State v. Kane

[Cite as State v. Kane, 2017-Ohio-7838.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 16AP-781

v. : (C.P.C. No. 14CR-6108)

Angela Kane, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on September 26, 2017

On brief: Michael DeWine, Attorney General, Joseph A.

Koltalk and Maritsa A. Flaherty, for appellee.

On brief: James L. Burdon, for appellant.

APPEAL from the Franklin County Court of Common Pleas

SADLER, J.

{¶ 1} Defendant-appellant, Angela Kane, appeals from a judgment of the Franklin

County Court of Common Pleas denying her petition for postconviction relief filed

pursuant to R.C. 2353.21. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 18, 2014, plaintiff-appellee, State of Ohio, by and through the

Office of the Ohio Attorney General, filed information charging appellant with falsification

in a theft offense, in violation of R.C. 2921.13(A)(9), a felony of the fourth degree.

Therein, appellee alleged the following:

[Appellant], between March 31, 2010 and August 16, 2014,

within Franklin County, Ohio, did knowingly make and cause

to be made false and misleading representations to the Ohio

No. 16AP-781 2

Department of Medicaid, for use in obtaining more than seven

thousand five hundred dollars in reimbursement from the

Ohio Medical Assistance Program, to wit: submitting invoices

to the State of Ohio, Medicaid Program, for home health

services that were not provided by [appellant], contrary to the

rules and regulations of the Medicaid Program and the State

of Ohio.

(Nov. 18, 2014 Information for Falsification at 1-2.)

{¶ 3} Appellant was a registered nurse at the time of the offense. The charge

against appellant arises out of appellant's operation of a company known as Smart Choice

Home Health which had a provider agreement with the Ohio Department of

Developmental Disabilities. Through the company, appellant billed the Ohio Department

of Medicaid ("ODM") for services provided by Lesles Rivera to Rivera's disabled son,

Christopher.

{¶ 4} On November 18, 2014, appellant executed an "Entry of Guilty Plea"

wherein appellant pleaded guilty to the charge in the information. On January 8, 2015,

the trial court conducted a sentencing hearing. As a result of the hearing, the trial court

issued a judgment entry stating that appellant pleaded guilty to falsification in a theft

offense after being advised of her rights, pursuant to Crim.R. 11, and that the assistant

attorney general and appellant's trial counsel jointly recommended "a sentence of

community control and agreed to restitution." (Jan. 8, 2015 Jgmt. Entry at 1.) The trial

court sentenced appellant to five years of community control under basic supervision and

ordered appellant to pay restitution in the total amount of $150,000. Appellant did not

file an appeal from the trial court's judgment.

{¶ 5} On August 5, 2016, appellant filed a "Petition to Vacate or Set Aside

Sentence," pursuant to R.C. 2953.21, alleging ineffective assistance of trial counsel.

Appellant requested an evidentiary hearing on the petition. Appellee filed a

memorandum contra on August 15, 2016, wherein appellee argued the trial court did not

have jurisdiction to entertain the petition because it was not timely filed.

{¶ 6} On September 28, 2016, the trial court issued a decision and entry denying

appellant's petition. In denying the petition, the trial court determined that it lacked

jurisdiction to consider appellant's petition for postconviction relief because it was filed

No. 16AP-781 3

more than 365 days after the expiration of the time for filing an appeal from her

conviction, and appellant had not demonstrated any of the exceptions set out in R.C.

2953.23(A) applied. The trial court also concluded that res judicata barred appellant from

raising the claim of ineffective assistance of counsel asserted in her petition and,

alternatively, that her claim lacked merit.

