Youngstown Daily Legal News

Multiple appeals rejected for man who claimed he had a bad lawyer

ANNIE YAMSON
Special to the Legal News
Published: December 3, 2013

The 12th District Court of Appeals this week affirmed the decision of the Preble County Court of Common Pleas denying Kenneth Harlan Kent’s most recent petition for post-conviction relief.

According to case summary, Kent was arrested and charged with one count of cocaine possession, a first-degree felony, and one count of possession of criminal tools, a fifth-degree felony.

The charges stemmed from an incident during which police discovered a large amount of cocaine in Kent’s vehicle as he was traveling eastbound on Interstate 70 towards Columbus.

The state initially offered Kent a plea bargain that included a reduced charge of second-degree possession of a controlled substance with a recommended sentence of two years in prison.

Although he originally agreed to the deal, Kent later refused the offer due to the advice of his attorney. Instead, Kent pursued a motion to suppress but it was denied by the trial court.

In 2007, a jury found Kent guilty on both counts charged in the indictment and he was sentenced to serve a mandatory term of 10 years in prison.

Upon his direct appeal to the 12th District, Kent argued that he received ineffective assistance of counsel based on his attorney’s advice to turn down the original plea offer in order to pursue the motion to suppress.

The court of appeals disagreed and affirmed Kent’s conviction.

In 2008, Kent filed a pro se motion for post-conviction relief, arguing for a second time that he received ineffective assistance of counsel.

The trial court, however, denied the petition in 2009, holding that Kent was not “entitled to the relief requested because his ineffective assistance of counsel claim was already resolved on appeal.”

In 2012, Kent filed his second pro se petition for post-conviction relief, using the same ineffective assistance of counsel argument.

In April of this year, the Preble County court issued a decision denying Kent’s last motion, holding that it was untimely and barred by res judicata.

In his most recent appeal to the 12th District, Kent claimed that the trial court abused its discretion by denying his motion to vacate his conviction based on his counsel’s ineffectiveness.

“Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief ‘shall be filed no later than 180 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,’” wrote Judge Stephen Powell for the district’s three-judge appellate panel.

Judge Powell held that a trial court may consider an untimely petition only if the defendant demonstrates that he was unavoidably prevented from discovering facts necessary for the claim for relief, or the U.S. Supreme Court has recognized a new federal or state right that applies retroactively.

Also, the defendant must establish that “but for the constitutional error at trial, no reasonable fact finder would have found him guilty of the offenses for which he was convicted.”

Judge Powell wrote that it was undisputed that Kent’s most recent petition was filed well after the 180-day time limit.

“Moreover, after a thorough review of the record, we find Kent has failed to provide any evidence that he was unavoidably prevented from discovering any facts necessary to establish his claim of relief,” wrote Judge Powell.

The appellate panel also held that Kent failed to establish that, but for the alleged error, no reasonable fact finder would have found him guilty.

“The arguments advanced by Kent in his most recent petition, as well as those issues asserted on appeal, relate solely to his conscious decision to reject the state’s plea offer, thereby subjecting him to a mandatory 10-year prison sentence,” wrote Judge Powell.

The court of appeals concluded that Kent’s argument was an insufficient basis to support a petition for post-conviction relief.

Kent’s single assignment of error was therefore overruled with Presiding Judge Robert Hendrickson and Judge Michael Powell concurring.

The case is cited State v. Kent, 2013-Ohio-5090.

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