[Cite as State v. Finch,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 11-CA-114 RICHARD FINCH

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CR 00158

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 8, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT ERIC J. ALLEN Licking County Prosecutor The Law Office of Eric J. Allen, LTD 713 South Front Street By: Tracy F. Van Winkle Columbus, Ohio 43206 Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 11-CA-114 2

Hoffman, P.J.

{¶1} Defendant-appellant Richard Finch appeals the October 11, 2011

Judgment Entry entered by the Licking County Court of Common Pleas. Plaintiff-

appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On April 5, 2010, the Licking County Grand Jury indicted Appellant on nine

counts of sexual imposition, misdemeanors of the third degree; two counts of

importuning, felonies of the third degree; one count of unlawful sexual conduct with a

minor, a felony of the fifth degree; one count of sexual imposition, a misdemeanor of the

third degree; and three counts of compelling prostitution, felonies of the third degree.

The charges were based upon several acts of sexual conduct with teenage males

beginning in mid-to-late 2009, and continuing until the spring of 2010. Some of the

males were minors at the time of the offenses.

{¶3} On December 6, 2010, Appellant entered pleas of guilty to seven counts

of sexual imposition, three counts of importuning and one count of unlawful sexual

conduct with a minor. Pursuant to the State's motion, the trial court dismissed the

remaining counts.

{¶4} After accepting Appellant's pleas, the trial court proceeded to sentencing.

After conducting a sentencing hearing, the trial court sentenced Appellant to a term of

seven years of incarceration. The court did not inform Appellant of his right to appeal

1 A rendition of the facts underlying the charges is unnecessary for our disposition of this appeal. Licking County, Case No. 11-CA-114 3

under Crim.R. 32(B)(2) and (3). The Judgment Entry of sentence was filed on

December 17, 2010.

{¶5} Appellant filed a direct appeal to this Court in State v. Finch, 5th Dist. No.

11CA6,

, raising the following sole assignment of error:

{¶6} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE

OHIO CONSTITUTION BY ACCEPTING HIS GUILTY PLEAS WITHOUT NOTIFYING

HIM OF HIS APPELLATE RIGHTS.”

{¶7} This Court affirmed the judgment of the trial court holding while the trial

court did not inform Appellant of his right to appeal under Crim.R. 32(B)(2) and (3),

Appellant had failed to show prejudice. This Court found Appellant filed an appeal in the

matter and was represented by counsel; therefore, no reversible error occurred.

{¶8} On August 19, 2011, Appellant filed a petition to set aside or vacate his

conviction pursuant to R.C. 2953.21. Via Judgment Entry of October 11, 2011, the trial

court denied Appellant's petition.

{¶9} Appellant now appeals, assigning as error:

{¶10} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT’S

REQUEST FOR A HEARING REGARDING HIS POST CONVICTION PETITION.

{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND

THAT TRIAL COUNSEL WAS EFFECTIVE AS GUARANTEED BY THE SIXTH

AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES MADE

APPLICABLE TO THE SEPARATE STATES BY THE FOURTEENTH AMENDMENT.” Licking County, Case No. 11-CA-114 4

{¶12} Appellant's assignments of error raise common and interrelated issues;

therefore, we will address the arguments together.

{¶13} R.C. Section 2953.21 reads,

{¶14} "(A)(1)(a) 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 of the United States, and any person who has

been convicted of a criminal offense that is a felony and who is an offender for whom

DNA testing that was performed under sections 2953.71 to 2953.81 of the Revised

Code or under former section 2953.82 of the Revised Code and analyzed in the context

of and upon consideration of all available admissible evidence related to the person's

case as described in division (D) of section 2953.74 of the Revised Code provided

results that establish, by clear and convincing evidence, actual innocence of that felony

offense or, if the person was sentenced to death, establish, by clear and convincing

evidence, actual innocence of the aggravating circumstance or circumstances the

person was found guilty of committing and that is or are the basis of that sentence of

death, 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.

{¶15} "***

{¶16} (5) If the petitioner in a petition filed under division (A) of this section was

convicted of or pleaded guilty to a felony, the petition may include a claim that the Licking County, Case No. 11-CA-114 5

petitioner was denied the equal protection of the laws in violation of the Ohio

Constitution or the United States Constitution because the sentence imposed upon the

petitioner for the felony was part of a consistent pattern of disparity in sentencing by the

judge who imposed the sentence, with regard to the petitioner's race, gender, ethnic

background, or religion. If the supreme court adopts a rule requiring a court of common

pleas to maintain information with regard to an offender's race, gender, ethnic

background, or religion, the supporting evidence for the petition shall include, but shall

not be limited to, a copy of that type of information relative to the petitioner's sentence

and copies of that type of information relative to sentences that the same judge imposed

upon other persons.

{¶17} "***

{¶18} "(C) 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. The court

reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If

the court dismisses the petition, it shall make and file findings of fact and conclusions of

law with respect to such dismissal.

{¶19} "*** Licking County, Case No. 11-CA-114 6

{¶20} "(E) 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 even if a direct appeal of the case is pending. If the court notifies the parties that

it has found grounds for granting relief, either party may request an appellate court in

which a direct appeal of the judgment is pending to remand the pending case to the

court.