{¶ 7} Appellant timely appealed to this court from the decision of the trial court.1

II. ASSIGNMENT OF ERROR

{¶ 8} Appellant assigns the following error:

THE TRIAL COURT DENIED APPELLANT HER

CONSTITUTIONAL RIGHTS TO DUE PROCESS BY

FAILING TO GRANT A HEARING ON HER PETITION TO

VACATE OR SET ASIDE SENTENCE, UNDER THE

PROVISIONS OF R.C. 2953.21, WHEN APPELLANT

PRESENTED UNCONTROVERTED SWORN EVIDENCE OF

FACTS OUTSIDE THE RECORD THAT, IF BELIEVED,

DENIED HER EFFECTIVE ASSISTANCE OF COUNSEL

UNDER THE SIXTH AMENDMENT TO THE

CONSTITUTION O[F] THE UNITED STATES, INCLUDING

INCORRECT OPINIONS OF LAW; A FAILURE TO

INVESTIGATE; FAILURE TO SHARE DISCOVERY

MATERIALS; AND A FAILURE TO INTERVIEW A

WITNESS WHO DIRECTLY SUPPORTED APPELLANT'S

INNOCENCE; AND APPELLANT WAS UNAVOIDABLY

PREVENTED FROM DISCOVERY OF COUNSEL'S ERRORS

WITHIN THE TIME PRESCRIBED BY R.C. 2953.21(A)(2).

III. STANDARD OF REVIEW

{¶ 9} "The appropriate standard for reviewing a trial court's decision to dismiss a

petition for postconviction relief, without an evidentiary hearing, involves a mixed

question of law and fact." State v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 8,

citing State v. Tucker, 10 Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 9. This court must apply

a manifest weight standard in reviewing a trial court's findings on factual issues

underlying the substantive grounds for relief, but we must review the trial court's legal

conclusions de novo. Lacking at ¶ 9. Ordinarily, the question whether a court of common

1 In an April 25, 2017 memorandum decision, this court denied appellant's motion for leave to file a delayed

appeal and ordered that "this appeal shall proceed as an appeal as of right." State v. Kane, 10th Dist. No.

16AP-781 (Apr. 25, 2017) (judgment entry).

No. 16AP-781 4

pleas possesses subject-matter jurisdiction to entertain an untimely petition for

postconviction relief is a question of law, which appellate courts review de novo. State v.

Conway, 10th Dist. No. 12AP-412, 2013-Ohio-3741, ¶ 9, quoting Clifton Care Ctr. v. Ohio

Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 9. Similarly,

the question whether res judicata bars a petition for postconviction relief based on a claim

of ineffective assistance of counsel is a question of law, which an appellate court reviews

de novo. State v. Johnson, 5th Dist. No. 12 CA 19, 2013-Ohio-1398, ¶ 27; State v. Lindsey,

12th Dist. No. CA2002-02-002, 2003-Ohio-811, ¶ 21.

IV. LEGAL ANALYSIS

{¶ 10} In appellant's sole assignment of error, appellant argues that the trial court

erred when it dismissed her petition for postconviction relief without a hearing. We

disagree.

{¶ 11} R.C. 2953.21(A)(2) sets forth the time limitations for a motion for

postconviction relief, in relevant part, as follows:

Except as otherwise provided in section 2953.23 of the

Revised Code, a petition under division (A)(1) of this section

shall be filed no later than three hundred sixty-five days after

the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or

adjudication * * *. If no appeal is taken, except as otherwise

provided in section 2953.23 of the Revised Code, the petition

shall be filed no later than three hundred sixty-five days after

the expiration of the time for filing the appeal.2

{¶ 12} The record establishes that appellant filed her petition more than 17 months

after her appeal time had run, which is more than 5 months after the 365-day period for

filing a timely petition for postconviction relief elapsed. Pursuant to R.C. 2953.23, a court

of common pleas may entertain an untimely filed petition for postconviction relief only

under the following circumstances:

2 Pursuant to Sub.H.B. No. 663, the General Assembly amended R.C. 2953.21, effective March 23, 2015,

extending the time for filing a postconviction relief petition from 180 days to 365 days. Because appellant

filed her petition for postconviction relief after the effective date of the amendment, the 365-day time limit

applies. State v. Williamson, 8th Dist. No. 104294, 2016-Ohio-7053, ¶ 18, citing State v. Thomas, 8th Dist.

No. 103784, 2016-Ohio-3327, ¶ 8-11, citing State v. Worthington, 12th Dist. No. CA2014-12-022, 2015-

Ohio-3173, ¶ 43, fn. 4. See also State v. Stephens, 9th Dist. No. 27957, 2016-Ohio-4942, ¶ 6; State v.

