[Cite as State v. Korecky,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108328 v. :

ROBERT F. KORECKY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 5, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-629279-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant Prosecuting Attorney, for appellee.

Robert F. Korecky, pro se.

MICHELLE J. SHEEHAN, J.:

Robert Korecky (“Korecky” hereafter) appeals, pro se, from a

judgment of the Cuyahoga County Common Pleas Court convicting him of

attempted theft, a first-degree misdemeanor, after he entered a guilty plea to the offense. On appeal, he claims his trial counsel provided ineffective assistance of

counsel for failing to litigate a motion to dismiss based on the statute of limitations

filed before he pleaded guilty, and the deficient performance by counsel rendered

his plea less than knowing and voluntary. He also argues his plea was not knowing

and voluntary due to the trial court’s conduct at the plea hearing. After a review of

the record and applicable law, we find no merit to Korecky’s appeal and affirm the

trial court’s judgment.

Background

On June 1, 2018, appellant was indicted with two counts of identity

fraud, both fourth-degree felonies, and one count of theft, also a fourth-degree

felony. These offenses stemmed from the state’s allegation that in the spring of

2012, appellant used the personal information of his brother Ryan Korecky (“Ryan”)

to obtain student loans and had the funds deposited into appellant’s bank account.

More than five years later, on April 4, 2017, Ryan called the police to

report the alleged identity fraud. Three days later, on April 7, 2017, Ryan made a

police report stating that he received a letter informing him that he owed money on

some student loans. When Ryan ran a credit report, he discovered that his personal

information had been used to obtain two student loans and a cable account totaling

$5,889. Ryan reported that all of the addresses belonged to his brother Robert

Korecky. Ryan also alleged that, because of the outstanding balance on the student

loans, he was unable to receive a tax refund for 2017. According to the state’s

evidence, Robert Korecky applied for the student loans on January 7, 2012, and the loans were deposited into Robert Korecky’s bank account on January 25, 2012,

February 22, 2012, and March 21, 2012. In the indictment, the date of the offenses

was listed as January 17, 2012.

Motion to Dismiss

After the state provided discovery, Korecky’s counsel filed a motion

to dismiss on October 26, 2018. Korecky argued the charges against him were

barred by the statute of limitations and the discovery rule did not toll the statute of

limitation in this case. On December 13, 2018, the state filed a brief opposing

Korecky’s motion to dismiss, arguing the charges of identity fraud were brought

within the statutory time pursuant to the discovery rule.

Guilty Plea and Sentence

Two months after the state filed its opposition to the motion to

dismiss and before any further litigation on Korecky’s motion to dismiss, on

February 19, 2019, Korecky pleaded guilty to a reduced charge of attempted theft, a

first-degree misdemeanor, in exchange for the state’s nolling of the two felony

identity fraud counts. At the plea hearing, the trial court accepted Korecky’s guilty

plea after a Crim.R. 11 plea colloquy. The court then sentenced him to a suspended

six-month jail term and ordered him to pay a fine of $250 and the cost of

prosecution. The sentencing entry also stated “no contact with victim(s).”

On appeal, Korecky presents three assignments of error for our

review: I. Appellant was deprived of his Sixth Amendment right to the effective assistance of counsel, because his trial counsel failed to litigate the motion to dismiss on the statute of limitations grounds, or to seek this prosecution’s dismissal for violation of due process — unconstitutional preindictment delay, which caused his plea to be less than knowing and voluntary.

II. Appellant’s guilty plea was not voluntary and/or knowingly [sic] due to participation by the trial court in the plea and coercion by the trial court.

III. The trial court committed reversible error when it became a party to the plea agreement, promised a sentence and did not abide by it, rendering appellant’s plea involuntary.

For ease of discussion, we review the second and third assignments first, because

they both concern Korecky’s contention that his plea was not voluntary and

knowing due to the trial court’s conduct at the plea hearing.

Alleged Coercive Conduct by the Trial Court

Under the second assignment of error, Korecky claims his guilty plea

was involuntary because the trial court improperly participated in the plea

agreement process and coerced him into pleading guilty.

A guilty plea is invalid unless it is knowingly, intelligently, and

voluntarily made. State v. Engle,

,

(1996).

Although the Supreme Court of Ohio discourages the trial court’s participation in

the plea bargaining process, a plea is not presumptively invalid merely because of

such involvement. State v. Bush, 8th Dist. Cuyahoga No. 106392,

, citing State v. Byrd,

,

(1980). Instead,

an appellate court reviews the entire record to determine if the trial court’s conduct could lead a defendant to believe he could not get a fair trial “‘because the [trial

court] thinks that a trial is a futile exercise or that the [trial court] would be biased

against him at trial.’” Id. at ¶ 4, quoting

.

