this originally scheduled jury trial date was continued to July 27, 2021. The jury trial was
again continued on motion of the state based on ongoing plea negotiations and the need
for DNA test results from BCI. State’s Motion to Continue Jury Trial, filed July 8, 2021.
[Docket Entry No. 64]. The trial judge, upon consideration of scheduling memorandums
filed by the parties, reset the jury trial to commence on October 5, 2021. Scheduling
Notice of Jury Trial, filed July 30, 2021 [Docket No. 68]. See, also, Defendant’s Scheduling
Memorandum, filed July 27, 2021 [Docket Entry No. 66]; State's September Trial
Conflicts, filed July 27, 2021 [Docket Entry No. 67].
{¶4} The state filed responses to Hamm’s discovery requests on April 9, 2021,
May 14, 2021, June 3, 2021; and September 13, 2021.
{¶5} Hamm filed a Motion to Compel on August 26, 2021 that the trial court set
for hearing on September 20, 2021. During the hearing, the state presented testimony
and admitted twenty exhibits1. See, Judgment Entry Overruling Motion to Compel, filed
Sept. 21, 2021 at 1. The trial court found that the state had made a good faith effort to
locate, obtain and preserve any video evidence relative to the allegations contained in the
Indictment. Id.
{¶6} On September 24, 2021 the trial judge granted the state’s motion to amend
Count 1 [Aggravated Murder] and Count 4 [Aggravated Robbery] of the Indictment.
1 A transcript of the hearing was not filed with the record in this Court.
Fairfield County, Case No. 2023CA00030 4
{¶7} On September 27, 2021, Hamm filed a Motion in Limine concerning
testimony relating to the Ohio Narcotics Intelligence Center. Hamm also filed a Motion in
Limine to preclude Hamm’s prior criminal history and periods of incarceration; alleged
domestic violence incidents and Hamm’s alleged drug activity from being introduced
during trial. Hamm also sought to exclude evidence of jail telephone calls between himself
and family members for failure of the state to comply with the requirements of Crim.R. 16.
{¶8} On September 28, 2021, Hamm’s counsel filed requests for jury instructions
on self-defense. The state filed requests for jury instructions on Intoxication, Flight, Owner
(for purposes of Theft); Motive and Trespass.
{¶9} Hamm entered into a negotiated plea agreement with the state at a hearing
on September 29, 2021, almost a full week prior to the jury trial scheduled for October 5,
20212. [Docket Entry No. 125]. Hamm’s written Waiver Upon Plea of Guilty/No Contest
was filed on October 4, 2021.
{¶10} On October 20, 2021, Hamm appeared for sentencing and was sentenced
to a jointly recommended sentence of fifteen years to life on the charge of Murder and a
36-month concurrent term on the Tampering with Evidence charge. The remaining counts
were dismissed3.
{¶11} In April 2022, Hamm filed a pro se motion for appeal and requested the trial
court appoint him counsel (Fairfield App. No. 2022 CA 00014). On May 11, 2022, Hamm
sent a handwritten document to the trial court requesting a new court appointed counsel
2 A transcript of the hearing was not filed with the record in this Court.
3 A transcript of the hearing was not filed with the record in this Court.
Fairfield County, Case No. 2023CA00030 5
and essentially arguing that his original court appointed counsel had pressured him into
making a plea agreement. The trial court appointed counsel for the purposes of an appeal.
{¶12} In June 2022 Hamm's appellate counsel in Fairfield App. No. 2022 CA
00014 filed a docketing statement on Hamm's behalf identifying the sole issue for review
as whether Hamm's guilty plea was knowingly, voluntarily, and intelligently made. In
addition, counsel filed a motion for leave to appeal given the untimeliness of the appeal.
{¶13} On June 29, 2022, this Court denied Hamm's motion for leave to appeal in
Fairfield App. No 2022 CA 00014 finding Hamm did not set forth sufficient reasons
justifying the delay in filing his Notice of Appeal. Hamm moved for reconsideration of that
denial for leave to appeal and on September 7, 2022, this Court denied his motion to
reconsider.