McManaway, 4th Dist. No. 16CA8, 2016-Ohio-7470, ¶ 11.

No. 16AP-781 5

(A) Whether a hearing is or is not held on a petition filed

pursuant to section 2953.21 of the Revised Code, a court may

not entertain a petition filed after the expiration of the period

prescribed in division (A) of that section or a second petition

or successive petitions for similar relief on behalf of a

petitioner unless division (A)(1) or (2) of this section applies:

(1) Both of the following apply:

(a) Either the petitioner shows that the petitioner was

unavoidably prevented from discovery of the facts upon

which the petitioner must rely to present the claim for relief,

or, subsequent to the period prescribed in division (A)(2) of

section 2953.21 of the Revised Code or to the filing of an

earlier petition, the United States Supreme Court recognized a

new federal or state right that applies retroactively to persons

in the petitioner’s situation, and the petition asserts a claim

based on that right.

(b) The petitioner shows by clear and convincing evidence

that, but for constitutional error at trial, no reasonable

factfinder would have found the petitioner guilty of the

offense of which the petitioner was convicted or, if the claim

challenges a sentence of death that, but for constitutional

error at the sentencing hearing, no reasonable factfinder

would have found the petitioner eligible for the death

sentence.3

(Emphasis added.)

{¶ 13} Appellant concedes that she filed her petition more than 365 days after her

appeal time had run on her conviction. In an effort to satisfy R.C. 2953.23(A)(1),

appellant filed her own affidavit and the affidavit of her husband, Lorenzo Kane, wherein

it is averred that appellant "recently became concerned regarding the legality of [her]

plea" after discovering that the billing practices she employed with regard to Rivera did

not violate Medicaid guidelines and that she is likely innocent of falsification in a theft

offense pursuant to R.C. 2921.13(A)(9). (Appellant's July 24, 2016 Aff. at 2.) More

particularly, appellant's affidavits aver that Rivera was a licensed home health aide at the

time she rendered services to Christopher and that ODM guidelines permit appellant to

bill ODM for Rivera's services under such circumstances. Accordingly, appellant claims

3 The exception under R.C. 2953.23(A)(2), pertaining to DNA testing, is not relevant in this case.

No. 16AP-781 6

that her trial counsel provided ineffective assistance by falsely representing that appellee

possessed overwhelming evidence of her guilt, failing to investigate her case, failing to

interview Rivera, and failing to share the "investigative 'evidence' " provided to her trial

counsel by appellee in discovery. (Appellant's Aff. at 1.)

{¶ 14} The state disputes appellant's claim of innocence arguing that the facts

underlying appellant's guilty plea and conviction were sufficient to prove her guilt of

falsification in a theft offense beyond a reasonable doubt. The state also argues that

appellant did not satisfy her burden under R.C. 2953.23(A)(1)(a) because all "the facts" on

which she relies in support of her claim of ineffective assistance were known to appellant

at the time she pleaded guilty and that her affidavits in support of her petition for

postconviction relief do not allege any new factual material not known to appellant at the

time of her guilty plea. R.C. 2953.23(A)(1)(a). We agree with appellee's position.

{¶ 15} Even if we were to accept appellant's claim that her counsel erroneously

advised her to plead guilty to an offense of which she was innocent, appellant was not

unavoidably prevented from discovering the facts that were necessary to establish an

ineffective assistance claim. "R.C. 2953.23(A) contemplates the * * * discovery of new

historical facts of the case, not new legal theories." State v. Melhado, 10th Dist. No.

05AP-272, 2006-Ohio-641, ¶ 19, citing State v. Hanks, 10th Dist. No. 98AP-70 (June 25,

1998), citing State v. Czaplicki, 2d Dist. No. 16589 (May 29, 1998). " 'The purpose behind

R.C. 2953.23 is to "permit trial courts to consider factual information that may come to

light after a defendant's trial, not to permit defendants to advance new legal theories

using the same underlying facts." ' " State v. Herring, 7th Dist. No. 06 JE 8, 2007-Ohio-

3174, ¶ 26, quoting State v. Williamitis, 2d Dist. No. 21321, 2006-Ohio-2904, ¶ 18,

quoting State v. Hurst, 5th Dist. No. 1999CA00171 (Jan. 10, 2000). Therefore, "[s]imply

being unaware of the law * * * does not equate with being unavoidably prevented from

discovering the facts upon which the petition is based." State v. Sturbois, 4th Dist. No.