Korecky cites the following statements by his trial counsel and the

trial court at the plea hearing as indications of the trial court’s improper

participation in the plea process:

[Defense Counsel]: I did advise my client of our conversations in chambers that should he decide to enter a change of plea that it was your inclination to impose a fine and court costs and no probation.

The Court: All right.

***

The Court: Okay. Do you understand the potential difference in the consequences; if there’s a trial and the jurors believe the State’s evidence beyond a reasonable doubt that the potential is for two F-4’s and an F-5 which the potential consequence is 18 months on each F-4 and 12 months on the F-5? So worst case scenario would be 48 months in prison.

I’m not saying that will happen if the State is successful, but do you understand the difference between fines and costs versus four years in prison? That’s a big difference, right?

***

The Court: I’ve told your attorney the sentence I’m going to impose and I will impose that sentence today as long as there’s no objection from the State with respect to a victim wanting to be present.

The statements by the defense counsel and the trial court made it

apparent that there was a discussion among the prosecutor, the defense counsel, and

the trial court off the record regarding the plea bargain offered by the state. In such

a situation, as this court noted, it is important that a record be established that a defendant is aware of the plea deal, by placing on the record the plea deal involving

the trial judge’s participation. State v. Jabbaar,

,

,

¶ 27 (8th Dist.), citing Missouri v. Frye,

,

,

(2012). Here, the defense counsel did just that — placing the plea deal discussed

in the presence of the trial court on the record, including the trial court’s inclination

regarding the sentence.

Moreover, we note that a trial court’s discussion of the potential

penalties on the record was not coercive. State v. McNeir, 8th Dist. Cuyahoga No.

105417,

(no evidence of coercion by the trial court in discussing

the different sentences the defendant would face if he pleaded guilty versus going to

trial). Here, the transcript reflects that after the trial court compared the penalties

between the offenses as charged in the indictment and the reduced charge offered

in the plea bargain, the trial court stressed that Korecky was innocent until proven

guilty. The court then noted that there appeared to be some discovery the state may

not have provided and mentioned the possibility of setting a trial date. However,

before the trial court had a chance to complete its sentence regarding the discovery

and a potential trial date, Korecky interrupted the court and indicated he was going

to plead guilty, and further assured the court and his counsel that he understood the

implications of going to trial on the felony offenses versus pleading guilty to a

misdemeanor offense.1

1 The transcript reflects the following exchange: Having reviewed the record, we cannot conclude the trial court

placed undue pressure on Korecky to accept the plea deal or that its conduct led

Korecky to believe he could not get a fair trial because the trial court thought a trial

would be a futile exercise or that the trial court would be biased against him at trial.

The second assignment of error lacks merit.

Under the third assignment of error, Korecky argues the trial court

improperly became a party to the plea agreement by “promising” a sentence yet did

not abide by it, which rendered his plea involuntary. “[A] guilty plea, if induced by

promises or threats that deprive it of the character of a voluntary act, is void.” State

v. Kelly, 8th Dist. Cuyahoga Nos. 91875 and 91876,

, ¶ 2. Korecky is

correct that a plea agreement is a contract between the prosecution and a defendant

The Court: You’re innocent until proven guilty. The Court has no information about — we talked a little bit about what’s alleged and I know there are some issues with respect to maybe some documentation that the State may or may not have available, but we will set this for another date, a trial date and —

The Defendant: Well, I was saying that I do understand that that’s the difference and that’s why I feel that I have to — or that I’m going to take this. I thought we said I was going to take this. I thought that I was going to.

***

[Defense Counsel]: Do you want to take the plea? Is this what you want to do?

The Defendant: Yeah, what the offer was.

***

The Defendant: I understand the difference. That’s why I’m going to take the deal. and, when a trial court promises a certain sentence, the promise becomes

inducement to enter a plea; therefore, unless that sentence is given, the plea is not

voluntary. State v. Gilroy,

,

,

(2d Dist.); State v. White,

,

, ¶ 8 (8th Dist.); and

State v. Triplett, 8th Dist. Cuyahoga No. 69237,

(Feb. 13,

1997).

Here, to the extent that the trial court participated in the plea process

by indicating its inclination for a certain sentence, Korecky was sentenced exactly as

represented by his trial counsel regarding the trial court’s “inclination” for Korecky’s

sentence: a fine and court costs and no probation. The trial court did not impose

probation, and Korecky did not have to serve a jail term. Accordingly, Korecky’s

claim that his plea was not voluntary because the trial court reneged on a promised

sentence is not supported by the record. The third assignment of error is without

merit.