{¶14} In October 2022, Hamm filed a pro se motion for post-conviction relief under
R.C. 2953.21 and additionally requested court appointed counsel. The trial court
appointed counsel for purposes of post-conviction relief and allowed appointed counsel
to file an amended postconviction petition on February 1, 2023.
{¶15} By Judgment Entry filed July 25, 2023 the trial judge denied Hamm’s
petition without a hearing.
{¶16} On August 2, 2023, post-conviction appointed counsel for Hamm filed a
notice of appeal regarding the trial court's dismissal of Hamm's post-conviction petition.
Contemporaneously, Hamm made a request for court appointed counsel for purposes of
this appeal. On August 8, 2023, the trial court overruled the request for court appointed
counsel for purposes of this appeal from post-conviction relief proceedings. This Court
Fairfield County, Case No. 2023CA00030 6
ultimately allowed the withdrawal of counsel for Hamm after Hamm was given notice in
accordance with Local R. 3 that he would be required to represent himself.
{¶17} Hamm was granted an extension until December 3, 2023, to file his pro se
brief. On December 5, 2023, Hamm filed his brief without an instanter request; however,
he failed to serve Appellee.
{¶18} On January 3, 2024, this Court, recognizing Hamm's failure to serve
Appellee, ordered him to effect service upon Appellee by January 22, 2024, or risk having
the appeal dismissed for want of prosecution. On January 22, 2024, withdrawn counsel
filed a limited notice of appearance and provided notice of service of Hamm's pro se brief
upon Appellee.
Pro se Appellants
{¶19} We understand that Hamm has filed this appeal pro se. Nevertheless, “like
members of the bar, pro se litigants are required to comply with rules of practice and
procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-
3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We
also understand that “an appellate court will ordinarily indulge a pro se litigant where there
is some semblance of compliance with the appellate rules.” State v. Richard, 8th Dist.
No. 86154,
2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶20} We note that the underlying action was a criminal case. Hamm requested
appointed counsel; however, a Petition for Post-Conviction Relief is a civil matter. An
indigent criminal defendant has neither a federal nor a state constitutional right to be
represented by an attorney in a post-conviction relief proceeding. Pennsylvania v. Finley,
481 U.S. 551,
107 S.Ct. 1990,
95 L.Ed.2d 539(1987); State v. Crowder, 60 Ohio St.3d
Fairfield County, Case No. 2023CA00030 7
151,
573 N.E.2d 652(1991).4 However, when a person is convicted of a criminal offense
and claims that his or her constitutional rights were violated, the person, pursuant to R.C.
2953.21, may petition the court that imposed the sentence and request that the court
vacate or set aside the judgment or sentence. Crowder,
60 Ohio St.3d at 153,
573 N.E.2d
652. Therefore, a petition for post-conviction relief is a means to reach constitutional
issues that would otherwise be impossible to reach because the evidence supporting
those issues is not contained in the record of the petitioner's criminal conviction. State v.
Murphy, 10th Dist. Franklin No. 00AP-233,
2000 WL 1877526(Dec. 26, 2000); Accord,
State v. Zich, 6th Dist. Lucas No. L-15-1263,
2017-Ohio-414, ¶9.
{¶21} Accordingly, this is not a typical civil case for monetary damages in which
an appellant has chosen to represent himself. Under these circumstances, an indigent
appellant is given no other choice then to file an appeal pro se. It seems unduly harsh to
hold that a litigant who wishes to challenge the trial court’s ruling, but who is lacking the
financial resources to hire an attorney to file an appeal from the denial of his or her Petition
for Post-Conviction Relief, is bound by the same rules and procedures as those litigants
who can afford to retain counsel.
{¶22} In the case at bar, there is at least some semblance of compliance with the
appellate rules. “[I]t is a fundamental tenet of judicial review in Ohio that courts should
decide cases on the merits.” DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189,192
431
N.E.2d 644(1982), citing Cobb v. Cobb,
62 Ohio St.2d 124,
403 N.E.2d 991(1980). We
4 However, in the State of Ohio, an indigent petitioner has a limited state-created right to the
appointment of counsel to conduct a diligent and thorough search of the record for any arguable claim that
will support a PCR petition. In Crowder, supra, the Ohio State Supreme Court determined R.C. 120.16(A)(1)
and (D) requires the appointment of counsel if two conditions are met. First, the trial court must determine
whether the petitioner’s allegations warrant an evidentiary hearing. Second, the public defender must
assess whether petitioner’s allegations have arguable merit.