99 CA 16 (Sept. 27, 1999). Ignorance of the law does not excuse an untimely filed

postconviction relief petition. State v. Halliwell, 8th Dist. No. 75986 (July 29, 1999).

{¶ 16} Appellant's affidavits do not identify any new factual information that was

not previously known to appellant at the time of her plea. For example, Lorenzo Kane's

affidavit provides, in relevant part, as follows:

No. 16AP-781 7

2. I am personally aware that [appellant] is a licensed

Registered Nurse (RN) and during the times relevant herein

was doing business as Smart Choice Home Health; and

3. [Appellant] contracted affiant Lesles Rivera, a licensed

Home Health Aide (HHA), to provide authorized health

services to her son Christopher; was paid for those services;

and received timely and accurate IRS Forms 1099; and

4. Christopher was a Medicaid recipient and one of

[appellant's] patients; and

5. [Appellant] retained the services of Attorney Neil W. Siegel

to represent her following notice that she was being

investigated; and

6. At virtually every consultation I was present and during the

times of his representation he never provided her copies of the

discovery materials received by Attorney Siegel;

7. The first [appellant] and I saw the discovery materials was

in August, 2015, seven months after her plea; and

8. [Appellant] consistently told Attorney Siegel that she

believed as a lawfully licensed RN she was permitted to bill

Medicaid for her services as well as the professional services

rendered by Ms. Rivera as an HHA; and

9. Attorney Siegel repeated that "the state had overwhelming

evidence against [her]." And she should plead guilty to avoid

jail; and

10. [Appellant] only agreed to plead guilty because Attorney

Siegel told her she could not bill Medicaid for services

rendered to Christopher through his mother; and

11. [Appellant] and I recently became concerned about the

legality of her plea, for the reason stated herein, and

immediately consulted an attorney to review the

constitutionality of Attorney Siegel's representation.

(July 24, 2016 Aff.)4

4 Appellant's affidavit contains essentially the same averments but in greater detail.

No. 16AP-781 8

{¶ 17} Despite pleading guilty to falsification in a theft offense, appellant now

believes that her conduct in billing ODM for Rivera's services did not violate ODM

guidelines. Appellant's claims that her trial counsel was ignorant of the relevant Medicaid

provisions, and, as a result, trial counsel provided ineffective assistance by encouraging

her to plead guilty to the charge of which she was legally innocent. Thus, appellant's claim

of ineffective assistance is predicated on trial counsel's failure to assert a legal defense to

the charge of falsification in a theft offense based on the known historical facts of the case.

Such a claim is incompatible with the purpose of R.C. 2953.23(A), which is to permit a

trial court to consider factual information that may come to light after a defendant's trial

but not to permit petitioners to advance new legal theories using the same underlying

facts. Moreover, ignorance of the law does not excuse appellant's untimely filing of her

petition for postconviction relief. For purposes of R.C. 2953.23(A)(1)(a), appellant's

assertion that she "recently became concerned regarding the legality of [her] plea of

guilty" is insufficient to satisfy appellant's burden of proving that she was unavoidably

prevented from discovery of "the facts" on which she must rely to present the claim for

relief. (Appellant's Aff. at 2.) Hanks ("[T]he basis for appellant's claim of insufficiency of

the evidence and alleged entitlement to re-sentencing were not the type of facts of which

R.C. 2953.23(A)(1)(a) refers."). See also Melhado; Herring; Sturbois; Hurst; Czaplicki;

Halliwell.

