[Cite as State v. Culberson, 2021-Ohio-2214.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-5
:
v. : Trial Court Case Nos. 2019-CR-768 &
: 2020-CR-31
CHRISTOPHER CULBERSON :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 30th day of June, 2021.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHRISTOPHER CULBERSON, #A776-221, P.O. Box 1812, Marion, Ohio 43301
Defendant-Appellee, Pro Se
.............
HALL, J.
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{¶ 1} Petitioner-Appellant, Christopher Culberson, appeals pro se from the trial
court’s denial of his petition to vacate or set aside his convictions for having weapons
while under disability, failure to comply, and drug possession. Culberson challenges the
trial court’s limitation of its consideration of his petition to the ineffective assistance claim,
asserting that the court should have also considered the claims concerning search and
seizure and due process. Culberson further asserts that various actions and omissions
on the part of trial counsel caused him to enter a guilty plea he otherwise would not have
made, denying him the effective assistance of counsel. For the reasons that follow, we
affirm.
I. Factual and Procedural Background
{¶ 2} As an initial matter, we note that Culberson has failed to include transcripts
of any trial proceedings in the record, which inhibits our ability to discern the factual
background of the case. Accordingly, we are left to glean the facts to the best of our ability
from the trial court entries in the record.
{¶ 3} On November 17, 2019, Officer Melvin of the Springfield Police Department
received word that Culberson had departed a Springfield motel in a black Chevy Equinox.
Officer Melvin was aware that there were active warrants out for Culberson’s arrest. The
officer travelled to the vicinity of the motel, where he located and began following a car
matching the description in the tip. He could not clearly see the driver, and the rear license
plate was obscured by a heavily-tinted cover.
{¶ 4} Officer Melvin continued following the vehicle and observed it go left of
center. He activated the lights on his cruiser, whereupon the Equinox instituted a high-
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speed chase. After approximately one minute, the Equinox went off the road and crashed.
The driver flung open the door and fled the vehicle on foot. He was pursued and
apprehended by police, The driver was identified as Culberson.
{¶ 5} Following Culberson’s apprehension, Officer Melvin returned to the Equinox.
The door was ajar and the keys were still in the ignition. The officer reached in to put the
vehicle in park, at which time he observed a firearm in plain view in the passenger
compartment. The officer executed a warrantless search of the entire vehicle, seizing
firearms and drugs.
{¶ 6} On November 25, 2019, in Clark C.P. No. 19-CR-768, the Clark County
grand jury returned a six-count indictment charging Culberson with two counts of having
weapons while under disability, third-degree felonies; one count of receiving stolen
property, a fourth-degree felony; one count of improper handling of firearms in a motor
vehicle, a fourth-degree felony; and one count of failure to comply with an order or signal
of a police officer, a third-degree felony. The charges were accompanied by a forfeiture
specification targeting three firearms seized from the Equinox.
{¶ 7} On January 21, 2020, in Clark C.P. No. 20-CR-31, the Clark County grand
jury returned a second six-count indictment charging Culberson with aggravated
trafficking in drugs, a fourth-degree felony; aggravated possession of drugs, a fourth-
degree felony; trafficking in cocaine, a fifth-degree felony; possession of cocaine, a fifth-
degree felony; possession of criminal tools, a fifth-degree felony; and possession of a
fentanyl related compound, a fifth-degree felony. On the State’s motion, Case Nos. 19-
CR-768 and 20-CR-31 were consolidated for purposes of trial as both involved the facts
and circumstances surrounding Culberson’s November 17, 2019 arrest.
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{¶ 8} Culberson unsuccessfully moved to suppress the evidence seized in
connection with his arrest. Thereafter, on June 3, 2020, he pled guilty to one count of
possession of drugs, one count of having a weapon under disability, and one count of
failure to comply. The remaining charges were dismissed, as were additional pending
charges against Culberson in Clark C.P. Nos. 18-CR-91, 19-CR-613, and 19-CR-767.
Culberson was sentenced to an aggregate term of six years in prison. He did not file a
direct appeal.
{¶ 9} On September 28, 2020, Culberson filed a pro se petition to vacate or set
aside judgment of conviction or sentence. He now appeals from the denial of that petition.
