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.
______________