Crowder, supra, at paragraphs one and two
of the syllabus.
Fairfield County, Case No. 2023CA00030 8
can sufficiently discern the facts supporting Hamm’s argument from the record in this
matter. Therefore, in the interests of justice, we shall attempt to consider Hamm’s
argument.
Failure to file transcript
{¶23} However, we first must address Hamm’s failure to present a transcript to
this Court of his plea hearing and his sentencing hearing.
{¶24} “The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing error
by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d
197, 199,
400 N.E.2d 384 (1980), citing State v. Skaggs,
53 Ohio St.2d 162, 163,
372
N.E.2d 1335(1978). This requirement is set forth in App.R. 9(B), which provides, in
pertinent part, as follows: “… the appellant shall in writing order from the reporter a
complete transcript or a transcript of such parts of the proceedings not already on file as
he deems necessary for inclusion in the record ….” Further, “[w]hen portions of the
transcript necessary for resolution of assigned errors are omitted from the record, the
reviewing court has nothing to pass upon and thus, as to those assigned errors, the court
has no choice but to presume the validity of the lower court’s proceedings, and affirm.”
Knapp
61 Ohio St.2d at 199,
400 N.E.2d 384. If a partial record does not conclusively
support the trial court's decision, it is presumed that the omitted portion provides the
necessary support. Knapp,
61 Ohio St.2d at 199,
400 N.E.2d 384.
{¶25} In the case sub judice, Hamm did not meet his burden, under App.R. 9(B),
and supply this Court with a transcript of the proceedings from his original plea and the
original sentencing hearings. If such transcripts were unavailable, other options were
Fairfield County, Case No. 2023CA00030 9
available to Hamm in order to supply this Court with a transcript for purposes of review.
Specifically, under App.R. 9(C), Hamm could have submitted a narrative transcript of the
proceedings, subject to objections from appellee and approval from the trial court. Also,
under App.R. 9(D), the parties could have submitted an agreed statement of the case in
lieu of the record. The record in this matter indicates Hamm did not attempt to avail himself
of either App.R. 9(C) or 9(D).
I.
{¶26} After reviewing Hamm’s brief including his contentions, we have interpreted
Hamm’s assignment of error in the following manner: The trial court erred in overruling
Hamm’s Petition for Post-Conviction Relief without a Hearing.
Standard of Review
{¶27} We review a decision to grant or deny a petition for post-conviction relief,
including the decision whether to afford the petitioner a hearing, under an abuse-of-
discretion standard. State v. Hatton, 169 Ohio St.3d 446,
2022-Ohio-3991,
205 N.E.3d
513, ¶ 38, citing State v. Gondor,
112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77,
¶ 51-52, 58.
Post-conviction relief
{¶28} A post-conviction proceeding is a collateral civil attack on a criminal
conviction. State v. Calhoun, 86 Ohio St.3d 279, 281,
714 N.E.2d 905 (1999); State v.
Phillips, 9th Dist. No. 20692,
2002-Ohio-823. R.C. 2953.21(A) states, in part, as follows:
“(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent
child 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
Fairfield County, Case No. 2023CA00030 10
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”.
{¶29} Therefore, Hamm, in a petition for post-conviction relief must rely upon
evidence outside of the trial court record to demonstrate a violation of a constitutional
right so as to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States. State v. Calhoun, 86 Ohio St.3d 279,
714 N.E.2d
905(1999). In the case at bar, Hamm alleges that his trial counsel rendered ineffective
assistance because trial counsel did not investigate Hamm’s claim of self-defense.
