State v. Charles Lippert

Decision Date24 February 1998
Docket Number98-LW-1082,97 CA 2504
PartiesSTATE OF OHIO, Plaintiff-Appellee v. CHARLES LIPPERT, Defendant-Appellant CASE
CourtOhio Court of Appeals

David E. Ernst, SHEETS, ERNST & DIEHL, Lebanon, Ohio, for appellant.[1]

Lynn Alan Grimshaw, Scioto County Prosecuting Attorney Portsmouth, Ohio, for appellee.

DECISION

Kline J.

Charles Lippert appeals the Scioto County Common Pleas Court decisions overruling his motion for super shock probation and post-conviction relief. Lippert asserts that the trial court abused its discretion in overruling his motion for super shock probation without conducting a hearing and erred in overruling Lippert's petition for post-conviction relief without conducting a hearing. We disagree. Accordingly, we affirm the decision of the trial court.

In September of 1992, the state arrested Lippert for armed robbery of two separate establishments. The prosecuting attorney filed a bill of information against Lippert charging him with two counts of aggravated robbery in violation of R.C. 2911.01(A)(1) and one firearm specification in violation of R.C. 2941.141. As a result of pretrial negotiations and on the advice of his counsel, Lippert pled guilty to all of the charges and the trial court found him guilty as charged. The trial court sentenced Lippert to two concurrent prison sentences of six to twenty-five years for the aggravated robbery charges and a mandatory consecutive term of three years actual incarceration for the firearm specification.

In September 1996, Lippert filed a petition for postconviction relief pursuant to R.C. 2953.21(A), arguing that his counsel was ineffective and his plea was not knowing and voluntary because: (1) the trial court failed to establish a factual basis for the charges in violation of Crim.R. 11(C); (2) the trial court failed to clarify his rights to probation and parole pursuant to Crim.R. 11(C); and (3) his trial counsel was ineffective. Lippert attached his own affidavit to the petition, attesting that his trial counsel pressured him to plead guilty and that, under the circumstances of the proceedings, he did not understand that he would be ineligible for shock probation. The trial court dismissed the petition without a hearing. In its findings of fact and conclusions of law, the trial court reasoned that the doctrine of res judicata barred Lippert's motion and that his self-serving affidavit did not justify a hearing.

In January 1997, Lippert filed a motion for super shock probation. The trial court denied Lippert's motion without a hearing and without findings of fact and conclusions of law. Lippert appeals both of the court's decisions, asserting the following assignments of error:

I. THE TRIAL COURT ERRED WHEN IT ENTERED A SUMMARY DECISION DENYING A SUPER SHOCK PROBATION APPLICATION FILED BY THE DEFENDANT/APPELLANT WHEN NO HEARING WAS CONDUCTED.
II. TRIAL COURT ERRED IN SUMMARILY DENYING DEFENDANT/ APPELLANT'S PETITION FOR POST CONVICTION RELIEF BY NOT PROVIDING A HEARING UNDER THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE.

II.

Lippert contends in his first assignment of error that the trial court abused its discretion by denying his motion for super shock probation without conducting a hearing in violation of R.C. 2947.061. We disagree.

A trial court holds broad discretion in holding a hearing on a motion for super shock probation. State v. Orris (1971), 26 Ohio App.2d 87, at paragraph two of the syllabus. Thus, we can only reverse the trial court if the trial court abused its discretion. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506; Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169.

R.C. 2947.061(B) reads in relevant part:

Subject to sections 2951.02 to 2951.09 of the Revised Code * * *, the trial court may, upon the motion of the defendant, suspend the further execution of the defendant's sentence and place the defendant on probation upon such terms as the court determines * * *. The court shall hear any motion authorized by this division within sixty days after it is filed and shall enter its ruling on the motion within ten days after the hearing.

R.C. 2951.02(F) denies probation eligibility to persons committing crimes while armed with a firearm. Eligibility for probation under R.C. 2951.02 is a prerequisite to eligibility for shock probation under R.C. 2947.061. State v. Bistarkey (1996), 75 Ohio St.3d 7, at syllabus. A motion for super shock probation does not require a trial court to hold a hearing if the prisoner does not meet the basic statutory requirements of R.C. 2947.061. State v. Orris (1971), 26 Ohio App.2d 87; State ex. rel Minardi v. Pokorny (Mar. 6, 1997), Cuyahoga App. No. 71700, unreported.

Lippert pled guilty to two counts of aggravated robbery and one firearm specification. The trial court found Lippert guilty of all three charges. The plain language of R.C. 2947.061 and R.C. 2951.02(F)(3) prohibits the trial court from granting Lippert probation. Thus, the trial court did not abuse its discretion by issuing a decision and order without holding a hearing on Lippert's motion. See State v. Orris, supra. Furthermore, R.C. 2947.061 does not require the trial court to issue findings of fact and conclusions of law. See State ex. rel. Minardi v. Pokorny, supra. Therefore, we find that the trial court did not abuse its discretion in denying Lippert's motion without conducting a hearing and without issuing findings of fact and conclusions of law.

Accordingly, we affirm the decision of the trial court.

III.

In his second assignment of error, Lippert argues that the trial court erred by not conducting an evidentiary hearing on his petition for post-conviction relief. We review the denial of a hearing on a petition for post-conviction relief de novo. State v. Elliot (July 12, 1995), Lawrence App. No. 95CA03, unreported. Therefore, we grant no deference to the trial court's determination. Id.

A person convicted of a crime who claims a severe infringement of his constitutional rights may file a petition in the court that imposed the sentence stating reasons the court should vacate the sentence. R.C. 2953.21(A).

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.

R.C. 2953.21(C).

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.

R.C. 2953.21(E).

The trial court is not required to conduct a hearing in every case. The test is whether there are substantive grounds for relief that would warrant a hearing, based upon the record and any affidavits before the court. State v. Jackson (1980), 64 Ohio St.2d 107, 110. Thus, Lippert was only entitled to a hearing if he demonstrated substantive grounds for relief.

A.

Lippert asserts that the trial court erred in finding that res judicata barred Lippert's claim that his plea was involuntary and unknowing. We disagree.

In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, the Ohio Supreme Court held that:

Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or
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