{¶21} "***

{¶22} "(G) If the court does not find grounds for granting relief, it shall make and

file findings of fact and conclusions of law and shall enter judgment denying relief on the

petition. If no direct appeal of the case is pending and the court finds grounds for relief

or if a pending direct appeal of the case has been remanded to the court pursuant to a

request made pursuant to division (E) of this section and the court finds grounds for

granting relief, it shall make and file findings of fact and conclusions of law and shall

enter a judgment that vacates and sets aside the judgment in question, and, in the case

of a petitioner who is a prisoner in custody, shall discharge or resentence the petitioner

or grant a new trial as the court determines appropriate. The court also may make

supplementary orders to the relief granted, concerning such matters as rearraignment,

retrial, custody, and bail. If the trial court's order granting the petition is reversed on

appeal and if the direct appeal of the case has been remanded from an appellate court

pursuant to a request under division (E) of this section, the appellate court reversing the

order granting the petition shall notify the appellate court in which the direct appeal of

the case was pending at the time of the remand of the reversal and remand of the trial

court's order. Upon the reversal and remand of the trial court's order granting the Licking County, Case No. 11-CA-114 7

petition, regardless of whether notice is sent or received, the direct appeal of the case

that was remanded is reinstated."

{¶23} Herein, Appellant maintains the trial court erred in denying his petition

without holding a hearing, and in not finding he was denied the effective assistance of

counsel in the proceedings before the trial court.

{¶24} A criminal defendant seeking to challenge his conviction through a petition

for post-conviction relief is not automatically entitled to a hearing. State v. Calhoun

(1999),

. Before granting a hearing on the petition, the court must

determine whether there are grounds to believe the petitioner was denied his rights so

as to render the judgment void or voidable under the Ohio Constitution or the

Constitution of the United States. R.C. 2953.21. If the petition, the files and the record

show the petitioner is not entitled to relief, the court may dismiss the petition without an

evidentiary hearing. State v. Byrd (2001),

. It is the defendant's

burden to demonstrate such evidence as would merit relief.

{¶25} When raising a claim of ineffective assistance of counsel, the petitioner

"bears the initial burden to submit evidentiary documents containing sufficient operative

facts to demonstrate the lack of competent counsel and the defense was prejudiced by

counsel's ineffectiveness.” State v. Jackson (1980), 64 Ohio St.2nd 107. When a

petitioner seeks to support his petition by affidavits, a trial court is not obligated to

accept the affidavit as being true. However, even with the truthfulness of an affidavit

assumed, if the information it contains does not rise to the level of demonstrating a

constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.

State v. Calhoun (1999),

. Licking County, Case No. 11-CA-114 8

{¶26} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984),

,

,

. Ohio

adopted this standard in the case of State v. Bradley (1989),

,

. These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell below

an objective standard of reasonable representation and was violative of any of his

essential duties to the client. If we find ineffective assistance of counsel, we must then

determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different.

Trial counsel

is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie (1998),

,

.

{¶27} Appellant asserts he was denied the effective assistance of counsel as his

counsel failed to investigate a past head injury, failed to investigate case facts and failed

to file a motion to suppress. In support, Appellant offers his own affidavit, along with

affidavits of his business partner, manager, and co-producer, as well as, those of

various clients. Appellant does not offer an affidavit of an expert, but rather attaches a

police report from September of 1985, purporting to demonstrate a head injury to

Appellant. Appellant thereafter claims the injury is likely to cause permanent injury or

disfigurement, but does not offer scientific, medical or expert testimony in support. We

find Appellant's self-serving affidavit is insufficient to demonstrate Appellant suffered Licking County, Case No. 11-CA-114 9

any prejudice by his counsel’s failure to investigate his head injury and therefore was

not denied the effective assistance of counsel as a matter of law. Maluke v. Lake Twp.

5th Dist. 2012CA00001,

. Appellant's suggestion of prejudice as a

result of counsel's alleged errors is speculative at best.

{¶28} Further, Appellant claims his counsel was ineffective in failing to file a

motion to suppress. The failure to file a suppression motion does not constitute per se

ineffective assistance of counsel. State v. Mobley 5th Dist. 2010CA0018, 2011-Ohio-

309; Kimmelman v. Morrison (1986),

. Failure to file a motion to

suppress constitutes ineffective assistance of counsel only if, based on the record, the

motion would have been granted. State v. Butcher, Holmes App.No. 03 CA 4, 2004-

Ohio-5572, ¶ 26, citing State v. Robinson (1996),

,

.

{¶29} We find Appellant has not demonstrated, based upon the record, the

motion would have been granted. The trial court was free to assess the credibility of the

affiants and determine if Appellant's self-serving affidavit demonstrated ineffective

assistance.

{¶30} In the case sub judice, Appellant was interviewed by the officers on two

occasions. The second interview was conducted a day after the first. Appellant made

incriminating statements and wrote letters of apology during both interviews. Further,

DNA evidence linked Appellant to the conduct at issue. Accordingly, Appellant has

failed to demonstrate prejudice under the second prong of

and the

trial court did not err in denying his petition for post-conviction relief without a hearing.

{¶31} Appellant's first and second assignments of error are overruled. Licking County, Case No. 11-CA-114 10

{¶32} The October 11, 2011 Judgment Entry of the Licking County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Gwin, J. and

Wise, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ John W. Wise _____________________ HON. JOHN W. WISE Licking County, Case No. 11-CA-114 11

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RICHARD FINCH : : Defendant-Appellant : Case No. 11-CA-114

For the reasons stated in our accompanying Opinion, the October 11, 2011

Judgment Entry of the Licking County Court of Common Pleas is affirmed. Costs to

Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ John W. Wise _____________________ HON. JOHN W. WISE