Right to evidentiary hearing in post-conviction proceedings is not automatic
{¶30} In State v. Bunch, 171 Ohio St.3d 775,
2022-Ohio-4723,
220 N.E.3d 773,
the Ohio Supreme Court addressed the standard to be used for determining whether a
hearing should be held on a post-conviction petition and emphasized that it was only
addressing the standard for holding a hearing on a timely-filed post-conviction petition
and not the standard for ultimately granting relief on the petition. Id. at ¶ 22.
{¶31} Under the post-conviction statutes, a trial court must, before granting an
evidentiary hearing, “determine whether there are substantive grounds for relief.” Id. at ¶
23, citing R.C. 2953.21(D). “If the petition ‘is sufficient on its face to raise an issue that
the petitioner’s conviction is void or voidable on constitutional grounds, and the claim is
one which depends upon factual allegations that cannot be determined by examination
of the files and records of the case, the petition states a substantive ground for relief.’”
Id., citing State v. Milanovich, 42 Ohio St.2d 46,
325 N.E.2d 540 (1975).
Fairfield County, Case No. 2023CA00030 11
{¶32} The Bunch court further explained that in determining whether there are
substantive grounds for relief, the trial court must consider the entirety of the record from
the trial proceedings as well as any evidence filed by the parties in post-conviction
proceedings. Then, “[i]f the record does not on its face disprove the petitioner’s claim,”
the court is required to “proceed to a prompt hearing on the issues.” Id. at ¶ 24, citing
R.C. 2953.21(F).
Post-conviction review of ineffective-assistance-of-counsel claims
{¶33} In order for an indigent petitioner to be entitled to an evidentiary hearing in
a postconviction relief proceeding on a claim that he was denied effective assistance of
counsel, the two-part analysis set forth in Strickland v. Washington, 466 U.S. 668,
104
S.Ct. 2052,
80 L.Ed.2d 674 (1984) is to be applied. Hill v. Lockhart,
474 U.S. 52, 58,
106
S.Ct. 366,
88 L.Ed.2d 203 (1985); State v. Lytte,
48 Ohio St.2d 391,
358 N.E.2d 623
(1976); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373 (1989). The petitioner must
therefore prove that: 1). counsel’s performance fell below an objective standard of
reasonable representation; and 2). there exists a reasonable probability that, were it not
for counsel’s errors, the result of the trial would have been different, or he would not have
pled guilty.
Id.
Application of res judicata in post-conviction-relief proceedings raising ineffective
assistance of counsel claims
{¶34} With respect to post-conviction petitions asserting grounds for relief based
on ineffective assistance, res judicata does not bar a postconviction ineffective-
assistance-of-counsel claim when either (1) the petitioner had the same attorney at trial
and on appeal or (2) he must rely on evidence outside the trial record to establish his
Fairfield County, Case No. 2023CA00030 12
claim for relief. … The converse is that when the petitioner had a new attorney on appeal
and the claim could have been litigated based on the trial record, res judicata applies and
the postconviction claim is barred.” State v. Blanton, 171 Ohio St.3d 19,
2022-Ohio-3985,
215 N.E.3d 467, ¶ 2, citing State v. Cole,
2 Ohio St.3d 112, 113-114,
443 N.E.2d 169
(1982). However, merely providing evidence outside the record is not sufficient to entitle
a petitioner to a hearing. Rather, to secure a hearing, a petitioner “‘must proffer evidence
which, if believed, would establish not only that his trial counsel had substantially violated
at least one of a defense attorney's essential duties to his client but also that said violation
was prejudicial to the [petitioner].’” Id. at ¶ 31, quoting
Cole at 114, 443 N.E.2d 169; State
v. Johnson, 12th Dist. Warren No. CA2022-09-063,
2023-Ohio-879, ¶21.
{¶35} Hamm was represented in the trial court by a different attorney than the
attorney who had represented Hamm during his change of plea and sentencing. Hamm
attached his affidavit to his PCR petition that was not a part of the trial court record5.
