Civil Appeal from the Lake County Court of Common Pleas, Case No. 09 CR 000692.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration (For Plaintiff-Appellee).
Jon W. Holnapy, pro se, PID: A584674, Lake Erie Correctional Institution, (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
(¶1} Appellant, Jon W. Holnapy, appeals the judgment of the Lake County Court of Common Pleas denying his untimely petition for post-conviction relief following his conviction by a jury of operating a motor vehicle under the influence of alcohol ("OVI"). At issue is whether the trial court abused its discretion in denying appellant's petition. For the reasons that follow, we affirm.
(¶2} Appellant was indicted for operating a motor vehicle under the influence of alcohol, a felony of the fourth degree, with a specification that he had previously been convicted of five or more OVI offenses within the last 20 years. Appellant pled not guilty. The case proceeded to jury trial.
(¶3} The evidence revealed that, on September 28, 2009, while appellant was attempting to enter the parking lot of the Lake County Department of Job and Family Services ("JFS") in downtown Painesville, he hit a yellow concrete pole at the entrance. He backed up and then drove forward again, crashing into the pole a second time. He then backed up again, entered the parking lot, and parked his car. He exited his car and walked along the side of the building staggering. As he was walking away, he kept turning around, throwing his arms up in the air, and talking out loud to himself.
(¶4} A witness called the police and reported the crash, giving appellant's direction on foot and describing him as apparently intoxicated.
(¶5} Two Painesville police officers were dispatched to JFS. Upon their arrival, they saw appellant swaying, walking side to side on the sidewalk, and stumbling. Appellant pointed out his car and admitted he was driving when it crashed. The officers said appellant's eyes were bloodshot and his speech was slurred. Appellant said he had three beers within the last hour. He also said that he was on Percocet at the time; that his last dose was a few hours earlier; and that he was surprised the beers affected him the way they did. Both officers said that, in their opinion, appellant was under the influence.
(¶6} The officers asked appellant to perform field sobriety tests and a breathalyzer test, but he refused. They also detected an odor of alcoholic beverage coming from appellant.
(¶7} Both officers testified that appellant did not appear to be injured, complain of any injury, or request any medical attention. They also said he answered their questions appropriately and did not appear to be confused.
(¶8} The parties stipulated that appellant has been convicted of five OVI offenses within the last 20 years.
(¶9} The jury returned its verdict finding appellant guilty of OVI as charged with the specification. The trial court sentenced appellant to 24 months for the OVI and three years on the specification, the terms to be served consecutively, for a total sentence of five years in prison.
(¶10} Appellant appealed his conviction and this court affirmed his conviction in State v. Holnapy, 194 Ohio App.3d 444, 2011-Ohio-2995 (11th Dist.), discretionary appeal not allowed by the Supreme Court of Ohio at 130 Ohio St.3d 1478, 2011-Ohio-6124 and 2012-Ohio-4021, 2012 Ohio LEXIS 2147 (Sep. 5, 2012).
(¶11} About two years after appellant filed his direct appeal, he filed a "delayed" petition for post-conviction relief in the trial court based on alleged newly discovered evidence. In his affidavit, he said his trial counsel was ineffective. In support, appellant said that, prior to trial, he "demanded" that his attorney subpoena his physician, Dr. Gary Kutsikovich, to testify regarding his findings. These findings included the doctor's opinion that appellant sustained a head injury in the instant crash and a summary of appellant's self-reported symptoms that, appellant said, were mistaken for signs of intoxication. Counsel told appellant that she had spoken to Dr. Kutsikovich, who said he found nothing wrong with appellant. She said she was concerned that the prosecutor would use Dr. Kutsikovich's findings against appellant and that Dr. Kutsikovich "would only hurt the defense." As a result, she told appellant she decided to have Dr. Chris Adelman, a medical expert who also examined appellant, testify, rather than Dr. Kutsikovich, apparently believing Dr. Adelman's testimony would be more favorable. Further, appellant said he was "unavoidably prevented" from discovering Dr. Kutsikovich's findings because his attorney did not give him that doctor's reports until after the deadline to file the petition.
(¶12} The trial court denied the petition without a hearing. The court found that appellant's petition was barred by res judicata because he was aware at trial of the grounds he raised in support of his ineffectiveness claim and could have raised, but failed to raise, the argument in trial or on direct appeal. Further, the court found that appellant's ineffectiveness claim lacked merit because he failed to present substantive grounds for relief. In addition, the court found that trial counsel's decision to call Dr. Adelman as a witness, rather than Dr. Kutsikovich, was a strategic, tactical decision and thus not deficient performance. The court also found that appellant had not demonstrated prejudice. Finally, the court found the petition was time-barred.
(¶13} Appellant appeals the trial court's judgment, asserting two assignments of error. Because they are related, we shall consider ...