Effect of Guilty Plea

Under the first assignment of error, Korecky claims his trial counsel

provided ineffective assistance of counsel for failing to litigate the motion to dismiss

based on the statute of limitations filed by counsel prior to the plea hearing. He

claims his counsel’s performance was deficient in this regard and the deficient

performance rendered his plea less than knowing and voluntary.

A guilty plea is a complete admission of the defendant’s guilt. “[A]

guilty plea represents a break in the chain of events that precede it in the criminal process.” State v. Spates,

,

(1992). When a

defendant enters a plea of guilty, he waives all appealable errors that might have

occurred unless the errors precluded the defendant from entering a knowing,

voluntary, and intelligent plea. State v. Robinson, 8th Dist. Cuyahoga No. 107598,

, citing State v. Kelley,

,

(1991).

Moreover, a defendant’s guilty plea acts to waive the benefits of the

application of statutes of limitations and therefore, the merits of such arguments

cannot be raised on appeal. State v. Cleavenger, 11th Dist. Portage No. 2019-P-

0036,

. See also State v. Keinath, 6th Dist. Ottawa No. OT-11-

032,

, ¶ 25 (because the expiration the statute of limitations was not

a jurisdictional defect, Korecky was precluded from raising the issue on appeal when

he pleaded guilty to the charges).

Therefore, Korecky, having entered a guilty plea in this case, would

be precluded from raising the claim regarding the statute of limitations on appeal,

and he appears to try to circumvent the preclusive effect of guilty plea by arguing his

trial counsel’s performance regarding a potential statute of limitations defense

rendered his plea less than knowing and voluntary.2

2 While we do not reach the merits of the statute of limitations issue, we note that, even if appellant were not precluded from raising the statute of limitations issue and the issue were proper for our review, we would find the charges against appellant to have been brought timely. While the statutory time for the prosecution of a felony offense is six years, pursuant to the discovery rule set forth in R.C. 2901.13(G),”[t]he period of limitation shall not run during any time when the corpus delicti remains undiscovered.” When a crime involves fraud or identity fraud, R.C. 2901.13(B) sets forth additional provisions regarding the discovery rule. R.C. 2901.13(B)(1) involves an offense involving fraud and R.C. 2901.13(B)(2) involves identity fraud offenses. In State v. Cook, 128 Ohio A plea of guilty even waives the right to claim that a defendant was

prejudiced by ineffective assistance of counsel, except to the extent that the

ineffective assistance of counsel caused the defendant’s plea to be less than knowing,

intelligent, and voluntary. State v. Williams, 8th Dist. Cuyahoga No. 100459,

, citing Spates,

,

.

In order to establish a claim of ineffective assistance of counsel, the

defendant must show that his trial counsel’s performance was deficient in some

aspect of his representation and that deficiency prejudiced his defense. Strickland

v. Washington,

,

,

(1984). Pursuant to

Strickland, our assessment of an attorney’s representation must be highly

deferential and we are to indulge “a strong presumption that counsel’s conduct falls

St.3d 120,

,

, the Supreme Court of Ohio explained the meaning of the additional tolling provision R.C. 2901.13(B)(1) (involving fraud). The court first affirmed that “pursuant to R.C. 2901.13(F) [now renumbered as R.C. 2901.13(G)] for a felony offense that contains an element of fraud, the six-year statute of limitations in R.C. 2901.13(A)(1)(a) begins to run only after the corpus delicti of that offense is discovered.” Id. at ¶ 33. The court then explained that R.C. 2901.13(B)(1) contemplates a scenario where multiple victims were involved and, in such a situation, R.C. 2901.13(B)(1) provides the state with one additional year (beyond the tolling allowed by R.C. 2901.13(G)) in which to file charges even if the statute of limitations from the initial discovery has expired. Id. at ¶ 48 and 49. Cook did not concern R.C. 2901.13(B)(2), which involves tolling for identity fraud. However, because R.C. 2901.13(B)(2) and (B)(1) are worded almost identically, under Cook, where an identify fraud involves multiple victims, (B)(2) would provide additional five years (beyond the tolling allowed by R.C. 2901.13(G)) for the state to prosecute a defendant after the statute of limitations from the initial discovery has expired. The instant case does not involve a scenario of multiple victims, and therefore, R.C. 2901.13(B)(2) does not apply. Pursuant to R.C. 2901.13(G), the state could bring charges against appellant Korecky six years from the discovery of the identity fraud (April 4, 2017). Based on a misreading of R.C. 2901.13(B)(2), appellant claimed the discovery rule does not apply at all in this case and the statute of limitations for his identity fraud offenses expired sometime in January 2018, six years from the date of his offenses, contrary to the holding in Cook. within the range of reasonable professional assistance.” Id. at 689. In Ohio, every

properly licensed attorney is presumed to be competent and, therefore, a defendant

claiming ineffective assistance of counsel bears the burden of proof. State v. Smith,

,

(1985). In the context of a guilty plea,

prejudice is shown only if the defendant can demonstrate that there is a reasonable

probability that, but for counsel’s deficient performance, he would not have pleaded

guilty and would have insisted on going to trial.