Review of affidavits submitted in support of postconviction relief petition
{¶36} When reviewing a post-conviction petition a trial court “should give due
deference to affidavits sworn to under oath and filed in support of the petition, but may, in
the sound exercise of discretion, judge their credibility in determining whether to accept
the affidavits as “true statements of fact” or “discard frivolous claims.” State v. Calhoun,
86 Ohio St.3d 279, 282,
714 N.E.2d 905 (1999). In determining the credibility of
supporting affidavits in post-conviction relief proceedings, the trial court should consider
all relevant factors, including (1) whether the judge reviewing the post-conviction relief
5 The documents Hamm attached to his petition as Exhibits A- G were provided to his counsel
during discovery in the underlying case and, therefore, they would be considered a part of the trial court
record.
Fairfield County, Case No. 2023CA00030 13
petition also presided at the trial, (2) whether multiple affidavits contain nearly identical
language, or otherwise appear to have been drafted by the same person, (3) whether the
affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner,
or otherwise interested in the success of the petitioner's efforts, and (5) whether the
affidavits contradict evidence proffered by the defense at trial. Id. at 285,
714 N.E.2d 905.
“Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by
evidence in the record by the same witness, or to be internally inconsistent, thereby
weakening the credibility of that testimony.”
Id. “Depending on the entire record, one or
more of these or other factors may be sufficient to justify the conclusion that an affidavit
asserting information outside the record lacks credibility. Such a decision should be within
the discretion of the trial court.”
Id.
{¶37} A trial court that discounts the credibility of sworn affidavits must include an
explanation of its basis for doing so in its findings of fact and conclusions of law. Id.; State
v. Blanton, 171 Ohio St.3d 19,
2022-Ohio-3985,
215 N.E.3d 467, ¶98; State v. Barron,
12th Dist. Warren No. CA2022-09-059,
2023-Ohio-1249, ¶ 20, appeal not allowed,
170
Ohio St.3d 1517,
2023-Ohio-2771,
214 N.E.3d 590, ¶ 20.
{¶38} Justice Donnelly recently expressed the following concern about the
treatment of a defendant’s affidavit submitted in support of his petition for post-conviction
relief,
It is, of course, possible that Dunlap’s claims would not have been
borne out by the facts established during an evidentiary hearing. But he
does not deserve to have his claims dismissed out of hand with the usual
bromides about relying on a “self-serving affidavit.” A defendant in this
Fairfield County, Case No. 2023CA00030 14
scenario is rarely ever going to have anything to back up a plea-withdrawal
motion other than his own claims about what happened. And only an
evidentiary hearing will establish whether those claims are true. As I stated
in my dissenting opinion in State v. Bozso, 162 Ohio St.3d 68, 2020-Ohio-
3779, 164 N.E.3d 344, “a defendant cannot be expected to make a record
of the fact that he has been misinformed about a crucial issue at the time
he is operating under that misinformation.” Id. at ¶ 44 (Donnelly, J.,
dissenting). To say that a defendant’s claims in support of withdrawing his
plea do not warrant an evidentiary hearing because they are not already
backed up by solid, admissible evidence puts the defendant in an
impossible position and ensures that an evidentiary hearing is never
warranted no matter how specific and convincing a defendant’s claims
might be.
State v. Dunlap, 161 Ohio St.3d 1416,
2021-Ohio-181,
161 N.E.3d 704 (Table), appeal
not allowed, Donnelly, J., dissenting. See also, State v. Blanton,
171 Ohio St.3d 19, 2022-
Ohio-3985,
215 N.E.3d 467, ¶98 (“But sworn affidavits ‘should not lightly be deemed
false.’ [State v. Calhoun,
86 Ohio St.3d 279,] 284, [
714 N.E.2d 905 (1999)]. And when a
trial court ‘discounts the credibility of sworn affidavits,’ it should ‘include an explanation of
its basis for doing so.’
Id. at 285,
714 N.E.2d 905.”).
Hamm’s Substantive Claims
{¶39} Hamm’s petition was filed by appointed counsel in the trial court. As
grounds, Hamm claims that his plea was not knowing, intelligent and voluntary because
he received ineffective assistance of counsel. Amended Petition to Vacate or Set Aside
Fairfield County, Case No. 2023CA00030 15
Judgment of Conviction and Sentence, filed Feb. 1, 2023 at 3. Specifically, Hamm
contends that his trial counsel failed to investigate or otherwise pursue self-defense. Id.
at 5. Further, Hamm argues that counsel failed to file a Notice of Self Defense. Id. at 11.
