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State v. Chuparkoff

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 11, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MARK ANDREW CHUPARKOFF, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-614697-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Matthew E. Meyer and Jennifer M. Meyer, Assistant Prosecuting Attorneys, for appellee.

          Mark Chuparkoff, pro se.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶ 1} Defendant-appellant Mark Andrew Chuparkoff ("Chuparkoff) was formerly a licensed attorney in the state of Ohio who was based in Franklin County, Ohio.[1] Chuparkoff was indicted on February 28, 2017 for multiple felonies including grand theft, tampering with records, and forgery. Money laundering prohibitions were attached to the charges.

         {¶ 2}The activities took place from December 23, 2015, through May 1, 2016, and included the theft of $75, 000 of a medical malpractice settlement that Chuparkoff wrongfully retained. Chuparkoff represented the Lee family, immigrants to the United States who did not speak English, and resided in Butler County, Ohio where the malpractice occurred. The case was filed in Butler County against the attending physician and the urgent care facility involved with the misdiagnosis of Mr. Lee's hip fracture.

         {¶ 3} The case against the physician was settled with the Lees' authority. The case against the urgent care facility proceeded to trial where the Lees prevailed. According to the state, due to the time and expense involved with the urgent care facility's appeal, the Lees requested to drop the case. The state argues that Chuparkoff proceeded without the Lees' authority or knowledge and settled the case for $75, 000 that Chuparkoff retained for his own use. Chuparkoff counters that the Lee family abandoned their part of the suit but allowed him to continue the case to recover his one-third interest of the $289, 000 jury verdict.

         {¶ 4} Chuparkoff picked up the settlement check from a law firm in Independence, Ohio. The state charged that he forged the check endorsements and filed a fraudulent satisfaction of judgment in Butler County constituting tampering with records. According to the state, Chuparkoff spent the entire sum and most was expended for gambling at the Horseshoe Casino in Cleveland.

         {¶ 5} Counsel was appointed for Chuparkoff in June 2017. Trial was scheduled for June 28, 2017. Chuparkoff requested time to retain new counsel but asserts that he was only given five working days to do so due to the Fourth of July holiday weekend. The trial court granted a continuance and set a pretrial date of July 10, 2017. New counsel entered an appearance on that date.

         {¶ 6} On September 11, 2017, upon the advice of new counsel, Chuparkoff entered a guilty plea to grand theft, attempted tampering with records, and forgery. The parties agreed that the three charges constituted a continuing course of conduct under R.C. 2953.31. The state advised that it would oppose any application for expungement until Chuparkoff paid restitution in the amount of $50, 000. Chuparkoff was advised of the possibility of three years postrelease control at the parole board's discretion.

         {¶ 7} On September 29, 2017, Chuparkoff was sentenced to five years of community control on each count with six months of local incarceration with advisement of postrelease control and restitution. On December 28, 2017, Chuparkoff filed a motion for early release under R.C. 2929.20 that was denied by the trial court on January 3, 2018.

         {¶ 8} On August 30, 2018, after Chuparkoff was released from incarceration, he filed a motion to vacate the guilty plea for lack of venue and jurisdiction, and argued that the ineffective assistance of counsel led to his plea. Chuparkoff also argued that the Lees had given him authority to pursue the lawsuit to recover his one-third interest and that merely picking up the settlement check in Cuyahoga County was insufficient to vest jurisdiction.

         {¶ 9} The state argued that Chuparkoff did not meet the requirements for a Crim.R. 32.1 plea withdrawal because he failed to demonstrate that he was subject to a manifest injustice, he waived the venue argument and he did not demonstrate that counsel was ineffective. The trial court denied the motion on September 11, 2018, and held that the arguments offered in the state's brief in opposition were well-taken.

         {¶ 10} Appellant appeals the trial court's denial of his motion to withdraw the guilty plea.

         I. Assignments of Error

         {¶ 11} Chuparkoff offers two errors for review:

I. The Court of Common Pleas erred as a matter of law when it refused to give appellant adequate time to obtain counsel to represent him in the underlying criminal matter.
II. The Court of Common Pleas erred as a matter of law when it denied appellant's motion to vacate his guilty plea based on lack of venue/jurisdiction and ineffective assistance of counsel.

         II. Discussion

         {¶ 12} We address the errors out of order for ease of analysis. In addition, there was no transcript filed as part of the record in this case. Without the filing of a transcript, "[w]e presume that the trial court considered all the evidence and arguments raised." Miranda v. Saratoga Diagnostics, 2012-Ohio-2633, 972 N.E.2d 145, ¶ 26 (8th Dist.). In light of the presumption of regularity in the proceedings, we accept the factual findings of the trial court as true and limit our review to the legal conclusions of the trial court. Bailey v. Bailey, 8th Dist. Cuyahoga No. 98173, 2012-Ohio-5073, ¶ 8, citing Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-965, 2012-Ohio-1665, ¶ 8.

         A. Withdrawal of Plea

         {¶ 13} Crim.R. 32.1 governs the withdrawal of guilty pleas:

A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

Id. See also State v. Zaslov, 8th Dist. Cuyahoga No. 95470, 2011-Ohio-2786, ...


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