II. Analysis
{¶ 10} Culberson assigns two errors for our consideration; we print them as they
appear in his brief:
1. THE TRIAL COURT’S DECISION TO ONLY ANSWER APPELLANT’S
CLAIM THAT HE WAS DENIED HIS VI AMENDMENT RIGHT TO
AFFECTIVE ASSISTENCE OF COUNSEL WAS IN ERROR; ESPECIALLY
WHEN THE APPELLANT ALSO CLAIMED THAT HE WAS DENIED HIS
FOUTTH AMENDMENT RIGHT: THE RIGHT AGAINST UNREASONABLE
SEARCH & SEIZURE, HIS FIFTH AMENDMENT AND FOURTEENTH
AMENDMENT DUE PROCESS RIGHT: EQUALLY BEING PROTECTED
FROM THE ILLEGALLY SEIZED EVIDENCE THAT RESULTED FROM AN
EXICUTION OF ARREST WARRANTS: FRUITS FROM A POISONOUS
TREE, THAT IF THE TRIAL COURT HAD PROPERLY RULLED ON THE
SUPPRESSION HEARING, WOULD HAVE DISMISSED THE CASE.
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2. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL DURING THE PRE-TRIAL STAGES OF ADJUDICATION
PROCESS, AND DURING THE PROCEEDINGS RESULTING IN A PLEA
BARGAIN THAT WAS NOT IN THE BEST INTREST OF THE APPELLANT
WHO WAS UNDER DURESS: COHERSED INTO PLEADING GUILTY BY
HIS COURT APPOINTED ILLPRE_PARED ATTORNEY, WHEN WAS
UNPREPARED DURING THE SUPPRESSION HEARING, AND TELLING
THE APPELLANT THAT IF HE DID NOT PLEAD GUILTY, THAT HE
WOULD BE IN DANGER OF BEING SENTENCED TO THE MAXIMUM OF
FIFTY (50) YEARS IN PRISON IF FOUND GUILTY: AND BECAUSE THE
ATTORNEY WAS NOT ABLE TO BEAT THE CHARGES, WHEN THEIR
WAS A CLEAR VIOLATION OF APPELLANT’S FOURTH, FIFTH, AND
FOURTEENTH AMENDMENT RIGHTS TO THE CONSTITUTION OF THE
UNITED STATES, THAT IS GUARANTEED HIM BY THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
A. Culberson’s Fourth and Fourteenth Amendment Claims
{¶ 11} In his first assignment of error, Culberson argues that the trial court erred in
failing to address claims he advanced in his petition under the Fourth and Fourteenth
Amendments to the United States Constitution. Specifically, he argues that the police
unlawfully searched a residence on Sturgeon Street on November 14, 2017 while
attempting to serve an arrest warrant on him, and he challenges the warrantless search
of the Chevy Equinox he was driving on November 17, 2019. Culberson maintains that
the evidence obtained from these unlawful searches should have been suppressed as
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fruit of the poisonous tree, and that the failure to do so violated his due process rights.
{¶ 12} Although styled as a petition to vacate, Culberson’s December 28, 2020
filing was, in substance and effect, a petition for postconviction relief. See State v. Evans,
2d Dist. Montgomery No. 26574, 2015-Ohio-3161, ¶ 5, citing State v. Schlee, 117 Ohio
St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, syllabus. A criminal defendant may seek
timely or untimely postconviction relief for constitutional violations pursuant to R.C.
2953.21 or R.C. 2953.23, respectively. See State v. Wright, 2d Dist. Clark No. 2020-CA-
33, 2021-Ohio-610, ¶ 5. Nonetheless, the petitioner is limited to raising those
constitutional violations which could not be raised on direct appeal. Id. at ¶ 6. Otherwise,
the alleged violations are barred by the doctrine of res judicata. Id.
{¶ 13} Aside from the claim of ineffective assistance of counsel, the trial court was
under no obligation to address Culberson’s remaining constitutional claims because they
were barred by res judicata. The claims regarding the search of the Equinox were
premised upon facts that lay entirely within the record. See, e.g., State v. Hewitt, 2d Dist.
Montgomery No. 28225, 2019-Ohio-5011, ¶ 8 (postconviction claims properly dismissed
where petitioner offered absolutely no evidence dehors the record to support them).
Culberson’s arguments challenging this search could have been raised on direct appeal.
Id. Because Culberson did not file a direct appeal, these claims are now barred by res
judicata. Id.
{¶ 14} Even had Culberson’s Fourth and Fourteenth Amendment claims been
properly presented, we would find them to be without merit. To begin, the search of the
residence on Sturgeon Street implicates Case No. 18-CR-91, which was dismissed
pursuant to the plea agreement. That case is not relevant to the instant case, and
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Culberson has failed to demonstrate that Case No. 18-CR-91 had any bearing on his
current convictions.
{¶ 15} Culberson’s claims challenging the legality of the search of the Chevy
Equinox similarly would fail on their merits. If one accepts Culberson’s assertion that he
was not the owner of the Equinox, he could not assert a privacy interest therein. State v.
Williamson, 2d Dist. Montgomery No. 27147, 2017-Ohio-7098, ¶ 72, citing Rakas v.
Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (where an occupant
asserts no proprietary or possessory interest in a vehicle, he enjoys no reasonable
expectation of privacy therein to confer standing to challenge the constitutionality of a
search). This lack of standing would be fatal to Culberson’s Fourth Amendment claims.
Rakas at 148.
{¶ 16} The Ohio Supreme Court has acknowledged that a person who is in lawful
possession of a vehicle, even if not the titled owner, possesses a legitimate expectation
of privacy if the owner gave him permission to use the vehicle. State v. Carter, 69 Ohio
St.3d 57, 63, 630 N.E.2d 355 (1994). Culberson would thus have standing to challenge
the search of the Equinox if the record established he was driving the vehicle with the
owner’s permission. Even if this were the case, however, he lost that expectation of
privacy when he abandoned the vehicle on the roadside while fleeing from the police on
foot. State v. Roberts, 2d Dist. Clark No. 2015-CA-104, 2016-Ohio-7327 (abandonment
of property by the accused during police pursuit relinquishes any Fourth Amendment
expectation of privacy therein).
{¶ 17} Finally, even if Culberson had standing to challenge the search and did not
forfeit it by abandoning the vehicle, he would still not prevail. The scant record before us
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supports that Officer Melvin lawfully entered the vehicle to put it into park and observed
a firearm in plain view. This discovery afforded probable cause to support a warrantless
search of the vehicle for weapons or contraband. State v. King, 2d Dist. Montgomery No.
27432, 2017-Ohio-8910, ¶ 13-14.
{¶ 18} In sum, we hold that the trial court did not err in failing to address
Culberson’s Fourth and Fourteenth Amendment claims because they were barred by res
judicata. Those claims could and should have been raised in a direct appeal of his
conviction. The first assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶ 19} In his second assignment of error, Culberson contends he was denied his
right to the effective assistance of counsel under the Sixth Amendment to the United
States Constitution. Specifically, Culberson alleges that his attorney was not prepared to
go to trial, neglected to file pretrial affidavits of prospective witnesses, failed to investigate
his arrests, failed to interview the owner of the house or the vehicle, and coerced him into
accepting a plea deal. Culberson insists he would not have pled guilty but for counsel’s
deficient advice. He further avers that he would not have pled guilty had he been apprised
of a case out of Texas called Avery v. State, 359 S.W.3d 230 (Tex.Crim.App.2012).
{¶ 20} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that counsel’s errors were serious enough to create a reasonable
probability that, but for the errors, the result of the trial or proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). “A guilty plea waives
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the right to allege ineffective assistance of counsel, except to the extent that the errors
caused the plea to be less than knowing and voluntary.” State v. Hurtado, 2d Dist.
Montgomery No. 26892, 2017-Ohio-1465, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269,
595 N.E.2d 351 (1992).
{¶ 21} Generally, an attorney’s advice to accept a plea deal does not constitute
ineffective assistance. State v. Chatman, 2d Dist. Montgomery No. 25766, 2014-Ohio-
134, ¶ 7, quoting State v. Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-6807,
¶ 37. There is nothing in the record before us to support that counsel was ineffective by
negotiating and participating in Culberson’s acceptance of the deal.
{¶ 22} Moreover, when assessing the first Strickland prong, much deference is
afforded to trial counsel. Strickland at 689. Decisions on what evidence to present and
which witnesses to call are typically deemed matters of trial strategy which are accorded
high deference. Id. In denying Culberson’s petition, the trial court noted that his counsel
was a seasoned trial attorney. Counsel’s decisions regarding pretrial affidavits and how
to utilize potential witnesses were matters that fell within the realm of trial strategy. “The
attorney is there to give informed advice, to relate worse case scenarios to his client, and
to make a recommendation regardless of whether it makes the client upset.” Shugart at
¶ 37. Here, counsel ultimately recommended Culberson take a plea agreement. Given
the circumstances, we cannot conclude counsel was ineffective for doing so.
{¶ 23} Finally, we fail to see how the Avery case cited by Culberson applies here.
That case involves a jury trial and a conviction regarding submission of an altered
prescription form to a pharmacy - nothing like the facts in Culberson’s convictions. We
also note it is a Texas case which has no precedential value in the state of Ohio. Trial
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counsel was under no obligation to inform appellant of cases which have no bearing on
the instant matter.
{¶ 24} We hold that the record does not support a finding that Culberson suffered
from ineffective assistance of counsel. Culberson has not demonstrated operative facts
that establish substantive grounds for postconviction relief or for a hearing on his petition.
The second assignment of error is overruled.
III. Conclusion
{¶ 25} Having overruled both of Culberson’s assignments of error, the trial court’s
judgment is affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Ian A. Richardson
Christopher Culberson
Hon. Douglas M. Rastatter