Hamm also posits that he was coerced into pleading guilty.
Hamm’s guilty plea
{¶40} A defendant has “the ultimate authority” to determine “whether to plead
guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes,
463 U.S. 745, 751,
103 S.Ct. 3308,
77 L.Ed.2d 987 (1983); Wainwright v. Sykes,
433
U.S. 72, 93, n. 1,
97 S.Ct. 2497,
53 L.Ed.2d 594 (1977) (Burger, C. J., concurring). A plea
of guilty constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea
of guilty, the accused is not simply stating that he did the discreet acts described in the
indictment; he is admitting guilt of a substantive crime.” United v. Broce,
488 U.S. 563,
570,
109 S.Ct. 757, 762,
102 L.Ed.2d 927(1989).
{¶41} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. The constitutional rights that the trial court must advise the defendant before
accepting his or her plea are: (1) a jury trial; (2) confrontation of witnesses against him;
(3) the compulsory process for obtaining witnesses in his favor; (4) that the state must
prove the defendant’s guilt beyond a reasonable doubt at trial; and (5) that the defendant
cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200,
897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with these
requirements, the defendant’s plea is invalid. Id. at ¶ 31.
{¶42} The non-constitutional rights that the defendant must be informed of are: (1)
the nature of the charges; (2) the maximum penalty involved, which includes, if applicable,
Fairfield County, Case No. 2023CA00030 16
an advisement on post-release control; (3) if applicable, that the defendant is not eligible
for probation or the imposition of community control sanctions; and (4) that after entering
a guilty plea or a no-contest plea, the court may proceed directly to judgment and
sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy,
117 Ohio St.3d
86,
2008-Ohio-509,
423 N.E.2d 1224, ¶ 19-26, (post-release control is a non-
constitutional advisement).
{¶43} For the non-constitutional rights, the trial court must substantially comply
with Crim.R. 11’s mandates. State v. Nero, 56 Ohio St.3d 106, 108,
564 N.E.2d 474
(1990). “Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.”
Veney at ¶ 15.
{¶44} Hamm does not argue that the trial court failed to comply with Crim R. 11’s
strict or substantial compliance requirements before accepting his guilty pleas. Further,
the trial judge noted in his entry overruling Hamm’s petition that he conducted a lengthy
inquiry concerning each of Hamm’s constitutional rights during the change of plea
hearing. Without a transcript we must presume the regularity of the proceedings.
Hamm’s written waiver
{¶45} A written waiver of constitutional rights is presumed to have been voluntary,
knowing, and intelligent. State v. Turner, 105 Ohio St.3d 331,
2005-Ohio-1938,
826
N.E.2d 266, ¶25. In this case, Hamm signed a written plea agreement.
Hamm’s specific contentions
Failure to investigate self-defense
Fairfield County, Case No. 2023CA00030 17
{¶46} Hamm filed a Motion to Compel on August 26, 2021 that the trial court set
for hearing on September 20, 2021. During the hearing, the state presented testimony
and admitted twenty exhibits. See, Judgment Entry Overruling Motion to Compel, filed
Sept. 21, 2021 at 1. The trial judge noted that during this hearing he also conducted a
hearing wherein Hamm was advised of the state’s plea offer and rejected the same on
the record. Entry Dismissing Petition to Vacate or Set Aside Judgment, filed July 25, 2023
at 3, n. 2.
{¶47} On September 27, 2021, Hamm filed a Motion in Limine concerning
testimony relating to the Ohio Narcotics Intelligence Center. Hamm also filed a Motion in
Limine to preclude Hamm’s prior criminal history and periods of incarceration; alleged
domestic violence incidents and Hamm’s alleged drug activity. Hamm also sought to
exclude evidence of jail telephone calls between himself and family members for failure
of the state to comply with the requirements of Crim.R. 16. On September 28, 2021,
Hamm’s counsel filed requests for jury instructions on self-defense.
