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State v. Zupancic

Court of Appeals of Ohio, Ninth District

July 15, 2013

STATE OF OHIO Appellee
v.
KRISTIN N. ZUPANCIC Appellant

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. TRC-12-08-08311

CONRAD G. OLSON, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

{¶1} Appellant, Kristin Zupancic, appeals her convictions in the Wayne County Municipal Court. This Court affirms.

I

{¶2} Kristin Zupancic pleaded guilty to operating a vehicle with a prohibited blood alcohol concentration and driving while under suspension. Noting that Zupancic had been convicted of three drunk driving offenses within six years, the trial court sentenced her to community control for each conviction, imposed fines of $1, 500 and $250, respectively, and suspended her driver's license for ten years. Zupancic appealed, raising one assignment of error.

II

Assignment of Error

APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AND THAT WAS PREJUDICIAL TO HER RIGHTS[.]

{¶3} In her only assignment of error, Zupancic has argued that her trial counsel was ineffective because he did not file a motion to suppress, inadequately prepared to argue about mitigation during sentencing, and ineffectively advised her during plea negotiations.

{¶4} In order to demonstrate ineffective assistance of counsel, a defendant most show (1) deficiency in the performance of counsel "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment, " and (2) that the errors made by counsel were "so serious as to deprive the defendant of a fair trial[.]" Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for counsel's errors, there is a reasonable possibility that the outcome of the trial would have been different. Id. at 694. When affidavits or other proof outside the record are necessary to support an ineffective assistance claim, however, it is not appropriate for consideration on direct appeal. State v. Madrigal 87 Ohio St.3d 378, 390-391 (2000). "[A] claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions of trial counsel that are not reflected in the record of proceedings * * * [and] [s]peculation regarding the prejudicial effects of counsel's performance will not establish ineffective assistance of counsel." State v. Leyland, 9th Dist. Summit Nos. 23833 & 23900, 2008-Ohio-777, 7, citing State v. Sweeten, 9th Dist. Lorain No. 07CA009106, 2007-Ohio-6547, ¶ 10-12 and State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 27.

{¶5} Each of Zupancic's arguments regarding ineffective assistance of counsel would require this Court to act in a way that is "purely speculative" and would require resort to evidence outside the record on appeal. Madrigal at 390. Indeed, Zupancic attached an affidavit to her appellate brief for this purpose. Ordinarily, such arguments could be raised in a petition for postconviction relief, which permits the petitioner to establish a complete record related to the alleged ineffective assistance of counsel. See State v. Davis, 9th Dist Summit No 25680, 2012-Ohio-788, ¶ 10 Because Zupancic's conviction arises from municipal court proceedings, however, postconviction relief is not available to her See State v Cowan, 101 Ohio St.3d 372, 2004-Ohio-1583, syllabus and ¶ 19 See also State v Leyda, 9th Dist No 12CA0030, 2013-Ohio-2495, ¶ 25-26 (Belfance, J, concurring). Nonetheless, because ...


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