{¶ 18} We find that the averments in appellant's affidavits conclusively establish

that appellant was not unavoidably prevented from discovery of "the facts" on which she

now relies to present her claim of ineffective assistance of trial counsel. Appellant admits

that she was aware of the material facts underlying the charge of falsification in a theft

offense at the time of her guilty plea. She acknowledges that, at the time of the offense,

she was a registered nurse doing business as Smart Choice Home Health and that she

billed Medicaid for the services Rivera provided to Christopher. Appellant averred that

she told her trial counsel that Rivera "was a qualified Home Health Aide (HHA),

authorized during all relevant time periods to provide HHA services to her son under

Medicaid rules." (Appellant's Aff. at 1.) Appellant's affidavits also establish that appellant

was aware, at the time she pleaded guilty, that Rivera could provide testimony to

corroborate her claim of innocence. Our review of Rivera's affidavit reveals no factual

No. 16AP-781 9

information that would not have been known to appellant at the time she pleaded guilty.

Thus, appellant cannot now claim that she was unavoidably prevented from discovering

the facts to support her claim that trial counsel provided ineffective assistance by failing to

interview Rivera. For similar reasons, appellant has not identified any new factual

information that her trial counsel should have discovered had he conducted a more

thorough investigation of her case. Rather, appellant merely suggests that her trial

counsel was mistaken as to the relevant laws and ODM regulations at the time he advised

her to plead guilty. Thus, appellant has not demonstrated that she was unavoidably

prevented from discovering "the facts" underlying her claim that trial counsel provided

ineffective assistance by failing to conduct a more thorough investigation of her case.

{¶ 19} To the extent that appellant's affidavits suggest that facts contained in the

discovery materials received by her trial counsel may support her claim for relief,

appellant's affidavits and arguments submitted with her petition fail to describe the

evidentiary materials produced in discovery, do not explain how those materials support

her claim for relief, nor show that the materials contain "the facts" not known to appellant

at the time she pleaded guilty. Appellant's affidavits also make no claim that trial counsel

refused to provide appellant with the materials on request. Even if we assume that

appellant's trial counsel withheld the discovery materials from appellant and that the

discovery materials contained previously unknown facts that support her claim for relief,

appellant admits that she "saw * * * the investigative 'evidence' * * * at the Board of

Nursing hearing conducted on August 19, 2015, seven months after [her] conviction and

sentence." (Appellant's Aff. at 1.) Thus, appellant's evidence submitted in support of her

petition establishes that she discovered the additional facts contained in the discovery

materials, if any, five months before her time for filing a petition for postconviction relief

elapsed. Appellant's petition and supporting evidence provide no explanation for

appellant's failure to timely file her petition for postconviction relief after having access to

the investigative materials allegedly withheld from her by her trial counsel. State v.

Dixon, 10th Dist. No. 10AP-75, 2010-Ohio-3894, ¶ 7 ("Appellant * * * cannot justify the

untimely petition on grounds that he was 'unavoidably prevented from discovery' of

evidence to support the claims [regarding] the sufficiency of his indictment, [as] the facts

No. 16AP-781 10

giving rise to that challenge existed when the indictment was issued before the deadline

for filing a petition for post-conviction relief.").

{¶ 20} Because appellant failed to show that she was unavoidably prevented from

discovery of the facts on which she relies to present her claim of ineffective assistance of

trial counsel, the trial court had no jurisdiction to consider her untimely petition for

postconviction relief. Melhado at ¶ 24. Because the trial court lacked jurisdiction to

consider appellant's petition, the trial court was not required to hold an evidentiary

hearing. Id., citing State v. Russell, 10th Dist. No. 05AP-391, 2006-Ohio-383, ¶ 10, citing

State v. Burke, 10th Dist. No. 02AP-677, 2002-Ohio-6840, ¶ 19.

{¶ 21} For the foregoing reasons, we hold that the trial court did not err when it

denied appellant's petition for postconviction relief without a hearing. Appellant's sole

assignment of error is overruled. Furthermore, because we have determined that the trial

court did not have jurisdiction of appellant's untimely petition for postconviction relief,

we need not address the trial court's alternative reasons for dismissing the petition.

V. CONCLUSION

{¶ 22} Having overruled appellant's sole assignment of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and BRUNNER, JJ., concur.

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