{¶48} Hamm’s petition contains many references to evidence that he claims
supports his self-defense theory; however, Hamm does not submit anything of evidentiary
quality to demonstrate that his trial attorney was unaware of the evidence or of his self-
defense claim. Hamm’s contentions are contradicted by the record.
Coercion
{¶49} At the change of plea hearing and again at the sentencing hearing, Hamm
told the trial judge that he was satisfied with his attorney. Entry Dismissing Petition to
Vacate or Set Aside Judgment, filed July 25, 2023 at 4. The trial judge further noted that
trial counsel indicated that he had spoken with Hamm “probably at least 30 times.” Id.
Fairfield County, Case No. 2023CA00030 18
Hamm does not claim that he was unaware, was not properly advised or misunderstood
the constitutional or non-constitutional rights that he was waiving before he entered his
guilty plea. Hamm does not argue that the trial judge failed to give him an opportunity to
speak or bring to the trial judge’s attention any of the contentions he now seeks to raise
concerning his attorney.
{¶50} Hamm’s claim of coercion, moreover, is based on the potential challenge to
the state's evidence and not any misrepresentation, by his trial counsel, of the state's
evidence. State v. Graham, 6th Dist. Sandusky No. S-23-015, 2024-Ohio-1300, ¶ 27.
Hamm’s subsequent belief that there was a potential challenge to the state's evidence
does not render his plea invalid. See, e.g., State v. Piacella,
27 Ohio St.2d 92, 94,
271
N.E.2d 852 (1971), quoting Brady v. United States,
397 U.S. 742, 757,
90 S.Ct. 1463,
25
L.Ed.2d 747 (1970) (A plea is not invalidated by a defendant's failure to “correctly assess
every relevant factor” or “because he discovers long after the plea has been accepted
that his calculus misapprehended the quality of the State's case[.]”). State v. Graham, ¶
27.
{¶51} Everything in Hamm's affidavit was known to him when he pleaded guilty
and could have been brought up to the prosecutor in the Crim.R. 11 proceedings, or to
the trial judge at the change of plea hearing or the sentencing hearing. State v. Pugh, 7th
Dist. Belmont No. 23 BE 0001, 2023-Ohio-4736, ¶ 27.
Failure to comply with Crim R. 12.2
{¶52} Concerning Hamm’s claim that counsel did not comply with Crim. R. 12.2
by filing notice of his intent to assert a self-defense claim at trial, Hamm entered his guilty
plea on September 29, 2021. Crim. R. 12.2 did not become effective until July 1, 2022.
Fairfield County, Case No. 2023CA00030 19
{¶53} Even if counsel's failure to comply with Crim R. 12.2 reflected deficient
performance, Hamm has failed to establish prejudice under Strickland. Hamm presented
nothing in the way of substantive evidence to suggest that the trial judge would have
denied him the opportunity to present his self-defense case to the jury had he gone to
trial.
Conclusion
{¶54} We find based upon our review of the entire record, the record discloses
that: (1) Hamm’s guilty plea was not the result of coercion, deception or intimidation; (2)
counsel was present at the time of the plea; (3) counsel’s advice was competent in light
of the circumstances surrounding the indictment; (4) the plea was made with the
understanding of the nature of the charges; and, (5) Hamm was motivated either by a
desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both.
Therefore, the guilty plea has been voluntarily and intelligently made. See, State v.
Piacella, 27 Ohio St.2d 92,
271 N.E.2d 852 (1971), paragraph one of the syllabus.
{¶55} Accordingly, we find that the petition, the supporting affidavits, the
documentary evidence, the files, and the records demonstrate that Hamm has not set
forth sufficient operative facts to establish substantive grounds for relief. Calhoun, 86 Ohio
St.3d at paragraph two of the syllabus; see R.C. 2953.21(C).
{¶56} As Hamm did not establish substantive grounds for relief, the trial judge was
not required to conduct a hearing before overruling his petition for postconviction relief.
Accordingly, the trial court properly denied Hamm’s petition for post-conviction relief
without holding an evidentiary hearing.
{¶57} Hamm’s sole Assignment of Error is overruled.
Fairfield County, Case No. 2023CA00030 20
{¶58} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Baldwin, J., concur