, citing State

v. Xie,

,

(1992), and Hill v. Lockhart,

,

,

(1985). In other words, 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. State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,

, ¶ 14.

We recognize a trial counsel’s failure to advise a defendant of the

statute of limitations defense can potentially avoid the application of the waiver

requirement because it may impact the voluntary nature of the plea. Cleavenger at

¶ 19, citing State v. Seeley, 7th Dist. Columbiana No.

,

,

¶ 32-35 (finding the defendant demonstrated that counsel’s ineffectiveness in failing

to raise a statute of limitations defense prevented him from entering a knowing and

voluntary plea).

Here, however, Korecky’s trial counsel diligently asserted the

defense of the statute of limitations on behalf of Korecky by filing a motion to dismiss on the ground that the state failed to bring the charges against him within

the statute of limitations. Korecky does not allege that the motion to dismiss was

filed by counsel without his knowledge and, therefore, we must assume Korecky was

very much aware of the potential statute of limitations defense raised in the pending

motion to dismiss. Yet, while that motion to dismiss was pending, Korecky chose to

plead guilty to a reduced charge of a misdemeanor offense instead of going to trial

on multiple felony counts.

This court has routinely held that an ineffective assistance of counsel

claim for the failure to raise a statute of limitations defense is waived by a valid guilty

plea. State v. Asadi-Ousley,

,

(8th Dist.),

citing State v. Ramos, 8th Dist. Cuyahoga No. 104550,

; State v.

Pluhar, 8th Dist. Cuyahoga No. 102012,

. Our review of the plea

transcript reflects that Korecky chose to plead guilty because of the significant

prison term (a maximum term of 48 months) he would receive if he were to go to

trial and be convicted of the felony offenses, as opposed to a fine and court costs if

he was to plead guilty to a reduced misdemeanor offense. The transcript reflects

that he represented to the trial court that he was not forced to plead guilty when

asked if there were any threats or promises made to encourage the entry of a guilty

plea; he stated he was satisfied with the representation he received from his counsel;

and he was steadfast about pleading guilty to a misdemeanor instead of going to trial

on three felony counts. On this record, Korecky fails to demonstrate there is a

reasonable probability that, but for counsel’s performance, he would not have pleaded guilty and would have insisted on going to trial.

.

We are unable to conclude Korecky’s plea was less than knowing or voluntary due to

any perceived deficient performance by his counsel.

Korecky also claims his plea was less than knowing or voluntary

because his counsel provided ineffective assistance in failing to file a motion to

dismiss on the ground of preindictment delay. The record reflects that Korecky’s

brother Ryan alleged that he discovered the identity fraud on April 4, 2017, and

made a police report on April 7, 2017. The state indicted Korecky for identity fraud

and theft on June 1, 2018. In his brief on appeal, Korecky alleges that he was

prejudiced by the delay in the prosecution of this case because two cell phones he

owned, which he claims contained exculpatory text messages he and Ryan

exchanged between December 2011 and May 2012, and in May 2014, were no longer

available: one was donated to Goodwill in June 2017 and the other one traded for a

new phone in December 2017. In addition, Korecky alleges that another brother,

Richard Korecky, could have provided testimony to show Ryan’s allegations were

not accurate, but Richard passed away in 2014.

We do not reach the merits of Korecky’s claim that his counsel

provided ineffective assistance of counsel in failing to file a motion to dismiss on the

grounds of preindictment delay and counsel’s performance rendered his plea less

than knowing or voluntary, because Korecky’s claim relies on evidence outside of

the record. Alleged statements or purported evidence made outside of the record

are not properly considered on a direct appeal. State v. Peak, 8th Dist. Cuyahoga No. 102850,

, ¶ 20; State v. Johnson,

,

,

¶ 53 (8th Dist.) (ineffective assistance of counsel claim that would require proof

outside of the record is not appropriately considered on a direct appeal). For all the

foregoing reasons, the first assignment of error is overruled.

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. 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.

MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR